Ex-inmate struggles to cash in on wrongful conviction

McKINNEY, Texas -- Billy Frederick Allen spent more than 25 years in prison before an appeals court overturned his convictions in two murders. Three years after winning his freedom, Allen is fighting the state again -- this time for the money he says he's owed for wrongful imprisonment.

Although the appeals court declared the evidence against Allen too weak for any reasonable juror to convict him, Texas officials say he has not proven his innocence. Therefore, they say, he isn't covered by a state law that generously compensates the wrongfully convicted for the years they spent behind bars.

Advocates say Allen's case raises questions about what evidence is needed to qualify for compensation in Texas, where more inmates have been freed because of wrongful convictions than any other state.

DNA evidence has led to most of Texas' exonerations. But with DNA testing essentially standard in most cases and the number of DNA-based exonerations expected to dwindle, more former inmates like Allen -- whose case has no DNA evidence -- are likely to account for more compensation cases.

"The only difference is the good luck, if you want to call it that, that exonerees in DNA cases had versus Billy," said Jeff Blackburn, chief counsel of the Innocence Project of Texas, which works to free wrongfully convicted inmates. "It doesn't make them any more innocent than Billy Allen. It doesn't make Billy any less innocent than them."

Texas' compensation law is the most generous in the U.S., according to the national Innocence Project. Freed inmates who are declared innocent by a judge, prosecutors or a governor's pardon can collect $80,000 for every year of imprisonment, along with an annuity.

Allen, who was imprisoned for 26 years, would stand to collect almost $2.1 million.

Attorney made mistakes

The Texas Court of Criminal Appeals, the state's highest state court to review criminal cases, reversed Allen's murder convictions three years ago in two 1983 murders. The court ruled Allen's trial attorney made mistakes, including failing to contradict a police officer's claim that one victim, moments before he died, indicated Allen was his attacker.

The court ordered a new trial. Prosecutors decided to dismiss the charges, but said they still considered Allen a suspect and have kept the case open.

Texas Comptroller Susan Combs' office denied Allen's application for compensation because "ineffective assistance of counsel was the basis for the relief he received from the court; it was not on the basis of actual innocence," her spokesman said in a statement. Combs declined an interview request.

Allen was convicted in the fatal shootings of James Perry Sewell and Sewell's girlfriend, Raven Dannelle Lashbrook. Allen said he'd frequently visited Sewell because he wanted to sell Sewell scraps of gold as part of a legitimate business, and that he'd leaned against Sewell's car a few days before the couple's deaths, according to court filings.

Court documents said Sewell was found "gagged, handcuffed and covered with blood" near an apartment building, and that Allen's handprint was discovered on the car where Lashbrook was found dead.

The police officer testified that when he asked Sewell who attacked him, he answered: "Billy Allen."

But a defense investigator after the trial found two paramedics who heard Sewell saying three names as he was dying, the Court of Criminal Appeals said.

One said he heard Sewell say "Billy Wayne Allen," the name of another possible suspect. The other paramedic remembered hearing a middle name, but couldn't recall it.

That new evidence left the officer's testimony ineffective, and the remaining major piece of evidence -- the palm print on the car -- would not have been enough to convict him, the Court of Criminal Appeals determined. The court overturned Allen's conviction in 2009, and he walked out of prison on bond.

Now, the Texas Supreme Court is considering Allen's compensation claim. Both sides recently argued before the court, with Allen's attorneys saying he had proved himself innocent and was the same as any other ex-inmate who had been released from prison.

"Billy will establish that you don't have to have a DNA exoneration to be compensated," said his attorney, Kris Moore.

Assistant Solicitor General Philip Lionberger, representing the state, argued that Allen was freed through a claim that raised legitimate questions about his conviction but did not prove he was fully innocent. He said state law only requires payment to former inmates who win their freedom after presenting evidence proving their innocence based on a stricter standard than the one Allen met.

Lionberger said Allen's claim and others like his are "never going to be entitled to compensation."

Democratic state Sen. Rodney Ellis, who pushed for the state's compensation law and other criminal justice reforms, said Allen's case seemed caught in a "no person's land" -- the evidence was insufficient to convict him, yet it also appeared too weak to qualify him for compensation.

The state has paid 79 people about $48 million, according to the state comptroller's office. Most were freed through DNA testing or in connection to a drug detective in the Texas Panhandle town of Tulia later convicted of perjury.

Combs' office is currently challenging five compensation claims before the Texas Supreme Court. Another ex-inmate, Richard Sturgeon, had his conviction for a 1998 robbery overturned based on problems with his trial attorney and witnesses. He filed a claim similar to Allen's.

Cory Session, whose brother, Tim Cole, was exonerated of a rape conviction after he died and became the namesake of the compensation law, said he was prepared to push for legislative changes to help Allen.

"I'm totally against someone going to prison, spending years, and then their case getting out on appeal, and they say, `We don't really want to say he's innocent, but no jury would find him guilty,"' Session said. "In the state of Texas, we can't play semantics with people's lives after they're incarcerated."