INNOCENCE PROJECT NORTHWEST CLINIC PROCEDURES MANUAL
University of Washington School of Law P.O. Box 85110 Seattle, WA 98145-1100
Website: ipnw.org TABLE OF CONTENTS
INTRODUCTION ...... 1 COURSE GOALS...... 1 IPNW STAFF ...... 2 OVERVIEW OF STUDENT RESPONSIBILITIES ...... 3 One: Academic ...... 3 Two: Case Review and Management ...... 3 Three: Office Support ...... 3 GRADING ...... 4 RELEVANT LEGAL ISSUES ...... 4 The Causes of Wrongful Conviction ...... 4 Phases of a Criminal Case ...... 5 The Felony Case Process ...... 5 The Appellate Process ...... 6 Washington State Appeals Flow Chart ...... 8 Post-Conviction Proceedings ...... 8 State Collateral Attack ...... 8 Motions for Post-Conviction DNA Testing ...... 10 Tracking Down the Evidence ...... 10 Impact of DNA Evidence ...... 12 Types of DNA Testing ...... 13 Questions to Ask Before Conducting DNA Testing ...... 15 Obtaining a DNA Testing Order ...... 16 Federal Post-Conviction Practice ...... 16 CASE PROCESSING OVERVIEW ...... 16 CONFIDENTIALITY ...... 18 OFFICE SUPPORT ...... 18 Phone Duties ...... 18 Office Organization ...... 18 Professional Atmosphere ...... 19 CASE MANAGEMENT ...... 19 COMMUNICATION ...... 20 Contacting Attorneys by Telephone ...... 21 Writing a Business Letter to Attorneys and Others ...... 22 Correspondence with Prisoners ...... 22 Ethical Considerations ...... 22 Legal Considerations ...... 23 Client and Potential Client Prison Interviews ...... 23 Prisoner Telephone Contact ...... 24 Witness Interviews ...... 24 STUDENT CASE REVIEW RESPONSIBILITIES ...... 24 Screening Inquiries ...... 24 Application Screening – Case File Established ...... 25 i Initial Review ...... 26 Investigative Review ...... 26 Case Investigation ...... 27 Locating Witnesses ...... 28 Interviewing Witnesses ...... 28 Note Taking and Report Writing ...... 29 Case Analysis Forms and Protocol ...... 30 Case Management Report ...... 30 Case Chronology, Witness List ...... 31 Transcript Summary ...... 31 Police Report Summary ...... 31 Physical Evidence Summary ...... 32 Evidence Analysis Notebook ...... 32 LITIGATION ...... 32 REJECTION ...... 33 Preparing A Case For Rejection ...... 33 Rejection Review Meeting ...... 33 The Rejection Letter & Closing Tasks ...... 33 MEDIA INQUIRIES...... 34 EXONERATIONS ...... 34 APPENDICES ...... 35 Appendix A - IPNW General Information ...... 36 Appendix B - IPNW Eligibility Criteria ...... 37 Appendix C – Clinic Phone Duty Protocol ...... 38 Appendix D - IPNW File Organization Structure ...... 39 Appendix E - IPNW Document Naming Protocol ...... 41 Appendix F - Instructions for Scanning Case Documents ...... 42 Appendix G - Student Use of Amicus Attorney in the IPNW Clinic ...... 43 Appendix H - Timekeeping in Amicus Attorney ...... 45 Appendix I - Amicus Activity Codes for Timekeeping ...... 52 Appendix J - Adding Case Contacts in Amicus ...... 54 Appendix K - Sample Case Forms ...... 66 Appendix L - Innocence Network’s Guide to Ethics & Best Practices ...... 80
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INTRODUCTION
The only resource of its kind in Washington State, the Innocence Project Northwest (IPNW) frees innocent prisoners using DNA and other new evidence. IPNW was founded in 1997 to exonerate the innocent, remedy causes of wrongful conviction and offer law students an outstanding education.
The IPNW Clinic assists prisoners convicted of felonies in Washington who have claims of actual innocence. Much of the IPNW Clinic work involves reviewing cases where there may be a viable claim of innocence and investigating possible new evidence, including post-conviction DNA testing, to support that claim.
The responsibilities of an IPNW Clinic student are incredibly varied. You will alternatively assume the role of advocate, counselor and investigator. One of the most time consuming (and important) tasks when handling a case is tracking down and managing necessary information, evidence, and paperwork. This requires persistent phone calls, follow-up letters, and patience, as you navigate your way through the criminal justice system’s bureaucracy. The success of the Clinic is dependent upon your tenacity, creativity and commitment.
