NEWS

What is the price of justice?

Shereen Siewert
Gannett Wisconsin Media Investigative Team
Mario Victoria Vasquez spots a patron that needs to be seated while making a couple drinks at the outdoor bar at Amore Victoria Ristorante, which is owned by his family in Minneapolis.

GREEN BAY – Just after 7 p.m. on the last Friday night in January, Mario Victoria Vasquez took a deep breath and walked out the door of the Brown County Jail.

Gannett Wisconsin Media Investigative Team reporter Shereen Siewert.

He wore unfamiliar second-hand jeans, shoes, a sweater and jacket, all of which had been handed to him, he said, by a jailer a few minutes earlier.

The sky was dark; the temperature had dipped into the low teens. A gusty west wind whipped against his skin. But Vasquez, 51, didn’t feel the cold; he didn’t mind that the coat didn’t quite fit his 5-foot 8-inch frame.

For the first time in nearly 17 years, he felt freedom.

Vasquez had spent several days at the jail after being transferred from Fox Lake Correctional, where he was serving a 20-year sentence on a conviction of sexually assaulting a 4-year-old girl. He had been transferred to attend a hearing related to his case, but was not in the room when a judge — after hearing new evidence that pointed to an altogether different suspect — overturned Vasquez’s conviction and ordered a new trial.

At first, Mario was disoriented. The world was a much different place from the one he had left. He had no money; he had never used a cellphone. No one in his family knew he had been released; no one was there to greet him.

Finally, Vasquez returned to the jail and asked to use the phone, dialing the only number he could remember, and 10 minutes later he wrapped his arms around his 20-year-old son, James Victoria, and let the tears fall from his eyes. It was the first time they had freely embraced since James was a toddler.

“I couldn’t believe it was happening,” Vasquez said. “I could finally see my son and say to him, ‘I am free.’”

Vasquez is one of 40 people in Wisconsin who have been exonerated over the past 26 years for crimes ranging from arson to rape to murder. The list includes a pastor, a monk, a mother, a business owner and a high school senior two months shy of graduation.

Collectively, they have served more than 300 years in prison. The vast majority will receive no compensation for the years lost behind bars.

In 2004, Congress proposed a standard compensation recommendation of $50,000 for each year spent behind bars and $100,000 a year for time spent on death row, a proposal supported by President George W. Bush.

Yet a Gannett Wisconsin Media investigation reveals that Wisconsin exonerees are entitled to only a fraction of that amount, and only under certain circumstances. Compensation is capped at $5,000 a year of incarceration for up to five years — a maximum of $25,000. And Wisconsin lawmakers have repeatedly failed to pass legislation that would provide financial assistance, job training, access to health care and housing for the falsely accused.

“We are the worst state in the nation in terms of compensation,” said Rep. Gary Hebl, D-Sun Prairie, a co-sponsor of the proposed legislation. “People who are exonerated in this state are in a worse situation than someone who has actually committed a crime. It’s a sad state of affairs, and we need to get with the program.”

People who commit crimes and get out of prison are entitled to job training, health care and other services that help transition them into the community, but people who are innocent don’t get any of that, Hebl said.

“Imagine spending years in prison for a crime you didn’t commit. Then you get out, and you don’t even get the same services as someone who is guilty. There is something drastically wrong with that.”

———

Vasquez’s story began in February 1998 when the parents of a 4-year-old girl took her to St. Vincent Hospital in Green Bay after she complained of pain while urinating.

Based on a physical exam that revealed sores and vaginal irritation, hospital employees determined the girl, identified in court records only as G.T., had been sexually assaulted. She also tested positive for genital herpes.

The girl and her family, who spoke only Spanish, were questioned by hospital staff and a police officer. Initially, police had good reason to investigate the girl’s uncle, who lived with G.T.’s family in Green Bay, according to Wisconsin Innocence Project attorney Cristina Borde.

At first, G.T. told investigators simply that “Mario” — a name G.T. often used to refer to her uncle — had touched her, according to court records.

The uncle, whose name is being withheld by Gannett Wisconsin Media to protect the identity of the victim, admitted that G.T. often referred to him as “Mario,” though Mario is not his name. When interviewed, the uncle denied having active herpes but told police he had sores 12 years before in Mexico. Police never tested the uncle for herpes, and based on the man’s “calm demeanor,” investigators quickly dismissed him as a suspect.

Mario Victoria Vasquez checks in with customers at Amore Victoria Ristorante, which is owned by his family in Minneapolis.

