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With Billy Allen's Compensation, Relief Begins for Exonerees Without the DNA Silver Bullet

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Billy Frederick Allen served 26 years in prison for two drug-related murders in University Park. In February 2009, the Court of Criminal Appeals in Austin freed him, citing ineffective lawyering and "newly discovered evidence" that gave them "no confidence in the outcome of the trial."

In March 2010, Allen filed for compensation from the state under the newly enacted Tim Cole Act, which provides $160,000 for each year of wrongful imprisonment to be split between an upfront, lump-sum payment and a yearly annuity. He was due some $2 million. But the Texas Comptroller said the court's ruling wasn't enough. It didn't constitute "actual innocence," as defined in the letter of the law.

Allen's attorneys, Kris Moore and Kevin Glasheen, took his case to the Texas Supreme Court, the final arbiter, and last week, they won, in effect opening up the statutory compensation scheme to a new class of exonerees: Those without the incontrovertible silver bullet of DNA evidence.

"The law is the law, and has not changed as result of the Texas Supreme Court decision," Moore tells Unfair Park. "However, the application of that law by the Comptroller and the understanding of the law by the legal community will change. Not only in compensation, but the resources innocent individuals have when sitting in prison when they don't have DNA to prove their innocence.

"Think for one instance that we've known for several years that exonerations were going to have a spike and then decline. Cases that have DNA available will be tested and proven innocent or guilty, and then there will be newer cases where DNA works to ensure innocent individuals aren't convicted to begin with. Then that leaves an entire class, which is a vast majority of convictions, that don't have DNA evidence. But the law of constants tells us if you have innocent people with DNA evidence, you have innocent people without DNA evidence."

As explored in a recent cover story, there's a certain, satisfying comfort in the ironclad, scientific certitude of DNA matching. But what about the murky cases based on, in Allen's case, a palm print likely left under less-than-inculpatory circumstances, or the shifting terrain of a detective's memory? The low-hanging fruit has been plucked. What is left are the hard cases like Allen's, where "actual innocence" also means a convicted man or woman is "probably" innocent, and that "no reasonable juror" would have ever convicted him based on new evidence suppressed by either prosecutorial misconduct or an ineffective lawyer. These clauses and legal equivocations aren't as sexy as science, but they're no less worthy, Moore says. He believes it's these cases that may now get a second look by attorneys who see not winding paths to insolvency, but righteous work that pays the bills, too.

"What's interesting is when I took Billy Allen's case, most people looked at it as, 'Well, that's a loser.' While the law said one thing, the understanding or the assumption among many attorneys was that even though Billy Allen's claim was called an actual innocence claim, it's not really an actual innocence claim," Moore says. "It's complicated by the constitutional claim, but it's part of it. If one steps back and looks at the law, the letter of the law is very clear, in fact, that it is an innocence claim, and as such it was entitled to be compensated."

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