[David Post] Guilty until proven innocent, in Colorado

The Supreme Court building in Washington in February. (Jon Elswick/Associated Press)

The Supreme Court will hear arguments this term in Nelson v. Colorado, a case raising some interesting and important questions about the scope and meaning of the “presumption of innocence.”

Shannon Nelson was convicted in 2006 of five sexual assault offenses she allegedly committed against her children. In addition to a prison term, Nelson’s sentence included several monetary charges that state law imposes on defendants who are convicted of crimes, including (1) a $125 fee designated for Colorado’s Crime Victim Compensation Fund; (2) a $162.50 “surcharge” designated for Colorado’s Victims and Witnesses Assistance and Law Enforcement Fund; (3) a “docket fee” of $35; (4) a “time payment fee” of $25; and (5) restitution amounting to $7,845, for a total of $8,192.50.

Because she was unable to pay, the Colorado Department of Corrections began deducting money from her inmate account while she was incarcerated to satisfy the debt she owed to the state.

Nelson’s convictions were reversed on appeal, and on retrial she was acquitted of all charges. She then filed a motion with the trial court, seeking a return of the money — $702.10 — that had been transferred from her prison account to the state pursuant to the now-vacated conviction.

The Colorado Supreme Court, over a stinging dissent by Justice William Hood, held that the trial court did not have the authority to order the state to refund Nelson’s money and that in order to obtain that refund, Nelson would have to file a separate civil action under Colorado’s Exoneration Act. That statute, enacted in 2013, authorizes an award of compensation (up to $70,000 per year of incarceration) to those who have been wrongfully incarcerated; additionally, it provides for a refund of fees and costs paid to the state.

But individuals seeking such compensation and/or refund must prove, by “clear and convincing evidence,” that they were “actually innocent” of the crime with which they were charged – not merely that they were “legally innocent” by virtue of never having been (validly) convicted, but innocent in fact.

In other words, Nelson will not be “presumed innocent” in the Exoneration Act proceeding; to get her money back — money that the state acknowledges it would have had no claim on but for the now-vacated criminal conviction — she will have the burden of persuading the court that she was, in fact, innocent of the crimes charged.

It hardly seems fair.  You’ve seen it a thousand times on TV, the guy who’s been released from jail who picks up, on his way out the door, all the stuff he had to turn over to the cops when he was taken into custody — keys, phone, loose change, wristwatch … It’s as though Colorado were to say: “We’re not going to give you your stuff back unless you go to court and prove – by clear and convincing evidence, no less! – that you’re actually innocent of the crime we thought you had committed.”

An amicus brief submitted by the Institute for Justice and the Cato Institute (that I helped write, and for which I’m counsel of record) argues that not only is it not fair, it violates fundamental due-process principles to reverse the presumption of innocence in this way.

There may well be no principle of law more familiar to most people — if only from the uncountably large number of TV shows and movies that have repeated the formulation — than the notion that a criminal defendant is “presumed innocent” of all charges, and that the government has the burden of proving guilt by proof “beyond a reasonable doubt.” And indeed, the Supreme Court has held (see Coffin v U.S., 156 U.S. 432 (1895)  and In re Winship, 397 U.S. 358 (1970) ) that both parts of that formulation — th