This manual is designed to provide you with a general overview of the responsibilities of IPNW Clinic students and the procedures and protocol for carrying out these responsibilities. You will also need to familiarize yourself with the Clinical Law Program (CLP) Student Office Manual (hard copy also available in the IPNW Clinic); the “Student Use of AMICUS Attorney” handout (Appendix F); and the “Innocence Network’s Guide to Ethics & Best Practices for Innocence Project Practitioners” (Appendix K). . COURSE GOALS
The IPNW Clinic offers students an opportunity to investigate and litigate claims of actual innocence on behalf of Washington State prisoners under the supervision of law school faculty. Our goals for the course are to: (1) educate students about the law, science and policy of wrongful convictions; (2) teach students about post-conviction practice in state and federal court; (3) train students to conduct the appropriate case investigation, legal research, case management, and litigation strategies for clients who have a viable claim of innocence; and (4) provide a learning environment where we continue to develop as thoughtful, reflective and skilled professionals.
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IPNW STAFF
In addition to full time staff, the IPNW clinic relies on the valuable assistance of work study students, volunteers, interns and the CLP staff. For more general Clinic information and important contact numbers see the “IPNW General Information” handout (Appendix A).
Jackie McMurtrie Laurie Carlsson Director: IPNW Faculty Support Associate Professor 206-616-3920 206-543-5780 Email: [email protected] [email protected]
Anna M. Tolin Laura Fox Deputy Director: IPNW Paralegal: IPNW Lecturer DNA Cases DNA Cases 206-616-8009 206-221-8411 [email protected] [email protected]
Peter Moreno TBD Lecturer: IPNW Administrative Assistant 206-685-7804 [email protected]
Fernanda Torres Lara Zarowsky Staff Attorney: IPNW Policy Director: IPNW Non-DNA Cases Visiting Lecturer: Legislative 206-616-8008 Advocacy Clinic Director [email protected] 206-616-8736 [email protected]
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OVERVIEW OF STUDENT RESPONSIBILITIES
The University of Washington School of Law’s Clinical Law Program provides opportunities for law students to gain practical skills needed to practice law and is intended to simulate a law firm in its functioning. In addition to case review and investigation, students will assist with the overall function and organization of the office such as speaking with potential clients, learning to use case management software and maintaining client files.
IPNW Clinic students are expected to spend a minimum of 120 hours per quarter fulfilling IPNW responsibilities. While a portion of this time commitment will be devoted to class session attendance and preparation, half or more of a student’s time will be spent working on real cases. Clinic students are responsible for keeping track of their hours by task and client in accordance with the “Instructions for Timekeeping in Amicus” (Appendix H).
IPNW Clinic student responsibilities fall into three categories:
One: Academic
Clinic students will attend class, read course materials and come to class prepared to participate in discussion of class materials and cases. Assignments are subject to modification during the quarter. Consult the course webpage for up-to-date reading assignments. Course materials are available through the internet and are also on reserve at the Law Library. Students will need to have access to Westlaw and Lexis to facilitate the reading and research required for the IPNW Clinic.
Two: Case Review and Management
Clinic students work to move assigned cases forward from beginning towards completion and are required to document all case work. Students may pre-screen cases to determine eligibility for IPNW assistance or conduct secondary screening to assess whether further investigation by IPNW is appropriate. Student teams are assigned a primary case for further investigation. Each team will obtain and review records, initiate and maintain contact with the client,1 create an investigation plan, assess the potential for post- conviction DNA testing or other new evidence that may establish innocence, and draft appropriate case review documents and pleadings. Students are responsible for handling all case management tasks for their assigned client and will meet weekly with a supervising attorney to discuss case progress, goals and questions.
Three: Office Support
Clinic students assist with the efficient functioning of the IPNW office. Students may be asked to return phone messages asking for information about the IPNW and will assist with copying and scanning case documents.