Then, G.T.’s mother identified a new suspect — Mario Victoria Vasquez, who, after an argument with his wife, had been staying at the home of a brother whose wife regularly babysat the girl. G.T. identified Vasquez from a photo lineup, and in the early morning hours of Feb. 6, 1998, officers took Vasquez in for questioning.

Eager to clear himself of suspicion, Vasquez asked to be tested for herpes. An old scar found by the doctor who examined Vasquez led him to conclude that Vasquez could have had the disease, and Vasquez was arrested and taken to jail.

No herpes test was performed.

As the investigation unfolded, there were clear signs that something was amiss — signs that should have triggered alarm bells, said Borde, who represented Vasquez in his fight for a new trial.

“The heart of the problem is that there was an incomplete investigation,” Borde said. “Tunnel vision.”

Most problematic, Borde said, were confusing and conflicting statements given by G.T., who told social workers that she had been touched by her uncle, her father, and her babysitter’s husband, as well, according to court records. There was also evidence that G.T. was too young to understand the difference between the truth and a lie, court records show.

There was no DNA evidence. Though Vasquez willingly gave samples of his blood, hair and saliva for comparison, the nurse who examined G.T. at the hospital never completed a full exam on the girl, according to court records.

Despite G.T.’s conflicting statements and a lack of physical evidence, Vasquez went to trial in Brown County Circuit Court in June 1998.

During opening statements, Charles Koehn, a defense attorney who represented Vasquez and would later be disbarred, told the jury that an expert witness would testify for the defense about inappropriate interviewing techniques and problems with G.T.’s testimony. But Koehn never called an expert during the trial, and the girl’s testimony went unchallenged.

On July 1, 1998, the jury convicted Vasquez. He was sentenced to 20 years in prison. That, Vasquez said, was the moment his nightmare really began.

“When the people in prison think you are a child molester, you are the lowest of the low,” he said, his eyes cast downward. “It is like hell. Hell on earth.”

Prison life was difficult for Vasquez, who was repeatedly harassed and isolated; one by one, friends stopped visiting, though visits and support from his family never waned.

Vasquez could have been paroled three years earlier but wound up serving nearly 17 years of his 20-year sentence because he maintained his innocence and refused to participate in sex offender classes in prison, according to court documents.

He is unlikely to receive a dime of compensation for his years lost behind bars.

———

Three months after Vasquez was convicted, a Green Bay-area woman filed a complaint against the girl’s uncle — who had denied under oath that he had herpes — alleging the man had given her herpes during a sexual assault that year.

That evidence remained buried in a police file until early 2014, when lawyers with the Wisconsin Innocence Project began investigating the case, and the accusation would become a critical element of the Project’s request for a new trial.

As the renewed investigation progressed, David Thompson, a forensic psychologist, examined trial transcripts, police reports and videotaped interviews with G.T. In a detailed report, Thompson concluded that G.T. was subjected to suggestive, improper interviewing techniques and was likely influenced by her mother, who ignored indications that the girl’s uncle might have been abusing the girl, according to court records.

In January, prosecutors re-interviewed G.T., who is now 21, according to court documents. She said, despite her earlier testimony, that she had been sexually assaulted around 1998 by both her uncle and her father, and said both men had herpes.

Neither man has been charged with a crime.

Borde said the tragedy of the situation is twofold: not only did an innocent man go to prison, but she believes the victim continued to be abused throughout much of her childhood because the guilty party went free.

“Because the investigation focused on Mario, it certainly appears that people continued to victimize this young girl for years,” Borde said. “I want to make sure that point doesn’t get lost here.”

As the investigation continued, Borde also discovered new information about Charles Koehn, the attorney who represented Vasquez at trial. Koehn, who was disbarred in 2006 after nearly 100 instances of misconduct, had a history of neglecting clients and making false claims in court even before he agreed to represent Vasquez, State Bar disciplinary records show.

Armed with Thompson’s report and the information about Koehn, Borde on Jan. 30, 2015, stood before a judge outlining the evidence she intended to present if her motion for a new trial was granted. After hearing Borde’s statements, the judge granted the motion, and Vasquez was released on bond.

Brown County District Attorney David Lasee offered Vasquez a plea deal that would have involved no additional prison time in exchange for a guilty plea.

Vasquez rejected the offer.

“I would have rather gone back to prison,” Vasquez said.

Less than two weeks later, on Feb. 11, the prosecution officially dismissed the charge, and Vasquez was a free man.

Lasee did not return phone calls seeking comment for this story.

———

What started as euphoria quickly turned to confusion; then, finally, to depression and despair. In addition to the years of lost time with friends and family, Vasquez walked into a world completely different from the one in which he lived before he was sent away. He had never before used a cellphone; he is wowed by a world that includes gadgets like iPads, Nooks and smart phones.

