Target 8

'Miscarriage of justice': State fights wrongful conviction payments

GRAND RAPIDS, Mich. (WOOD) — A photograph at the Michigan Innocence Clinic in Ann Arbor shows a smiling Gov. Rick Snyder after he signed the law that promised to pay the state's wrongfully convicted $50,000 for every year they spent in prison.

Standing just to Snyder's left is Lorinda Swain, the Calhoun County mom cleared of molesting her stepson after he recanted his story.

But more than a year after the law went into effect, the state attorney general is still fighting Swain's $350,000 claim for the seven years she spent in prison.

In West Michigan, the list of exonerees whose requests for money are being fought by the state includes some other well-known names:

There's Tom Foley, who's now living in Kentwood, exonerated in the 2009 murder of his wife DeeDee after new witnesses came forward. He's looking for $78,000.

Dennis Tomasik of Comstock Park, locked up for nine years after a troubled neighbor boy accused him of molesting him hundreds of times. The state is fighting his $450,000 claim after a jury found him not guilty in a second trial.

"It's just a slap in the face," Tomasik told Target 8. "I've been getting slapped so much, my head just bobbles, so."

Then there's David Gavitt, who spent 27 years in prison, most of his adult life, for the fiery deaths of his wife and two children in Ionia. The conviction was based on what is now considered junk arson science.

"They were my life, every one of them. I miss them dearly," Gavitt said as he pointed to a photograph of his family taken months before the fire.

Lawmakers pointed to Gavitt's case as a reason for the law. Now, the state is fighting his claim for nearly $1.4 million.

Those helping the wrongfully convicted fight for the money say the state is revictimizing them.

Target 8 dug through all 35 claims filed so far by the exonerated at the state Court of Claims. They include 11 wrongfully convicted of murder and 11 once locked up for sexual assaults.

So far, the state has paid five claims for a total of $4.2 million.

Quentin Carter is the only West Michigan exoneree the state has paid. He got $817,000 for 16 years in prison for a rape he didn't commit.

AG: EXONEREES MUST PROVE INNOCENCE

A judge has dismissed nine of the cases, some after the state attorney general argued they were filed too late.

"I don't think we anticipated the AG's office being as zealous and fighting it," said state Sen. Steven Bieda, D-Warren, who sponsored the legislation.

"I'll be honest with you, with this attorney general, he's been a little more strict on this than I think I would have anticipated, but we probably should have seen that coming right from the get-go," Bieda added.

Under the new Wrongful Imprisonment Compensation Act, which went into effect in March 2017, exonerees were given 18 months to file in the state Court of Claims.

"The statute is very clear," Bieda said. "It says 18 months."

A Target 8 analysis found the exonerees in all 35 cases met that deadline.

But the attorney general in several cases relied on a separate law that gives only six months to file claims against the state, and Court of Claims Judge Michael Talbot agreed.

"I thought it was a real miscarriage of justice," Bieda said.

Attorney General Bill Schuette, also a Republican candidate for governor, wasn't available for comment, but his spokeswoman Andrea Bitely defended her office.

"The department of the attorney general doesn't set law, we follow law," Bitely said. "If there's a law in the books that says six months for filing, that is the way it is. We don't get to pick and choose the law."

The attorney general has asked the court to dismiss many of the other cases, arguing they haven't done enough to prove their innocence.

"There's millions of taxpayer dollars at stake here and we have responsibility of being good stewards of those dollars," Bitely said. "That's why we’re asking those who folks who may be eligible for this money to show their proof."

Detroit-area attorney Wolf Mueller has filed nine of the 35 cases in the state Court of Claims. So far, two of his clients have been paid.

"To think, $50,000 per year is so grossly inadequate, and then to get your teeth kicked in by the AGs who are fighting every step of the way," Mueller said. "It just heaps insult on insult.

"I can get worked up because I'm the boots on the ground. I'm seeing how these guys are getting screwed again."

The law says just being exonerated isn't enough. Claimants have to prove new evidence set them free. That, lawmakers said, was to make sure that guilty people released because of a technicality couldn't collect.

"I think taxpayers would think it's very important to make sure that their hard-earned dollars aren't going to the wrong person," the AG's spokeswoman said.

27 YEARS SERVED OVER 'JUNK SCIENCE'

"How can I prove my innocence when there wasn't a crime committed?" Gavitt said in a recent interview with Target 8. "They got it wrong. Otherwise I wouldn't be here today."

Gavitt was a husband, a father and a factory worker with no criminal history.

"It was just going great. It was wonderful," he said.

That was until March 1985, when fire broke out at his family's home in Ionia. Gavitt, then 26, escaped with burns and cuts that sent him to the hospital.

"Trying to save my family," he said. "Trying to get them out, trying to find them and get them out."

His wife Angela and their two young children Katrinia and Tracy couldn't escape.

At the time, fire experts said burn patterns proved it was arson.

