Texas' Innocent Prisoners Are Getting Compensated, and Their Lawyers Want in On the Deal
On June 29, in Judge Ken Molberg's courtroom, attorneys representing Steven Phillips and Kevin Glasheen argued over money, which is what attorneys often do when they clash in courtrooms. At stake: around $1 million, which Glasheen says he's owed by Phillips per an agreement they made three years ago. Phillips doesn't want to pay the money. He earned every penny, he says—by serving 24 years in prison for a sexual assault and robbery he didn't commit.
The hearing before Molberg came in a lawsuit Phillips filed two years ago against Glasheen, the Lubbock-based attorney who loaned Phillips a few thousand dollars in '08 to help the Dallas man get back on his feet, and who now says he's owed 25 percent of the $4 million the state will compensate Phillips for his time spent behind bars.
Phillips was convicted in 1982 based largely on eyewitness testimony from a victim in one of a string of 11 incidents in which local women were raped or sexually molested, according to the Innocence Project, which assisted Phillips in obtaining DNA testing on biological evidence from the crime. The tests cleared Phillips and implicated another man, a convicted rapist who died in prison while Phillips was incarcerated.
Glasheen now says Phillips owes him money not just for legal work, but for lobbying the state in '09 to increase the compensation due the wrongly imprisoned. Dallas state Representative Rafael Anchía authored the bill that increased the figure from $50,000 for each year behind bars to $80,000, paid out in a combination of a lump sum and monthly annuity payments.
A trial in the case is set for the fall, but the June 29 hearing was sparked by Phillips' motion for summary judgment. Phillips wants Molberg to declare the contract between Phillips and Glasheen is "unconscionable" and "unenforceable," two words often used when discussing this case. Matter of fact, the State Bar of Texas used them just last January when it filed suit against Glasheen for trying to collect fees from Phillips and another exoneree, Patrick Waller, who also has a case pending against Glasheen in Dallas County. In May, another exoneree, James Giles, joined the Waller suit, which is scheduled for trial on January 23.
What Molberg decides will affect a lot of cash spread out among a lot of people, including the exonerees, Glasheen and Innocence Project of Texas chief counsel Jeff Blackburn, who, according to documents filed in the Waller-Giles case, has collected more than $330,000 of the exonerees' compensation, although the exonerees say they've never heard of him. Giles' plea in an intervention filed last month alleges that Blackburn uses his position at IPOT to refer cases to Glasheen, who then gives Blackburn a "kickback."
Repeated calls to Blackburn for comment were not returned.
Randall Turner, the attorney representing all three exonerees, used the same word—"kickback"—when he spoke to the Observer last week: "Blackburn was on the board of the Innocence Project, and what he would do is cherry-pick cases where exonerees are due the most money, and then he would refer them to Glasheen and get a kickback for doing a referral—what he would call a referral fee."
Blackburn's attorney has said there is no conflict of interest, and Glasheen says he stands by his argument that he's owed money in these cases: "I was the only person willing to take on this project of trying to help these guys get more compensation than was available at the time through the state's compensation."
Anchía says that when Blackburn lobbied the state Legislature to up the compensation due exonerees, he did so on behalf of the Innocence Project of Texas—meaning, the state representative says, he had no idea Blackburn stood to pocket any money coming to the wrongfully convicted.
"I thought he was a public interest lawyer," Anchía says when asked about Blackburn. "That's how it was represented to me: He was a lawyer for a nonprofit. He never disclosed he had a financial interest, and that's troubling. When you're shrouded in the Innocence Project of Texas, which is a nationally known nonprofit, and he didn't disclose he was going to make money, that's disappointing."
According to information provided by Glasheen's public relations representative, he and the lawyers at his firm worked more than 4,500 hours, incurred $500,000 in out-of-pocket expenses on these contingent fee cases and extended $1 million in loans to these men. These cases were not easy and few if any other attorneys were willing to take them at the time, back in 2006-2007. As Judge Molberg noted from the bench on June 24, lawyers have a duty to "increase options" for their clients and lobbying is just one of the tools that they routinely use to accomplish that.
Nevertheless, the fight over money in Dallas could have wider implications for the loosely affiliated collection of groups—IPOT among them—that share information and resources and work on behalf of the wrongly convicted across the country.
"I would say probably the single biggest issue we're facing, the new frontier of the innocence movement, is life after exoneration," says David Protess, founder and president of the Innocence Project of Chicago, launched in April.
