Wilbert Jones v. State Of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #023
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 5th day of May, 2023 are as follows:
BY Griffin, J.:
2022-C-01455 WILBERT JONES VS. STATE OF LOUISIANA (Parish of East Baton
Rouge)
AFFIRMED. SEE OPINION.
Crain, J., dissents and assigns reasons.

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SUPREME COURT OF LOUISIANA
No. 2022-C-01455
WILBERT JONES
VS.
STATE OF LOUISIANA
On Writ of Certiorari to the Court of Appeal, First Circuit,
Parish of East Baton Rouge
GRIFFIN, J.
We granted this writ to clarify the evidentiary burden a petitioner must meet
for compensation for wrongful conviction and imprisonment. Because we agree
with the court of appeal that the statutory burden under La. R.S. 15:572.8 is distinct
from that which is required to support a claim for criminal post-conviction relief, we
affirm.
FACTS AND PROCEDURAL HISTORY
This matter arises out of Mr. Wilbert Jones’ suit for compensation under La.
R.S. 15:572.8 (“Wrongful Conviction Compensation Statute”). In 1971, A.H. was
exiting her car in Baton Rouge General Hospital’s parking lot. A man with a firearm
pushed her into her vehicle and ordered her to drive to a secluded location. She was
raped twice. A.H. contacted police and described the assailant as a slender, dark-
skinned male, approximately 5’ 8,” with a smooth voice and a gap between his front
teeth.
Police showed A.H. multiple lineups. Three months after the rape, police
arrested Mr. Jones. He was nineteen at the time. Mr. Jones volunteered to participate
in a lineup. A.H. considered the individuals in the lineup for ten to fifteen minutes
before identifying Mr. Jones as her assailant. However, she stated she was not sure
and was “mulling over” her identification. A.H. noted that Mr. Jones’ voice was
different from that of her assailant. She also stated that her assailant seemed a bit

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taller than Mr. Jones. Mr. Jones also had no gap between his front teeth. A.H. would
later call the investigating officers and inform them she was no t positive of her
identification.
Mr. Jones was indict ed for the rape of A.H. on Apri l 3, 1972. At trial, he
testified that he did not rape A.H. and that he participated in the lineup because he
was certain of his innocence. Despite earlier equivocations, A.H. testified that Mr.
Jones was her assailant. Mr. Jones was found guilty of rape but his conviction was
overturned by this Court due to racially prejudicial comments made by the
prosecutor in opening statements. State v. Jones , 283 So.2d 476 , 477 (La. 1973).
He was retried and convicted again, and his conviction was affirmed on appeal. State
v. Jones, 325 So.2d 235, 241 (La. 1975).
In 2011, Mr. Jones filed a petition for post -conviction relief seeking DNA
testing. He also presented additional evidence of similarities between A.H.’s rape
and one committed by Arnold Ray O’Conner. The trial court initially denied his
request. However, this Court granted supervisory relief and remanded for a hearing
to determine whether the State, by not informing Mr . Jones of Mr. O’Conne r’s
crime, withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963) .
Jones v. Vannoy, 17-0101 (La. 6/16/17), 221 So.3d 850. On remand, Judge Richard
Anderson ruled the State had committed a Brady violation observing the near -
identical modus operandi of the rape of Mr. O’Conner’s victim and that of A.H .
After this Court denied writs, the State dismissed the indictment against Mr. Jones
and he was released from prison after nearly fifty years of confinement.
Mr. Jones subsequently filed a petition for compensation for wrongful
conviction and imprisonment relying on the factual findings of Judge Anderson1 and
testimony by Dr. Margaret Kovera, an expert in eyewitness identification. The trial

