What compensation for a wrongful conviction?

A Civic Project story

Lewis “Jim” Fogle and wife Deb dine at Wayne Avenue restaurant, Indiana, Pa., April 19, 2017. Photo by Nathan Zisk.

By Nathan Zisk

INDIANA – At his August 13, 2015, release from state prison after serving 34 years for a crime he did not commit, Lewis “Jim” Fogle said he wanted nothing more than a steak dinner. Now he wants more – compensation from the commonwealth of Pennsylvania for his wrongful conviction.

In 1981, state police charged Fogle with the 1976 rape and murder of 15-year-old Deann Katherine Long of Cherry Tree. An Indiana County jury convicted him in 1982. He won release from prison two years ago after the Innocence Project, a New York- and Philadelphia-based non-profit that represents the wrongfully convicted, found DNA evidence exonerating him. Soon after, Indiana County District Attorney Patrick Dougherty, citing the new evidence, declined to re-try Fogle.

Today, Fogle, 65, is unemployed, but not unoccupied. He travels to tell his story, and he practices the artwork he discovered in childhood and developed in prison. He lives in a cluttered apartment on Oakland Avenue. It is dark, with concrete walls — just like prison, Fogle said. Sometimes when he awakens, he thinks he never left.

“I get panic attacks and very cold sweats,” Fogle said during an April 6 interview at his home. “Sometimes I’m so dizzy I can’t stand.”

While he was in prison, his mother and two brothers died. His relationships with his wife and family were fractured, he said, although he is close to his two granddaughters. He suffers from post-traumatic stress disorder, Fogle said.

He is among 61 Pennsylvanians (2,033 nationwide) who have been exonerated since 1990 by DNA evidence that proves they did not commit the crimes for which they were convicted, according to the National Registry of Exonerations, a joint project of the University of California Irvine, the University of Michigan Law School, Michigan State University College of Law and Northwestern University School of Law.

In Fogle’s case, the registry listed “perjury or false accusation” as contributing factors in his wrongful conviction.

In February, attorneys for Fogle filed a lawsuit in U.S. District Court in Pittsburgh. The suit seeks compensatory and punitive damages for wrongful conviction. It cites two former Indiana County prosecutors – including current Court of Common Pleas presiding judge William J. Martin – and seven state police officers who investigated and prosecuted the cold case.

But the federal court is one of three avenues in Fogle’s strategy to win compensation from officials who took 34 years of his life. The other two approaches are the court of public opinion in the press and the legislative bodies of the state House and Senate in Harrisburg.

 

PENNSYLVANIA IS AMONG a minority of the 50 states — 18 — that do not provide compensation for the wrongfully convicted. But that might change, according to a staff member of state Sen. Donald C. “Don” White, R-Indiana.

Joseph A. “Joe” Pittman, White’s chief of staff, said during the 2016 legislative session the senator co-sponsored a measure that would benefit Fogle. Senate Bill 1274, submitted by state Sen. Stewart J. Greenleaf, a Republican representing Bucks and Montgomery counties, would authorize compensation for the wrongfully convicted.

Provisions included $50,000 for each year incarcerated, compensation for child support payments, payment for health care and reentry services, and attorney’s fees. If the bill had passed, Fogle could have received $1.7 million in compensation.

However, Greenleaf’s measure failed to pass the Senate in 2016 and in two earlier sessions, said Kevin Andrews, the senator’s chief of staff, in an April 27 phone interview.

“It’s an uphill battle,” Andrews said.

 

ONE ISSUE IN THE BATTLE over the bill has been the cost of the compensation. The 32 states that compensate the wrongfully convicted do it differently, Patrick S. Cawley, Sen. Greenleaf’s legal counsel, said in an April 27 phone interview. Some states pay lump sums, others pay amounts for each year of incarceration.

Texas has one of the most generous compensation programs in the nation. Since the law was enacted in 2009, exonerees have been eligible for $80,000 for each year in prison, in addition to monthly annuity payments for the rest of their lives. If the Texas provisions were applied in Fogle’s case, he could receive $2.7 million in compensation and annuities.

But Sen. Greenleaf’s compensation bill has not failed to pass the Pennsylvania legislature because of money, Cawley said. Instead, it has stalled over a legal technicality of whether wrongfully convicted people are “actually innocent.”

