FORT LAUDERDALE — A Fort Lauderdale man only needs to sign a few legal papers to start receiving $179,000 from the state and become the first wrongfully convicted person compensated under a new Florida law.
But Leroy McGee is refusing to complete the documents, though the father of five is now living paycheck to paycheck. The carpenter’s apprentice fears that taking the money available under the new Victims of Wrongful Incarceration Compensation Act could end up hurting others who will seek similar reparations in the future.
“I really can use the money, but I want to take a stand,” said McGee, who spent three years and seven months in prison for a convenience store robbery that took place while he was at his janitorial job.
The compensation law was hailed as a milestone when the state Legislature passed it, 159-1, last year. It allows someone who has been wrongfully convicted to apply for reparations — $50,000 for every year spent in prison — without having to submit a claims bill to the Legislature. Claims bills can take years to win lawmakers’ approval.
Though the law took effect in July 2008, McGee is the only person so far to have used it to apply for compensation, according to the state Attorney General’s Office. The state approved him for reparations four months ago.
The sticking point for McGee: The state is refusing to pay back his legal costs for seeking compensation. To become eligible, an applicant must obtain a judge’s order declaring the conviction was wrongful, then petition the state Attorney General’s Office for the reparations money — a process that could take months and would be extremely difficult to navigate without an attorney.
Since the compensation is paid out in a long-term annuity, applicants would have to front their own money to pay their legal costs unless they find lawyers who will do the work for free, argues David Comras, McGee’s attorney.
“Few, if any, of those wrongfully incarcerated would be willing or able to bear such costs, risks and complications on their own account,” Comras wrote the state in a Sept. 15 letter. “And even when successful, they would remain substantially out of pocket for a great number of years concerning these costs.”
The Attorney General’s Office says, though, the law clearly states that the wrongfully convicted are entitled to reimbursement only for those attorney fees and legal costs related to their criminal proceedings. There is no mention of similar expenses being covered for the compensation process, said Ryan Wiggins, a spokeswoman for Attorney General Bill McCollum.
Comras initially agreed to represent McGee on a contingency basis — meaning the attorney would get 25 percent of whatever his client received from the state (or nothing if McGee’s claim was denied). Comras says that if McGee decides to sign for the reparations, he will not hold his client to their agreement.
Even though McGee, 42, knows his attorney won’t demand he pay him out of his own pocket, he’s still refusing to sign the papers because he doesn’t want the state to hold up him as an example for others seeking compensation.
“If you are out of prison, you are going to be struggling out there, trying to get a job,” McGee said. “Who has the money to pay lawyers up front? ... Any decision I make now (the state) will bring up to the rest of the guys (who apply).”
No one questions that McGee is innocent of the July 1990 robbery in Fort Lauderdale that sent him to prison. His since-disbarred attorney failed to raise a single objection during the trial. McGee didn’t match the suspect’s description. He was at work at Fort Lauderdale High School when the crime was committed. His car was in a garage getting repaired.
McGee only was able to clear his name after he was released from prison and the presiding judge on the case, Paul Backman, appointed him an attorney to examine if he had received adequate representation. Backman ruled McGee was not the robber and has said the defense put on by McGee’s attorney at the time, Theota McClaine, was “absolutely the worst performance in the courtroom I’ve ever seen.”
Prior to his arrest, McGee had no run-ins with police. The new compensation law has a “clean hands” provision that requires that an applicant have no felony record prior to being wrongfully convicted.
Critics of the legislation have argued that by excluding people with prior felonies for compensation, many of the wrongfully convicted are not be covered under the law.
Melissa Montle, a staff attorney with the Innocence Project of Florida, points to one particular case — William Dillon, who spent 27 years in prison for a Brevard County murder before being freed. Prosecutors dropped all charges after Dillon was granted a new trial based on DNA evidence.
Dillon is ineligible for compensation because he had prior convictions for drunken driving and possession of a controlled substance related to a 1979 traffic stop.
The sole legislator to vote against the new law — state Sen. Jeremy Ring, D-Parkland — opposed it because of that “clean hands” provision. He said he’s not surprised there’s only one been one applicant for compensation and that it’s “flat-out wrong” that anyone who successfully seeks relief under the law doesn’t have legal fees automatically covered by the state.
“The victim should not have to pay these costs,” Ring said. “It seems to me to be absurd.”
Another South Florida legislator — Rep. Ellyn Bogdanoff, R-Fort Lauderdale — was a driving force behind the compensation act. She said she too is not surprised only McGee has applied for reparations, but has a different perspective than Ring.
“I don’t think the question is how many people have applied, but how many people have been exonerated?” Bogdanoff said. “We’re talking about a very small percentage of people.”
She said the law is a work in progress and she will examine the issue of legal costs.
For now, McGee waits, living with his mother because he can’t afford his own place. He could sign the papers at any time, but he says he won’t until the state covers his legal costs.