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1 1 Section 1. NEW SECTION. 669A.1 MISCARRIAGE OF JUSTICE –
1 2 CLAIM AUTHORIZED.
1 3 Notwithstanding any provision of chapter 669 to the
1 4 contrary, a claim to compensate a person for certain losses
1 5 incurred as a result of the miscarriage of justice shall be
1 6 permitted against the state. A miscarriage of justice is an
1 7 erroneous conviction of a person for a criminal offense.
1 8 Miscarriage of justice includes situations where the person's
1 9 conviction is reversed by an appellate court on the ground
1 10 that the evidence was not sufficient to sustain the conviction
1 11 or vacated on the state's motion following discovery of new
1 12 evidence demonstrating the person's innocence. Miscarriage of
1 13 justice does not include situations of law enforcement or
1 14 prosecutorial misconduct or negligence or ineffective
1 15 assistance on the part of the attorney representing the person
1 16 in the criminal action.
1 17 Sec. 2. NEW SECTION. 669A.2 COMPENSATION FOR MISCARRIAGE
1 18 OF JUSTICE – VENUE – LIMITATIONS.
1 19 1. A claim requesting compensation for a miscarriage of
1 20 justice may be filed in the district court in the county in
1 21 which the plaintiff resides or in which the erroneous
1 22 conviction occurred. Compensation for miscarriage of justice
1 23 shall include only the following:
1 24 a. A reasonable amount for income lost and other economic
1 25 losses actually incurred as a result of the person's
1 26 incarceration following conviction.
1 27 b. Attorney's fees and court costs incurred defending the
1 28 criminal action.
1 29 c. Victim restitution paid by the person subsequent to
1 30 conviction.
1 31 d. The amount of any fine and criminal penalty surcharge
1 32 paid by the person following conviction.
1 33 Compensation shall not include loss of future earning
1 34 capacity as a result of the miscarriage of justice.
1 35 2. To obtain compensation for a miscarriage of justice,
2 1 the person shall prove by clear and convincing evidence only
2 2 that the person did not commit the offense for which the
2 3 person was convicted. Negligence or misconduct on the part of
2 4 either the government or the defense attorney in the criminal
2 5 action are not elements which must be proved by the person to
2 6 recover compensation.
2 7 However, if the state demonstrates that negligence,
2 8 ineffective assistance of counsel, or misconduct on the part
2 9 of the attorney representing the person in the criminal action
2 10 was the cause of the miscarriage of justice, the claim shall
2 11 be dismissed.
2 12 3. A claim must be filed within two years from the date
2 13 procedendo issues, the person's conviction is reversed by an
2 14 appellate court, or the state's motion to vacate is granted.
2 15 4. A claim shall be dismissed if any of the following
2 16 exist:
2 17 a. The person is still incarcerated.
2 18 b. The person is on work release or has not been released
2 19 from probation or parole.
2 20 c. The person has not affirmatively maintained the
2 21 person's innocence at all steps of the criminal proceeding.
2 22 Sec. 3. NEW SECTION. 669A.3 PAYMENT OF AWARD.
2 23 Any award to a person under this chapter, and any judgment
2 24 in favor of any person under this chapter, shall be paid
2 25 promptly out of appropriations which have been made for the
2 26 purpose, if any. However, any amount or part thereof which
2 27 cannot be paid promptly from the appropriations shall be paid
2 28 promptly out of any money in the state treasury not otherwise
2 29 appropriated. Payment shall be made only upon receipt of a
2 30 written release by the person in a form approved by the
2 31 attorney general.
2 32 EXPLANATION
2 33 This bill waives state tort immunity in situations where a
2 34 person is the victim of a miscarriage of justice. A
2 35 miscarriage of justice is an erroneous conviction of a
3 1 criminal offense on grounds including insufficient evidence or
3 2 new evidence demonstrating the person's innocence. A person
3 3 who is erroneously convicted may recover lost income and other
3 4 economic damages incurred as a result of imprisonment
3 5 following the conviction, attorney's fees and court costs
3 6 incurred defending the criminal action, victim restitution,
3 7 and fines and surcharges paid.
3 8 The bill provides that a person who claims to have been
3 9 erroneously convicted may file the action in the district
3 10 court for the county in which the person resides or the county
3 11 in which the conviction occurred after the person is released
3 12 from incarceration and probation or parole. The person must
3 13 prove by clear and convincing evidence that the person did not
3 14 commit the offense for which the person was incarcerated.
3 15 A claim for compensation shall be brought within two years
3 16 from the date the person's conviction is reversed. A claim is
3 17 to be dismissed if the person is still incarcerated, on
3 18 probation or parole or work release, or if the state
3 19 demonstrates that negligence, ineffective assistance of
3 20 counsel, or misconduct on the part of the defense attorney
3 21 caused the miscarriage of justice.
3 22 Payment of compensation for a miscarriage of justice is to
3 23 be made from funds specifically appropriated for that purpose
3 24 or from moneys in the state treasury not otherwise
3 25 appropriated for a specific purpose.
3 26 LSB 3918HV 76
3 27 mk/jj/8
Text: HF02470 Text: HF02472 Text: HF02400 - HF02499 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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