KANSAS CITY, Mo. (CN) – Freed from prison by DNA evidence after 17 years, a black Missourian may receive $50 a day for his pains, but only if a judge finds him “actually innocent.”
Robert Nelson was convicted of forcible rape, forcible sodomy and robbery in the first degree in 1985 after a two-day jury trial in Jackson County. He was sentenced to 50 years for rape, 5 years for sodomy and 15 years for robbery, to be served consecutively.
A judge ordered Nelson’s sentences to start after he finished serving time for two unrelated robbery convictions. Those sentences ended in 2006.
Nelson was released in 2013, after serving 17 years for the rape and robbery charges, after DNA evidence proved his innocence.
Nelson sued Missouri in Jackson County on May 29, seeking $318,000 in restitution – the $50 a day permitted by Missouri law.
The law – Missouri Revised Statutes, Section 650.058.1 – allows restitution of $50 for “each day of post-conviction incarceration for the crime for which the individual is determined to be actually innocent,” if a person is cleared of felony charges “solely as a result of DNA profiling analysis.”
Nelson was convicted of a 1983 crime in which two armed men forced their way into a Kansas City home and raped a 25-year-old woman.
Police showed the victim photographs of sex offenders and other men but the woman was unable to identify her attackers, according to the Midwest Innocence Project.
Police placed Nelson and his brother, O’Dell Nelson, who were already in jail on robbery charges, in a lineup, and the victim made a “tentative visual identification” of Nelson and “positively identified” him as her attacker when she heard him speak in a police videotape.
Charges against O’Dell Nelson were dropped due to lack of evidence, according to Midwest Innocence Project.
After being convicted, Nelson’s 1987 request for a new trial was denied. His 2009 request for DNA testing also denied.
Then in 2011, a Jackson County court clerk, Sharon Snyder, gave Nelson’s sister a copy of a successful DNA testing motion – an easily obtained public document – to use as a template to try again. Nelson’s next motion was granted, and DNA testing was conducted in 2012 and 2013.
Nelson was freed in 2013 based on the DNA results.
A few months after Nelson’s release, Jackson County Circuit Judge David Byrn – who denied Nelson’s first motion and sustained the second motion that resulted in DNA testing – a fired Snyder, a 34-year court veteran just nine months away from retirement, for providing assistance to Nelson’s sister and talking about the case, according to The Kansas City Star.
Now it’s up to Jackson County Circuit Judge Bryan Round to determine whether Nelson is “actually innocent.”
Under Missouri law, a person is considered “actually innocent” based on four criteria:
He or she was convicted of a felony for which a final order of release was entered by the court;
All appeals of the order of release have been exhausted;
The person was not serving any term of a sentence for any other crime concurrently with the sentence for which he or she is determined to be actually innocent;
DNA testing demonstrates innocence.
Nelson’s attorney, Zachary Crowell, says Nelson fulfills all requirements for restitution because he was convicted of a felony in a Missouri court, determined to be “actually innocent” as a result of DNA testing and released from prison with the state waiving its right to appeal.
Crowell did not respond to requests for comment.
Nelson seeks restitution for the 6,362 days he was wrongfully incarcerated, from 1996 until his release in 2013. The proposed order would grant an aggregate sum of $318,100, with the first annual payment of no more than $36,500 paid no later than June 30, 2015.
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