New Guidelines Offer Roadmap For Post-Conviction Reviews

By Sarah Martinson | April 22, 2022, 8:07 PM EDT ·

Prosecutors and criminal defense attorneys need to work collaboratively when reviewing wrongful convictions claims, according to a report with new national guidelines for post-conviction reviews released by the Quattrone Center for the Fair Administration of Justice.

Even though prosecutors and defense attorneys are traditionally courtroom adversaries, post-conviction investigations are more successful when they review claims together, according to the report.

Quattrone Center assistant director Marissa Bluestine said in a statement Monday that the "most efficient way to investigate a claim of innocence is with prosecutors and defense lawyers working together in a collaborative and engaged process."

"While this type of collaboration is still novel, these starting principles are essential as post-conviction collaboration is increasingly encouraged and incorporated into a best practice for investigating wrongful conviction claims," Bluestine said.

Over the last several years, a growing number of prosecutors' offices have been establishing conviction integrity units that review wrongful convictions, requiring more prosecutors and defense attorneys to work together, the report said.

Since 1989, more than 3,000 individuals have been exonerated with the help of conviction integrity or post-conviction justice units, according to the report.

The University of Pennsylvania Carey Law School's Quattrone Center gathered input from more than 100 prosecutors and criminal defense attorneys to create guidelines for collaboration and engagement in post-conviction investigation, the report said.

Miriam Krinsky, a former prosecutor and executive director of Fair and Just Prosecution, a nonprofit network for prosecutors, said in a statement Monday that the guidelines "will help pave the way for prosecutors to collaborate more effectively with defense attorneys to ensure that miscarriages of justice are corrected."

"Elected prosecutors have an obligation not simply to pursue justice prospectively but also to revisit past cases where justice was not served," Krinsky said.

The guidelines recommend that defense counsel evaluate a prosecutor's conviction integrity unit before advising a client on whether to work with the unit. The evaluation should include a review of the unit's policies and procedures, according to the report.

The report said some red flags that defense attorneys should look out for in their evaluations are a broad waiver of attorney-client privilege, a unit that is not independent of trial and appellate court divisions and a record of not providing judicial relief.

"Whenever a waiver is requested, counsel must ensure the client is fully informed of the parameters of the waiver before proceeding consistent with requirements of the rules of professional conduct," the report said.

The guidelines also suggest that prosecutors and defense attorneys create a cooperation agreement that addresses key issues like discovery parameters, document sharing and handling of communications before starting a post-conviction investigation.

According to the report, having a cooperation agreement can "help keep communication open and the collaborative relationship moving forward."

"Many discussion participants lamented not having had a written agreement before beginning work on a case together as it would have made handling issues that arose during the process much easier to navigate," the report said.

The report noted that the guidelines are limited in applicability because post-conviction investigations and litigation are governed by state law that differs across the U.S.

For example, some states allow prosecutors to request a sentence be reduced or a conviction be overturned, while other states require an individual who has been convicted of a crime to make such a request, according to the report.

The next step for the center is to bring state prosecutors and defense attorneys together to create guidelines for their local criminal legal systems, the report said.

Alissa Marque Heydari, deputy director of the Institute for Innovation in Prosecution at John Jay College and former New York City prosecutor, said in a statement Monday that teaming up with defense counsel "may seem counterintuitive to some prosecutors," but "working with defense attorneys is a crucial component to help ensure the work of a conviction integrity unit is careful, thorough, and just."

"For prosecutors who review claims of wrongful convictions, these guidelines provide a vital foundation for collaboration, case identification, and investigation," Heydari said.

--Editing by Marygrace Anderson.

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