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He helped wrongfully convict a man. Two decades later, his daughter worked on a law to make amends

A college student learned that her dad, now a judge, had prosecuted a man who was later found innocent.


Megan Rose
April 20, 2019 10:59PM (UTC)
This article originally appeared on ProPublica.
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If all goes as expected, this summer, the governor of Nevada will sign a bill that will compensate men and women wrongfully convicted in the state for the years they spent behind bars and grant them certificates of innocence.

Inspired by recent high-profile exonerations — including that of Fred Steese, whose case was detailed in 2017 by ProPublica and Vanity Fair — the groundbreaking bill will bring Nevada in line with 33 other states that now compensate exonerees.

But it’s the story behind the bill that’s the real showstopper.

It involves a nudge from a state Supreme Court justice, an impassioned college student outraged by the fate of the state’s exonerees and finally her dad, a district judge, who was one of the prosecutors involved in the wrongful conviction of Steese more than two decades earlier.

Last summer, Kaitlyn Herndon, a rising junior and aspiring lawyer, had just started her second school break working for Nevada Supreme Court Associate Chief Justice Kristina Pickering when the judge encouraged her to look into the case of DeMarlo Berry.

Berry, 42, had been in the headlines the previous year when he was released from prison after serving 23 years for a murder he didn’t commit. The day Berry got out, officials unceremoniously dropped him off at 6 a.m. in the downtown of a city he hadn’t seen in more than two decades. He ended up wandering down now-unfamiliar streets to his grandmother’s house.

As Herndon dove into his case, she was shocked by the dogmatic nature of a criminal justice system that refused to release Berry, or even hear his case, for years after someone else confessed to the murder.

“It was disappointing to find out the system would royally mess up in the first place,” she said, “but then not to be able to self-correct once the problem is brought up was really disheartening to see.”

Fired up, she went into Pickering’s office to talk about what she’d learned. Pickering, who had written one of the key opinions in the Berry case, encouraged her to keep going and look into how Nevada handled wrongful convictions. Herndon said she discovered that not only did Nevada fail to compensate exonerees, it was “really, really behind in its legislation” to prevent cases like Berry’s from happening again.

She said she began to think that maybe she could play a role in helping to craft new legislation to help remedy that. As Herndon became more devoted to pursuing the issue, Pickering told her that she should ask her dad about Steese.

Herndon, who didn’t know much about the case, said she was puzzled by Pickering’s suggestion. “I thought, ‘OK, that’s vague.’”

The next morning, while Herndon and her dad made the 30-minute commute from their home to the courthouse in downtown Las Vegas, she broached the topic of Steese.

As he watched his daughter dive into wrongful convictions that summer, Doug Herndon said he knew she’d eventually come around to Steese — and his role in Steese’s case. In 1995, he and another assistant district attorney, William Kephart, prosecuted Steese, a poorly educated drifter, for the brutal murder of a circus performer. The often-convoluted case was riddled with troubling behavior by the prosecution, which was later detailed in ProPublica’s investigation. In 2012, after more than 20 years in prison, Steese was exonerated when a judge declared him innocent. Evidence found in the prosecution’s files showed he’d been several states away when the murder happened.

Kaitlyn Herndon said she wasn’t sure what she was in for when she brought up Steese, and when her dad turned serious, she remembered feeling a little nervous.

“She’s really smart and bright and I know she loves me,” Doug Herndon said in an interview. But, he said, “it’s never an easy conversation to say, ‘I had involvement in a case where a defendant went to trial and was found guilty, went to prison and then was found factually innocent.’”

As she listened to her dad discuss the details of the case, Kaitlyn Herndon said she “was watching for signs for remorse and worry about it. During our entire conversation he was very apologetic for the whole thing.”

Doug Herndon recalled being worried his daughter would think the worst of him. He said he told her “errors were made and those were bad. But please believe me, I’m not a horrible person.”

Herndon, now a judge overseeing the operation of the criminal division of the Eighth Judicial District Court in Las Vegas, said it was crucial to him that his daughter understood that “I accept my responsibility for everything.” No matter the circumstances, “what’s important is that a guy who was innocent got convicted.”

For Kaitlyn Herndon, it was a relief that the man she grew up watching in the courtroom lived up to the vision of him she’d always held. “I would have been very disappointed if he was more defensive, and that’s not the conversation we had, I’m happy to say.”

The attitude of her father — who admittedly had his own struggles over the years accepting Steese’s innocence — was part of what she wanted to see enshrined in legislation to help the wrongfully convicted. She pushed for exonerees to be cleared of all blame, to have their records sealed and have something official that noted their innocence.

“Recognizing the fault and taking ownership of it — that’s extremely overlooked,” she said, noting that Berry hadn’t received an official apology until last month.

