The Utah Supreme Court this month reversed a lower court’s determination that a Wisconsin man was factually innocent of a crime for which he spent seven years in jail.
The high court ruling, handed down Aug. 1, found that a lower court had used a combination of existing as well as new evidence to prove Michael W. Thompson’s factual innocence — a legal determination that finds a person is not only legally “not guilty” of the crime they were accused of but demonstrably innocent. Thompson’s criminal case was dismissed in 2014, and this ruling will not reopen it.
Utah law states a factual innocence finding — a determination available under the state’s Post-Conviction Remedies Act — must be based only on “newly discovered material evidence,” according to Justice Jill M. Pohlman, who wrote the opinion. She found Thompson’s team incorrectly referenced existing evidence, but also noted that the new evidence introduced did not prove Thompson’s innocence; it just bolstered his alibi.
“It could neither confirm nor deny Thompson’s whereabouts, and thus it could not clearly and convincingly establish that Thompson did not sexually abuse [a child] in August 2002,” Pohlman said.
Thompson’s attorney, Rachel Wertheimer, said Thompson and his family were “crushed” by the determination. She said they have worked “really hard to rebuild their life” since the case was dismissed, but this finding was “definitely a blow.”
“We respect the court’s decision,” Wertheimer said, “but we we think the court got it wrong.”
She worried that the court’s decision set a precedent that would make “extremely difficult, if not impossible” to bring forward similar claims in the future. Wertheimer said if a judge can’t consider both old and new evidence, only a limited number of cases could qualify for a factual innocence determination — like if someone else comes forward and admitted they did the crime.
The Utah attorney general’s office, whose attorneys prosecuted this case, did not respond to The Salt Lake Tribune’s request for comment.
A jury in 2008 found Thompson guilty of two counts of forcible sodomy after he was charged with sexually assaulting a 16-year-old girl when he and a friend stayed at her Salt Lake City house in 2002. Thompson was a trucker and stopped in Utah to stay with family while on a route back home from California.
He has maintained throughout the years that he never assaulted the girl because he had already left her house by the time she said the assault happened. He provided trucking logs documenting the 10-hour trip from Salt Lake City to Rapid City, South Dakota, to corroborate his story, but prosecutors cast doubt on the logs by calling a transportation expert as a witness in the trial.
The witness, Randy West, testified that he believed Thompson “cooked the books” to make it appear that he was already on the road when the assault occurred, and said there was no way he could have made that trek in 10 hours.
The argument convinced a jury, which convicted Thompson. But Thompson later appealed, saying his attorney was “ineffective” and didn’t properly challenge the expert witness.
During an evidentiary hearing in the appeals process, Thompson’s counsel presented a new witness, who revealed West had relied on outdated technology to calculate the travel time between Utah and South Dakota.
This new witness — Mark Hornung, senior vice president of the company that created the software West had used — said Thompson could have made the trip in 10 hours, even if he “had to slow down at times while driving.”
The court of appeals sided with Thompson and reversed his conviction in 2014. While prosecutors could have tried the case again, they did not, and it was dismissed with prejudice.
Thompson later filed a petition to determine his factual innocence. Third District Judge Su Chon found him factually innocent in August 2022 — 20 years after his overnight pitstop in Salt Lake City that precipitated the criminal charges. He also was ordered to receive $300,000 as compensation for the years he spent incarcerated.
The case was touted as a success story for the Rocky Mountain Innocence Center, which worked on the case alongside attorneys with Parr Brown Gee and Loveless, the law firm where Wertheimer works.
But the attorney general’s office appealed the factual innocence finding, arguing that the evidence used to exonerate Thompson was not solely “newly discovered,” as required by Utah law. Prosecutors also contended that the new evidence introduced did not demonstrate his innocence.
The Supreme Court sided with the prosecutors in their recent ruling.
“At best, Hornung’s testimony demonstrated that Thompson’s alibi was plausible: that he could have traveled from Rapid City to Salt Lake City in ten hours, as recorded in his log,” Pohlman wrote. “But Hornung’s testimony did not establish that Thompson did not ‘engage in the conduct for which [he] was convicted.’”
Correction • Aug. 21, 12 p.m.: This story has been updated to correct the state that Michael W. Thompson traveled to after leaving Salt Lake City.