Mimesis Law
16 August 2017

Colorado: Just Because You’re Acquitted Doesn’t Mean We Stop Punishing You

December 9, 2016 (Fault Lines) — The Supreme Court is poised to answer an important question: can the State force a convicted person who is later acquitted to prove her innocence before it pays her back the money it took from her?

See, not every conviction sticks. When the judge messes up, the prosecutor overreaches, or the defense attorney manages to sleep through the most important parts of the trial, even the most conservative courts will occasionally grant a do-over. And sometimes, in the absence of that mistake, the second jury decides to acquit.

It happened to Shannon Nelson. She was convicted of sexually assaulting her kids. Only five counts out of forty, of course, but that’s the point of stacking charges—hoping that something sticks.

Naturally, while she sat in prison, Colorado began tacking on assorted fines and fees and restitution, totaling more than $8,000.00. When her family put money on the books, the State gleefully yoinked $702.10 for its coffers. That money was swiftly spent, split evenly between restitution and public funds.

Then, in an unpublished decision, the Colorado Court of Appeals reversed her conviction, holding that letting some forensic interviewing “expert” pontificate on the nature and reliability of children’s memories violated the rules of evidence. Without the bunk, a second jury acquitted her.

So now, naturally, Nelson wanted her money back. Money that she would have never paid but for her conviction, which itself would have never happened had the State not broken some important rule. Money which, as it turned out, the State didn’t feel it had to return.

See, the money, if it came from anywhere, would have to come from the Crime Victim’s Compensation Fund. And while the Court of Appeals of Colorado was comfortable letting Nelson get back the money she paid in there, the Supreme Court of Colorado held that there wasn’t any statutory authority to let her. And that, without some law somewhere saying that courts could give Nelson her money back, they were powerless to right the wrong.

But, the Supreme Court of Colorado noted, all was not lost. Nelson could always get her money back through the Exoneration Act. And all she’d have to do is establish by “clear and convincing evidence” that she didn’t molest her kids.

Of course, it’s hard to imagine what such evidence might look like. States routinely win child molestation convictions without physical evidence, relying on the credibility of the child and the opinion of the forensic interviewer. That’s enough for proof beyond a reasonable doubt. But it’s unlikely that a court would take a defendant’s mere denial that anything had happened (basically, the only evidence anyone can offer, other than an alibi, when molestation is alleged) as meeting some kind of golden standard of innocence. The difficulty of proving such cases, one way or another, is precisely why Congress has felt the need to pass laws weighting the scales against the defense.

In dissent to the Supreme Court of Colorado’s opinion, Justice Hood made some darn good points about why making Nelson go the Exoneration Fund route didn’t make much sense. For one thing, Nelson had been acquitted, and the standard for avoiding criminal consequences has always been the proof beyond a reasonable doubt standard. A criminal fine should get booted based on a criminal finding in this case: when the State doesn’t prove its case, you don’t get punished.

For another thing, Nelson wasn’t seeking any kind of windfall or compensation for her time in prison. Naturally, a provably innocent person might want to seek out the $70,000.00 a year they can get for being incarcerated in Colorado. Instead, Nelson was just asking, as much as possible, to be put in the same place she was before she was convicted. That means having an extra $702.10 to hire counsel, investigate her case, or eat with.

Also, and most importantly, the Exoneration Act is civil. Which means Nelson would have absolutely no right to a public defender to assist her in seeking to avoid the consequences of a vacated criminal conviction. As tough as it is to navigate the criminal justice system without a lawyer, maneuvering through the hurtles to a civil judgment against the government requires a sharper than average lawyer. Without one, the case is lost before it begins.

While it seems facially obvious that Nelson should get her money back if her conviction is gone, David Post of the Volokh Conspiracy does a good job explaining the rub:

The tricky part about this case is that Colorado hasn’t reversed the presumption in a criminal proceeding; it is not proposing to force criminal defendants to prove their actual innocence to avoid a criminal conviction. That would be blatantly, and incontrovertibly, unconstitutional. Instead, it is placing the burden of persuasion on Nelson (and others in her position) in a civil proceeding — an Exoneration Act action for a refund of fees and costs.

See, by categorizing the fees as something that have to be sought civilly, the State gets to stand on much firmer ground than it might otherwise enjoy. After all, our country has enjoyed a decades-long love affair with civil forfeiture, which also allows the government to take your money despite being unable to prove your guilt, with the burden placed on the citizen to get the money back. If that’s alright, keeping Nelson’s money unless she can get it back civilly might not seem wholly unfamiliar to the Court.

It’s an uncomfortable possibility. The Supreme Court clearly does not see a problem with the way governments and law enforcement are currently using their authority to seize the assets of citizens. If it holds that Colorado is just putting reasonable restrictions on giving the money back, that could open the door for other states to follow suit.

And that’s a scary thought. See, as is, winning a criminal appeal is not like waving a magic wand. There are orders to be drafted. People to be called. Processing. A client found actually innocent by a court might languish in prison for weeks waiting for her paperwork to come in, uncertain when her theoretical release might become a practical reality. Much tougher still if anything “collateral” to the conviction—her money, her home, her assets—might be seized on a theory of finders keepers. Colorado should lose here. Let’s hope the Supreme Court sees it the same way.

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