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One of the criminal justice system’s flaws is the possibility an individual might be convicted of a crime they did not commit. To help ameliorate the ramifications of this flaw, the Nevada Legislature adopted Assembly Bill 267 (AB 267) in 2019, codified at NRS 41.900 et seq. This statutory scheme compensates persons who can prove, by a preponderance of the evidence, that they have been wrongfully convicted and incarcerated. This article briefly explains the history, structure and process of this new law.

History of Wrongful Imprisonment StatutesAs early as 1932, there were forceful arguments in America regarding alleged

unjust imprisonments,1 but it was not until the use of DNA testing in the 1980s that courts more commonly began overturning cases on the basis of actual innocence. The first criminal conviction in the U.S. to be vacated on the basis of DNA evidence was that of Gary Dotson in 1989.2 By 1996, the U.S. Department of Justice, through its National Institute of Justice, published a report entitled Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish

Innocence After Trial.3 Thereafter, more DNA-based studies revealed numerous additional wrongful convictions,4 which led to the creation of wrongful conviction-oriented and law school-affiliated organizations like the Innocence Project, affiliated with the Cardozo Law School, and the National Registry of Exonerations at the University of Michigan Law School. Approximately 2,670 wrongfully convicted individuals have been exonerated in the U.S. since 1989.5

Some states, such as New York, adopted unjust compensation statutes as early as 1984. See N.Y. Court of Claims Act §8-b, et seq. However, by 2010, only 27 states, the District of Columbia and the federal government had such laws in place.6 Many states and local district attorneys also created Conviction Integrity Review Commissions to assist in reviewing claims of innocence by defendants prior to the filing of unlawful conviction compensation claims.7

In 2011, Pennsylvania conducted a retrospective study that found four factors primarily contribute to convictions in cases where DNA evidence exonerated those later found to have been wrongfully convicted: (1) false confessions, (2) unreliable eyewitness identification, (3) failure of the state to turn over

AB 267:AB 267:Nevada’s Wrongful Conviction CompensationAct BY HEATHER PROCTER, ESQ.,

SHERYL SERREZE, ESQ. AND JAIMIE STILZ, ESQ.

exculpatory evidence and (4) unreliable informant testimony.8

Nevada’s New Wrongful Conviction Compensation Statute

In 2019, the Nevada Legislature adopted Nevada Revised Statute (NRS) 41.900 et seq. to provide justice by compensating persons who were wrongfully incarcerated. It allows a person “who is not currently incarcerated for any offense” to bring a civil action “for his or her wrongful conviction” against the state in state district court. NRS 41.900(1). In order to balance the state’s obligation to be fair and just with its responsibility to ensure that it is not overwhelmed with enormous monetary liability, NRS 41.900(2) requires that the petitioner prove, by a preponderance of the evidence, that:

1) They were convicted of a felony in Nevada and subsequently imprisoned for that conviction;

2) They did not commit that felony or the acts comprising the felony, and were not an accessory, accomplice, nor aid, abet, or act as an accomplice or accessory to the person who committed the acts;

3) They were not convicted of any offense necessarily included in the offense charged; and

4) They did not commit perjury or fabricate evidence during the criminal proceeding, or by their own conduct cause or bring about said conviction. NRS 41.900(2)(a)-(c), (e).

Additionally, at least one of the following must have occurred:

1) The conviction was reversed or vacated, with the charging document dismissed;

2) The basis for reversing or vacating the conviction was not a legal error unrelated to their innocence, and if the court ordered a new trial, they were found not guilty at the subsequent trial, or they were not retried and the charging document dismissed; and/or

3) They were pardoned by the Nevada State Board of Pardons Commissioners on the basis of actual innocence. NRS 41.900(2)(d).

If the person meets their burden of proof under these statutory requirements,

the court will issue a certificate of innocence and order the criminal records sealed. NRS 41.910(1), (3). The formula for compensation is set by NRS 41.950(1)(a)-(b) and depends on the length of wrongful incarceration as well as length of parole, if applicable:

• $50,000 for each year of imprisonment if they were imprisoned for 1-10 years;

• $75,000 for each year of imprisonment for 11-20 years;

• $100,000 for each year of imprisonment for 21 years or more; and

• Not less than $25,000 for each year the person was on parole.

Additional relief, including reasonable attorneys’ fees, educational expenses, counseling services and certain other reimbursements are also allowed; but, unlike compensation damages, this relief is not mandatory. NRS 41.950(2). Petitioners cannot receive compensation for any period during which they concurrently served a lawful term of incarceration. NRS 41.950(4).

