Thwarted by the Wisconsin high court’s ruling that a trial judge lacked the power to grant him a new trial based on evidence that he was wrongfully convicted of sexual assault, Dimitri Henley’s only hope of clearing his name is a gubernatorial pardon.
But Governor Scott Walker never has exercised his pardon power—and has vowed never to do so under any circumstances. That leaves Henley with little hope of overturning his sexual assault conviction, even though the trial judge concluded years ago that should happen in the interests of justice.
Requests for pardons are no longer being accepted by the Pardon Advisory Board that Walker created by executive order soon after elected governor in 2011. Pending requests “will be saved for future use,” according to the Wisconsin State Law Library.
“I have made it my practice for the last five years to not issue pardons,” Walker told a Green Bay television station in reference to Steven Avery, whose case was popularized by the Netflix documentary series Making a Murderer. “I don’t believe we should undermine the criminal justice system,” he added.
Walker did not respond to requests for comment from Injustice Watch.
This week Eric Sterling, executive director of the Criminal Justice Policy Foundation, a national organization that advocates for criminal justice reform, called Henley’s case “heartbreaking.” Sterling noted in an interview that the governor is not merely saying that he has determined that Henley’s grounds for clemency lack merit. “He’s not saying that at all,” Sterling said. “He’s saying, ‘I’m refusing to use this authority that’s entrusted to me by the constitution of the state.’”
That blanket policy gives little hope to Henley, who was one of three men charged in connection with a claim of sexual assault by an incoming freshman student at the University of Wisconsin-Whitewater in 1998. After contradictions emerged in the accuser’s version of events, the prosecution elected to drop charges altogether against one of the codefendants. Henley went on trial and was convicted alongside Jarrett Adams, based largely on the accuser’s testimony.
The emerging contradictions led to Adams’s conviction being overturned by the Seventh Circuit U.S. Court of Appeals, after which prosecutors elected to not retry his case. But Henley was ruled out-of-time to challenge his own post-conviction rulings. After trial judge Jacqueline R. Erwin ruled in 2008 that Henley deserved a new trial in the interest of justice, the Supreme Court reversed in 2010, concluding the trial judge lacked the authority for her ruling.
Walker’s predecessor, Jim Doyle, a Democrat, issued 293 pardons during his eight years in office. He told Injustice Watch this week that nearly every governor he is familiar with—save, for example, Mitt Romney—has exercised the power to pardon. Before Doyle, Scott McCallum issued 24 pardons; and before him, Tommy Thompson, a Republican like Walker, issued 238, according to Donald Leo Bach, Thompson’s first legal counsel.
“I think it’s in the constitution for a very good reason,” Doyle told Injustice Watch in an interview, of the pardon power included in the Wisconsin constitution. “I suppose in some cases, you just have to right a wrong.”
Walker “has never once articulated a policy justification for his position,” said P.S. Ruckman, Jr., a political science professor who writes on pardon and clemency. “There are other governors who are not pardoning or are not pardoning often, but Walker is the first instance that I’m aware of where a governor has announced, flat-out, ‘I’m not going to do it.’”
To refuse to issue pardons under any circumstances, Ruckman said, is to say judges and the legislative branch are “always perfect. They never make mistakes. And who in the hell believes that?”