Utah high court • A.G. said DNA didn't prove now-dead man was really innocent.
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In the four years since a state law allowed Utah's wrongly convicted to win restitution money after being freed, judges have awarded such payments to just two people.
And for one of them, the decision came too late.
Jed Gressman spent more than three years in prison for aggravated sexual assault before DNA evidence cleared him of the crime in 1996. But by the time a Juab County judge awarded him $220,000 in restitution last year, Gressman was dead, killed in a fire at the age of 41.
"The prosecutor said, 'Let the guy go because he's innocent,'" said attorney Doug Mortensen. "He was a decent kid when he went in, but he was kind of a basket case when he came out."
State attorneys, though, say Gressman hasn't legally proven his innocence in the more than two decades-old case. They have asked the Utah Supreme Court to set aside a lower court decision granting the money to his widow.
"We don't know, we'll never know what happened," said Assistant Utah Attorney General Nancy Kemp during a hearing earlier this month. "I'm sure something happened, we just don't know what."
The state's arguments are a concern for Daniel Medwed, president of the Board of Directors for the Rocky Mountain Innocence Center.
"The idea [of restitution] is the person was deprived of the opportunity to make a living and earn income because of a mistake. It wasn't a purposeful mistake necessarily, but it was a mistake that hurt him," he said.
Gressman always maintained he didn't do anything wrong on Labor Day in 1991 when he and a friend, Troy Hancock, offered a ride on the shore of Yuba Reservoir to a woman with whom Gressman used to work. She said Gressman and Hancock drove to a secluded spot and Hancock held her down while Gressman raped her.
They said she left, unmolested, after the truck bogged down in the sand.
DNA testing at the time determined semen found on the victim could have come from 21 percent of the population, including Gressman. With some inconsistency in the victim's testimony and a lack of other physical evidence, a jury acquitted the pair of rape and kidnapping but convicted them of aggravated sexual assault for fondling the victim.
Gressman was sentenced to five years to life in prison. In 1996, though, new DNA technology ruled him out as the assailant and he was freed with an apology from prosecutors. Hancock was also freed at the same time.
Gressman filed for restitution shortly after the law went into effect in 2009. Last year, a Juab County judge ruled he was factually innocent and his widow should be made whole with restitution.
But the state argued before the Utah Supreme Court during the November hearing that sexual assault doesn't require emission of semen, so the fact that the DNA wasn't Gressman's doesn't fully exonerate him.
For Medwed, that argument amounts to the prosecution changing its theory, part of a "disturbing" trend in innocence cases.
"A key principle to the original theory was that he deposited the semen," he said. "When the DNA exonerated him later, instead of acknowledging the very strong likelihood that Gressman wasn't involved, they revised their theory."
Kemp also faced questions from the Supreme Court on that point.
"What evidence did you have that Mr. Gressman was not factually innocent?" asked Justice Jill Parrish. Kemp responded prosecutors may have been able to present some evidence if the judge had held an evidentiary hearing.
Other justices appeared skeptical of whether Gressman had fully, legally proven his innocence.
The ruling in his favor, "was a legal conclusion, not a fact," said Justice Thomas Lee.
The state also argued against his widow receiving the payments. In fact, after the ruling came down in Gressman's favor, the attorney general's office successfully petitioned for amendments to the restitution law that barred relatives from getting payments after the death of an exonerated person.
While those amendments aren't retroactive, the attorney general's office maintained in court documents that the Legislature never intended for survivors to get the money.
Mortensen disagreed, saying Gressman's wife was also a victim of the damage that incarceration caused and her claim should continue, like a personal injury suit. "She's destitute," he said.
Gressman's wife was not at the November hearing and could not be reached for comment.
The Utah Supreme Court took the case under advisement. No date was immediately set for their decision.
The other Utah inmate who got a restitution award was Harry Miller, a Louisiana native who spent more than four years in prison for a robbery he didn't commit. He received about $120,000 last year after proving his factual innocence.