If a man spends 26 years in prison for a rape he didn't commit, you can bet he's going to want every cent he can get through the state's statutory compensation plan for the wrongfully imprisoned. We spoke with Johnnie Lindsey for this week's cover story about the ongoing legal battle between Lubbock personal-injury attorney Kevin Glasheen and exoneree Steven Phillips over fees Glasheen says he's owed for his efforts to convince the state to raise the compensation rate from $50,000 for each year of wrongful imprisonment to $160,000.
Lindsey decided not to sign with Glasheen and filed for compensation with the comptroller himself following the enactment of the Timothy Cole Act in September 2009. But the comptroller refused to pay Lindsey for eight years of his sentence, because along with the 26 he served for rape, he served another eight at the same time for a crime to which he pleaded guilty. He appealed the decision, but the state refused to reconsider in December 2009. So this morning, Lindsey filed suit against the comptroller in the Supreme Court of Texas, petitioning the justices to force the state to pay up.
This isn't the first time the comptroller has been taken before the Texas Supremes for rejecting wrongful imprisonment claims. As we noted last week, Billy Frederick Allen is contesting the state's wholesale denial of his claim, based on a murky appeals court order it says doesn't add up to a declaration of innocence. And in March, Billy James Smith won a conditional ruling that forced the state to pay for an extra year of time he'd served because his wrongful conviction for a sex assault revoked his parole on a separate robbery charge. The court's decision freed up compensation for two other exonerees with similar circumstances.
Johnnie Lindsey's case is no different, according to his lawyer, Kris Moore, formerly Glasheen's co-counsel in the controversial exoneree compensation cases.
On the morning of October 17, 1982, Lindsey was sitting on a park bench near White Rock Lake. He struck up a conversation with a jogger -- a white woman -- who he says abruptly ended the conversation and took off down the trail. A group of joggers passed, her husband among them.
After a few minutes, Lindsey got into his car and left the park. Later that day, he answered the door bare-chested and barefooted. It was the police, asking him to come down to the station for questioning. Refusing to let him dress, the police put him in the back of the cruiser and drove him back to the park. In an affidavit, Lindsey says he saw the woman he'd met and her husband talking to an officer. The officer brought the woman near the car, and she bent over and peered in at Lindsey.
He was booked on an attempted rape charge. Lindsey professed his innocence, even offering to testify in person before a grand jury. His lawyer, however, advised him to take a plea deal. There were no witnesses. It would be her word (a white woman) against his (a black man) in Dallas in 1982. The case was a loser, his lawyer told him. He'd get eight years at most and be out in four on good behavior. Against his instincts, he took the deal and began serving his sentence in the Ellis Unit in Huntsville.
That was December of 1982. A few months later, Lindsey received a warrant from the Dallas County prosecutor implicating him in a rape on a moonless night in August 1981 along that same jogging path. The victim, another white woman, picked Lindsey out of a photo line-up of six men. In the line-up, only Lindsey and one other man were shirtless. A witness to the rape picked another man, but changed her mind when the prosecutor told her the victim identified Lindsey. He was convicted in March 1983 and sentenced to life in prison.
In 2007, after four different motions for DNA testing were shot down, the trial court granted the fifth and appointed Michelle Moore, an attorney with the Dallas County Public Defender's office, to represent him. On September 9, the results of the DNA testing ruled Lindsey out as the White Rock Lake rapist. He was released on September 19.
The question now before the State Supreme Court is whether Lindsey should be compensated for at least a portion of the eight years he spent locked for the attempted rape charge. By attorney Moore's calculation, under the mandatory release statute, Lindsey would have been released in four. He's willing to settle for four because there is no DNA involved in the attempted rape to conclusively prove his innocence. The court found for Billy Smith and awarded him compensation for the revoked parole, Moore argues, so what's different in Lindsey's case?
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It goes without saying that the kinks have yet to be worked out of the statutory compensation scheme and the way it's applied by the comptroller's office. As a result, some two years after the bill's passage, exonerees still have to spend their compensation cash on attorney's fees to get what is rightfully owed.