WHEN INJUSTICE CONTINUES

By Marc H. Simon

America is home to a small, little-known community of survivors whose lives have been shattered by tragedy - a man-made disaster known as wrongful conviction. New York is no stranger to this disaster. America's most recently exoneree prisoner, Barry Gibbs, was freed from a New York prison on Sept. 29 - after spending 19 years in prison for a murder he did not commit. At 57, Gibbs reentered society without money, without family (his mother and ex-wife both died while he was incarcerated), and without a home or livelihood. His cruel, yet heroic struggle, is shared by other innocent men wrongfully convicted and later proven innocent after years of unjust incarceration.

Since 1989, approximately 400 people have been exonerated across the U.S., including 121 from Death Row. While the guilty typically leave prison supported by an array of reentry programs, including the parole system, the exonerated receive little or no assistance to enable them to transition back into society. In fact, with the exception of Massachusetts, no state provides government-supported health care, counseling, job training or housing assistance for these individuals. Most states don't even offer financial compensation to the wrongfully convicted.

Consider the fate of the seven exonerees featured in "After Innocence," a newly released film I produced and directed. Only one, from Massachusetts, has received compensation from his state government. The others won't receive a penny under their states' existing laws. New York is one of the few states that provide compensation without a maximum cap, but compensation requires a cumbersome hearing process to prove damages.

By contrast, the federal government last year passed the Justice For All Act, which provides those convicted of a federal crime $50,000 for each year of unjust incarceration, with $100,000 for those who served on Death Row. State governments should follow Washington's lead.

The public has recently begun to recognize the plight of the exonerated, but two fundamental steps must be taken to help make these broken lives whole again: First, all states need to enact meaningful compensation statutes that will enable the innocent to handle the financial realities of reentering society upon their release. Secondly, the federal and/or state governments must immediately fund a program to provide the exonerated with reentry services similar to those provided to the guilty by the parole model.

The private, nonprofit group, Life After Exoneration Program, is the nation's only organization offering job training and other help to a network of exonerees nationwide. The program needs funding to bring this model to all 50 states - something that could happen soon if only the federal and state governments, foundations and the public come to recognize society's moral obligation to assist the exonerated.

The exonerated number only in the hundreds, and remain largely overlooked. This needs to change immediately or society will have failed the exonerated twice - first, by incarcerating them unjustly, and again by failing to support their reentry into society.

Background to the Gibbs case:

In 1999 the Innocence Project took up the case of Barry Gibbs, but with no success. Unwilling to admit remorse for a crime he did not commit, Gibbs seemed doomed to live out his entire sentence without Parole or vindication.

Then, in March, 2005, agents of the Drug Enforcement Administration raided the Las Vegas home of former NYPD Detective Lou Eppolito after arresting him, his son Anthony, and his former partner Stephen Caracappa on drug trafficking charges. Eppolito and Caracappa were also accused of participation with the Mafia in numerous murders. Inside Eppolito’s basement agents found the case file on the Barry Gibbs prosecution, which Eppolito had been an investigator on.

Clearly, there were problems with the case. Gibbs had been convicted primarily on the testimony of one man, Peter Mitchell, who claimed he saw a man in a park dumping the slain body of Virginia Robertson. Mitchell had picked Gibbs out of a police line-up as that person and testified as to such at Gibbs’ trial. However, once confronted two decades later by Federal agents, Mitchell claimed he had been coerced by Detective Eppolito into falsely identifying Gibbs.

Gibbs is now at last a free man. Understandably, the mother of Virginia Robertson is upset that Gibbs was apparently framed by Detective Eppolito. In a New York Post interview, Robertson angrily recalled the day on which Detective Eppolito came to her house to tell her that her daughter had been found murdered. Bizarrely, Robertson says Eppolito told her that her murdered daughter had spoken to him, stating: "I didn’t mean to die like this!" Mrs. Robertson accuses Eppolito of being a liar, admonishing: "How can dead people talk to you?"

Such strange behavior on Eppolito’s part is even more troubling given that he has now been accused of participating in 10 murders. Those who have known Eppolito for years say he has never claimed to be able to speak to the dead. If Virginia Robertson ever attempted to speak to Detective Eppolito, it must have been while she was still alive.

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