SOURCE: A Just Cause

A Just Cause

August 27, 2015 10:23 ET

El Paso County District Attorney Tries to Block Wrongly Convicted Colorado Springs Man From Receiving Restitution

Wrongly Convicted Colorado Springs Man and His Family Disappointed at the Response of the El Paso County DA Dan May Regarding His Petition to Receive Compensation for a Seven Year Wrongful Incarceration

DENVER, CO--(Marketwired - August 27, 2015) - June 2013 marked the month and year that Colorado Governor John Hickenlooper signed a bill into law which compensates those who have been exonerated after a wrongful conviction.

The first man to benefit from the new law was Robert Dewey. Dewey spent 16 years in prison before being freed in 2012 after new DNA evidence exonerated him of the 1994 murder and sexual assault of a Palisade woman. The new evidence led to the arrest of another man with no connection to Dewey. (http://www.denverpost.com/ci_22742847/)

"This bill recognizes that there are injustices in our justice system and that your civil rights can be wronged," said Rep. Dan Pabon, D-Denver, bill co-sponsor. This bill, sponsored by Colorado State Senator Lucia Guzman, D-Denver, creates a program that provides $70,000 for each year incarcerated, plus an additional $25,000 for each year he or she served on parole and $50,000 for each year he or she was incarcerated and awaited execution. It also provides tuition waivers at state colleges if the person served at least three years in prison (http://www.denverpost.com/ci_22742847/).

The case of Lamont Banks is another wrongful conviction story in the state of Colorado for which petition for compensation is sought. Banks was convicted in 2005 of sexual assault on a child by a person in a position of trust and sexual exploitation of a child. According to court documents, on appeal, the court of appeals reversed the conviction on the grounds of prosecutorial misconduct. The court held that the prosecutor's improper questioning of Banks affected his substantial rights and undermined the fundamental fairness of the trial. The case was remanded for a new trial. According to court records, the new trial resulted in a conviction of sexual exploitation of a child (People v Banks, No 07CA0082, Aug. 4, 2011). On appeal of the follow up trial, the court of appeals Vacated the Conviction and Sentence (13CA1321 Peo v Banks 05-07-2015, Court of Appeals No. 13CA1321, El Paso County District Court No. 05CR3016, Honorable David A. Gilbert, Judge).

In the Banks case, an excerpt from the court of appeals order reads, "Because there was insufficient evidence on which a jury could find, beyond a reasonable doubt, that Banks knowingly possessed or controlled the video, Banks' conviction for sexual exploitation of a child cannot stand." The Conclusion of the Order reads, "The judgment of conviction and sentence are vacated," (13CA1321 Peo v Banks 05-07-2015, Court of Appeals No. 13CA1321, El Paso County District Court No. 05CR3016, Honorable David A. Gilbert, Judge).

FindLaw.com states, "In general, to vacate a conviction means to set aside the verdict. In other words, it will appear as if the first trial and conviction never happened," (http://blogs.findlaw.com/blotter/2013/01/how-do-you-get-a-conviction-vacated.html).

Court records show that Banks subsequently filed a petition for restitution in accordance with Colorado statutes 13-65-101 and 13-65-102, which provides $70,000 for each year of wrongful incarceration. El Paso County (Colorado) District Attorney Dan May joined in with Colorado Attorney General Cynthia Hoffman in filing a motion to dismiss Banks' petition on the grounds that the conditions of 13-65-101 had not been met (Case No. 15CV031588, District Court, El Paso County, Colorado).

"The bottom line is that I was the victim of a gross miscarriage of justice," exclaims Banks. "I was found 'Not Guilty' by a jury of 12 people in my new trial, where the evidence was so strong I didn't even have to take the stand in my own defense," asserts Banks.

"By definition,'vacate', means there is no conviction in the case brought against me by Donna Billek and the DA's office. The jury of 12 declared me 'Not Guilty'. If that's not actual innocence, I don't know what is in this country," says Banks. "For all practical purposes, the Constitution protects me as 'innocent until proven guilty'. When the Court of Appeals vacated my conviction and sentence, it placed me in a category of 'actual innocence'... as if the conviction never happened," declares Banks.

The verbiage in the Appeals Order clearly vacates the conviction and sentencing of Lamont Banks, the fact that El Paso County DA Dan May and Colorado Attorney General Cynthia Hoffman move to dismiss his petition for restitution on the Colorado law extended to the wrongly convicted for the time they have served is unconscionable.

"I am deeply hurt by the actions of DA Dan May," explains Rose Banks, mother of Lamont Banks and Pastor of the Colorado Springs Fellowship Church. "I have worked with DA May on the 'Let's Talk Community Forum' that we sponsored through our church. The 'Let's Talk Community Forum' was a unique opportunity for our church, which is predominantly African American, to reach out to the law enforcement officers in our community amidst the angst that had gripped our nation with police departments and violent confrontations with African American communities that sparked protests. Our goal with 'Let's Talk' was to provide a forum of open dialogue and break down barriers between law enforcement and our community. In addition, our church sponsored breakfast and lunch for the officers in the community on at least three occasions to express thanks and gratitude for the sacrifices they make to keep our community safe," adds Pastor Banks. Pastor Banks was personally invited by DA May to keynote his quarterly meeting, speaking to over 80 attorneys in his charge.

