WEST VIRGINIA RECORD

CHARLESTON -- Former Wyoming County Council on Aging and All Care director Bob Graham is taking one last shot at having the government pay him for the 13 months he spent in a federal prison.

Graham is asking the same court that overturned his 2006 conviction for stealing $31,129 in unused sick leave from his board of directors to now override a federal judge who declared Graham should not get any money from the federal government.

The Fourth Circuit Court of Appeals in Richmond, Va., overturned Graham's conviction saying that the evidence did not prove beyond a reasonable doubt that Graham committed the crime. Graham was originally indicted on 39 counts but was only convicted on one.

After the appeals court's decision, Graham asked them to grant him a "certificate of convenience" so he could seek compensation for his imprisonment.

The court, while opining that the certificate would be appropriate, sent the request to the federal district court in Southern West Virginia.

Federal district judge David Faber ruled in December he would not grant Graham the certificate.

Graham is seeking compensation under federal law that permits a payment of $50,000 for each year spent in prison for people who were unjustly convicted.

But Faber said Graham invited his prosecution through his conduct while director of the non-profits. Faber said the law that allows for the type of compensation Graham seeks is meant for the "truly innocent."

"The fundamental proposition underlying the statute is this – there is a difference between someone who is legitimately prosecuted and ultimately found not guilty and one who is wrongly prosecuted when truly innocent," Faber wrote in his decision. "The statute is designed to compensate the latter; it has nothing to say about the former."

In his amended brief of appeal filed Feb. 20 with the Fourth Circuit, Graham argues that Faber's denial is based more the judge's opinion of Graham's "moral character" than the law.

Graham -– who is represented by Harry Henshaw III -– asserts in the brief that his conviction was overturned on grounds of law and fact, not on a technicality. Graham argues that the federal law does seem to seek to prevent compensating people whose convictions were overturned because of some defect in the proceeding.

He also contends that the statute seeks to prevent compensating people who act in a way that leads prosecutors to consider him or her guilty when the person could cooperate and exonerate themselves.

Faber had read the part of the law which states that people who "have brought about his prosecution by his own misconduct of negligence" are exempt from compensation to exemplify Graham's failure to ask his board of directors to approve his sick leave cash out.

Graham in his brief argues Faber is mistaken and offers an example of what kind of situation he believes the law intends to exempt.

"For instance, if a married man was with his mistress at the time a crime was committed which he is accused of, he could exonerate himself by coming forward with this evidence," Graham's brief says.

"If he did not come forward and was found guilty, he should not qualify for a certificate of innocence when his conviction is later overturned when he proves that he could not have committed the crime."

Graham contends he and at least one federal opinion on the subject "do not think the statute contemplates a subjective judgment on the moral character or 'misconduct' of a person which does not constitute an offense under law.

"There should be some parameters within which the district court makes its decision."

Fourth Circuit Court of Appeals case number: 09-6013

U.S. District Court case number: 5:06-00025