COA holds that “exonerated” inmate has not proven his innocence in order to obtain statutory compensation
Mario Victoria Vasquez v. State of Wisconsin Claims Board, 2023AP1764, 8/5/25, District III (not recommended for publication); case activity
In a rare appeal focusing on the statutory right to compensation for the wrongly convicted, COA holds that Vasquez–despite having been freed from prison–cannot prove his innocence in this unique administrative forum.
In the 1990s (curiously, the parties disagree as to the date of his conviction), Vasquez was convicted of sexually assaulting a four-year old child and was sentenced to 20 years of imprisonment. (¶4). (The record pertaining to the circuit court proceedings and the postconviction litigation was not presented to COA in this appeal, so the details are somewhat scant). In 2015, Vasquez filed a motion for a new trial. (¶5). The State did not oppose the motion and Vasquez was granted a new trial. (Id.). The State elected not to retry Vasquez, meaning he is once again legally presumed innocent. (Id.).
Vasquez then filed a petition under § 775.05, which permits “compensation for innocent convicts.” (¶6). Vasquez outlined a number of legal errors related to the original conviction, as well as new evidence which he claimed pointed to an alternate suspect. (¶¶7-8). The DA’s office conceded that “a fair assessment of the information [Vasquez] presents both in his claim for compensation and his original request for a new trial reveals that new factors do exist that would impact the jury’s decision if the matter were to be retried.” (¶9). However, instead of affirmatively stating that it believed Vasquez to be guilty, the State instead averred that it “never reached a conclusion” that Vasquez was innocent and “remained satisfied that [Vasquez] was not an innocent man.” (Id.). The State claimed the victim was standing by her allegations against Vasquez and identified practical reasons, such as the age of the case and the length of Vasquez’s sentence served to-date, as reasons for not retrying him. (¶10).
Vasquez requested a hearing, and both parties were permitted to present their arguments via Zoom. (¶12). Thereafter, the Board concluded that Vasquez failed to prove, by clear and convincing evidence, that he was factually innocent. (¶15). Vasquez appealed to the circuit court and, ultimately, COA. (¶16). On appeal, COA addresses three issues:
Due Process
Vasquez first argues that the claims board violated his procedural due process rights by giving the prosecutor preferential treatment. (¶17). Vasquez points out that he was told this was a brief and informal hearing and that he was specifically directed to “not bring new information or documentation” to the meeting. (¶20). In contrast, he claims the prosecutor was told he could “present sworn testimony and whatever other evidence is essential to permit the Board to decide the merits of the claim.” (¶21). He also points to the Board’s written statement that the prosecutor would be “in the best position to recommend the correct resolution.” (Id.).
COA disagrees that there was any due process violation as “the Board permitted Vasquez to submit evidence supporting his petition, and it permitted him to respond to the prosecutor’s written submission opposing his petition. Vasquez accepted both of those opportunities and provided the Board with extensive information supporting his petition, which included a 91-page document with exhibits. Vasquez and the prosecutor were then able to present their arguments for and against compensation to the Board at the hearing, and the Board had an opportunity to question Vasquez and the prosecutor regarding the evidence.” (¶29). It finds that Vasquez has misconstrued the “best position” comment of the Board which, in context, was merely differentiating between the Attorney General’s Office and the local DA. (¶30). And, while the Board did tell the State it could present new evidence at one point, it later informed both parties no new evidence would be admitted and it does not appear the State admitted additional evidence. (¶31).
Burden of Proof
Vasquez next argues that the Board applied the wrong standard, and required him to prove his innocence beyond a reasonable doubt. (¶32). COA finds this argument undeveloped and in tension with the record evidence. (¶33).
Substantial Evidence
While this gets into the administrative law weeds, Wisconsin law requires a reviewing court to “set aside agency action or remand the case to the agency if it finds that the agency’s action depends on any finding of fact that is not supported by substantial evidence in the record.”(¶39). In essence, Vasquez argues the Board erred when it relied on the prosecutor’s representation that the victim still believed Vasquez was guilty, as this was uncorroborated hearsay evidence. (¶41). COA does not believe there is any error, as “the Board’s decision that Vasquez failed to meet his burden of proof relied on all of the evidence before the Board, not solely the victim’s declaration of Vasquez’s guilt.” (¶42). Moreover, it was Vasquez’s burden to prove his innocence and, rather than proving that the victim had ever denied her claims, he did not contest “the victim’s continued declaration regarding Vasquez’s guilt.” (¶43). Instead, he pointed to psychological research to explain why she would continue to assert his guilt even after he had, in his view, been found innocent. (Id.).
Finally, COA agrees that, under the deferential standard of review, the Board did not err in determining that Vasquez did not prove his innocence. (¶44). Even though he may have established errors establishing a basis to overturn the prior conviction, he failed to prove that he was factually innocent. (¶46).