A judge rules the City of Warwick owes its former detective $507,591 -- about $367,000 less than what he was seeking.

01:00 AM EST on Wednesday, March 3, 2004

BY GERALD M. CARBONE
Journal Staff Writer

PROVIDENCE -- Jeffrey Scott Hornoff, the Warwick police detective wrongfully convicted of murdering a former lover, cannot collect pay for overtime, detail work, promotions or interest that he may have earned had he not been fired and sentenced to jail, the Superior Court's presiding justice ruled yesterday.

As a result of this ruling and a prior decision by Presiding Justice Joseph F. Rodgers Jr., Warwick taxpayers owe Hornoff $507,591 -- or $367,664 less than the total Hornoff sought. The money is meant to compensate Hornoff for the nine years between his 1994 indictment for the murder of Victoria Cushman, with whom he'd had a brief affair, and his 2002 release from prison after another man confessed to the killing.

Most of the difference between what Hornoff sought and what Rodgers awarded yesterday was due to the claimed interest payments, which accounted for $283,255.

Rob Feldman, Hornoff's lawyer, said that neither he nor his client were disappointed with Rodgers' ruling on the back-pay issue, because the judge's decision in January reinstating Hornoff to his job as a detective and granting him back pay still stands.

'We're very appreciative of the attention and time this court has given to this," Feldman said after Rodgers released his written decision. "We're very pleased with the recent reinstatement of Scott, and an amount of back pay that will not fix everything that happened to Scott, but will help him put his life back together."

Feldman has put the city on notice that he intends to sue it for $10 million for violating Hornoff's civil rights. Hornoff may also sue the State of Rhode Island, which prosecuted the case against him in 1996.

Although the city won all its points regarding back pay, Warwick Solicitor John Earle said that the city will appeal Rodgers' earlier ruling that Hornoff is entitled to nine years of back pay.

"It's such an important question and has such a significant impact on the City of Warwick and Mr. Hornoff, that the city believes it is a question that deserves Supreme Court review," Earle said. "The city followed the law," when it fired Hornoff after the state's Supreme Court upheld his conviction for Cushman's 1989 murder. "The city could not employ a police officer whose conviction of murder had been confirmed by the highest court in the state."

Warwick suspended Hornoff without pay in December 1994, when he was indicted in the Cushman murder; the city fired him after the Supreme Court upheld his subsequent conviction of first-degree murder. Hornoff was sentenced to life in prison in 1996, and he served 6 years, 4 months, and 18 days, gaining release only after Todd Barry, a Cranston carpenter who had dated Cushman, came forward and confessed to the murder.

Rodgers rejected the city's arguments in January when he found that the state law governing the suspension of police officers -- the Law Enforcement Officers Bill of Rights -- did not address the issue of a detective found guilty of a murder he did not commit. When the law does not address a specific set of facts, a Superior Court judge may resort to "equity jurisdiction" -- the body of principles constituting what common sense says is fair and right.

Equity, Rodgers has ruled, "does not allow innocent men to bear the burden of a wrongful conviction." Thus, Hornoff is entitled to back pay.

In yesterday's decision, Rodgers found that the Law Enforcement Officers Bill of Rights does specifically address an officer's rights to reinstatement, salary, and benefits if he or she is wrongly suspended. And nowhere in that statute is there a reference to interest payments on the salary owed.

"Our Supreme Court put it this way," Rodgers wrote: " 'Had the Legislature intended to expose the [city] treasury to the financial burden of prejudgment interest it could have so provided easily' " in the law. The fact that the law is silent on the interest issue means that the legislature did not intend for it to be paid.

In rejecting Hornoff's claims for nearly $85,000 in overtime, detail, and promotional pay, Rodgers found that the amount of overtime and detail pay earned by individual officers after Hornoff's suspension was so varied that there was no way to determine exactly how much, if any, he would have earned.

As far as promotions go, Hornoff failed the one promotional test he took, and did not take that test when he again became eligible. About 50 percent of the officers who joined the force around the same time he did never earned a promotion to sergeant.

"It is equally reasonable to infer that he would not have sought nor obtained the higher rank as it is to infer he would have," Rodgers wrote.