by Andrew Walden

Sometimes Hawaii legislators outdo even themselves. 

HB148, now before the Hawaii State Senate, offers a bounty of full 'legal expenses' plus $75K to Hawaii defense lawyers for harvesting old criminal convictions and re-trying them years later. 

If, after years or decades, prosecutors cannot once again prove the guilt of the criminal, the lawyer will receive hundreds of thousands of dollars cash and the 'innocent' criminal will receive payments possibly in excess of a million dollars in cash plus an estimated average $487,700 in benefits--enough money that the State Employees Retirement System is concerned that HB148 will "will have a significant financial impact on the State."

This is all part of a scheme hatched by two of the lawyers famous for helping OJ Simpson get off on his 1994 double murder rap in Los Angeles.

Who will get rich off HB148?  Diane DiMaria of Santa Cruz, California, describing herself as "mother of a wrongfully convicted inmate" testifies February 6 in support of HB148, complaining that "my son (Richard Damian Serrano) has languished in prison since 1999."

After reading testimony from Serrano's mother and several local defense lawyers, the full House voted unanimously to pass HD148 on both second and third readings.  Throughout the entire process, the only hint of dissent came from Reps McDermott and Takayama who voted "aye with reservations" after the February 6 House Judiciary Committee hearing.    

Here is the Star-Bulletin's account of the crimes which earned Serrano a 120 year sentence:

Raped repeatedly, then thrown over a sea cliff where she lay on rocks washed by moonlit waves, Sequoya Vargas, 16, screamed in pain.

That's how a key prosecution witness described the last moments of Vargas' life as testimony got under way yesterday in the trial of Richard Damian Serrano. "I heard her scream," said Jason McCubbins, who has already pleaded no contest to his involvement in the crime. "She screamed for God and for her mom."

Serrano, 29, is accused of murder, kidnapping and sexual assault in the Aug. 22, 1993, attack on Vargas. A jury is hearing the trial in Circuit Court here.

Serrano insisted on returning to the Puna coast where he, McCubbins and another man, Matthew Gibbs, dumped her after she was raped, McCubbins said. "He (Serrano) told us he wanted to make sure she was dead."

McCubbins, threatened by Serrano, climbed down the sea cliff and found Vargas on rocks, groaning, he said.

Deputy Prosecutor Jack Matsukawa asked what happened next. The boyish, redheaded McCubbins responded with a combination of a grin and a grimace, "Damian had sex with her again."

He said Serrano grabbed Vargas by the hair and slammed her head against a rock, then dragged her by the hair into the water, but waves washed her onshore. Serrano, a surfer, swam with her out past the breakers, he testified....

McCubbins, Serrano's cousin, said he, Serrano, Gibbs, and Vargas began drinking at his house.

Serrano added prescription cough medicine...to Vargas' drinks....

When she passed out, Serrano stripped her, then had sex with her....

When Vargas started to wake up, Serrano slammed her head against the wall, knocking a hole in it. Then Serrano had sex with her again....

Serrano dragged Vargas by her hair to a car trunk....

...Serrano...had been a fugitive for several years until he was found in Mexico last year and returned to Hawaii....

Sentencing Serrano, Judge R. M. Amano pointed out, "There is very little difference at times between humans and animals, but humans have a conscience. That's what I find lacking."

What will HB148 give to animals like Serrano and their lawyers?  Here is a list from the text of HD148:

(A)  Not less than $50,000 for each year of imprisonment, to be pro-rated for partial years served.  This amount shall reflect:

(i)  Inflation from the date of enactment of this chapter as adjusted by the director of finance; and

(ii)  Consideration of economic damages, including but not limited to lost wages, costs associated with the claimant's criminal defense and efforts to prove innocence, medical and dental expenses incurred or expected to be incurred after release, and consideration of non-economic damages for personal physical injuries or physical sickness and for any non-physical injuries or sickness arising out of same, incurred during or as a result of imprisonment; and

(B)  Not less than $25,000 for each year served either on parole, probation, or as a registered sex offender, to be pro-rated for partial years served.  The minimum dollar amount for damages set by this subparagraph shall be adjusted by the director of finance to account for inflation from the date of enactment of this chapter;

(2)  Physical, dental, and mental health care, including all premiums, co-pays, deductibles, and related costs, for the life of the claimant, to be offset by any amount provided through the claimant's employers during that time period; provided that the claimant enrolls in the Hawaii health insurance exchange, and provided further the department of health assists with the claimant's enrollment;

