H.5030 inserted into H.4255

(H5030 additions in italics and highlighted;

deletions bracketed, highlighted and struck)

AN ACT RELATIVE TO COMPENSATION FOR CERTAIN ERRONEOUS FELONY CONVICTIONS

Section 1. (A) Claims may be brought against the commonwealth for an erroneous felony conviction resulting in imprisonment as so provided in this chapter.
(B) The class of persons eligible to obtain relief under this chapter shall be limited to the following:—
(i) those that receive a full pardon pursuant to section 152 of chapter 127when the governor expressly states in writing his belief in the claimant’s innocence, or
(ii) those who have been granted judicial relief by a state court of competent jurisdiction, if (a) said judicial relief vacates or reverses the judgment of felony conviction, and the accusatory instrument used to charge the claimant with said felony has been dismissed, or if a new trial was ordered, (either he was found not guilty at the new trial or) he was not retried and the accusatory instrument was dismissed or a nolle prosequi was entered; and (b) at the time of the filing of an action under this chapter no criminal proceeding is pending or can be brought against the individual by the district attorney’s office or the attorney general’s office for any act associated with said felony conviction; provided, however, that with regard to judicial relief herein, the judgment of felony conviction was reversed or vacated, and the accusatory instrument was dismissed, or nolle prosequi was entered, on grounds which tend to establish (consistent with) the innocence of the individual as set forth in clause (vi) of subsection (C).
(C) In order for an individual to prevail and recover damages against the commonwealth in a cause of action brought under this chapter, the individual must establish, by clear and convincing evidence, that he:—
(i) is a member of the class of persons defined in subsection (B); provided, however, that, the claimant shall be required, at a minimum, to attach to the complaint certified copies of the documents, including, but not limited to, warrants necessary to grant a pardon pursuant to section 153 of chapter 127, or certified copies of criminal case docket entries or certified copies of documents related thereto in the case of judicial relief;
(ii) was charged by indictment or complaint with the commission, and was convicted, of an offense classified as a felony; (was charged, by indictment or complaint, with the commission of an offense classified as a felony;)
(iii) did not plead guilty to the offense charged, or to any lesser included offense, but was convicted of the offense, unless any such guilty plea was withdrawn, rescinded or nullified by operation of law and that sole basis for the vacation or reversal of his conviction was not a claimed deficiency in the plea warnings required by section 29D of chapter 278;
(iv) was sentenced to incarceration for a term of imprisonment of not less than 1 year in a state prison as a result of the conviction and has served all or any part of the sentence;
(v) was imprisoned solely on the basis of the conviction for the offense and that conviction has been subsequently vacated or reversed; (and)
(vi) is factually innocent of the crime or crimes charged in the indictment or complaint, including any lesser included offense of the crime so charged and any other crime directly related to the facts underlying the charged offense or offenses; (did not commit any of the crimes charged in the indictment or complaint, any lesser included felony offenses of the crimes so charged or any felony crimes directly related to the facts underlying said crimes or offense.)
(vii)did not by his own conduct cause or bring about his conviction.

For the purposes of this chapter “conviction” or “convicted” shall include adjudication as a youthful offender, if such adjudication resulted in the person’s incarceration in state prison.
Any individual filing an action for compensation under this chapter, and the commonwealth, shall have the right to a jury trial on any action so filed.  In the interests of doing substantial justice, with regard to the weight and admissibility of evidence submitted by the claimant or the commonwealth, the court presiding at a jury-waived trial shall exercise its discretion by giving due consideration to any difficulties of proof caused by the passage of time, the death or unavailability of witnesses, or other factors not caused by the claimant, or those acting on the claimant’s or the commonwealth’s behalf.  At a jury trial, the court shall consider these same factors as part of the exercise of its discretion when it admits evidence, and the court shall instruct the jury that it may consider the same factors when it weighs the evidence presented at trial. (In evaluating the evidence submitted by the claimant or the commonwealth, the court shall, in the interests of doing substantial justice, exercise its lawful discretion regarding the weight and admissibility of evidence, by giving due consideration to any difficulties of proof caused by the passage of time, the death or unavailability of witnesses or other factors not caused by the claimant, or those acting on the claimant’s behalf or the commonwealth.) No evidence proffered by any party shall be excluded on grounds that it was seized in violation of the Fourth, Fifth, or Sixth Amendments (fourth or fifth amendment) to the United States constitution of the United States, or in violation of Articles 12 and 14 of Part the First of the Constitution of Massachusetts.

SECTION 2. A claimant shall not be entitled to compensation from the commonwealth for any part of a sentence in prison during which the claimant was also serving a concurrent sentence for the conviction of another crime. In those cases where only a pardon from the governor is used to support a pending action against the commonwealth brought under this chapter, the subsequent exercise of the governor’s authority to revoke said pardon pursuant to section 152 of chapter 127 shall immediately negate the validity of any such pending action and the superior court shall immediately issue a summary judgment in favor of the commonwealth on such grounds.