“I don’t know how any of this works,” Vasquez said, pointing to the TV and computer at his Green Bay home. “The world has changed so much. Everything, everything is different.”

Mario Victoria Vasquez hangs out on the deck earlier this month with his son James Victoria and ex-wife Darcy Martinez at Darcy’s home in Green Bay.

While Vasquez was in prison, the world evolved; he missed it all. He was behind bars for the entire Bush administration, on 9/11, during the 2008 stock market crash and through much of the Great Recession. The U.S. went to war. Barack Obama was elected, twice.

Over the years, Vasquez aged. He slowly lost his once thick mane of black hair. He became less trusting. His father died. His mother, who lives in Mexico, grew older. His only son, who was 3 at the time Vasquez was sent to prison, grew up and became a man.

“That was the hardest thing, not seeing my son grow up,” Vasquez said. “He would come to visit, but I missed everything. Now, he barely knows me. I love him, you know? But he barely knows me.”

Vasquez’s personal life imploded, as well; two years after his conviction, his wife, Darcy Martinez, divorced him; they have since reconciled.

Martinez, with whom Vasquez now lives, said she never wavered in her belief that her husband was innocent.

“I never doubted,” said Martinez, who works as a bank executive in Green Bay. “I left him because I was young and scared. Here I am, in my 20s, raising a child, and his father is going to be in prison for 20 years. I couldn’t cope.”

Ironically, the keys to early freedom for Vasquez — parole — depended on his willingness to admit his crimes and participate in sex offender education while in prison, something Vasquez adamantly refused to do. His 20-year sentence, too, would likely have been much less had Vasquez made a confession, according to transcripts from his sentencing hearing.

“I could have gotten out, sure, but they wanted me to say I did this thing,” Vasquez said. “I am not going to say I did something that I didn’t do, no matter what.”

He said he does not regret the decision.

“It’s about honor,” Vasquez said. “It’s about telling the truth. I would do it again.”

———

Many states follow the federal recommendation of $50,000 for each year spent behind bars — with no cap on the total amount — and offer job training, education, access to housing and health care to people whose convictions are overturned.

In Wisconsin, receiving compensation — capped at $25,000 — requires defendants to prove their innocence by “clear and convincing evidence,” Borde said. Cases involving DNA evidence sometimes result in compensation, but Vasquez’s conviction was overturned without the benefit of DNA.

That means Vasquez, like most of the 39 other people exonerated in Wisconsin since 1989, could be entitled to nothing.

Rather than landing in a safety net, most exonerees find themselves in a legal battle to reestablish their lives. There are a handful of exceptions. Two Milwaukee men who each spent years in prison after being wrongfully convicted of crimes actually committed by serial killer Walter Ellis have each won settlements after filing federal lawsuits against the city.

Mario Victoria Vasquez checks in with customers at Amore Victoria Ristorante, which is owned by his family in Minneapolis.

On June 11, William D. Avery won a $1 million award after a jury found two detectives lied during the investigation, making up incriminating statements and getting other inmates to corroborate their claims. And in May 2014, Milwaukee officials announced a $6.5 million payout to Chaunte Ott, who served 13 years in prison for another murder linked to Ellis.

Federal lawsuits, however, are exceptionally difficult to win, and can take years to work their way through the system.

With no money, housing, transportation, health services or insurance, and a criminal record that is rarely cleared despite innocence, the punishment lingers long after an innocent person is exonerated.

Many, like Vasquez, struggle to adapt to a world that has changed dramatically in the years lost behind bars.

“All these 20 years lost and I come back and I don’t know how to use all of the technology,” said Vasquez, who spent more than 10 years working as a bartender and waiter at restaurants in Wausau and Appleton before his arrest. “All the jobs today require technology. ... I feel like, where do I fit in?”

Today, Vasquez spends his days reconnecting with family and friends. He walks his dog, a happy, enormous Doberman pinscher named Bruno. He waits for his new passport to arrive, allowing him to travel to Mexico to see his mother for the first time in nearly two decades.

He wonders what his future holds.

Borde said Vasquez and others who are exonerated of crimes have difficulty readjusting to life and coping with changes in the world and in their relationships.

“Even in those rare cases when someone is exonerated — and make no mistake, those cases are extremely, extremely rare — the few who get through that tiny hole in the needle have irretrievable losses,” Borde said.

“Mario cannot get those years back. He wanted everything to be the way it was when he went in. His understanding of the world stopped, in some ways, when he went in.”