(3)  Waiver of or reimbursement for any tuition and fees, including any necessary assistance to meet required admission criteria, paid for the education of the claimant and any biological children of the claimant that were conceived prior to the claimant's imprisonment for the wrongful conviction at any community college or other unit of the University of Hawaii under chapter 304A, or a mutually agreed upon vocational program and employment skills development training;

(4)  Compensation for any child support payments owed by the claimant that became due and any interest on child support arrearages that accrued during the claimant's time served in prison, to be paid to the obligee of the child support order;

(5)  Compensation for any reasonable costs for immediate services secured upon exoneration and release, including housing, transportation, subsistence, re-integrative services, and mental and physical health care costs, incurred by the claimant for the time period between the claimant's release from wrongful imprisonment and the date of the claimant's award; provided that any compensation awarded under this paragraph shall not duplicate any services received by the claimant and paid for by the State pursuant to section   -7; and

(6)  Reasonable attorneys' fees for bringing a claim under this chapter calculated at ten per cent of the damage award plus expenses

2015-1999 = 16 x $50,000 = $800,000 plus $487,700 medical benefits = $1,287,700 which will be waiting for child rapist and murderer Richard Damian Serrano if money-motivated lawyers win in his new trial under HB148.  This does not count lost wages, inflation, tuition, housing, child support, interest, legal fees and legal expenses.

The Department of the Attorney General explains: 

"The Department opposes the bill because it makes the State, in effect, the insurer of any errors in the criminal justice system. The purpose section of the bill cites no data or anecdotal evidence demonstrating the need for the legislation. As a result, this Committee is being asked to approve a comprehensive compensation bill absent any information showing the need for it....

"The National Innocence Project’s model compensation law, upon which this bill is based, has not been followed by any of the states whose compensation laws have been reviewed by the Department to date. Moreover, the state compensation laws reviewed by the Department differed from each other in significant ways. This bill, like the National Innocence Project’s “model” law, is problematic for reasons outlined below. The phrase “not inconsistent with innocence” is vague and open to multiple interpretations. The intended scope of the bill is to require compensation for “innocent” persons, i.e., persons who did not commit criminal acts, but who were nevertheless convicted and imprisoned. However, the bill appears to allow claims to be brought by persons who committed crimes and were convicted, and therefore not “innocent,” but were later pardoned. Pardons almost always involve persons who actually committed the crime for which they were convicted, and later seek a pardon based on good behavior since their conviction. Therefore, pardons are inconsistent with a claim of innocence.

"In addition, this bill does not preclude claims for convictions that were vacated or reversed due to a legal deficiency. For example, a claim could be brought by a person who had drugs in his possession and was convicted for a drug possession offense, but whose conviction was later overturned because of the failure to obtain a search warrant before searching and recovering the drugs. As another example, a claim could be brought by a person who committed the crime for which he was convicted, but whose conviction was overturned because of the failure to read him his Miranda rights after he had been placed in custody. Moreover, the bill fails to specify the type of evidence required to prove one’s “innocence.” Will DNA testing exclusively be required? Will other types of scientific evidence, such as the results of a polygraph test, or other tests of varying degrees of scientific acceptance, be sufficient? Will a “new” witness or a witness who changes or recants the witness’ former testimony be sufficient to prove one’s innocence? Without further clarification, an unintended consequence of the bill may be to provide financial incentive for persons convicted of crimes to challenge their convictions, when they might not otherwise do so, because if they succeed, they will be entitled to compensation for the reasons, and in the amounts, set out in the bill. Finally, the bill allows the court no discretion in awarding compensation, even where the court may find the amount to be unjustified or inappropriate. For example, on page 5 of the bill, lines 13-16, the court must award the claimant no less than a yet to be specified amount, for each year of incarceration, for any “physical injury,” no matter how minor. There is also no provision to prorate this amount for partial years of incarceration. The court must further award another yet to be specified amount, for each year served on parole or probation. (Page 6, lines 12-15.) The court must also award compensation to the claimant for child support payments owed by the claimant, which accrued during the claimant’s incarceration, plus interest, even if the claimant had refused to pay child support prior to or after claimant’s incarceration."

The so-called National Innocence Project was co-founded by OJ Simpson double murder case defense lawyers Barry Scheck and Peter Neufeld.  Simpson was later found civilly liable for the two murders.  Scheck's star client is now rotting in a Nevada prison for robbery, kidnapping, coercion, and conspiracy after bursting into a man's hotel room in 2007 and robbing him at gunpoint. 

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Background: Crime Pays: Legislators Propose $50K per year Cash to ex-Convicts

HB148: Text, Status