Because many petitioners also file lawsuits against individual police officers, municipalities and other government agencies alleging wrongful conviction or other bad acts—e.g., actions for violations of their federal due process rights under 42 U.S.C. § 1983—the statute includes an “offset” or “claw back” provision. Should the petitioner later receive “a civil settlement or award relating to his or her wrongful conviction” that exceeds the amount recovered in the case against the state, they must reimburse the state pursuant to NRS 41.960. As explained by Assemblyman Steve Yeager, sponsor of AB 267, when presenting the bill: “Simply stated, you cannot double dip. If you bring a suit later and win, you have to reimburse the state for any monies paid out under this bill.”9 Michelle Feldman, state campaigns director for the Innocence Project, also testified at that same hearing. She explained that if an exoneree were to “win a civil award, they would have to reimburse the state for the difference and vice versa … [T]hey would only be entitled to the amount of state compensation after the civil payments were subtracted. That is the taxpayer protection that we have in there.”10

Once the district court grants a certificate of innocence and issues a monetary judgment, the petitioner must submit a claim to the State Board of Examiners for payment from the Reserve for Statutory Contingency Account. NRS 41.970.

Process for Wrongful Conviction Compensation Cases

The statute of limitations to file a wrongful conviction compensation case is generally two years from the operative event dismissing, pardoning or otherwise vacating the petitioner’s conviction. NRS 41.940(1). If those events occurred before October 1, 2019, the action must be commenced by October 1, 2021. NRS 41.940(2).

The complaint must be accompanied by a verified statement of facts and served upon the Nevada Attorney General. NRS 41.930(2). All unsettled cases must be tried without a jury. NRS 41.930(3).

The Post-Conviction Division of the Office of the Attorney General is responsible for litigating these cases, and as a policy matter, approaches cases from a cooperative rather than confrontational point of view. If sufficient facts and supporting documentation are attached to the complaint, such as a pardon on the basis of actual innocence or a report by a county Conviction Review Unit, the attorney general has and will continue to recommend settlement of the matter as expeditiously as possible. However, where there is a factual or legal issue that must be decided under the statute, the court must make that determination. To ensure a case is resolved as expeditiously as possible, petitioners should attach to the complaint all available documentation that fulfills the above-enumerated statutory elements.

Attorney General Aaron Ford has a frequent saying: “Our job is justice.” When an individual is wrongfully convicted through no fault of their own, it is imperative they receive justice through AB 267. The Office of the Nevada Attorney General is proud to be involved in ensuring that even though justice may not have occurred originally, justice is finally achieved for those who deserve it—the wrongfully convicted.

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The National Academy of Distinguished Neutrals is an invitation-only professional association of over 900 litigator-rated Mediators & Arbitrators throughout the US and a proud sponsor of both the DRI & AAJ. For info, visit www.NADN.org/about

NEVADA CHAPTER MEMBERSCheck Available Dates Calendars Online for the following attorneys, recognized in 2020 for

Excellence in the field of Alternative Dispute Resolution

Hon. Gene Porter(702) 932-2600

Ara Shirinian(702) 496-4985

Hon. Jackie Glass(702) 960-4494

William Turner(702) 525-4888

Hon. Janet Berry(775) 220-7555

Greg Hafen(702) 384-5800

Hon. Nancy Saitta(702) 960-4494

Bob Enzenberger(775) 786-7000

AB 267: Nevada’s Wrongful Conviction Compensation ActENDNOTES:

1. Edwin M. Borchard, Convicting the Innocent: Errors of Criminal Justice, Yale University Press (1932).

2. See Bluhm Legal Clinic Center on Wrongful Convictions, https://www.law.northwestern.edu/legalclinic/wrongfulconvictions/exonerations/il/gary-dotson.html (last accessed 9/14/2020).

3. Edward F. Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, National Institute for Law and Justice (NIJ) (1996).

4. See Samuel R. Gross, et al., Exoneration in the United States 1989 through 2003, 95 J. Crim. L. & Criminology 523, 524 (2005).

5. See The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/browse.aspx (last accessed 9/14/2020).

6. See Deborah F. Buckman, Construction and Application of State Statutes Providing Compensation for Wrongful Conviction and Incarceration, 53 A.L.R.6th 305 (originally published in 2010).

7. See Barry Scheck, Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them, 31 Cardozo L. Rev. 2215 (2010).

8. See PA Report of the Advisory Committee on Wrongful Convictions, September 15, 2011, http://jsg.legis.state.pa.us/resources/documents/ftp/documents/9-15-11%20rpt%20-%20Wrongful%20Convictions.pdf (last accessed 9/14/2020).

9. Hearing on A.B. 267 Before the Assembly Committee on Judiciary, 2019 Leg., 80th Sess. 4 (Mar. 28, 2019).

10. Id. at 7-8.

HEATHER PROCTER is the chief of the Post-Conviction Division of the Office of the Nevada Attorney General, where she focuses primarily on federal and state habeas litigation, extraditions and wrongful conviction compensation cases. She was a member of the third graduating class from the William S. Boyd School of Law in 2003.

SHERYL SERREZE is a deputy attorney general in the Post-Conviction Division of the Office of the Nevada Attorney General, where she practices state, federal and wrongful conviction compensation cases. She was previously an assistant U.S. trustee with the U.S. Department of Justice and a Senior Fellow at Harvard Law School’s Legal Service Center. She is a graduate of Boston College Law School.

JAIMIE STILZ is a deputy attorney general in the Post-Conviction Division of the Office of the Nevada Attorney General. Her practice primarily consists of federal and state habeas litigation and wrongful conviction compensation matters. She graduated from the William S. Boyd School of Law in 2014.