Protess began doing exoneration work in 1985 at Chicago Lawyer Magazine; in 1999, he started the Medill Innocence Project, working with journalism students at Northwestern University in Illinois to investigate claims of innocence from inmates. He and the university parted ways this year after the Cook County prosecutor called the program's basis for grading and Protess' honesty into question.
In general, Protess says, exonorees "absolutely need lawyers to navigate the obstacles that are placed in their way in order to get compensated...An attorney is essential to navigating this process.
"The state deprives these people of all the most productive years of their lives, and after a fight, cuts them a check and expects them to survive."
It's unusual to see lawyers accused of taking advantage of exonerees, Protess says. Instead, they have friends and family for that. "One of the biggest problems I've seen when exonerees do get money is relatives who they may not have seen for decades come calling with their hands out."
According to a report in The Dallas Morning News, Glasheen isn't the only local lawyer to take a cut from exonerees' compensation. There was attorney Mike Ware, who until last week was the head of Dallas County District Attorney Craig Watkins' Conviction Integrity Unit.
Glasheen tells the Observer that Ware, then in private practice, sent him two cases: Billy James Smith, a DNA exoneree who spent 19 years and 11 months in prison for a rape he did not commit, and Greg Wallis, who was exonerated in '07 after serving 17 years for a rape he didn't commit.
"I've known Jeff Blackburn for many years, and at that time Jeff and Mike were repping Smith and Wallis in private practice," Glasheen says. "Jeff asked me several times to get involved, and I declined, and eventually I agreed to accept those cases. They referred them to me, and I went forward with them...And when he referred those cases, he retained an interest in the fees. But when he went to work for the district attorney, [Ware] disclosed that interest to the DA and got permission to keep it, and got an independent legal opinion that it was both legal and ethical to do it. Now, when Mike went to work for the DA's office, their exonerations were complete, and all that remained was for them to get compensation, which the DA's office had nothing to do with."
Glasheen first came to our attention back in August 2007, when he filed a federal civil rights and malicious prosecution lawsuit against the city of Dallas on behalf of Smith. Ultimately, six more exonerees' cases were added to that one. But Glasheen and the city agreed to set aside the case while attorneys from both sides lobbied the state to up compensation for the wrongfully imprisoned. And away the cases went.
Glasheen says he's consulted with 18 exonerees in recent years, and that there were "12 in the original group that hired us to pursue civil rights or statutory compensation."
He picked up the cases from a variety of sources, he says.
"The exonerees network quite a bit together, so when word got out we were doing this, they ended up getting referred to us by multiple sources," Glasheen says. "One person might hear about us from four, five other people. Mostly it was our existing clients telling other exonerees. And some lawyers recommended us too," he says, among them, Curtis Stuckey in Nacogdoches.
"I have a note he recommended someone to hire us," he says. "But mostly it's the exonerees, the existing clients. Once it got a lot of media attention, we had people who found us through news reports."
As far as Turner, the exonerees' lawyer, is concerned, the cases are cut-and-dried: His clients, and all exonerees, are entitled to their money, and attorneys need to keep their hands off it. After all, Governor Rick Perry just signed a law that caps the amount of money lawyers can get from cases involving the wrongly accused; the new law says that at best, attorneys can charge an hourly rate, but can't take a percentage off the top. It's the exonerees' money. They earned it...by spending years, often decades, in prison for something they didn't do.
"They didn't need a lawyer to file the claims for compensation," Turner says. "That is one of the gross injustices about this case."
Turner says a lawyer in the public defender's office even offered to help his clients obtain their compensation at no charge, and Glasheen, meanwhile "never filed a lawsuit; he never did any legal work.
"Then he tries to get paid for something he wasn't hired to do."
To Glasheen's defense that he was charging for time spent lobbying, Turner says, "Well, should he now get a fee from every man in Texas who's been exonerated, who never hired him?"
Turner says the Legislature agrees with his clients' claim that Glasheen's contract "was unconscionable and is unenforcable."
"The bill Perry signed last [month] makes it illegal to do what Glasheen's trying to do. To get compensation, [an exoneree] has to fill out a one-page form, and it's outrageous a lawyer would try to get a fee for filling out a one-page form."
Turner, incidentally, says he's charging Phillips $300 per hour, his standard rate, to represent him. He's working on contingency basis for Giles and Waller. If they win, he'll collect a third of what they recover.
