A member of Colorado’s second-highest court suggested last month that lawmakers clarify whether defendants are only supposed to be eligible for compensation when they are innocent of the specific crime they were convicted of, even if there is evidence their conduct still amounted to a different crime.

In 2013, the legislature passed the Exoneration Act, which provides up to $70,000 per year for people who were wrongly convicted of a felony and served time in prison. To be eligible, defendants have to demonstrate they were “factually innocent of any participation in the crime at issue.”

Isaac Aryee spent nearly a decade in prison after an Adams County jury convicted him in 2011 of sexually assaulting a child. A judge eventually vacated his convictions based on new evidence suggesting the victim was not a child at the time Aryee had sex with her. Prosecutors declined to pursue the case further.

Aryee then sought nearly $700,000 under the Exoneration Act for his incarceration, which the government opposed. A trial judge sided against Aryee and a three-judge panel for the Court of Appeals upheld that decision on Oct. 31. The panel reasoned the new evidence used to overturn Aryee’s conviction was unreliable and did not demonstrate Aryee was innocent.

Judge Ted C. Tow III wrote separately to identify another issue: Even if Aryee did not stand convicted of raping a child, the evidence would support a guilty verdict for sexual assault of an adult. To that end, it was unclear to Tow whether lawmakers intended defendants to receive compensation under such circumstances.

“(D)oes ‘crime’ mean the specific charge? Or does it mean the criminal act?” he wrote. “Again, I recognize that it is not entirely clear and suggest that the General Assembly may wish to revisit this language.”

In the underlying case, Aryee had a sexual relationship with 15-year-old. Prosecutors charged him with multiple counts of child sex assault. A jury found him guilty and he received an indefinite sentence of 30 years to life.

Following his conviction, Aryee worked to establish the teenage girl was not 15 at the time of the sexual encounter, but rather was four years older. The teenager was born in a refugee camp in Sierra Leone. Immigration documents listed her birth year as 1993 and testimony corroborated that timeframe, but there was no documentation of her birth. 

Aryee enlisted the help of an investigator in Sierra Leone, who produced a birth certificate claiming the girl was actually born in 1989. A trial judge held a hearing in 2019 and concluded the new evidence undermined the case for Aryee’s guilt. Prosecutors were unable to challenge the birth certificate or gain the cooperation of witnesses, leading them to dismiss the criminal charges.

Aryee then sought compensation under the Exoneration Act. The Colorado Attorney General’s Office, representing the state, initially argued Aryee was not entitled to money even if he had not committed a sex crime against a child. Because one of his convictions involved sex assault by use of force, and the new birth certificate did not exonerate him of that piece, Aryee had still committed the related crime of sex assault.

District Court Judge Kyle Seedorf believed a trial was necessary to resolve Aryee’s claim.

The state then enlisted its own Sierra Leonean investigator to look into the birth certificate. The investigator reported that the document Aryee produced did not comply with Sierra Leone’s requirements to register a birth and was likely fraudulent.

Then-District Court Judge Roberto Ramírez subsequently ended the case in the state’s favor, noting the birth certificate could not be authenticated. Therefore, there was no “new evidence” of the victim’s age and Aryee was not factually innocent based on the other evidence of his actions.

Representing himself, Aryee appealed to the Court of Appeals. He argued that requiring defendants to prove their actual innocence is unconstitutional.

“Reversal of a conviction is reversal, regardless of the reason, and an invalid conviction is no conviction at all,” Aryee wrote.

The appellate panel rejected Aryee’s constitutional challenge. As for the documentation Aryee produced about the girl’s age, those files “are clearly at odds with the controlling Sierra Leone laws” and “they lack trustworthiness,” wrote Judge Timothy J. Schutz for himself and Judge Neeti V. Pawar.

Tow, in his concurrence, resurrected the argument the government initially made: Aryee was not actually innocent because jurors still convicted him of unlawfully using force, even if the victim was an adult.

Tow elaborated that the Exoneration Act requires a person to prove themselves factually innocent of “the crime at issue.” But he was uncertain whether lawmakers meant to limit exoneration to the defendant’s specific conviction, as other clues in the law suggested a person is not factually innocent if their underlying actions were still criminal in nature.

“I submit that this language can support either reading — it could mean factually related to the actual charge or factually related to the criminal act,” Tow wrote. “As this case makes clear, there are situations in which the petitioner’s evidence reflects guilt of a factually related crime.” 

The case is Aryee v. Colorado.