New Book Explores Tall Task Of Freeing Wrongly Convicted

By Chris Villani | August 26, 2022, 6:20 PM EDT ·

Northeastern Law professor Daniel Medwed started his career as a public defender in New York, primarily focusing on appellate and post-conviction work. He ran an office for the Innocence Project in Brooklyn before turning to academia full time and has penned a new book called "Barred: Why the Innocent Can't Get out of Prison."

Medwed spoke with Law360 about the project, including possible reforms to aid post-conviction legal work and what practitioners can do when defending innocent clients at trial and during the appellate process.

The conversation has been edited for length and clarity.

You've spent your career focusing on criminal law and post-conviction law, but how did this work turn into writing a book?

I practiced in criminal defense before taking a deep dive into being an academic, almost all of it in the appellate and post-conviction arena.

Innocent people are convicted with great regularity and in the last 30 years, we have learned about the factors that lead to these wrongful convictions. Eyewitnesses make mistakes, there are false confessions, police and prosecutorial misconduct, poor lawyering by defense lawyers.

Scholars deconstruct what went wrong in these cases, and we try to highlight these problems and try to promote reforms to stop them from recurring.

What I also experienced, and I felt didn't have enough coverage, was how hard it is to free an innocent person after they have been convicted.

We focus so much on the front end: why these mistakes happen. After we find these mistakes, why does it take years and years to get people out?

My wife encouraged me to write a book that was for a wider audience and not 30 zillion footnotes for a law review. I wanted to tackle issues like statutes of limitations, restrictions of the issues you can present on appeal, restrictions on not being able to bring in new evidence on appeal.

There are all of these procedural booby traps that are kind of under-recognized in the zeitgeist, and they keep people in prison for decades.

The book has a lot of examples from your career. Is there one that stands out?

I had a client named Bobby who was convicted of murder in New York. Bobby was a guard for a drug house where people used cocaine, and one day a customer gets shot and killed, and the only witness is a drug user hanging out in the vicinity. He said Bobby and this other enforcer Joe took turns shooting this guy and killed him.

That was all the evidence in the case. But Bobby wasn't supposed to start his shift for 90 minutes; he was with his girlfriend at the time. The drug user got his drug charges dropped in exchange for his testimony and his testimony was all over the map. There were many discrepancies.

[Bobby and Joe] were tried jointly. They both go to trial and they are both convicted. Right after the conviction, the other guy, Joe, tells his lawyer: 'I feel guilty. I did this by myself. Bobby wasn't even there.' The reason he didn't come forward sooner was because he thought it was such a weak case, and they would both be acquitted. 

He signed an affidavit, and he said he acted alone. This was important to him because by coming forward and doing this, he did get socked with the maximum sentence. He was sinking himself, and he was aware of this, but he said, 'Bobby didn't do it, and I am already going down for 15 to life, what's another 10 years?'

The judge held a hearing and without issuing any explanation, he just denied the motion. He said there was not enough evidence to get a new trial for Bobby. Sixteen years later, we got involved in the case.

We investigated this and got an affidavit from the girlfriend, but we couldn't find anything new.

Long story short, we had to tell him that we couldn't litigate his innocence claim, we couldn't find anything new and because of the bad decision by the judge at the trial, an innocent man had been in prison for 16 years.

We wrote a letter to the parole board and told them what happened and asked them not to hold it against him that he maintains his innocence. He was released on parole, but he had the specter of parole looming over him for the rest of his life.

What is a misconception that you had about the appellate process when you started your career?

Basically our whole system is predicated on the idea that the trial is where substantive justice is handed out and through a heated combat between the defense and the prosecution, the truth will prevail. 

When I was in law school, my professor — a fancy professor with a pocket watch and a three-piece suit — said, 'Give me procedure over substance, I will win with procedure every day.' I remember thinking substance is more important, truth, justice, that is surely more important than the statute of limitations or where you can file a claim. I have learned over the past 25 years or so that he is right.

In so many of these cases, you just can't get through. There is a procedural fig leaf that is used to cover the naked truth. It's not just that we make mistakes on the front end, but our system is set up to make it hard to correct these.

What is one reform you would like to see implemented to aid innocent people who are trying to get their convictions overturned?

It would be great if we could set up an independent commission to analyze these innocence claims after conviction. North Carolina has this. It's the only state that has one. They have a special entity that investigates credible claims of innocence and, if it feels it's credible, it refers it to a panel of judges and the stamp of approval from this commission carries a lot of weight.

Basically, every other entity in the system has a vested interest in not looking back, on preserving the conviction. Cases at some point have to be final, or we don't have time to look at other cases. We need, at some point, finality, and we need some semblance of efficiency. We don't have the resources to give people 45 bites at the apple. So all of these actors have an interest in finality and efficiency and the only player with an interest in substance justice is the prisoner.

If every state could set up one of these, I think it could really help. The U.K. provided the model for the North Carolina commission.

This isn't the perfect answer because they will have a lot of power and, if they miss something, the case is not going to get anywhere. And oftentimes they are cautious for credibility reasons. 

What advice would you give to attorneys who are practicing in this area?

One of the problems is most professional incentives are kind of aligned with preserving the status quo, especially for prosecutors and judges. There is so much pressure to close cases. There is a natural psychological tendency. As a defense lawyer, the guy is guilty, let me plead it out and get a good deal.

For defense lawyers, trying to preserve as many issues as possible through objections is important. Some fear the jury will view them poorly. They worry that, if they raise too many objections, they will become objectionable to the jury. There is a story in the book, though, about a lawyer who screwed up and didn't raise the objections properly and a guy was convicted of a horrible rape.

For prosecutors, the idea is you have this ethical responsibility to be a minister of justice. Your obligation is not to secure convictions, but to make sure the process is just and fair.

There are very, very few bad apples, but there are well-meaning, good prosecutors who fall victim to the pressure, the psychology of winning and the emphasis placed on their conviction rate. Convictions are the coin of the realm. That's the way to be considered good at your job and get promoted, and we need a sea change in that.

It's just as good to let a bad case get dismissed as it is to secure a conviction in a strong case.

--Editing by Janice Carter Brown.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!