SOME JUSTICE DONE AT LAST

Miserly compensation follows pardon -- despite arrogant official

More than a year after receiving a pardon that declared him innocent, Josiah Sutton learned Friday that he will get more than $118,000 in reparations that he feared he never would see. "I have been running into roadblocks since I got out, because I didn't know how to be an adult and people didn't want to hire me," said Sutton, who was 17 when he was wrongfully convicted of a 1998 rape. "I have been through hell and back trying to get things together, but this is enough to get me and my family a foundation and to start living my dreams."

Sutton, 23, served 4 1/2 years in prison before new DNA tests discredited those performed by the Houston Police Department crime lab, which played a large role in securing his conviction and 25-year sentence. The former high school football player was released in March 2003. After months of wrangling with the state Board of Pardons and Paroles, Gov. Rick Perry granted him a pardon on the basis of innocence, rather than a lesser "full" pardon, in May 2004.

Despite the pardon, however, Sutton and his lawyers worried that he would not receive the $25,000 per year of imprisonment that state law provides for those who were wrongfully convicted. Harris County District Attorney Chuck Rosenthal refused to write a letter to the state calling Sutton actually innocent — a requirement that was added to the reparations law in 2003. After a year of talks among Rosenthal, Sutton's lawyers and the state Comptroller's Office, which pays the reparations, Rosenthal agreed in August to send a letter saying he did not oppose the payment to Sutton. Rosenthal said Friday that he never questioned Sutton's qualification for reparations, although he has steadfastly refused to call Sutton innocent. "The complainant in the case still believes that he is not innocent and I do not know that she is incorrect," Rosenthal said.

The Comptroller's Office told Sutton's lawyer, Justin Waggoner, on Friday that a check for almost $60,000 had been mailed. "The record was so abundantly clear that his was a pardon on the basis of innocent, that there wasn't any basis for denying him the money," Waggoner said. "I am hopeful this compensation will benefit him, but I certainly wouldn't trade 4 1/2 years of my life for this level of compensation."

Sutton's case has become a symbol of the problems at the HPD crime lab, where errors have been exposed in the work of four divisions, including DNA, ballistics and serology. For nearly three years, police and prosecutors have worked to retest evidence from hundreds of cases. Sutton himself, according to state Sen. Rodney Ellis and other supporters, embodies the problems faced by people who are wrongfully convicted. "Four and a half of the most important years of this young man's life were taken and put behind bars," said Ellis, D-Houston. "He has had a hard time since he came out because he was expected to act like an adult, but was not equipped to be one. He needs counseling and assistance, not just money."

Since his release in March 2003, Sutton said Friday, he has struggled to hold a job and has been told several times, even after he was pardoned, that he was not being considered for certain jobs because of his criminal record. He also has had a hard time keeping a place to live. At times, he said, he has had his own apartment, and at others he has slept on friends' couches or moved in and out of his mother's place, where he currently lives. "I am out of prison, but I am hardly free," Sutton wrote in an Aug. 5 letter to Rosenthal, pleading with him to write a letter on his behalf. "Most of my days are spent worrying about where my next meal will come from and trying to find transportation from one place to the next. My efforts to get my life on track have been filled with disappointment and frustration."

Just after he was pardoned, Sutton's lawyers began applying for compensation under a 2001 state law that allows the wrongfully convicted to receive $25,000 for each year they spent in prison, with a cap of $500,000. They discovered during that process that a new provision, requiring a letter from the district attorney certifying the claimant's actual innocence, had been slipped into the law in 2003. Ellis, the law's author, had not known about the change and worked unsuccessfully to restore the original language in this year's Legislature. Eventually the senator, lawyers and the comptroller agreed that a letter saying Rosenthal acknowledges the pardon and is not opposed to the compensation would satisfy the requirement. Sutton qualifies for $118,749.97. He will receive a second, final installment next year if he has not been convicted of a felony, according to state law.

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