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Update On Efforts To Obtain Reasonable Compensation For Exonerated Client Who Served 24 Years In Prison For Crimes He Did Not Commit
By Attorney Ray Dall’Osto and Attorney Jaclyn Kallie
Attorney Raymond M. Dall'Osto and Gimbel, Reilly, Guerin & Brown, LLP were retained a number of years ago by Daryl Holloway’s family to conduct a postconviction investigation into his felony sexual assault convictions. After a careful review of the evidence, previous testing and methodology, new DNA testing was requested by Attorney Dall’Osto. DNA expert Dr. Alan Friedman was retained as a consultant.
Attorney Dall’Osto and the Milwaukee County District Attorney’s Office, represented by Asst. DA Norman Gahn, had numerous exchanges and meetings over a number of years, including meeting at the Wisconsin State Crime Lab. ADA Gahn ultimately agreed to the defense request for new testing, which showed that there may have been a different source of the seminal fluid evidence obtained from the assault victims. Dr. Friedman recommended that further DNA testing be conducted, using the Y-STR method.
Attorney Dall’Osto and GRGB continued the investigation and efforts to free Holloway, and referred the case to the Wisconsin Innocence Project, in the hope that funding for new Y-STR testing could be obtained. In late 2013, Dall’Osto had another long meeting with ADA Gahn, which included a frank and detailed discussion regarding identified and potential DNA test discrepancies, other evidentiary discrepancies and concerns, and Dr. Friedman’s reasons for and why there should be additional Y-STR testing done. Additional investigation and testing was subsequently done by the Wisconsin Innocence Project.
In 2016, after new DNA testing results using the Y-STR method definitively excluded Holloway as the source, Innocence Project Attorney Keith Findley presented such to Milwaukee prosecutors. ADA Sara Lewis (who had succeeded Gahn) and Milwaukee County DA John Chisholm undertook a detailed internal review of the case facts and evidence. In October 2016, a stipulation and agreement was reached by the DA’s office and Attorneys Findley and Dall’Osto, to reopen, vacate and dismiss Holloway’s convictions. Circuit Judge Jeffrey Wagner approved and signed the order, exonerating Daryl Holloway. On October 6, 2016, Holloway was released from prison after serving 24 years in prison for crimes he did not commit.
Currently, Wisconsin statutes allow for an extremely low and inadequate amount of compensation for wrongfully convicted and exonerated persons in the claims process set up under Wis. Stats. Chap. 775. Attorneys Findley and Dall’Osto, on behalf of the Innocence Project and State Bar of Wisconsin, have strenuously lobbied for reforms to Wisconsin’s exonerated compensation law. Reform bills with bipartisan support have been introduced and favorably reported out of committee, but have not been allowed a final vote in the state legislature. https://www.grgblaw.com/out-and-about-with-grgb/ray-dall-osto-appears-before-the-assembly-committee-on-state-affairs
Attorney Dall’Osto told the legislative committees that the simple reality is that wrongful convictions do occur, with some regularity and are a “cost of doing business in our criminal justice system”. This fact should be recognized and a fair means to provide adequate compensation, akin to our worker’s compensation laws, should be provided for the wrongfully convicted to put them back on their feet. Regardless of the cause of the wrongful conviction or the type of errors or mistakes that led to it, compensation is required. Chap. 775 needs to be reformed to significantly increase the amount of compensation awarded through the claims process, rather than by lengthy and expensive litigation under 42 U.S.C. sec. 1983.
GRGB Attorneys Jaclyn Kallie and Ray Dall’Osto researched, prepared and filed on Mr. Holloway’s behalf, a detailed claim for exonerated compensation with the State Claims Board, urging the Board to go above the extremely low statutory maximum, referencing specific U.S. Bureau of Labor Standards statistics as part of the factual basis for doing so.
After reviewing Mr. Holloway’s claim and conducting a hearing, at which Attorney Dall’Osto answered questions about the case facts and the claim, the Wisconsin Claims Board issued its decision in April 2022, stating that “the Board concludes and finds that the evidence is clear and convincing that Holloway was innocent of the crimes for which he was imprisoned.” The Board found that Mr. Holloway had spent the most productive years of his life behind bars, causing him significant financial hardship, as well as a great deal of psychological trauma.
The Claims Board awarded Mr. Holloway the maximum compensation allowed under the law, which is $25,000, plus $100,000 as reimbursement for past costs, several rounds of post-conviction DNA testing and attorneys’ fees. The Claims Board also approved the additional amount Holloway and his lawyers requested. The Claims Board also recommended that the Wisconsin Legislature approve an additional $975,000. https://claimsboard.wi.gov/Documents/Decision_Conv_2022-03-22%20Holloway.pdf
A total award of $1 million would be just compensation for the harm Mr. Holloway has experienced due to his unfair treatment by the criminal justice system. The Claims Board’s recommendation awaits review and approval by the state legislature in its next session.
Mr. Holloway had also separately retained legal counsel to seek compensation under 42 U.S.C. sec. 1983. Milwaukee Attorney Nate Cade filed the 1983 action on his behalf in federal court. The United States District Court granted the motion of the defendant law enforcement officers and City of Milwaukee for summary judgment and dismissed the case. An appeal was taken by Attorney Cade, and the Seventh Circuit Court of Appeals affirmed the District Court’s dismissal in August 2022. Holloway v. City of Milwaukee, No. 21-3007 (August 8, 2022) http://media.ca7.uscourts.gov/cgibin/rssExec.pl?Submit=Display&Path=Y2022/D08-08/C:21-3007:J:Wood:aut:T:fnOp:N:2914676:S:0\
Even though Holloway was exonerated by new DNA evidence, the Seventh Circuit held that while a jury could find that the identification procedures originally utilized violated Holloway’s constitutional rights, the defendants were entitled to qualified immunity from liability. Qualified immunity is another area in civil law which cries out for reform, remarked Attorney Dall’Osto. Reform bills addressing this have stalled in Congress. https://time.com/6061624/what-is-qualified-immunity/