1 “Client” is used throughout this Manual to refer to a prospective client, as well as clients with whom the IPNW has entered into a Legal Services Agreement (LSA). 3
GRADING
When registering in autumn quarter, students must commit to enroll for the entire academic year, and will receive credit for the course only upon completion of all three quarters. The IPNW Clinic is offered on a credit/no credit basis. Awarding of credit requires completion all three quarters and fulfilling assigned academic, administrative and case investigation responsibilities. In order to receive a passing grade you must fulfill all of the academic, administrative and case responsibilities assigned to you. This includes: Diligent investigative work on all assigned cases Preparing precise, well written memos and legal documents Presenting quality, informative, and organized case reports in class Attending and participating actively in class and outside IPNW activities Attending and being prepared for meetings with supervising attorney/s Keeping productive office hours Following office administrative procedures outlined in this handbook and as directed during class sessions and team meetings Fulfilling the time commitment of at least 120 hours per quarter and tracking accurate and contemporaneous time using the AMICUS case management software (See Appendix H and Appendix I - “Amicus Activity Codes for Timekeeping”
RELEVANT LEGAL ISSUES
IPNW Clinic students are expected to gain an understanding of both the causes of wrongful convictions and the legal issues and processes relevant to post-conviction innocence litigation. IPNW Clinic students will need to understand the criminal justice system and how a case progresses to the point of being eligible for IPNW assistance and representation.
The Causes of Wrongful Conviction
Substantial emphasis is placed on exploring the causes of wrongful conviction, as well as efforts to reform our criminal justice system in order to decrease its rate of error. The assigned readings and case work give students a broader insight into issues known to contribute to wrongful conviction. These include: eyewitness misidentification; false confessions; incentivized or snitch testimony; invalid or insufficient scientific and forensic evidence; evidence mishandling and destruction; police, prosecutor and judicial misconduct; and ineffective assistance of defense counsel.
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Phases of a Criminal Case
The Felony Case Process
In general, the felony case process is divided into two parts – the investigation stage and the prosecution stage. The investigation stage is run by the police, while the prosecution stage involves legal professionals, such as prosecutors, defense attorneys, and judges. After an incident occurs, the police determine in the investigation stage: (1) whether a crime was committed, and (2) if so, who did it. To identify a suspect, police conduct searches and interrogations and conduct identification procedures such as line-ups, and collect evidence for examination. The police may arrest the suspect when they have probable cause to arrest.
After a suspect is arrested, the case moves into the prosecution stage. At this point, the Prosecuting Attorney’s office reviews the case and may reject prosecution, or file an Information (a formal charge accusing a person of committing an offense).
After the Information is filed, the defendant is arraigned. While the case may be dismissed at this point due to a dispositive motion, generally the defendant submits a plea. If the plea is not guilty, the case proceeds to trial. Prior to trial, the defendant may change his or her
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plea to guilty. It is very difficult for a defendant to change a guilty plea to a not-guilty plea; a motion to withdraw a plea is required.
If the case goes to trial, a jury or judge will determine whether the defendant is guilty or not guilty. If the defendant is found guilty, he or she may make a motion for a new trial. If the motion is denied, the case will proceed to sentencing.
At sentencing, the Department of Corrections may file a sentencing recommendation report. The prosecution, defense and defendant, have an opportunity to address the court. The judge imposes the sentence.
In 1981, Washington adopted The Sentencing Reform Act of 1981, which imposes a system of determinate sentences. Under the Sentencing Reform Act (SRA), the sentence pronounced by the court must state the period of confinement that the offender will serve. Suspension and deferral of sentences was abolished under the SRA and the Board of Prison Terms and Paroles was eliminated. The SRA establishes presumptive sentencing ranges, which are based on the seriousness of the crime and the defendant’s criminal history. Absent exceptional circumstances, the court must impose a sentence within the standard range. Certain serious sex offenders, with offense dates after August 31, 2001, are required to go before the Washington Indeterminate Sentence Review Board (ISRB) in order to be released from prison. The ISRB holds hearings to make decisions about releasing such offenders from prison. Clients with claims of innocence face a particularly difficult challenge since the ISRB typically requires an admission of guilt to “accept responsibility” and proceed toward reform.
The Appellate Process
The appeals process begins once the defendant is convicted and sentenced in Superior Court. In Washington, appeal from a Superior Court conviction is as of right and appellants are entitled to counsel on appeal if indigent. The Washington Rules of Appellate Procedure (RAP) govern proceedings in the Supreme Court and the Court of Appeals.