"I cried a lot, but to grieve I had to fight," Gavitt said. "You know, I had this cloud hanging over me and not only to the deal with having to bury your wife and children. Man, that's an awful burden to put on a person. Anybody. But I had to fight somehow to prove my innocence, to prove these people wrong that are accusing me of this."

A jury convicted Gavitt, the sole survivor, of three counts of murder. He was sentenced to life in prison without the possibility of parole.

He lost his family and his freedom.

But years later, a Michigan Innocence Clinic expert determined the arson ruling was based on junk science. Prosecution experts agreed and a judge ordered Gavitt's immediate release in 2012.

FIRST STOP: THE CEMETERY

David Moran, the head of the Michigan Innocence Clinic, was there when Gavitt was set free.

Their first stop was the cemetery where Gavitt's  family is buried.

"That was a very emotional time," Moran said. "We asked David where he wanted to go first. People want to go to mom's house for their favorite spaghetti, they want to go to a restaurant and get a good meal, but David was very clear that he wanted to go to the cemetery where his wife and two young daughters had been buried. He'd never been to the cemetery."

"I cried a lot," Gavitt said of that day. "I talked to my wife and my daughters. It still hurts, probably always will."

Gavitt will turn 60 soon and has remarried.

In May 2017, two months after the new law went into effect, he filed a claim for nearly $1.4 million, $50,000 for each of his 27 years locked up.

But the Attorney General's Office argued that while the junk science argument was enough to set him free, it isn't enough to get him paid.

"They make an argument that that doesn't necessarily prove he's innocent," Moran said. "He still could have set the fire, but this is a guy for which there is zero evidence that this was an arson at all.

"Unfortunately, the AG's office has put up every legal roadblock, they've tried to argue every technical objection they can to compensating people."

Even Bieda, the senator who sponsored the bill, was surprised Gavitt hasn't been paid.

"To me and probably most people looking at it, this guy was innocent of this thing," Bieda said. "Why would you fight it to that level because it's certainly clearly within the intention of the Legislature that somebody who was innocent, in a case where he's proven his innocence, should be compensated."

Bieda said he was also disappointed that cases are taking more than a year to settle.

"The intention of this was a fast resolution because when these folks are coming out of prison, they don't have a lot of assets to begin," he said. "It's not designed to make anybody rich, but it is designed to help people pick up the pieces of their life and move on."

NINE YEARS OF MISSED BIRTHDAYS

For Dennis Tomasik, the worst part of nine years in prison didn't happen behind bars.

It's what he missed: His two kids growing up. Nine Christmases, all those birthdays, proms, graduations, teaching his daughter to drive, his son's wedding.

His wife, Kim, still chokes up thinking about the wedding.

"We all were taken in and were seated and then the wedding party comes in and they were all there, and there was one point when I noticed my son and my daughter made eye contact, and then they looked my way, and it was really hard to not just break down at that very moment because we all had the same thought at the same moment," she said. "There was a part missing."

Then the death of his mom.

"I missed ever seeing my mom and holding her in my arms one more time before she left this earth," Tomasik said.

A troubled neighborhood boy with a history of lying had accused Tomasik, a tooling engineer with no criminal history, of repeatedly raping him. A jury found him guilty. He got 12 to 50 years in prison.

But the state Supreme Court overturned it, saying the judge in his trial had made a mistake.

After a second trial last year, with new attorneys and 22 new witnesses, a jury took 20 minutes to find him not guilty.

But the attorney general argued that Tomasik can't get paid because despite the new evidence, it was a technicality that got his case overturned in the first place.

Court of Claims Judge Michael Talbot agreed, dismissing Tomasik's $450,000 claim.

"The fact that they know an innocent man spent nine years in prison and that they are still fighting us on it tells you everything about their soul," Tomasik's attorney Mary Chartier said.

"We haven't said that we don't believe him," said Bitely, the AG's spokeswoman. "We said you need to prove to the court through evidence that you are not guilty."

Tomasik's wife said that's already happened.

"We already did that," she said. "Twelve jurors did that. Their system proved him innocent but now they're questioning their own system, obviously."

"I'd say I did everything the government asked me to do and more," Dennis Tomasik said. "I took it back to trial. I won. Please just reimburse me and I'll never have to talk to you again.

"Just do the right thing so I can close this chapter of my life and go on."

Tomasik's attorney has appealed his case to the state Court of Appeals.

Bieda, the senator who pushed for 12 years for the Wrongful Imprisonment Compensation Act, said he's working with Sen. Rick Jones, R-Grand Ledge, on new legislation to make sure exonerees get 18 months to file claims.

That has already passed the Senate Judiciary Committee and should go to the full Senate soon, he said.

He said the outcome of some cases could lead to more tweaks.

"It's a law that has had some significant work done, and perhaps needs some significant work done as we see how the courts react," Bieda said.


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