Dougherty, the Indiana County D.A., addressed this question in 2015 when he vacated Fogle’s conviction: It “doesn’t mean he’s innocent,” Dougherty said. “It simply means there is not enough evidence to convict. It is a technicality.”

Indiana County District Attorney Patrick Dougherty. Photo credit: Indiana County District Attorney’s office website

More recently, Dougherty declined comment in an April 19 voicemail.

Cawley said district attorneys are skeptical of actual innocence, even in cases with DNA evidence.

The Pennsylvania District Attorneys Association agreed.

“There’s a difference between actual innocence and a conviction being overturned,” said PDAA Executive Director Richard W. Long in an April 27 phone interview. “Victims aren’t receiving compensation they’re entitled to. Victims must remain the priority.”

But wrongfully convicted people are victims, too, argued Karen Thompson, a staff attorney at the Innocence Project who helped discover the DNA evidence that exonerated Fogle.

“It’s devastating seeing people like Jim, whose world changed around him while he was in prison,” Thompson said in a May 3 phone interview from her New York City office. “We use DNA evidence to prove actual innocence the same way it’s used to convict people.”

But Pittman, Sen. White’s aide, said the district-attorneys group has been effective in lobbying against compensation legislation in Pennsylvania.

“The PDAA has been very vocal in opposing compensation for those wrongfully convicted,” Pittman said in an April 5 email. “Input from this organization, as well as from other law enforcement, has had an impact on garnering widespread support from lawmakers.”

Among those lawmakers is state House Majority Leader Dave Reed, R-Indiana.

State Rep. Dave Reed, R-Indiana. Photo courtesy of Philly.com.

“Whether or not Fogle will get compensated is up to the courts to decide,” Reed said in an interview in his Indiana district office. “But we have to look at what other states are doing with these kinds of cases and where the money would come from.”

Long, the Pennsylvania district attorneys director, said his organization has not looked at how other states compensate wrongfully convicted people yet.

“We have not taken a deep dive at this juncture,” Long said.

In the 2017 state legislative session, no measure containing the provisions of SB 1274 has been introduced, according to LegiScan, a legislative tracking and data service for all 50 states.

Pittman and Andrews did not respond directly to May 28 emailed questions asking when Sens. White and Greenleaf plan to reintroduce their bill.

 

Indiana County Court of Common Pleas President Judge William J. Martin. From the court’s website.

FOGLE SAYS HE HAS a third approach for compensation if the legislative and judicial avenues remain log-jammed. He said he will release evidence to news media that will prove state officials violated laws in his arrest and conviction. He specified Judge Martin, the prosecutor who helped put him in jail in 1982.

“Martin is trying to retire before I release the evidence so that he’ll keep his pension,” Fogle said in the April 6 interview. “But I’m taking that pension.”

Martin was not available for comment.

“Judge Martin is not able to comment on anything,” Martin’s secretary said in an April 28 phone call.

Nathan Zisk, a junior majoring in economics and journalism at Indiana University of Pennsylvania, is from Brownsville, Pa.

 

Sidebar: For more information/To get involved

For more information about this story or to get involved in the issues raised, contact the following:

State Sen. Donald C. “Don” White
Senate Box 203041
Harrisburg, PA 17120-3041
Room: 286 Main Capitol
Phone: (717) 787-8724
Web: http://www.legis.state.pa.us/cfdocs/legis/home/member_information/Senate_bio.cfm?id=297

District office:
618 Philadelphia St.
Indiana, PA 15701
Phone: (724) 357-0151
Email: Chief of Staff Joe Pittman

State Sen. Stewart J. Greenleaf
Senate Box 203012
Harrisburg, PA 17120-3012
Room: 19 East Wing
Phone: (717) 787-6599
Web: http://www.legis.state.pa.us/cfdocs/legis/home/member_information/Senate_bio.cfm?id=173

District office:
711 York Road
Willow Grove, PA 19090
Phone: (215) 657-7700
Email: “Chief of Staff Kevin Andrews”

The Innocence Project
40 Worth St., Suite 701
New York, NY 10013
Phone: (212) 364-5340
Web: https://www.innocenceproject.org/
Email: “Staff Attorney Karen Thompson”

Pennsylvania District Attorneys Association
Richard W. Long
Executive Director
2929 N. Front St.
Harrisburg, PA 17110
Phone: (717) 238-5416
Email: pdaa@pdaa.org
Web: http://www.pdaa.org/pdaa/

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