Anchía says Glasheen "did spend a lot of time in my office working to change the law," which upped the compensation from $50,000 to $80,000 for each year the wrongfully imprisoned spent behind bars. But he says that Glasheen's demand for a cut of the exonerees' annuities "is a pretty significant overreach." Which is why, in part, he co-authored with state Senator Rodney Ellis of Houston HB417, which provides exonerees health care and, more important, says an attorney can charge the wrongfully accused a fee "based on a reasonable hourly rate," not a percentage of the lump sum and annuity.
"I simply said, 'We need to do something about this,' which is why we made it clear they can only charge hourly. It's good—some people say generous, I say good—to help exonerees get on their feet, and I've heard about other lawyers who say they'll do the same thing, which is fill out a one-page form and get 40 percent, which is just wrong. These guys need everything they can get from the state, including all the money they have coming to them."
Where Turner is strident in his criticism of Glasheen's fees, one of Glasheen's clients is more reserved. Charles Chatman served 27 years in a Texas prison after being convicted in Dallas of a rape he didn't commit before being proven innocent by DNA testing and freed in 2008. Since his release, he's been outspoken about the treatment of the wrongly accused and remains close to many of his fellow exonerees.
Chatman paid Glasheen 25 percent of his settlement from the state, which amounted to more than a million dollars in lawyer's fees. He calls Glasheen's a "really expensive law firm."
"They both have a good argument," he says of the case between Philliips and Glasheen. "I'm really just trying to stay neutral right now."
Still, when asked whether Glasheen's charges are fair, Chatman admits: "No, in my opinion, no...The fact is that we did just as much of the lobbying as he did." He acknowledges, however, that Glasheen's lobbying had a significant effect on the Anchía bill's passage.
Chatman thinks paying lawyers by percentage was unfair because the payment depends on the length of imprisonment, rather than the work of a lawyer. For people with smaller settlements, the fees can seem even more significant.
"If Steven wins this case...that would open the door [for other exonorees]," Chatman says.
Chatman says he didn't think the amount he paid Glasheen was exorbitant until he thought it through later. "I was OK really at first until I really realized what was happening...I'd been locked up and outside of society for so long...We didn't really know the procedure. We didn't know what we were getting into. [But] ignorance is no defense in the court of law."
Now, he says, "I think it's wrong...something should be done about it."
Chatman is awaiting the outcome in Molberg's court before he makes any decision about whether he'll try to recoup some of the money he paid Glasheen. He says he has two reasons for waiting.
"I have a personal reason why I didn't sign the lawsuit," Chatman says. "Johnny Pinchback."
Pinchback was freed in May after serving 27 years for aggravated assault. Employees and friends of Glasheen worked on Pinchback's behalf.
"I needed the Innocence Project to work on Johnny Pinchback's case," Chatman says. "I needed the best attorneys to work on his case. I didn't want to ruffle anybody's feathers.
"It's worth it...to see another person who's innocent be free; it was worth that to me."
His second reason for not joining in is surprising, coming from a man so wronged by the justice system: He trusts the courts to do what's right.
"If the court said that [Glasheen] was right in the way that he handled these claims, then I would accept the court's findings," Chatman says. "Not just with Steven, but with me and with all the other exonerees too.
"If I join the lawsuit, I want to know that I'm right. I'm trusting the judge to make the call."
Whatever the outcome of Turner and Glasheen's court battle, much work remains to be done on behalf of the wrongly imprisoned seeking their statutory compensation: Last week, Texas Comptroller Susan Combs' office sent out a press release saying that Anthony Graves, who spent 18 years in prison, most of them on death row, for a crime he didn't commit, will finally get the $1.45 million he's owed by the state, which initially refused to cut him the check because his exoneration paperwork didn't say "actual innocence."
But, says the release, Graves' case "also highlighted the need for the wrongful imprisonment compensation statute to be reviewed through a study or workgroup."
"We have to follow what's set in state law when reviewing applications for compensation," Combs says. "We have paid more than $41 million to about 70 people. But the initial Anthony Graves application showed there are wrongfully imprisoned Texans who may not have the required legal documents as outlined in statute to receive compensation. So we hope to work with lawmakers and any interested groups to look at the compensation law and see how it can be improved."
As far as Anchía's concerned, through, exonerees are in good shape at present: They're compensated well, and the newly signed law protects their money from attorneys ready to take a few pennies off each dollar earned the hard way. But if Combs wants to keep looking at the issue, well, that's fine by him too.
"Right now, we have the right policies in place to prevent abuse and get wrongfully convicted Texans the compensation they deserve," he says. "If the speaker of the House convenes a study group, I'll want to be part of that. But my sense is, we have the policies in place to cover if not all of the cases, then certainly 99.99 percent of them."
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