Ahead of this meeting, Pastor Banks sat down with DA May, the Colorado Springs Chief of Police and a representative from the El Paso County Sheriff's Office in a private meeting to share what her family had gone through as a result of the justice system. "I have three children that have been wrongly convicted, whose lives have been devastated by the system. I wanted to give DA May, the Chief, and the Sheriff Department representative first-hand knowledge of the wrongful convictions in advance of our 'Let's Talk Community Forums' and provide full disclosure to DA May, who had invited me to speak to his attorneys," explains Pastor Banks. "I was very candid with DA May, who had personally invited me to speak, as I was unsure if he would still want me to speak after knowing the information about my family's negative experiences with the legal system," add Pastor Banks. DA May assured Pastor Banks that he had no concerns and, in fact, gave her license to discuss the cases and any other topics of her choosing for the June 2015 forum with his attorneys.

"DA May seemed open to his attorneys hearing the different wrongful conviction stories my family had experienced in the raw and I wanted to be sure I left every attorney present with a message they would never forget... to make 100% sure, without a doubt, that the people they lock up are guilty. I also wanted them to see the pain and aftermath of wrongful convictions, how the extended families are impacted, how life is just never the same after this happens," declares Pastor Banks.

"DA May knew the facts of my son, Lamont's, wrongful conviction first hand and volunteered to look into his case during the private meeting with the Chief and Sheriff Department representatives. I am greatly disappointed that he would deny Lamont the restitution owed to him, by law, in the state of Colorado for the time that was wrongly taken from him. It is time he will never get back," Pastor Banks lamented. "In no way do I expect favors or preferential treatment, but the facts in Lamont's case are very clear. DA May knew that one of his deputies committed misconduct and Lamont was granted a new trial which vacated his conviction and sentence of eight years to life," notes Pastor Banks.

This ruling was enough to release Lamont from prison, but the State of Colorado is arguing baseless technicalities to withhold restitution. "As a mother, it saddens me to see all that my son has lost and how the State won't hold to their own laws to right the wrong against him. No restitution can repay the time he has lost, the horrible things he experienced in prison, or the resultant health problems, but it's the very least the State can do to help Lamont get back on his feet," says Pastor Banks. "DA May's denial seems so beneath the man I have come to know and worked with in the community," concludes Pastor Banks.

Lamont's petition was "barred because those convictions were reversed due to prosecutorial misconduct, which is a legal error unrelated to Petitioner's actual innocence" (Case No. 15CV031588, District Court, El Paso County, Colorado). According to USLegal.com, "prosecutorial misconduct is conduct which violates court rules or ethical standards of law practice" (http://definitions.uslegal.com/p/prosecutorial-misconduct). "This begs the question: Why is the DA's office prosecuting people who haven't done anything wrong, but failing to prosecute its own attorneys, like Donna Billek, who committed prosecutorial misconduct in Lamont's case? He was punished for something he did not do, yet Attorney Donna Billek, in the DA's office, who wrongly prosecuted him, was never punished. In fact, she was promoted in the ranks of the DA's office, in spite of her misconduct," exclaims Lynette Campbell, A Just Cause.

"At the time of questioning, the alleged victim, who is now 19 and has since recanted her accusations, stated that she felt threatened and intimidated at the age of 8 with Donna Billek's words. Attorney Billek told the girl during questioning that she was not telling her what she wanted to hear," says Lamont Banks.

"My heart aches when I see the injustice and inequities in the justice system. I understand the anger and outrage across the nation. It's due to the injustice, which must be fixed so lives are not continually destroyed. How many people is Attorney Donna Billek going to put away using the same crooked methods? If she did it to my son without any consequences, she has free reign to inflict pain in the lives of others. The DA's office needs to be held accountable," says Pastor Banks.

"I find myself at times crawling on the floor in excruciating pain due to degenerative disks in my back as a result of prison sleeping conditions during my wrongful incarceration. Two months after being found not guilty, I was in the battle of my life in ICU for 6 days, fighting for my life and not expected to live with a blood glucose level of 1500. I should have died from a diabetic coma. The horrible diet and non-caring attitude of the medical people who worked in prison caused me to develop Type 2 diabetes in addition to my degenerated disks in my back. I am a casualty of corruption, a wrongful conviction, and prosecutorial misconduct. It is not only the time I spent in prison, but the effects of wrongful conviction will haunt me for the rest of my life. I am only seeking the restitution allowed under the law," concludes Lamont Banks.

"Do feel that I should receive restitution for seven years of my life being taken away? ...Absolutely!" exclaims Banks. "I have been fortunate that I have the support of friends and family, but that still doesn't dismiss the obligation of the State of Colorado for the wrong that was done to me," Banks adds.

"I have to agree with what Robert Dewey said during an interview when he stated, 'He was not pointing fingers or blaming anyone, he was just trying to move on with his life. I'm thankful that Dewey will be compensated. As for me, I will continue to fight for restitution. Because of what happened to me and the injustice I saw first-hand, I'll spend the rest of my life, until my dying breath, fighting for others who have been done wrong by a crooked justice system," Banks concluded.

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