She was wrongfully convicted of killing her 1-year-old daughter. Now, she wants Rhode Island to pay her $133K

WARWICK, R.I. – One snowstorm had passed and another was on the way on Dec. 2, 2002, when Kimberly Mawson headed to a local Walmart to fetch diapers, baby wipes and milk for 19-month-old Jade.

She got a ride with the father of her then-boyfriend, Daniel Fusco, around 1 p.m., leaving the 23-year-old Fusco alone with baby Jade in his attic apartment.

Soon, Mawson heard her name paged on the store’s intercom. Fusco told her Jade had fallen down and wouldn't wake up. She wondered if he was overreacting — maybe the baby was just playing.

They spoke again: she recalled telling him to call 911.

She dropped her groceries and ran more than a mile to the apartment, arriving just after the rescue crews. Jade was unconscious on the couch wearing only a diaper.

Two days later, on Dec. 4, Jade died of a traumatic brain injury, her body marked with bruises and a recent tear to the baby’s hymen. Police initially considered both Mawson and Fusco suspects before investigators focused on just Mawson.

So began Mawson’s dark journey through excruciating grief, betrayal and the Rhode Island criminal justice system. Now, Mawson, 52, is seeking compensation for the almost three years she wrongfully served after being convicted in 2007 of second-degree murder in the death of Jade, a winsome baby with blue eyes, strawberry blonde hair and a wide smile.

Would Mawson qualify for wrongful conviction compensation?

State lawmakers last year passed a law allowing payments of up to $50,000 out of the state treasury for each year spent in prison by someone wrongfully convicted. Mawson is seeking $133,527 in compensation and attorney’s fees for the two years and 190 days she spent behind bars.

“I feel that I deserve a lot more, honestly. The attorney general’s office shouldn’t be immune,” she said of her wrongful prosecution and conviction. She called the sum a “pittance.”

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Brian Hodge, spokesman for state Attorney General Peter F. Neronha’s office, said the state is still evaluating whether Mawson meets the criteria set forth by law.

The new law dictates that the presiding justice of the Superior Court consider all claims of wrongful conviction and that the court may award a judgment if the individual can prove by a preponderance of evidence that he or she was pardoned of the crime or crimes upon which he or she was sentenced, and that the conviction was vacated for reasons other than the ineffective assistance of counsel.

From wrongful conviction to release

In 2007, now retired Superior Court Judge Edwin Gale sentenced Mawson to 60 years, with 35 years to serve. Gale called Mawson, then 37, “a cold-hearted murderer, a dangerous person, who refuses to come to grips with the fact that she killed the baby to whom she initially gave life."

Mawson’s circumstances began to shift in 2010, when the state Supreme Court sent the case back to Superior Court and directed that Gale consider Mawson’s motion for a new trial based on revelations by Fusco’s lawyer, Richard K. Corley, that Fusco had told him he was responsible for Jade's death.

Fusco’s father, Michael Fusco, told Warwick police in 2010 that his son told him, days after the baby's death, that he grabbed and shook the infant, but Michael said he never believed him and thought he was protecting Mawson. After taking his son to speak with Corley, Daniel Fusco never repeated his claims again, the elder Fusco said, according to transcripts of the interview with the police.

In response, Gale released Mawson on bail. She was granted a new trial, but it was never held, as the state dismissed the indictment in June 2012.

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In announcing that Fusco would not be charged, then-Attorney General Peter F. Kilmartin's office said the statements Corley attributed to him could not be reconciled with Fusco's testimony at Mawson's trial. It is unlikely, as a result, that he could be convicted by a jury, the office said.

In fact, Corley had negotiated a deal with Assistant Attorney General William J. Ferland, now a federal prosecutor, in November 2004, in which the state agreed not to prosecute Fusco on drug charges in exchange for his testimony against Mawson.

“[Mawson] did not murder her child and was not responsible for the child’s death,” wrote Mawson’s lawyer, Kevin J. Bristow, in court papers seeking compensation.

Bristow emphasized Judge Gale’s reasoning in his decision granting Mawson a new trial in 2010: “[The] fact that one of the only two people possibly culpable of the murder of Jade has admitted to the killing — a fact unknown to the jury which convicted defendant Mawson — must be viewed as ‘so crucial that the jury probably would have acquitted the defendant.’”

Bristow believes the new law was crafted with individuals like Mawson in mind.

“The Wrongful Conviction and Imprisonment Act was designed to help compensate individuals like Kim Mawson who had years of their life taken away for a crime that they did not commit. All individuals who have been wrongfully imprisoned have suffered a truly unique form of injustice. However, it is difficult to imagine a greater injustice than being imprisoned after being wrongfully convicted of murdering your own child,” Bristow said in an email.

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Fusco's use of the attorney-client privilege resulted in Mawson paying an unimaginable price, Bristow said.

“The monetary compensation available to her does not begin to make her whole, but it will help her continue to move forward with her life,” he said.

Mawson, for her part, stressed in a sworn statement to the court that although Gale granted her bail in 2010 after learning of Fusco’s admissions, she had continued to live under restrictive conditions. She had to surrender her passport, confine her travel to Connecticut and Rhode Island unless she got prior approval and could not have unsupervised contact with anyone under age 16.

“Thus, although not in a jail cell, my freedom was severely restricted for two additional years, all while continuing to be accused of killing my child,” she said.

What happened after Kimberly Mawson was released?

Mawson’s life after regaining her freedom has not been one of ease. She lost her father, John Mawson, who steadfastly stood by her side, in 2014 to Creutzfeldt-Jakob, a rapidly progressing degenerative brain disorder.

She married Gabriel G. Gustafson in June 2007, four months before her trial, but the couple split due to the pressure associated with the case. She now serves as Gustafson’s personal care assistant after he developed a degenerative disc disease, she said. They remain best friends.

In 2015, she was diagnosed with breast cancer and underwent a double mastectomy, she said.

“I am still in remission,” she said.

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She lives in eastern Connecticut and continues to focus on creating artwork featuring fairies and dragons in oil pencils. She has even sold a few pieces. She has worked as a burlesque dancer and done club security, she said.

She plans to put any money she receives toward getting her seamstress business off the ground, she said. She makes bespoke garments that she tends to for the rest of their life.

She’d also like to buy headstones for her father and Jade, whose ashes she keeps nearby.

Jade would now be 21.

“I look at her picture every day,” Mawson says. “She’d be tall and strong, like her mom, because she already was.”

She doesn’t keep track of Fusco, for fear she’d be tempted to seek vengeance. She hopes he will be prosecuted for killing Jade.

Fusco could not be reached for comment.

“I’d like him to spend the rest of his life in prison, yes,” Mawson said. “I hope she haunts him.”

This article originally appeared on The Providence Journal: Kimberly Mawson wants Rhode Island to pay after wrongful conviction