1 The record of Mr. Jones’ post-conviction hearing was introduced into evidence.

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court ruled that Mr. Jones had not proven he was factually innocent by clear and
convincing evidence. Specifically, it held that Mr. Jones needed to produce new,
material, noncumulative, and conclusive evidence that meets an extraordinary high
standard and undermines the prosecution’s entire case. Mr. Jones appe aled.
Reversing, the court of appeal found the trial court legally erred in applying the
evidentiary burden for proving factual innocence in a claim for post-conviction relief
to a petition for compensation under La. R.S. 15:572.8. Jones v. State, 21-1205, p.
11 (La.App. 1 Cir. 8/24/22), 348 So. 3d 771, 779. Conducting a de novo review of
the record, the court of appeal found Mr. Jones met his burden and remanded the
matter to the trial court to determine the amount of compensation due. Id., 21-1205,
p. 16, 348 So.3d at 783.
The State’s writ application to this Court followed, which we granted. Jones
v. State, 22-1455 (La. 1/11/23), 352 So.3d 556.
DISCUSSION
The issue before this Court is whether Mr. Jones is entitled to compensation
under La. R.S. 15:572.8. Statutory interpretation is a question of law subject to de
novo review. Benjamin v. Zeichner, 12-1763, p. 5 (La. 4/5/13), 113 So.3d 197, 201.
A petitioner who has served a sentence of imprisonment for which he was
convicted is entitled to com pensation under La. R.S. 15:572.8 if (1) the conviction
has been reversed or vacated; and (2) he proves by clear and convincing scientific
or non-scientific evidence that he is factually innocent of the crime for which he has
been convicted. La. R.S. 15:5 72.8(A). “‘Factual innocence’ means the petitioner
did not commit the crime for which he was convicted and incarcerated nor did he
commit any crime based upon the same set of facts used in his original conviction.”
La. R.S . 15:572.8(B). In making this d etermination, a court “may consider any
relevant evidence regardless of whether it was admissible in, or excluded from, the
criminal trial in which the petitioner was convicted.” La. R.S. 15:572.8(D).

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The State argues that existing jurisprudence interpre ting La. R.S. 15:572.8
requires a heightened evidentiary burden . See Burrell v. State , 50,157 , p. 11-12
(La.App. 2d Cir. 1/13/16), 184 So. 3d 246, 252 -53; Jones v. State , 19 -1570, p. 4
(La.App. 1st Cir. 9/18/20), 313 So.3d 997, 1000 (“Darryl Jones”). Specifically, the
State asserts that a petitioner must present new, material, noncumulative, and
conclusive evidence that meets an extraordinarily high standard and undermines the
prosecution’s entire case. See Burrell, supra (citing State v. Conway, 01-2808 (La.
4/12/02), 816 So.2d 290 and State v. Pierre, 13-0873 (La. 10/15/13), 125 So.3d 403).
Mr. Jones counters that the plain language of La. R.S. 15:572.8 contains no such
heightened evidentiary burden and that the court of appeal properly conducted a de
novo review of the record. We agree.
The Wrongful Conviction Compensation Statute “is sui generis, and governs
a unique situation” such that it is “the only relevant authority governing” petitions
for compensation for wrongful conviction and imprisonment. Burge v. State , 10-
2229, p. 6 (La. 2/11/11), 54 So.3d 1110, 11 13. The starting place for the
interpretation of a statute is the language of the statute itself. Pierce Foundations,
Inc. v. Jaroy Const. , Inc ., 15 -0785, p. 7 (La. 5/3/16), 190 So.3d 298, 303 ).
Furthermore, under La. C.C. art. 9, “[w]hen a law is clear and unambiguous and its
application does not lead to absurd consequences, the law shall be applied as written
and no further interpretation may be made in search of the intent of the legislature.”
The language of La. R.S. 15:572.8 is plain on its face. The evidentiary burden
therein requires only that a petitioner show his conviction was reversed or vacated;
and, by clear and convincing evidence, that he is factually innocent. La. R.S.
15:572.8(A). Factual innocence, as defined by the statute, means the petitioner did
not commit the crime for which he was convicted or any other crimes from the same
set of facts. La. R.S. 15:572.8(B). A petitioner therefore has the burden of proving
it is highly probable or much more probable than not that he did not commit the

