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Compensation unlikely for falsely jailed man; He spent more than 7 years behind bars

THE BALTIMORE SUN

How much money should a man get for being locked in a maximum-security prison for a crime he did not commit? A million dollars? Two million? Ten?

For Anthony Gray Jr., the Calvert County man who was freed from prison this week after serving more than seven years, the financial compensation may be this: zero.

Legal experts say that a successful malpractice case against his former attorneys may be a long shot and that Gray has almost no chance of winning a lawsuit for the government's wrongful prosecution.

In Maryland, as in most states, only in rare cases is there a remedy for wrongful imprisonment. The state cannot be sued without consenting, and even a provision in Maryland law that allows the state to pay people unjustly jailed may not be applicable in Gray's case.

"A lot of times people end up in jail and have unpleasant things happen to them and there's absolutely nothing they can do about it," said William Gately, a Towson attorney who frequently has sued governments and government officials.

"That's a harsh fact. You hear a lot of guys, 'Oh, I'll sue you,' and people just kind of assume that if you're falsely imprisoned you'll get some money out of it, but that's just not the case, not usually," Gately said.

Gray, borderline retarded and without legal representation, confessed in 1991 to killing Linda Mae Pellicano, a Chesapeake Beach woman found raped and stabbed to death in her home.

No physical evidence

There was no physical evidence against him. Fingerprints found at the scene belonged to someone else. An abundance of DNA evidence was recovered but did not implicate him. And checks stolen from the victim were found forged with handwriting that did not match his.

His current attorney, Joel Katz of Annapolis, contends that investigators tricked Gray into confessing, but he has not alleged that police physically abused his client to get him to talk.

That's a key distinction, because an individual officer could be held liable for beating a confession out of Gray, thus violating his civil rights. But winning a lawsuit over other interrogation tactics is extremely difficult.

Court papers indicate investigators induced Gray to confess by telling him two other defendants in the killing were pinning the murder on him -- a not uncommon interrogation tactic. Confess, plead guilty and testify against the others, Gray was told, and avoid the death penalty.

"One possible theory is police misconduct in coercing the confession, but it doesn't sound like it would hold up in this case," said David Rudovsky, a civil rights attorney and a professor of law at the University of Pennsylvania. "Police can make promises; they do it all the time. It doesn't mean you can win a lawsuit against them."

Gray tried to recant his confession and withdraw his guilty plea. So what about suing prosecutors who held him to that plea -- even though they had no physical evidence against him?

That one's easy, legal experts say: Prosecutors, acting in their official capacity, have absolute immunity. They can't be sued.

Few options

Nor can state or local police departments be successfully sued -- unless it can be shown that serious abuses were widespread and well known by superiors, and nobody is alleging that in the Gray case. So, except in rare cases where the corruption could be considered institutional, Gray would have to sue an individual.

Gray may be able to collect some money from the state through a provision in Maryland law. That would require a full pardon from the governor, then a determination from the state attorney general's office that a payment is warranted. Spokesmen for both offices yesterday said they could not comment.

The last person to get an award under that provision was Kirk Bloodworth, who was released from prison after serving nine years for a murder he did not commit; he was awarded $300,000. Another man, Leslie A. Vass of Baltimore, was awarded $250,000 after prosecutors admitted he had served 10 years in prison for an armed robbery he did not commit.

The difference in the Gray case might be his confession. Also, Calvert County State's Attorney Robert Riddle, who urged the judge to free Gray because of a lack of evidence, has been careful to say only that there was too much doubt about Gray's guilt to keep him in jail -- and not that he was absolutely convinced of Gray's innocence.

That could make it more difficult for Gray to win a pardon.

"How the cases are disposed of could influence the governor on the pardon and the attorney general's office in how they judge this case," said Kenneth C. Montague Jr., the Baltimore attorney who represented Vass. "The circumstances in Gray's case could make it tougher for him to collect."

That may make lawsuits against his former attorneys Gray's best chance at winning any money for being locked up for the bulk of his 20s, the experts say.

Gray confessed before he had an attorney. Then, M. Cristina Gutierrez of Baltimore represented him. She was out of town and could not be reached yesterday for comment, but she has said that Gray insisted on pleading guilty and that she was never made aware of his mental limitations.

Katz, the attorney who won Gray's freedom, said she should have known. Gray's education records show he dropped out of high school special education classes.

"His records were all part of the discovery, which had to be available to her," Katz said. "If they weren't, she should have gotten them."

Said Kieron Quinn, a Baltimore trial attorney who stressed that he was not commenting directly on the Gray case: "There's an obligation to look behind just the bold facts of what your client tells you. If your client appears to be an executive vice president of a bank, you have to give him more credence than a guy who dropped out of special education classes. You have to look at the facts that connected your client to the case.

'Look at the facts'

"Look at the facts that surround his confession. If both those sets of facts point in one direction and the client is talking about taking another direction with his plea, it seems to me there's a red flag and you have to determine what the mental status of your client is," Quinn said.

"If you have a strong feeling that your client is innocent or there's no credible evidence to connect him to the crime but he's determined to plead guilty, one thing you can do is withdraw from the case. Tell the judge why you're doing it," he said.

Another person who Katz said could be sued is Michael G. Kent, an attorney who represented one of Gray's co-defendants. After Gray pleaded guilty with an agreement to testify, court papers indicate, Kent approached him and persuaded him not to testify.

After Gray's sentencing, Kent took over his case. He failed to file an appeal or any other standard post-conviction motions, which come with strict deadlines. In throwing out Gray's conviction, Circuit Judge Graydon S. McKee found that Kent's representation amounted to "ineffective counsel." Kent later was disbarred for this involvement with Gray.

Katz said Kent may have little money to pay damages; in addition to his problems in the Gray case, Kent was jailed for swindling his disabled aunt. Now released, Kent could not be reached for comment this week.

Riddle, the prosecutor, said he did not factor in the possibility of liability and lawsuits when he urged Gray's release.

"I'm not going to take into consideration tangential matters like that," he said yesterday. "I don't think that's appropriate in any kind of case. Should he be compensated? That's something I don't think I should comment on."

Pub Date: 2/12/99

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