Will WICA Soon be Modified? Michigan’s Supreme Court Set to Weigh in on Tomasik Appeal.

No criminal justice system is perfect: although our state’s criminal justice system is a great regulatory strong-arm, providing citizens’ protection by locking wrongdoers away, sometimes innocent people are convicted by mistake. When this happens, lives are destroyed.

In order to help alleviate the damage done by wrongful convictions, Michigan’s state legislature enacted the Wrongful Imprisonment Compensation Act (WICA) of 2016, extending compensation to innocents forced to serve a term of imprisonment in a state correctional facility for someone else’s crime. See 691.1755(1)(a).

According to Michigan’s statutory text, simply because someone has been wrongly convicted does not entitle them to compensation. See MCL 691.1755(1)(b)-(c).

To qualify for compensation, Section 5 of the WICA requires an individual to show by clear and convincing evidence that there is new evidence demonstrating the individual’s innocence, that this new evidence has produced a reversal or vacation of the individual’s charges in the judgement of conviction or a gubernatorial pardon, and that the new evidence has resulted in a dismissal of the charges brought or a finding of not guilty after retrial.

Although People v Grissom establishes that the new evidence must be “impeachment evidence,” ambiguity clouds exactly when compensation should attach where new evidence is admitted. This ambiguity is exemplified in a recent decision by the Michigan Court of Appeals, Tomasik v State of Michigan.

Tomasik is a complex case procedurally, involving numerous appeals. It started in 2007 when Tomasik was originally convicted by jury trial of repeated acts of sexual assault against a minor T.J., who was only six years old at the time of the alleged assault, was “troubled,” had “engaged in theft and deceit,” and “had difficulty distinguishing fantasy from reality.” Tomasik sought disclosure or an in-camera review of all of T.J.’s counseling records, which spanned from the time T.J. was five years old, asserting that he had seen 8 different counselors over the years and that he had “acted out sexually against a cousin [when he was only 11 years old].” The trial court only granted Tomasik’s motion in part, ordering that discovery be limited to “a one-year period related to the alleged sexual activity with his cousin,” explaining how to order otherwise would turn discovery into a fishing expedition. He was subsequently convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a). Tomasik appealed his convictions, claiming that the trial court erred when it declined to order disclosure or an in-camera review of “any and all” of T.J.’s counseling records. The appellate court, reviewing the trial court’s decision not to order disclosure under the standard articulated in People v Stanaway, affirmed the holding.

Tomasik appealed and our Supreme Court vacated the judgment, remanding the case back to the trial court for further proceedings under Stanaway and ordering that the trial court disclose two incriminating reports from 2003 by mental health services that indicated T.J. “lied consistently” and relished doing so, “was quick to blame adults” for the trouble he got into, “had difficulty with impulse control,” “was deceitful,” “had difficulties telling the truth,” and sometimes even believed the lies he told. However, the trial court determined that because this new evidence was “cumulative” of that presented at the original trial, the conviction must stand.

Again Plaintiff appealed. This time the Supreme Court responded by partially vacating the judgment of the appellate court rather than granting leave and remanding the case. The Supreme Court limited the new trial to three narrow issues: the first was “whether the [] Circuit Court erred by admitting the entire recording of the [plaintiff’s] interrogation”; the second was “whether the circuit court erred in admitting [] expert testimony regarding Child Sexually Abusive Accommodation Syndrome under current MRE 702, and if so, whether this error was harmless”; and third was “whether the trial court erred in denying the [plaintiff’s] motion for a new trial based on the newly disclosed impeachment evidence.”

Because new evidence was admitted, Tomasik argued that the new evidence was a determining factor in the reversal and therefore that he was owed compensation under WICA for the 8 years, 11 months, and 3 days of his mistaken imprisonment.

On the second remand, the court once again affirmed Plaintiff’s convictions and sentences, which Plaintiff appealed for a third time. The Supreme Court issued an order reversing the appellate court’s judgment in part and remanding the case back to the trial court for a new trial because “[t]he trial court abused its discretion by admitting the recording of [Plaintiff’s] interrogation.” Because the case essentially turned on credibility and because the interrogatory evidence was not relevant but substantially impacted the trial, the admission was erroneous. The jury unanimously acquitted Plaintiff of all charges upon retrial, where much new evidence was presented.

“After acquittal, Plaintiff sued the state in the Court of Claims, seeking compensation under the WICA.” The Court of Claims dismissed his action on grounds that “[P]laintiff did not satisfy the conditions for relief under Section 5 of the WICA, MCL 691.1755, because our Supreme Court granted [P]laintiff a new trial on grounds other than new evidence.” Plaintiff appealed.

The Court of Appeals interpreted the statute restrictively, declining claimant’s argument that the case turned on new evidence because the Supreme Court had centered the reversal around the wrongful admission of evidence.

The Michigan Supreme Court will soon get to voice it's two cents on this issue because Tomasik has appealed the Court of Appeals ruling on what textual interpretation that should attach to the Act.

Sadly, according to prior studies, non-compensation is more common than compensation: In George Washington University’s recent study for example, researchers’ results indicate that only about 39% of exonerates are compensated. (NRE). In the more than 40% of cases where claimants cannot qualify for compensation upon exoneration they are more likely than those actually guilty to struggle with debt from appeals, emotional and physical harm resulting from incarceration, and the subsequent depression that follows release without help. Further, although those exonerated are actually innocent, they are still forced to admit to having been convicted of a felony on job applications because they now have a criminal record, unfairly dwindling their job prospects. (Kahn).