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crime for which he was convicted or any other crime from the same set of facts.
Jones, 21-1205, p. 11, 348 So.3d at 780. In meeting this burden, a petitioner is aided
by liberal evidentiary rules allowing the presentation of any relevant scientific or
non-scientific evidence regardless of whether it was admissible in the criminal trial
wherein the petitioner was convicted . La. R.S. 15:572.8 (A)(2) and (D); In re
Williams, 07-1380, p. 6 (La.App. 1 Cir. 2/20/08), 984 So.2d 789, 793 (observing this
statutory allowance “suggest[s] a legislative intent that little limitation be placed on
the introduction of evidence related in an y way to the conviction and the proof of
factual innocence”). We therefore agree with the court of appeal’s finding that the
trial court legally erred in applying the evi dentiary burden required for a claim of
criminal post -conviction relief to a petition for compensation for wrongful
conviction and imprisonment.2
Having concluded that legal error interdicted the factual findings of the trial
court, the court of appeal properly conducted a de novo review of the record. See
Kinnett v. Kinnett, 20-1134, p. 7 (La. 10/10/21), 332 So.3d 1149, 1154 (“where one
or more legal errors interdict the fact-finding process, the manifest error standard is
no longer applicable, and, if the record is otherwise complete, the appellate court
should make its own independent de novo review of the record”). The Wrongful
Conviction Compensation Statute requires proof of factual innocence by clear and
convincing evidence. La. R.S. 15:572.8(A)(2). To meet the clear and convincing
evidence standard, the petitioner must “prove the existence of a contested fact is
highly probable, or much more probable than its non -existence.” Talbot v. Talbot,

2 As astutely observed by the court of appeal, the interpretive result dictated by the plain language
of the Wrongful Conviction Compensation Statute is reinforced by the legis lature codifying the
heightened evidentiary standard articulated in Burrell, Pierre, and Conway in La. C.Cr.P. art. 926.2
defining factual innocence in the context of criminal post -conviction relief. Jones, 21-1205, pp.
8-9, 348 So.3d at 777-78 (concluding the legislature intended to create different burdens of proving
factual innocence in a claim for criminal post-conviction relief and a claim for compensation under
La. R.S. 15:572.8).

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03-0814, pp. 9-10 (La. 12/12/03), 864 So.2d 590, 598. Thus, as properly framed by
the court of appeal, “Mr. Jones has the burden of proving it is highly probable or
much more probable than not that he did not commit the aggravated rape of A.H.”
Jones, 21-1205, p. 11, 348 So.3d at 780.
The record reflects the near-identical nature in which Mr. O’Conner
committed the rape for which he was convicted compared to the rape of A.H.3 As
found by Judge Anderson at the post -conviction hearing, the list of similarities
include:4 (1) each victim was kidnapped at gunpoint in the parking lot of a Baton
Rouge hospital; (2) the rapist ordered the women to drive around while he was in
the back seat; (3) the rapist ordered the women to hold h is hand as they crossed
Scenic Highway into a secluded area; (4) the rapist wiped himself c lean with the
victim’s clothing; (5) the rapist drove the victim to 28th and Slate Street where he
left the victim and walked in the direction Mr. O’Conner’s Slate Street residence;
and (6) the rapist left behind a pick hair comb at each scene.
Further evidence in favor of Mr. Jones’ factual innocence includes the fact
that A.H.’s description of her assailant matches Mr. O’Conner, not Mr. Jones,5 and
the lack of certainty in A.H.’s identification of Mr. Jones. Notably, as there was no
forensic or physical evidence linking Mr. Jones to the rape, the State’s case rested
entirely on A.H.’s identification. Dr. Kovera gave expert testimony as to various
factors that indicate the potential for inaccuracies in identifications including
heightened stress when a weapon is involved, prolonged delay between the crime
and the identification, and low-confidence identifications where, as here, the witness

3 The State presented no opposing evidence nor did it cross-examine Dr. Kovera.

4 While not a similarity, Judge Anderson noted the rape committed by Mr. O’Conner occurred
only twenty-seven days after the rape of A.H.

5 A.H. described her rapist as approximately 5’8” tall which matches the height of Mr. O’Conner.
Mr. Jones is only 5’3”. Mr. O’Conner also had a “smooth” voice and a gap between his front teeth
– characteristics which A.H. used to describe her assailant that Mr. Jones does not possess.

