Local Government on Trial: Wrongful Conviction Lawsuits

This session at PRIMA’s 2018 Annual Conference featured the following speakers:

Michael P. It worth – VP & Sr. Unit Manager – Genesis

Benjamin C. Eggert – Partner – Wiley Rein LLP

In the last decade, wrongful imprisonment suits have proliferated in number and costs to local governments. In responding to such suits, municipalities must juggle conflicting pressures, including correcting miscarriages of justice, addressing public outrage and grasping a cross-section of emerging law regarding immunity, civil rights and insurance in order to limit the public entity’s/official’s legal exposure. In this session at the 2018 PRIMA Annual conference, wrongful imprisonment lawsuits and best law enforcement risk management practices were discussed.

A person has been wrongfully convicted if he or she was convicted of a crime – either through a trial or by pleading guilty – and later declared factually innocent or relieved of the consequences of a conviction by a governmental official or agency as a result of a procedural error violating a person’s rights. Wrongful convictions can be corrected through acquittal at retrial, dismissal, or a pardon. There is a distinction between wrongful arrest and prosecution.

Wrongful convictions by race are 47% black, 40% white, 12% hispanic, and 1% other. By gender, 91% male and 9% female are wrongfully convicted. By crime, 43% homicides, 27% sexual assault, 17% other crimes, and 13% other violent crimes. Approximately 4% of people on death row have been exonerated.

The procedural basis for exoneration are direct appeal, post-conviction proceeding (state court or dismissal vs new trial), petition for habeas corpus, and other mechanisms. The substantive basis of exoneration relevant to risk management come from witness misidentification, unreliable forensic evidence, false confession, official misconduct, and informants.

The vast majority of claims are made through civil rights violations through legal claims: 42 U.S.C. 1983 and related state causes of action. These include complaints of false arrest, false imprisonment, malicious prosecution, violation of due process, and Monell claim against entity.

A representative summary of a wrongful conviction case is an African-American male, around 40 years old, convicted around the year 2000, served an average of 14 years, exonerated within the last 2-3 years, and the case is situated in one of a handful of states. The first trigger of coverage decision was in 1967, there are 63 court decisions addressing trigger of insurance, and 19 states are addressing trigger of coverage.

The modern approach to trigger of coverage concludes the majority rule is in the initial violation of rights (arrest or criminal charging). The distinctly minority rule found exoneration/termination as the trigger of coverage. Attempted trigger arguments include but have been determined not a trigger are: concealment of past misconduct, ongoing duties, ongoing/continuous injuries, and retrial/exoneration process.

Factors impacting outcome of wrongful conviction claims include liability defenses, damage issues, implicated insurance policies and coverage issues, other sources of compensation, actual innocence, or bias of local officials.