As Philly tops two dozen exonerations, city may face tens of millions in civil liability

On a 90-degree weekend this month, Theophalis “Binky Bilal” Wilson moved into his first apartment since he was a teenager. He couldn’t afford movers, so he and a few friends carted his possessions across the city in sweaty repeat trips.

Wilson was exonerated in 2020 after 28 years in prison for a 1989 triple murder. He left prison with his legal files and little else. Pennsylvania is the largest state, and one of just 14, that offers no compensation to exonerees.

In May, he filed a lawsuit demanding compensation — and painting a damning portrait of a police investigation he said ignored eyewitness accounts, forensic evidence, and leads pointing to a different suspect, a man associated with the Shower Posse, a Jamaican drug gang. The lawsuit alleges officials fed a fabricated story to a 19-year-old informant threatened with the death penalty.

“You can’t put a price on what’s lost. You just try to get compensation and move on,” said Wilson, 49, who recently got married and started a nonprofit called BITL, which stands for Before It’s Too Late. He also works part-time as a legal apprentice at Phillips Black, the public-interest firm that helped liberate him.

Wilson’s lawsuit is one of at least 13 malicious prosecution cases pending against the City of Philadelphia, while at least seven more exonerees are within the two-year statute of limitations to file such suits. Together, the plaintiffs served 365 years in prison for convictions that were overturned by courts for reasons ranging from significant legal errors to egregious misconduct by police or prosecutors to compelling evidence of innocence.

If every one of those cases paid out at the national average — calculated by George Washington University law professor Jeffrey S. Gutman at $305,000 per year of wrongful conviction — the bill to taxpayers could exceed $111 million. Based on Philadelphia’s average for six lawsuits settled since 2018, the total would be $77 million.

» READ MORE: Philly’s record number of exonerations raise questions about decades of homicide investigations

However, only 48% of malicious prosecution suits nationwide yield compensation, according to Gutman; in Pennsylvania, it’s 37%.

The figures don’t account for cases still under review by District Attorney Larry Krasner’s office, which has established one of the nation’s most active Conviction Integrity Units.

It’s a sharp turnaround from 2017, when acting DA Kathleen Martin asked lawyers for Shaurn Thomas, serving a life term for a 1990 murder, for a waiver of civil liability before agreeing not to retry him. They declined. According to an affidavit by then-Pennsylvania Innocence Project director Marissa Bluestine, Martin said: “You are going to bankrupt the city.”

Thomas was exonerated anyway, and settled for $4.15 million.

The city, which is self-insured, has budgeted to pay $49.2 million annually for the next five years in court-ordered settlements from its general fund. That pot of money also covers settlements for things like sidewalk falls on city property (which cost $6.8 million in 2019), and incidents involving city vehicles (an additional $7 million).

» READ MORE: Dozens accused a detective of fabrication and abuse. Many cases he built remain intact.

The 2020 Comprehensive Annual Financial Report projected that all pending lawsuits in which “a loss is reasonably possible” totaled $64.8 million.

That’s not considered a major factor in Philadelphia’s $5.2 billion proposed budget. “While indemnities (court-ordered settlements) are a portion of the City’s fixed and inflexible costs, they are significantly less than pensions and debt service, which are each hundreds of millions annually,” said Deana Gamble, a spokesperson for Mayor James Kenney.

How the settlement amounts themselves are calculated is a complex question, shaped by factors Gamble said could include “underlying evidence of actual innocence, the strength of legal claims, allegations of misconduct, personal history of the plaintiff.” Plaintiffs’ lawyers note subtler undercurrents, like the fact that civil rights suits brought against the city must be filed in federal court. That means any jury would be drawn from across Pennsylvania’s Eastern District, including conservative rural reaches of Berks and Lancaster Counties seen as less sympathetic to such cases.

Then there’s the state of the law itself. Villanova University law professor Teressa Ravenell, an expert on civil rights litigation against police, noted that the pool of potential defendants is limited: Prosecutors, judges, witnesses, and juries all have absolute immunity. Police do not, although municipalities normally indemnify them, absorbing the cost of any judgments.