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expressed uncertainty. The court of appeal credited Dr. Kovera’s t estimony and
noted it undermined the evidentiary value of A.H.’s identification. Based on our de
novo review of the record , we find no error in the court of appeal’s determination
that Mr. Jones did not commit the rape of A.H.
DECREE
For the foregoing reasons, the judgment of the court of appeal is affirmed.
AFFIRMED

SUPREME COURT OF LOUISIANA
No. 2022-C-01455
WILBERT JONES
VS.
STATE OF LOUISIANA
On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton
Rouge
CRAIN, J., dissents and assigns reasons.
In this civil, not criminal, proceeding, we answer whether Mr. Jones should
be compensated for his imprisonment. The burden of proof is clear and convincing
evidence that he is innocent. That is, clear and convincing evidence he did not rape
A.H. Specifically, we must determine the character of evidence necessary to meet
that burden of proof and determine if Mr. Jones has satisfied it. Here, where this
civil case is pursued after A.H.’s death, her identification of Mr. Jones has never
been and cannot now be recanted, nor can she defend it. While perhaps unfortunate,
I believe this fact prevents civil recovery for Mr. Jones.
A.H. testified Mr. Jones raped her. Two times, her testimony convicted him.
She never recanted her identification of Mr. Jones . In fact, a n alternative suspect
was presented at his first jury trial and A.H.’s identification still convicted Mr. Jones.
Now, A.H. is dead. Before she died, she was never confronted with this new
evidence of an alternative suspect , so she neither defended, nor recanted, her
identification of Mr. Jones as her rapist. A lthough uncertainty relative to her
identification of Mr. Jones has been vetted repea tedly, its strength convicted Mr.
Jones twice. If she were alive, would A.H. now recant her identification of Mr.
Jones? If not, and if her identification was again persuasive, it could convict him a

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third time. Could that conviction withstand judicial scrutiny? I believe so. But, we
will never be able to definitively answer th ese questions because A.H. died .
Consequently, I believe Mr. Jones cannot be successful in this civil proceeding.
Louisiana Revised Statutes 15:572.8, enacted in 2005, requires “scientific or
non-scientific evidence” to support civil recovery for a wrongful imprisonment. In
Burrell v. State, 50,157 (La. App.2d Cir. 1/13/16), 184 So. 3d 246, the court
determined that evidence must be “new, material, noncumulative, and conclusive,”
including “trustworthy eyewitness accounts.” The Burrell court relied upon State v.
Conway, 01-2808 (La. 4/12/02), 816 So.2d 290 and State v. Pierre, 13-0873 (La.
10/15/13), 125 So.3d 403, both post conviction relief cases claiming “actual
innocence,” to define the evidence necessary for a civil recovery. In Jones v. State,
19-1570 (La. App. 1 Cir. 9/18/20), 313 So.3d 997, the court again applied the Burrell
evidence standard. I believe Burrell is correct and remains the applicable law.
The majority finds that a legislative amendment to Louisiana Code of
Criminal Procedure article 926.2 changed the Burrell standard. That amendment
addressed a non -DNA-based post conviction relief claim of actual innocence , not
recovery of civil damages. To prove “actual innocence” for post conviction relief ,
the amended article requires “new, reliable, and non -cumulative evidence” that is
either scientific, forensic, physical, or nontestimonial documentary evidence or
testimonial evidence corroborated by this type of evidence . In the post conviction
relief setting, this codified the jurisprudential standard developed in Conway and
Pierre. But, La. R.S. 15:572.8 , applicable only to civil proceedings, was not
changed.
I believe the court of appeal and the majority here misinterpret the effect of
the amendment to Article 926.2 on La. R.S. 15:572.8. The legislature is presumed
to know our decision s and act according ly. Thus, they legally knew La. R.S.

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15:572.8 countenanced the same evidence embraced in Conway and Pierre and
codified in Article 926.2. By not changing La. R.S. 15:572.8, our interpretive rules
require that we recognize the legislature’s intent to leave La. R.S. 15:572.8 as it was
interpreted before Article 926.2 was amended. That is, the term “any relevant
evidence” is still interpreted as set forth in Burrell. We just recognized this
interpretative rule and applied it correctly in Jameson v. Montgomery, 22-1784 (La.
5/_/23), _So.3d_. I believe the majority’s conclusion otherwise here is wrong.
But, whether we apply the Burrell standard or the one adopted by the majority,
neither supports Mr. Jones’ recovery of compensation under La. R.S. 15:572.8. He
must clearly and convincingly show he is innocent. Mr. Jones did not get post
conviction relief because he is innocent; he got post conviction relief because the
State’s failure to show evidence of the alternative suspect to Mr. Jones’ defense team
was a Brady violation. Here, I do not believe Mr. Jones can prove by clear and
convincing evidence he is factually innocent without A.H. recanting her
identification, or at least being able to defend it. Thus, no civil recovery is available.
I dissent.