Legislation would compensate those who’ve been wrongly convicted

By: - March 28, 2019 6:04 pm

DeMarlo Berry shortly after his 2017 release from prison. Rocky Mountain Innocence Project video

After serving 22 years in prison for a crime he didn’t commit, DeMarlo Berry said being released from a Nevada prison felt like Lazarus being raised from the dead.

“Before, it was like living in a coffin, waiting to die,” Berry said. “(Being released) felt like rebirth.”

But the state didn’t make it easy for him to begin his new life. One early morning in 2017, he was dropped off in Las Vegas without compensation or assistance to start over, let alone an apology for taking more than two decades of his life.

Berry said he wasn’t even given a phone to call his family to let them know where he was, so he gathered his bearings and walked to where he remembered his grandmother’s house.

In 33 states, along with the District of Columbia, lawmakers have enacted legislation to compensate those who have been wrongfully imprisoned. Nevada isn’t one of them.

Assembly Bill 267, which was presented by Assemblyman Steve Yeager during the Judiciary Committee Thursday morning, seeks to change that.

If a person is wrongfully imprisoned, they would receive $50,000 per year if they were locked up one to 10 years, $75,000 per year if they were imprisoned 11 to 20 years and $100,000 per year if they were imprisoned for more than 21 years. The bill also offers pathways to health care, tuition assistance and re-entry services and counseling.

In order to be considered, the bill says that applicants must provide evidence of their innocence — a similar standard is used in other states.

“Disastrous mistakes happen sometime in our criminal justice system,” Yeager said. “When those result in a wrongful conviction and subsequent incarceration — sometimes for decades — we as a state have an obligation to compensate those who are wrongfully convicted and incarcerated.”

The National Registry of Exoneration, a database managed by multiple universities, notes more than 2,400 people across the country have been found innocent, including 13 in Nevada.

In states that don’t compensate following an exoneration, people can file civil lawsuits to recoup money, said Michelle Feldman, the state campaigns director for the Innocence Project. “Those cases take a long time to resolve and it is very difficult for them to prevail,” she said.

Though Nevada has lagged in following other states, Feldman said the upside is the state can learn from others to make this law “the strongest in the country.”

Feldman said Berry was “in the wrong place at the wrong time.” In 1994 when a fast food worker was killed, it was Berry, 18 at the time, who was arrested and convicted — the death sentence was originally sought.

Some of the evidence against Berry included testimony from a jailhouse informant, who claimed Berry confessed. The informant later recanted.

In 2013, another person confessed to the crime. However, it wasn’t until the Clark County District Attorney’s Conviction Review Unit looked into the case in 2017 that charges were dismissed.  

Dressed in red, white and blue, Berry approached lawmakers Thursday morning with a grace and humility you wouldn’t expect from someone who was failed by the justice system. And when he spoke in support of the bill, it wasn’t himself he was thinking about.

“I’m going to find a job and do what I have to do,” he said. “I’m more concerned about the individuals who come after me. They are going to need this.”

However, AB267 would in fact help Berry and any other person who has been previously exonerated — if passed, they would have until Oct. 1 2021 to seek compensation.

The bill goes beyond money. When people run a background check on Berry, who is working as a truck driver, people can see the case was dismissed, but that’s it. He carries around paperwork to try to better explain the circumstances of his case and his release.

“Hearing you have to carry your freedom papers in 2019, like we’re living in a Northern state two hundred and something years ago, breaks me,” Assemblywoman Brittney Miller said.

The bill would also provide a certificate of innocence and requires all records be sealed.  

The legislation attracted overwhelming support ranging from Attorney General Aaron Ford and retired Nevada Supreme Court Chief Justice Michael Cherry to groups like the ACLU of Nevada, Progressive Leadership Alliance of Nevada and several public defenders.

“This is a step in the right direction,” Ford said. “It gives them an opportunity to move forward in a way that allows them to provide for themselves and their families. It’s a token, and it’s only a token. Make no mistake about that.”

The Nevada District Attorneys Association was opposed. Jennifer Noble, who spoke on behalf of the association, said the DAs weren’t opposed to the intent of this bill — to provide compensation to those wrongfully convicted — but her organization wants to add amendments that would raise the standard of proof a person must provide before they are compensated.

Berry, who plans to return to Carson City when the bill is heard again in the Senate, said he and others in support are worried the association will dilute the the bill.

“This (bill) isn’t about placing blame or pointing a finger,” Berry said. “It’s just about getting justice.”

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Michael Lyle
Michael Lyle

Michael Lyle (MJ to some) has been a journalist in Las Vegas for eight years. While he covers a range of topics from homelessness to the criminal justice system, he gravitates toward stories about race relations and LGBTQ issues.