"Common sense" dictates the police detective should not be punished further for a murder he did not commit, the Superior Court's presiding justice says.

09:17 AM EST on Wednesday, January 7, 2004

BY GERALD M. CARBONE
Journal Staff Writer

PROVIDENCE -- Jeffrey Scott Hornoff, the Warwick police detective who was wrongfully convicted of murder, must be reinstated to the Police Department and awarded back pay that may total more than $500,000.

In a trailblazing decision punctuated with exclamation points, Superior Court Presiding Justice Joseph F. Rodgers Jr. ruled yesterday, "Common sense tells this court that innocent men should not be punished for something they did not do."

In his ruling, Rodgers wrote that Hornoff's case "raises issues that the Rhode Island judicial system has never before decided," and that no state statutes address. Since no laws applied, the judge used the court's authority to apply "equity jurisdiction" -- the body of principles constituting what common sense says is fair and right.

Rodgers wrote: "As the ancient maxim states: 'Equity regards that as done what ought to be done.' And in this case, Hornoff should receive the relief he seeks because equity does not allow innocent men to bear the burden of a wrongful conviction."

Hornoff served 6 years, 4 months and 18 days in prison in the murder of Victoria Cushman, a woman with whom he had a brief affair shortly before her slaying in 1989. He was released only after another man, Todd J. Barry, a carpenter from Cranston, cleared his conscience by confessing some 13 years after the murder. Barry confessed in October 2002; the courts exonerated Hornoff a year ago yesterday.

Hornoff, Rodgers wrote, "has borne the false brand of a convicted felon for long enough -- this Court will not allow him to bear it any longer. Therefore, this Court orders the City [of Warwick] to grant Hornoff the equitable relief he seeks."

Hornoff, who knew the judge would announce his decision yesterday, said he was too nervous to answer the telephone. His wife, Tina, took the call from Hornoff's lawyer, Robert Feldman.

She spoke to him briefly and turned to Hornoff: "Rob would like to speak to you, Detective Hornoff."

Later, Hornoff read Rodgers' decision.

"To read it and to see the exclamation points really felt good," Hornoff said.

The city cut Hornoff from the payroll following his indictment for murder in May 1994; under Rodgers' ruling, he is entitled to nearly 10 years' worth of back pay and benefits.

Hornoff, 41, has said he does not plan to return to active duty on the Police Department. But he wants to be reinstated so he can receive his back pay and then retire.

A Rhode Island Superior Court judge ruled yesterday that Jeffrey Scott Hornoff can be reinstated to the Warwick police department and receive back pay and benefits lost when he was fired when falsely convicted of the murder of Victoria Cushman.

Rodgers will hear arguments from Hornoff and the city on Jan. 27 to determine how much Hornoff is owed.

City Solicitor John Earle said, "It's probably something in the half-million-dollar range for back pay."

Hornoff's lawyer would not speculate on how much the city owes his client. Both lawyers said they would try to negotiate a figure before the Jan. 27 hearing. Earle said the city won't decide whether it will appeal the ruling before a final figure is set, and various city officials have a chance to review the case.

Previously, Feldman said in a letter to the city that he would seek close to $1 million in back pay and benefits.

Hornoff was 26, married and a detective when he met Cushman at the former Alpine Ski/Sports store on Maple Avenue in Warwick in 1989. She was 29, a college graduate and an Army-trained linguist who spoke five languages. She worked in Alpine's warehouse and was on the verge of promotion to warehouse manager; she lived in a small apartment above Alpine's offices.

On Aug. 11, 1989, a coworker found Cushman dead on the floor of her apartment, her skull crushed by a heavy fire extinguisher. Warwick police found a love letter that she had written to Hornoff after he broke off their relationship; prosecutors cited the letter as evidence that Hornoff killed Cushman to keep his first wife from discovering their affair. There was no physical evidence tying Hornoff to the crime, but jurors convicted him, and the state's Supreme Court upheld the conviction.

Hornoff had served more than six years of his sentence before Barry confessed to the crime. While in prison, he got divorced, lost his house to foreclosure, and lost his career when the Supreme Court upheld his conviction, paving the way for Warwick to dismiss him.

In past interviews, Hornoff has said that he hasn't been able to find a job because of post-traumatic stress he suffered from being an innocent detective serving a life sentence for murder. He recently completed training to become a teacher's assistant and may apply for work in Warwick public schools.

In opposing Hornoff's request for back pay and reinstatement, Warwick argued that the Supreme Court's decision absolved the city from liability, because Hornoff was a convicted felon who had exhausted all of his appeals.

"That position forces the city to argue, in effect, that Hornoff's actual innocence makes no difference in consideration of this matter!" Rodgers wrote.

Rodgers actually ruled against Hornoff's chief arguments: that he was entitled to back pay under the Law Enforcement Officers Bill of Rights, and because his case was expunged, or wiped clean from the records. Rodgers found that neither statute, the Bill of Rights nor the expungement law, guaranteed back pay for Hornoff.

Rodgers said that neither statute adequately addressed the case of a policeman wrongfully convicted of murder.

"Apparently the drafters of the [Bill of Rights] were neither macabre nor cynical enough to imagine a situation where our system of justice would wrongfully convict a police officer for another man's crimes."