To ensure a payout, plaintiffs must make a case against the city itself — which requires showing not only official misconduct but also an unconstitutional policy or custom that led to the violation.

“There are some patterns emerging,” Ravenell said, “and there do seem to be some policies and practices in place that led to these constitutional violations and these wrongful convictions. And that’s going to bode well for plaintiffs. … The more of these case that we see getting paid out, the easier it is for the next person.”

» READ MORE: Wrongly convicted, Terrance Lewis dreamed of getting out of prison for 21 years. The reality was nothing like he expected.

The settlements “don’t necessarily prove the point that the cases are actually winnable,” she added. “It’s that someone in power has chose to do what I believe to be the right thing and to compensate these victims.”

Walter Ogrod, 55, filed a federal lawsuit this month on the anniversary of his exoneration after 28 years in prison for the 1988 murder of 4-year-old Barbara Jean Horn, who was left in a cardboard box on a Northeast Philadelphia street. His lawyer, Joseph Marrone, blamed “a very dangerous group of Philadelphia detectives” who he said coerced Ogrod’s confession.

“I want the city to pay for this — to pay for putting me in a cage,” said Ogrod, who spent 23 years in solitary confinement on death row. “I was in there 24/7, only two hours out and sometimes none.” He described the anguish as both mental and physical, adding that he had recently required a double hip replacement that the Department of Corrections refused to authorize.

Two other malicious prosecution lawsuits were filed in March.

Donald Outlaw — who served 16 years for murder even though the victim, Jamal Kelly, named a different man as his killer with his dying breath — accused detectives of deliberately withholding information and coercing witnesses. Sherman McCoy signed a false coerced confession and spent six years wrongly imprisoned for the murder of Shaheed Jackson.

Both became the latest in a wave of plaintiffs seeking to hold the city liable for the conduct of longtime homicide detective Philip Nordo. Criminal charges are pending against Nordo for allegedly raping suspects and tampering with evidence. If he is convicted, the city could aim to dodge indemnification, though plaintiffs’ lawyers will argue a pattern of deliberate indifference in his supervision, training, and discipline — an argument that keeps the city on the hook.

Even more cases may be filed depending on how the U.S. Court of Appeals for the Third Circuit rules on a lawsuit by Jimmy Dennis, whose conviction in the 1991 murder of Chedell Williams was overturned in 2016. The very same court found five years ago that evidence illegally hidden by prosecutors “effectively gutted” the case against Dennis. Despite strong evidence of his innocence, in 2017 Dennis accepted a “no contest” plea to third-degree murder — a decision that led to his immediate release but threw into question his right to compensation.

“The city is interested in doing everything they can to defeat this lawsuit,” said Paul Messing, a civil rights lawyer representing Dennis. “This is somebody who spent a quarter-century on death row for a crime we know he did not and could not have committed. … He did what he had to do, what anyone would do to get out, and that really closed the door on his ability to litigate his wrongful conviction.”

A federal district judge already ruled in Dennis’ favor. At least two others with similar cases are within the statute of limitations. One is Eric Riddick, who pleaded no contest in May after the DA agreed he had not received a fair trial for a 1991 murder but declined to fully exonerate him.

A compensation law might create more predictable outcomes, said Gamble, the city spokesperson, as would other vital supports such as housing, counseling, or college tuition. “A comprehensive and well-constructed framework in Pennsylvania or in Philadelphia would certainly help those that have been wrongfully imprisoned receive services and financial compensation in a more organized, expeditious, and equitable fashion,” she said.

State lawmakers have unsuccessfully introduced compensation bills in every legislative session for the last decade.

Under such legislation, said Gutman, the George Washington University law professor, exonerees typically don’t have to prove fault, though they do have to prove their innocence. Such mechanisms often provide smaller compensation amounts — but a higher rate of successful petitions.

Without such a law, the courts remain the only recourse.

“The accountant in the back office,” Gutman said, “is sweating every time Larry Krasner has decided someone should be exonerated and then someone in the solicitor’s office has to decide how hard to fight these cases and which ones to settle.”