Bill aims to allow factual innocence finding without retrial

Wrongly convicted people seeking to wipe a felony conviction from their record through a finding of factual innocence and be compensated by the state would have a lower standard to prove they did not commit the underlying crime under a proposed measure introduced in the Legislature.

And new restrictions on who is eligible for early release from prison under California's Elderly Parole Program would be imposed under a separate proposal introduced this week.

Currently, anyone who has had their conviction overturned in court must relitigate their case to prove their innocence and receive compensation from the state. SB 446 would change that by allowing a wrongfully convicted person to show that a reasonable jury would find them not guilty based on the evidence that exonerated them.

"The proposed standard makes more sense, because it recognizes the presumption of innocence, unlike the current process," said Buzz Frahn, partner at Simpson Thacher & Bartlett LLP. "The new standard would acknowledge that a court of law reversed the conviction, and the fact that if the jury had heard the new evidence of innocence they likely would not have convicted the person in the first place."

Frahn recently worked with the Northern California Innocence Project to secure a rare finding of factual innocence for Jeremy Puckett, who spent nearly two decades in prison for a murder he didn't commit.

Last March, Sacramento County Superior Court Judge Steve White reversed Puckett's conviction on a writ of habeas corpus after finding no physical evidence tied him to the crime. But it took nearly another year of litigation before White declared Puckett factually innocent on a separate petition.

"When we presented Mr. Puckett's innocence petition, I was surprised to learn that even though his conviction had been overturned, and the charges dropped, he was not -- like every other citizen under the Constitution -- entitled to any presumption of innocence," Frahn said. "That the current regime requires wrongly convicted citizens like Mr. Puckett to affirmatively prove their innocence seems upside down to me."

The proposed measure, which is co-authored by Sen. Steve Glazer, D-Contra Costa County, and Sen. Josh Becker, D-Menlo Park, will make factual innocence motions more appealing to defense attorneys, according to Michael E. Kraut of Kraut Law Group.

"It's not an impossible tool, but this makes it a more accessible tool," said Kraut, who spent 14 years as a Los Angeles County deputy district attorney before going into private practice as a criminal defense attorney.

Under current law, wrongfully convicted people can present a claim against the state to the California Victim Compensation Board for their erroneous conviction and subsequent incarceration. But a court must first declare they are factually innocent before they get paid.

Steve Harmon, a policy analyst in Sen. Glazer's office, said data from the California Innocence Project shows only 38% of wrongful convictions have resulted in a payout from the state since 2001.

He said the bill is "an effort to make the game a little more fair to the people who have been unjustly imprisoned."

"Judging by the numbers that we have now, we're hoping to turn those numbers around," Harmon said.

Becker said the goal of SB 446 is to lift the burden of proof from the wrongfully convicted person and put it back on the state so that the compensation process is more just.

"We're making progress, but there's still a lot of work to do in criminal justice reform," Becker said. "This is a small but important piece of that, and we think this rights a very serious wrong. It's part of the overall effort to create more justice and fairness in our system."

It's unclear whether the bill has any opposition and how district attorneys will react to it. Los Angeles County District Attorney George Gascón has called the current system "antithetical to the bedrock principle of our criminal justice system." He has an office policy that states prosecutors shall concede that a finding of factual innocence should be made any time a conviction has been overturned and where "there no longer exists constitutionally permissible evidence sufficient to prove that person's guilt beyond a reasonable doubt."

Under a separate proposed bill, some convicts would no longer be eligible for early release from prison under a state parole program.

SB 445, written by Sen. Brian Jones, R-Santee, would prevent violent sex offenders from being considered for parole once they turn 50 and have served more than 20 years in prison. The Elderly Parole Program excludes people convicted of a strike offense, people sentenced to death or life without the possibility of parole and anyone convicted of first-degree murder of a police officer.

Jones said the measure aims to eliminate a loophole created by a bill that passed last year which lowered the age threshold for the program from 60 to 50 and allowed sex offenders to become eligible for early release after serving 20 years.

"Violent sex offense victims, and the families of victims, should not have to wonder if their attacker will suddenly get out of prison long before they finish their sentence," Jones said in a statement. "Right now the law is rigged and forces the Board of Parole Hearings to justify why the violent sex offender shouldn't get out of prison early. This is backwards and wrong."

The measure is awaiting assignment to a Senate policy committee for a hearing.