Relationship changes also are difficult to cope with and understand, Borde said. Rebuilding is a struggle.

“You can’t re-start the relationships from where you left off,” Borde said. “Even for Mario, who has an enormous amount of family support, it will never be the same. It can’t be.”

State Rep. Dale Kooyenga, R-Brookfield, is expected to re-introduce a bill this fall that would increase the amount of compensation Wisconsin pays to the wrongfully convicted to $50,000 a year for each year spent in prison.

The bill would also provide additional services such as housing, transportation and health care, something Vasquez said is critical for exonerees.

“There should be some help, some counseling,” Vasquez said. “I mean, how do you cope?”

Rep. Hebl said he plans once again to co-sponsor the legislation, which failed to pass during the past two legislative sessions. The current compensation structure has been in effect for decades; the last update was in 1987.

Mario Victoria Vasquez has dinner with his son James Victoria (not pictured) and ex-wife Darcy Martinez at Darcy’s home in Green Bay earlier this month.

The number of people exonerated in Wisconsin is relatively small — 40 over the past 26 years — yet collectively, those former inmates have spent 304 years behind bars. The price to taxpayers to incarcerate the exonorees — in all, more than $10 million, according to Fiscal Bureau estimates — is enormous, but for the wrongfully convicted, the difficulty of reentering society is equally profound.

By guaranteeing compensation to the wrongfully convicted, a state can take an important step toward ensuring the integrity of its criminal justice system, Hebl said. To become law, the bill must pass both houses and be signed by Gov. Scott Walker.

“Our hope is with strong bipartisan support and with (Rep. Kooyenga’s) leadership, we’ll get it done this time around,” Hebl said.

Martinez said Vasquez is one of the lucky ones. He came home to a solid support network that includes a loving partner and son. Still, both are acutely aware of the price they have paid as a family. Vasquez has missed birthdays, family celebrations, his son’s prom and graduation.

“Nothing is going to change the past,” Martinez said. “We just have to try to make a future.”

— Shereen Siewert, 715-845-0773 or ssiewert@gannett.com. On Twitter as @ShereenSiewert.

Key recommendations:

The difficulty of reentering society is profound for the wrongfully convicted; the failure to compensate them adds insult to injury. According to The Innocence Project, society has an obligation to provide compassionate assistance to the wrongfully convicted in the following ways:

•Monetary compensation, based upon a set minimum amount for each year served

•Provide financial support for basic necessities including food, transportation, and access to affordable housing

•Provide access to medical and dental care as well as psychological or counseling serivices

•Assist in developing workforce skills, providing access to technical training and educational opportunities

•Provide legal services to obtain public benefits

•Assist exonerees in regaining custody of children

•Expunge criminal conviction records and remove convictions from public access such as CCAP

Source: The Innocence Project

Listen in

At 4:05 p.m. on Monday, I-Team reporter Shereen Siewert will join hosts Veronica Rueckert and Rob Ferrett on Wisconsin Public Radio’s Central Time to discuss wrongful convictions in Wisconsin. Listen online at http://bit.ly/1r2KuAn or visit http://www.wpr.org/regions to find the Ideas Network station closest to you.

How is Wisconsin doing?

Eyewitness identification reform

State statute requires that law enforcement agencies adopt written policies for eyewitness identification, designed to reduce the possibility of wrongful conviction. The state Attorney General’s office offers a series of best practices for agencies to follow. These include: blind administration, sequential presentation, specific instructions to the witness, appropriate filler photo usage and obtaining a confidence statement from witnesses. The Attorney General’s office has also provided trainings and otherwise worked with local jurisdiction to support effective implementation of the reforms. Effective: 2006.

Recording police interviews

State statute requires the recording of interrogations for felony offenses. In the event that a recording was not made, a jury may consider the absence of a recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case. Effective: 2005.

Post-conviction DNA testing

At any time, any person convicted of a crime, or found not guilty by reason of a mental disease or defect, may apply for post-conviction DNA testing through the convicting court. Effective: 2001; Amended most recently: 2011.

Evidence preservation

State statute requires that any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, a delinquency adjudication, or commitment shall be preserved until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date. Effective: 2005.

Compensation

A wrongfully convicted person "who did not by his or her act or failure to act contribute to bring about the conviction and imprisonment for which he or she seeks compensation" can receive a maximum of $25,000, including attorneys fees, as long as the claimant did not contribute to or bring about conviction. The Claims Board may petition legislature for additional funds. Effective: 1913; Amended most recently: 1987.

Source: http://www.innocenceproject.org

State-by-state: Number of exonerations over the past 25 years and compensation law details