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AG Derek Schmidt: Fourth mistaken-conviction lawsuit concluded

Release Date: Apr 14, 2020

TOPEKA – (April 14, 2020) – The attorney general’s office will not appeal a district court ruling that a Sedgwick County man is entitled to payment under the state’s mistaken-conviction statute enacted in 2018 by the legislature, Attorney General Derek Schmidt said today.

Unlike the previous three mistaken conviction cases resolved to date, this case involving Bobby Harper was resolved by a judge after hearing arguments and determining the claimant is entitled to relief. Previous cases had been resolved by agreement between the attorney general’s office and the claimant, which then has been presented to the court for review and approval.

On December 10, 2019, Sedgwick County District Judge Jeff Goering granted Mr. Harper’s motion for summary judgment to conclude the mistaken-conviction lawsuit Harper filed in August 2018. Mr. Harper was incarcerated for two years for a 1987 burglary conviction that in January 1990 was vacated on appeal by the Kansas Supreme Court. Following Judge Goering’s ruling, the case was transferred to District Judge Sean Hatfield who entered a journal entry of judgment on March 20. Schmidt said the attorney general’s office will not appeal the judgment.

“We are committed to faithfully administering the state’s mistaken-conviction law as the legislature wrote it,” Schmidt said. “The issue in this case was much different from previous cases because there was no dispute that Mr. Harper engaged in the acts he was accused of, but the Kansas Supreme Court had later determined those acts did not constitute a crime under Kansas law. The legal question was whether the mistaken conviction statute applied to that circumstance, and the court concluded it does. Mr. Harper can now receive the benefits to which he is entitled by law because of his mistaken conviction.”

In the journal entry, the court determined that Mr. Harper did not commit the crime or crimes for which he was convicted, nor was he an accessory or accomplice to that crime or crimes, nor did he suborn perjury, fabricate evidence or cause or bring about the conviction. Between July 1987 and August 1989 Harper served 752 days in prison or jail.  

Accordingly, the court ordered the following relief for Mr. Harper, as provided by the mistaken-conviction statute:

  • He was granted a Certificate of Innocence.
  • Records of his conviction, arrest, and DNA profile record information were ordered expunged.
  • He was granted total compensation of $238,778.99.
  • He was granted counseling.
  • He was granted permission to participate in the state health care benefits program for plan years 2020 and 2021.
  • He was granted a waiver of tuition and required fees for attendance at a postsecondary educational institution for up to 130 credit hours.

By law, payment on the judgment is subject to review by the State Finance Council. Schmidt formally has asked the Finance Council to review the matter.

In addition to Mr. Harper, five other people have filed claims for compensation pursuant to the wrongful conviction statute. The State previously agreed to court-ordered payments to Richard Jones in a case arising from Johnson County, Floyd Bledsoe in Jefferson County and Lamonte McIntyre in Wyandotte County. Two other cases, one arising from Sedgwick County and one from Clay County, remain pending in various stages of litigation.

Copies of the orders In the matter of the wrongful conviction of Bobby Harper, Sedgwick County Case No. 2018-CV-1791, are available at https://bit.ly/3aaM7Hc. The Kansas Supreme Court’s 1990 decision overturning Mr. Harper’s conviction is available at https://bit.ly/3cg7por.

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