In the weeks after the conversation with her dad, Kaitlyn Herndon wrote a reparations proposal for the Legislature’s consideration. She asked her dad how best to navigate the politics of this kind of bill when deciding how far to take it.

“You ask for everything,” Doug Herndon said he told her. “Everybody found factually innocent should be compensated in some fashion.”

With about a month left before she’d need to return to Washington University in St. Louis, Kaitlyn Herndon nervously gathered several key stakeholders to get them on board and hash out any sticky issues.

Assemblyman Steve Yeager, a former public defender who had been thinking about the need for this type of legislation for years, agreed to spearhead the bill. He composed and sponsored the legislation.

In March, Kaitlyn Herndon flew back from school to help campaign for its passage and testify at a hearing on the bill before the Assembly Judiciary Committee, which Yeager heads. Berry’s testimony had the room in tears. Even with the family connection to Steese, Herndon said it had been easy to “feel very distant when it’s all numbers, statutes and bullet points, as it really was for many months. But to finally meet [Berry and his wife] in person and to joke and chat with them was one of the most important experiences in my life.”

This month, the judiciary committee unanimously passed the resulting bill and it will soon go to the Assembly floor, where it has broad bipartisan support. Then it will head to the Senate, where it also has wide support. As written, the legislation would award exonerees more money the longer they spent behind bars. For those wrongfully imprisoned for one to 10 years, the payout would be $50,000 for each year. The amount would rise to $75,000 per year for exonerees who serve 11 to 17 years and to $85,000 for 18 to 20 years. For those imprisoned for more than 20 years, like Berry and Steese, the payout per year is $100,000. The bill also provides other resources, such as tuition assistance and counseling.

Kaitlyn Herndon said she had zeroed in on legislation on the books in Colorado, Kansas, Utah, Hawaii and Ohio as inspiration.

“States that were pushing not only monetary compensation but actual services to get people to a place to be more situated to be in the world,” she said.

The compensation given in other places ranges from flat amounts as small as $20,000 to rising scales. Yeager said he blended what was done elsewhere and liked the idea of recognizing that more time locked away should be worth more money.

Both Steese, now 55, and Berry could be entitled to more than $2 million if the bill passes.

Ironically, given Doug Herndon’s regret, if the Nevada District Attorneys Association has its way, Steese would be written out of the bill.

Steese had an unusual path to exoneration. Despite a judge’s ruling that Steese was actually innocent, the Clark County District Attorney’s Office refused to concede that it had convicted the wrong man. Instead, the new assigned prosecutor said she would fight to keep Steese behind bars, appealing or retrying him for the murder. Fearing a system that had already wrongfully convicted him once, Steese agreed in 2013 to a confounding deal called an Alford plea, which allowed him to maintain his innocence while still pleading guilty. In exchange, the state let him go.

But in the eyes of the law, he remained a convicted murderer. Only an eventual pardon four years later — which the Clark County District Attorney fought — cleared his name. All but one of the members of the pardon commission, which includes the governor, voted to grant Steese a full pardon. “Let there be no residual stain on his record,” one of the commission members said at the time.

The bill as currently written includes a special acknowledgement of cases like Steese’s, noting that compensation will be awarded if “the person was pardoned by the State Board of Pardons Commissioners on the grounds that the person was innocent.” The DA association has proposed striking that provision.

As far as Steese’s civil lawyer Lisa Rasmussen knows, he’s the only one in the state of Nevada to be pardoned based on actual innocence. Leaving him out, “would do nothing more than perpetuate a cruelty upon him,” she said. It’s time for Nevada to compensate the wrongfully convicted like other states have done, she said, “and Fred is included in that category of unfortunate people.”

Jennifer Noble, a prosecutor with Washoe County and an officer with the DA association, said the association supports the intent of the bill, but not the language. The association wants the burden of proof for innocence to be stricter in order to qualify.

So far, lawmakers have declined to alter the bill to reflect the association’s changes or to exclude cases like Steese’s.

“To somehow bar [Steese] from recovery under the statute would be really unjust,” Yeager said. “It’s important to me to have that avenue available.”

Steese, now a long-haul trucker based in California, said he thought the bill was overdue. “They took 21 years of my life. I lost a sister and a mother while I was in prison, so I think they owe me a lot.” He said he’d use any money he received to buy his own truck.

Should the bill pass, it would go into effect in October. In total, based on the known exonerees, the bill is estimated to end up costing Nevada about $10 million, Yeager said.

Doug Herndon, who sat in the audience for the hearing, said that he appreciated having a connection to the proposed law through his daughter. “It is in my mind a really humbling and beautiful irony that she’s involved,” he said.

“I didn’t know about the Steese case before this started,” Kaitlyn Herndon said. “I’m glad I was able to develop a passion for it on my own. It’s a black-and-white issue: What happened was wrong and we need to do better.”

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Megan Rose

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