SECTION 3. A civil action brought against the commonwealth under this chapter shall be brought in the county where the claimant was convicted or in Suffolk county. The superior court shall have exclusive jurisdiction of all such actions. All civil actions brought pursuant to this chapter shall in all manners proceed by and be governed by the rules of civil procedure except as otherwise expressly provided in this chapter.

SECTION 4. Services of process for a civil action brought pursuant to this chapter shall be made upon the office of the attorney general for the commonwealth who shall defend the commonwealth against all such claims. The office of the attorney general shall immediately notify the office of the district attorney for the county that prosecuted the erroneous felony conviction that forms the basis for an action filed under this chapter of the filing of such an action. Any office of the district attorney so notified by the office of the attorney general shall immediately notify any individual meeting the definition of victim, as set forth in section 1 or chapter 258B, for the felony conviction that forms the basis for an action filed under this chapter, of the filing of such an action. Any such victim, shall be allowed, but may not be compelled, to testify or furnish other evidence.  If the victim elects not to testify, his prior recorded testimony, given under oath, at a relevant proceeding, shall be admissible regardless of whether the victim is then available to testify. The office of the attorney general shall consult with said district attorney’s office relative to the merits of said action and, following said consultation, shall have discretion to determine whether to proffer as evidence any documents, records, testimony or other information brought forward to the attorney general’s office by said district attorney’s office in defense of the commonwealth at a time deemed appropriate by the attorney general’s office. The attorney general’s office may arbitrate compromise or settle any claim for damages under this chapter; provided, however, that any award, compromise or settlement in excess of $80,000 shall be made only with the prior approval of the secretary of administration and finance. The acceptance by the claimant of any such award, compromise or settlement shall be in writing and shall, except when procured by fraud, be final and conclusive on the claimant, and shall constitute a complete release of any claim against the commonwealth and a complete bar to any action by the claimant against the commonwealth by reason of the same subject matter.

SECTION 5. Upon a finding or verdict that the claimant has met the requirements of section 1 by the requisite standard of proof and is not barred from compensation by section 2, the court or the jury shall determine the damages that shall be payable to the claimant. In making that determination, the fact-finder’s primary consideration shall be, but need not be limited to, the lawful income the claimant would have earned but for his incarceration.  The court, in its discretion, may admit expert testimony on this factor.  The fact-finder may also consider as part of the damage determination, but need not be limited to, the particular circumstances of the claimant’s trial and other proceedings, the length and conditions under which the claimant was incarcerated, and any other factors deemed appropriate under the circumstances to fairly and reasonable[sic] compensate the claimant. (In making such determination, the court or jury shall consider, but not be limited to, the consideration of, the particular circumstances of the claimant’s trial and other proceedings, the length and conditions under which the claimant was incarcerated, and any other factors deemed appropriate under the circumstances in order to fairly and reasonably compensate the claimant.) The court may include as part of its judgment against the commonwealth an order requiring the commonwealth to provide the claimant with services that are reasonable and necessary to address any deficiencies in the individual’s physical and emotional condition that are shown to be directly related to the individual’s erroneous felony conviction and resulting incarceration through documentary or oral evidence presented to the court or jury by said individual as part of the civil action filed under this chapter; provided, however, that the claimant shall state; (i) the nature of the services that he is seeking; and (ii) the agencies, departments or commissions of the commonwealth from which he seeks to receive said services in his original complaint for compensation under this chapter. Any such agency, department or commission so named in the complaint shall be entitled to reasonable notice of the court proceedings pertaining to the possible ordering of said services and shall be given an opportunity to be heard on whether said agency is the appropriate entity to provide such services if so ordered. The court may also include in said judgment an order that entitles any claimant who wishes to apply for and receive educational services from any state or community college of the commonwealth including, but not limited to, the University of Massachusetts at Amherst and its satellite campuses, to a 50 per cent reduction of the tuition and fees applicable to such services at said institutions. Once the damages have been determined, the court shall enter a judgment against the commonwealth for the claimant in an amount certain, payable in either a lump sum or in annuity installment payments set by the court; provided, however, that any such annuity installment payments shall have fixed limits on their annual amount and on the time period which they shall be paid to the claimant. A judgment against the commonwealth may not include punitive or exemplary damages. The total liability of the commonwealth for any judgment entered under this chapter shall not exceed $500,000. Notwithstanding the provisions of any general or special law to the contrary, the clerk of court shall not add to the judgment and the commonwealth shall not be liable for paying, any prejudgment or post judgment interests on damages. The rights and remedies afforded to certain individuals by this chapter are not intended to limit in any way any rights or remedies that said individuals or other individuals may be entitled to exercise and pursue under chapter 258. In awarding damages under this section, the court or jury shall not offset the award by any expenses incurred by the commonwealth or any political subdivision of the commonwealth, including, but not limited to, expenses incurred to secure the claimant’s custody, or to feed, clothe or provide medical services for said claimant nor shall the court offset against said award the value of any reduction in tuition or fees for educational services or the value of services to be provided to the claimant that may be awarded to the claimant pursuant to this section.
The commonwealth shall not be liable to levy of execution on any real and personal property to satisfy a judgment ordered pursuant to this chapter. Any judgments ordered by the court pursuant to this section and chapter shall be paid from funds appropriated by the general court for said purpose. Only those portions of a judgment that are paid or retained as compensation for services in bringing a claim under this chapter by an attorney representing the claimant pursuant to a signed agreement with the claimant or otherwise shall be subject to taxation by the commonwealth. The court shall give due consideration to the possible bifurcation of court proceedings to separate the consideration of issues to be resolved by the court as required by sections 1 and 2 from the determination of reasonable damages and other relief as required by this section.

