Taxpayers may face a multi-million dollar penalty for the wrongful murder conviction of Keith Bush, who was exonerated last month after 44 years of trying to prove his innocence – one of the longest-running cases of its kind in modern U.S. history, legal experts say.
Just how much Bush might collect is unclear. But experts say the ultimate bill could be $30 million or more, based on other similar examples of wrongful convictions.
Nationally, recent payouts for long-term cases like Bush’s “are exceeding $1 million” for each year spent behind bars by an exonerated defendant, according to Jeffrey Gutman, a George Washington University law professor who has studied such cases. Locally, after a long legal battle, Nassau County last year paid a $43.7 million judgment won by two men convicted of 1984 rape and murder and later exonerated after 18 years of imprisonment.
In January 1975, Bush was accused of the sex-related killing of a Bellport High School teenager following a neighborhood party. Bush spent a total 33 years in prison and subsequent years on parole as a convicted sex offender.
Now 62, Bush’s conviction on murder and attempted sexual abuse was vacated on May 22 by a Suffolk judge after Bush’s lawyer Adele Bernhard and Suffolk District Attorney Tim Sini’s Conviction Integrity Bureau found several examples of questionable evidence, including that Suffolk authorities at the time of Bush's 1976 trial knew of another potential murder suspect but failed to disclose it.
“He lost many years of his life and it will be up to a judge and jury to decide what he’s entitled to,” said Justin Block, president of the Suffolk County Bar Association and part of a three-person advisory panel that reviewed the Bush case at Sini’s request. “But you can understand why he wants to be compensated for what he’s lost.”
Bush has yet to file a lawsuit, but told Newsday he intends to do so. Because he spent so many years in prison falsely accused, Bush said he doesn’t have much of a work history from which he can receive Social Security, a pension or other benefits.
“It could be astronomical,” said attorney Emma Freudenberger about the potential damage award for Bush. Freudenberger represented Martin Tankleff, another Suffolk murder defendant who spent 17 years in prison before his conviction was overturned by an appellate court. Tankleff last year received $10 million in a federal lawsuit settlement against Suffolk County and another $3.4 million in a state settlement.
Experts say long-running cases of wrongful convictions can result in separate awards from federal civil lawsuits as well as state payouts under New York’s Unjust Imprisonment and Conviction Act. Despite such potential damage awards, however, seeking compensation isn’t always a sure bet, they say. Cases that go to trial run the risk of losing. But settlements can bring a smaller award than those cases that prevail before a jury.
“It’s not an easy road – it’s not at all automatic,” said attorney Frederick K. Brewington, who in recent years has brought several civil cases against local law enforcement for improper actions.
Brewington said figuring out the amount of potential damages for someone wrongly imprisoned can be complicated. In such cases, he said, an economist might be called upon to estimate the amount of lost income —an equation based on the skills, education and years lost. A psychiatrist or other trained professional may also assess the amount of psychological damage inflicted upon a person “for being convicted of something you didn’t do,” said Brewington.
In some cases, lawyers for municipalities may vigorously oppose allegations of wrongdoing by local law enforcement officials. In Bush’s case, however, a report prepared by DA Sini’s Conviction Integrity Bureau already detailed improper actions by Suffolk police and prosecutors that helped lead to Bush’s long-term imprisonment.
If Bush pursues a federal civil lawsuit, it could reveal even more wrongdoing that took place, said Freudenberger, showing that the discredited police allegations against Bush were “part of a pattern of fabricated confessions and inadequate supervision that condoned it.”
Nevertheless, Gutman said many exonerated defendants like Bush, after many years of imprisonment, are eager to get on with their lives and accept a lower amount in a settlement rather than wait years for a lawsuit to be decided. As Gutman said, “He might want to trade off dollars for speed.”
A spokesman for the Suffolk County attorney declined comment for this story.