In 1996, Jerry Brock was convicted at trial of Child Molestation in the First Degree and sentenced to life without parole as a “third strikes” persistent offender. Mr. Brock filed many appeals and personal restraint petitions. In 2012, Mr. Brock’s victim recanted her allegations, stating she lied in order to obtain her mother’s attention, and that Mr. Brock never touched her.
In 2013, Mr. Brock filed another personal statement petition seeking a new trial. The reviewing trial court found the recantation credible, vacated Mr. Brock’s conviction, and ordered a new trial. The Thurston County Prosecutor then moved on behalf of the State to dismiss the case.
Mr. Brock initiated a claim for compensation under the “Wrongly Convicted Persons Act” (‘WCPA’) of 2013, which is the legislature’s attempt to remedy the unique damage to wrongly convicted persons who have lost years of their lives, as well as opportunities and experiences otherwise impossible to recover.
Mr. Brock’s compensation claim under the WCPA went to trial in 2022, 26 years after his initial conviction. The trial became necessary because the State did not concede that Mr. Brock’s reversal of conviction meant that he “did not engage in any illegal conduct alleged in the [original] charging documents”. This was the only issue in dispute: there are 6 elements to prove in the WCPA, and the State conceded that Mr. Brock demonstrated by clear and convincing evidence 5 of those points*. The State did not concede, and correctly stood on the proposition that Mr. Brock could not prove “actual innocence” by the clear and convincing standard.
At the WCPA compensation trial, the child victim “plead the 5th” and did not testify. Her 1996 trial transcript was utilized. Mr. Brock provided three witnesses to vouch or bolster the recantation, and testified himself. Unfortunately, Mr. Brock’s testimony was somewhat discredited when he could not recall his disparagement of the victim when he was initially interviewed by the police.
The WCPA trial judge found the original allegations and the recantation to be credible and internally consistent. The case turned on the remaining evidence, including Mr. Brock’s testimony. The Court found some elements of Mr. Brock’s testimony credible, but other parts “unreliable”.
The Court found the totality of the evidence “more strongly supported the original inculpatory trial testimony than the recantation”. The Court ruled Mr. Brock did not meet his burden by clearly and convincingly demonstrating he was actually innocent. The WCPA trial judge acted as a fact-finder. The Appeals Court reviewed the matter as to whether the trial judge’s finding of fact supported its conclusion of law.
The Appeals Court found that the ultimate fact in issue – Mr. Brock’s actual innocence – was correctly the ultimate issue. The Trial Court correctly concluded Mr. Brock did not provide clear and convincing evidence, which is when “the ultimate fact in issue is shown by the evidence to be highly probable”, quoting from a dependency case. In Re Dependency of A.N.C., 24 Wn. App 2d 408, 414 (2022).
Mr. Brock also appealed that the trial judge failed to follow the WCPA mandate to give “due consideration to difficulties of proof not caused by the parties” (like the alleged victim ‘pleading the 5th’). The trial judge did give consideration to this, allowing heresay and actually allowed testimony of Mr. Brock’s attorneys and private investigator! Unfortunately, the Court noted from Mr. Brock’s trial testimony that he was able to “remember exculpatory details with great clarity, while struggling to remember details that could be inculpatory.” The trial judge did give Mr. Brock due consideration of proof difficulties regarding a 26 year old allegation.
Mr. Brock’s case demonstrates that, if a defendant is fortunate enough to get a serious prison term thrown out on appeal, that this circumstance does not mean the accused will easily obtain statutory compensation under WCPA. Indeed, the very same prosecutor’s office that voluntarily agreed to dismiss his criminal case strongly advocated against his recovery of compensation for being wrongly convicted, and he was not able to sustain his burden of showing he was actually innocent. This published opinion indicated strongly that someone ‘wrongly convicted’ must be ‘actually innocent’ to receive state compensation.
*(a) [t]he claimant was convicted of one or more felonies in superior court and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence;
(b)(i)[t]he claimant is not currently incarcerated for any offense; and(ii) [d]uring the period of confinement for which the claimant is seeking compensation, the claimant was not serving a term of imprisonment or a concurrent sentence for any conviction other than those that are the basis for the claim;
(c)(ii) [t]he claimant’s judgment of conviction was reversed or vacated and the charging document dismissed on the basis of significant new exculpatory information . . .
(d) [t]he claimant did not engage in any illegal conduct alleged in the charging documents; and
(e)[t]he claimant did not commit or suborn perjury, or fabricate evidence to cause or bring about his or her conviction.