SECTION 6. Any party to an action filed under this chapter is entitled to make a motion seeking costs, expenses and interest for wholly insubstantial, frivolous or bad faith claims or defenses advanced by the opposing party during proceedings under this chapter as set forth in section 6F of chapter 231 and is also entitled to the rights of appeal afforded parties in a civil action following a decision on such motions as set forth in section 6G of said chapter 231.

SECTION 7. (a) Upon the entry of a judgment in favor of a claimant under this chapter and following a separate hearing on the matter, the court shall enter an order either directing the expungement or sealing of those records of the claimant maintained by the criminal history systems board, the probation department, and the sex offender registry that directly pertain to the claimant’s erroneous felony conviction case, including documents and other materials and any samples. The commonwealth, as well as any other law enforcement agency that may be directly affected by said expungement or sealing of said records including, but not limited to, the district attorney’s office that prosecuted the erroneous felony conviction case against the claimant, shall be given reasonable notice and an opportunity to be heard on the issue of whether said records, documents and materials shall be so expunged or sealed. In making its determination as to whether such records, documents and materials shall be so expunged or sealed, the court shall consider the interests of privacy and justice pertaining to the claimant’s erroneous felony conviction as well as the probable effect of such expungement or sealing on relevant law enforcement entities and their ability to appropriately investigate and prosecute other crimes that may relate to the information contained in said records, documents and materials.
(b) Following a separate hearing conducted by the court, the court may also order the expungement or sealing of those records that directly pertain to the claimant’s erroneous felony conviction case that are currently in the care, custody and control of other state, municipal or local departments, agencies, commissions or committees, including law enforcement entities. Any such agency, commission, committee or entity shall be given reasonable notice and an opportunity to be heard on the issue of whether said records, documents and materials shall be so expunged or sealed. In making its determination as to whether such records, documents and materials shall be so expunged or sealed, the court shall consider those factors required for consideration by the court in paragraph (a).
(c) Any order to expunge or seal so entered by the court shall provide that, in any employment application, the claimant may answer ‘no record’ as to any charges so expunged or sealed in response to an inquiry regarding prior felony arrests, court appearances or criminal convictions.
(d) The charges and convictions expunged or sealed shall not operate to disqualify the claimant in any examination, appointment or application for public employment in the service of the commonwealth or any other political subdivision thereof, nor shall such charges and convictions be used against the claimant in any way in any court proceedings or hearings before any court, board or commission in which said claimant is a party to the proceedings.

SECTION 8. This chapter shall apply to erroneous felony convictions occurring on or before the effective date of this chapter as well as to convictions occurring after the effective date of this chapter. An action for compensation brought by a erroneously convicted person under the provisions of this chapter shall be commenced within 2 years after either the grant of a pardon or the grant of judicial relief and satisfaction of other conditions described in subsection (B) of section 1; provided, however, that any action by the commonwealth challenging or appealing the grant of said judicial relief shall toll said 2 year period. Persons convicted, incarcerated and released from custody prior to the effective date of this chapter shall commence an action under this chapter within 3 years of said effective date. Every action brought pursuant to this chapter that is not commenced within the time required by this section is forever barred from consideration by the courts of the commonwealth.

SECTION 9. (a) A court granting judicial relief consistent with the criteria set forth in subclause (a) of clause (ii) of subsection (B) of section 1 on or after the effective date of this chapter shall provide a copy of this chapter to the individual seeking such relief at the time the criteria of said subclause (a) of said clause (ii) of said subsection (B) of said section 1 are satisfied. The individual shall be required to acknowledge his receipt of a copy of this chapter in writing on a form established by the chief justice for administration and management of the trial court.’ Said acknowledgement shall be entered on the docket by the court and shall be admissible in any proceeding filed by a claimant under this chapter.
(b) The parole board, upon the issuance of a full pardon under section 152 of chapter 127 on or after the effective date of this chapter, shall provide a copy of this chapter to the individual given clemency at the time warrants necessary to grant the pardon are issued. The individual shall be required to acknowledge his receipt of a copy of this chapter in writing on a form established by the parole board, which shall be retained on file by the parole board as part of its official records and shall be admissible in any proceeding filed by a claimant under this chapter.
(c) In the event a claimant granted judicial relief or a full pardon on or after the effective date of this chapter shows he did not properly receive a copy of the information required by this section, he shall receive a 1 year extension on the 2 year time limit provided in section 8.