When I was assigned Mr. Madden’s appeal, even without knowing much about the law involved in the issue, it seemed pretty clear to me that the State had to return the money it had taken from him as a result of his convictions.  After all, both of his convictions had ultimately been vacated; one on appeal and the other on grant of a post-conviction motion.  After the district attorney elected not to re-try him, Mr. Madden quite reasonably filed a motion asking the State to return the money it had collected from his inmate account.  But the judge returned only the fines, surcharges and costs and wouldn’t return the restitution he paid. I was assigned his case to appeal that ruling.  That was back in 2009.
Although there weren’t many reported cases dealing with the issue – and there were no cases at all in Colorado, my jurisdiction – what was out there seemed favorable.  And on appeal, the Colorado Court of Appeals agreed in a published opinion: the Court held that Mr. Madden was of course entitled to get back all the money the State had taken from his inmate account for various costs, surcharges, and restitution ordered in connection with his now nonexistent convictions.  The Colorado Court of Appeals held in favor of Mr. Madden and on the same day also held in favor of Ms. Nelson in another case presenting the same issue but in a slightly different procedural posture.  Ms. Nelson had her convictions reversed on direct appeal and was then acquitted on retrial, which, viscerally at least, made for an even stronger claim that the State had to return her money.
The Colorado Supreme Court granted cert and this time the Attorney General floated an argument that it had never made below, either in the trial court or in the Court of Appeals: it claimed that Colorado’s recently enacted “Exoneration Act” showed that the legislature intended only those formerly convicted defendants who could prove their “actual innocence” under the Act could get their money back.
It was clear to me that this Act had nothing to do with people situated like Mr. Madden and Ms. Nelson.  The Act was for only those rare situations where a defendant is, for example, later exonerated by DNA evidence or discovers a prosecutor withheld exculpatory evidence that established innocence.  For that narrow category of defendants, the Act provides a range of compensatory benefits to a successful claimant including $70,000.00 for each year of incarceration, tuition waivers at state schools for the claimant and members of his family, and compensation for child support owed while incarcerated.  The Act’s mention of returning the money paid is incidental to the main thrust of the benefits extended to this extraordinarily wronged class of defendants. 
So I argued to the Colorado Supreme Court that the Act had nothing to do with Mr. Madden’s or Ms. Nelson’s case.  Instead of having to sue under the “Exoneration Act”, Mr. Madden and Ms. Nelson were just like defendants in civil cases who pay a judgment that is later reversed.  Those defendants are entitled to get their money back.  So too, I argued, were defendants like Mr. Madden and Ms. Nelson.  That was the simple result that justice required.
Nevertheless, the Colorado Supreme Court agreed with the Attorney General and held that the “Exoneration Act” provided the only remedy for Mr. Madden and Ms. Nelson and all similarly situated people.  Although Mr. Madden stood convicted of no crime he could only recover his money by suing and proving his innocence by clear and convincing evidence.  Same for Ms. Nelson. 
That result struck me as wrong.  If the onerous procedure required by the Act was the only way for Madden and Nelson to get their money back, the State was depriving them of their property without due process of law.  How could the State put the burden on a person who had no conviction and was presumed innocent to have to bring a lawsuit to prove their innocence in order to get back his money?  To the best of my knowledge, no jurisdiction, federal or state, had such a rule.  One of the Justices on the Colorado Supreme Court agreed with our position, and wrote a persuasive dissent.    
After the opinion was announced, I filed a petition for rehearing arguing that if the Exoneration Act was the only way for Mr. Madden to get his money back, that procedure was inadequate to comport with due process.  And, because Ms. Nelson’s case presented the same issue in an even more compelling procedural posture, I contacted her counsel and she agreed to file a mirror image of my petition for rehearing in Ms. Nelson’s case. 
I had little hope that the petitions would be granted – they rarely are – but I wanted to at least buy some time to consider seeking certiorari in the United States Supreme Court.  There wasn’t a great deal of money at stake and the number of defendants the decision might affect was not large, but I thought the decision was so manifestly unfair that I couldn’t just forget it and move on to my next case.  Mr. Madden and Ms. Nelson couldn’t get the time back that each spent in prison; the State had to at least give back their money.
As an appellate public defender, I had previously filed U.S. Supreme cert petitions that got some interest but were ultimately denied and I came to realize that in the last decade or so Supreme Court practice has become a specialized field where many or even most of the cases are litigated by a rather exclusive group of lawyers. I’m not a member of that club and it was clear to me that Mr. Madden’s chances of getting the U.S. Supreme Court to review his case would be much better if I was able to recruit one of those lawyers to take his and Ms. Nelson’s case.     
Fortunately, I knew one of them: Jeff Fisher who runs the Supreme Court Clinic at Stanford Law School.  I had met Jeff when he came to speak at our system’s annual conference and he and his clinic helped me with replying to the State’s brief in opposition on one of my previous petitions that drew a call for response.  But Jeff declined to take on the cases.         
But there are other Supreme Court Clinics like the one at Stanford and I still strongly believed in the case and was convinced that our chances of a cert grant would be far better if I could get a clinic to take on the cases.  At Jeff’s suggestion, I next emailed Stuart Banner, a law professor who runs the UCLA Law School’s Supreme Court Clinic.  In addition to being a well-regarded scholar and former clerk for Justice Sandra Day O’Connor, Stuart is also a prominent Supreme Court litigator who was involved in four cases just last term.  After explaining the cases to Stuart in a series of emails and answering his follow-up questions, Stuart agreed that he and his clinic would take on the case for both Mr. Madden and Ms. Nelson.    
I then recruited Bob Fishman, who has some Supreme Court experience of his own having argued and won a case there, and Bob agreed to write an amicus brief for the Colorado Criminal Defense Bar in support of our petition.              
On September 29 of last year, the Supreme Court granted our petition for cert in the case of Shannon Nelson and Louis Madden vs. The State of Colorado, Docket No. 15-1256. 
The case was fully briefed by Christmas and was argued on January 9 of this year.  Although it’s hard to predict the outcome of any case, the justices seemed uniformly skeptical of the State’s position and in favor of ours.  With any luck, by the end of this Supreme Court term Mr. Madden and Ms. Nelson will have a decision from the U.S. Supreme Court ordering the State to return the money they paid in connection with their convictions.  After all, as we argued, it’s their money, not the State’s.