The Defendant must file a Notice of Appeal in the Superior Court where he/she was convicted within 30 days after the entry of the Judgment and Sentence. RAP 5.2. There are three Divisions of the Court of Appeals. RAP 4.1. The location of the trial court will dictate which Division reviews the appeal. RAP 4.1
The Appellant is also entitled to both the Report of Proceedings and the Clerk’s Papers (pleadings, orders, and other papers filed with the trial court clerk). These are considered the Record on Appeal. The Appellant’s Opening Brief must be filed within 45 days after the report of proceedings is filed in the trial court. The Respondent’s Brief is due within 60 days after service of the Opening Brief. A Reply Brief of an Appellant should be filed within 30 days after service of the Respondent’s Brief. RAP 10.2.
After the court has had the opportunity to review the briefs, it sets the matter for oral argument. Before the matter is heard, the court of appeal has already read and studied the 6
briefs, researched the issues presented and prepared a bench memo, which is essentially a draft opinion. Thus, oral argument is a limited opportunity to persuade the court of your view of the issues and an important time to answer the court’s questions. Cases are usually won and lost on the briefs – not on oral argument.
In Washington, the court will write an opinion deciding every case. However, not all cases are published. If the Appellant wins on appeal, it usually means that the case goes back to Superior Court and another trial is held. There are very few instances where an Appellant is actually freed as a result of an appeal. One such instance is where the reviewing court finds that there was insufficient evidence presented to sustain a conviction.
An Appellant may pursue a motion for reconsideration within 20 days after an unfavorable appellate decision is filed. RAP 12.4. The Appellant may also petition the Washington Supreme Court for review within 30 days after an unfavorable appellate decision is filed. (RAP 13.3). The Washington Supreme Court’s reasons for granting review are set forth in RAP 13.4. Few petitions for review are granted. However, it is very important to seek review by the Washington Supreme Court because an Appellant may lose any opportunity for federal review of claims unless he or she asked for such review.
Thus, many Appellants do not feel constrained to limit requests for review to stated criteria and find a way to characterize their claims so as to fit within the criteria for review. If the Washington Supreme Court grants review, it will articulate the issue, accept supplemental briefing, and schedule the case for oral argument.
An appellant may also petition the United States Supreme Court for certiorari within 90 days of the filing of the final state appellate decision in the case. Only a small percentage of cases are accepted for review by the Court.
When the state appeal is over, the clerk of the appellate court will issue a Mandate in the case. The Mandate is the appellate court’s formal notification to the parties and to the trial court that review is terminated. The Mandate is usually one sheet of paper, with a copy of the appellate court’s opinion attached. The date the Mandate is issued (not filed) is critical assessing post-conviction claims (see below).
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Washington State Appeals Flow Chart
Post-Conviction Proceedings
IPNW begins its review after the appeal process is terminated and a Mandate has been issued. Much of a Student’s time in the Clinic is devoted to learning the complex structure of state and federal post-conviction proceedings. The proceedings cannot be fully explored in the Manual, but a brief summary follows.
State Collateral Attack
In addition to filing a direct appeal from a conviction, a prisoner may also seek post- conviction relief through procedures that are separate and collateral to the appeal. A “collateral attack” means any form of post-conviction relief other than a direct appeal. It 8
includes, but is not limited to:, personal restraint petitions, habeas corpus petitions, motions to vacate judgment, motions to withdraw guilty plea, motions for a new trial, and motions to arrest judgment. RCW 10.73.090. Students must become familiar with the statutes, court rules and cases governing collateral attacks.
With few exceptions, no petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction. RCW 10.73.090. In the majority of IPNW cases, a judgment becomes final on the date an appellate court issues its Mandate.
One of the limited exceptions to the one-year filing deadline is a claim of newly discovered evidence, such as a DNA test result or a recantation. RCW 10.73.100. In order to overturn a conviction on the ground of newly discovered evidence, a petitioner must show that the evidence: (1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. In re Lord, 123 Wn.2d 296, 319-20, 868 P.2d 835 (1994).
To determine whether evidence is newly discovered, students must delve more fully into the facts of the case. It is important to be aware that lay people frequently do not understand what evidence constitutes “newly discovered evidence.” Consequently, it is common for prisoners to write IPNW seeking assistance in cases where they claim innocence, but where their claim is unsupported by “newly discovered evidence.” Usually, they are making claims based on evidence that has already been presented and rejected at the trial level; or based on evidence that was available, but not presented, at trial. Such evidence will not support a newly discovered evidence claim raised in a collateral attack.
For example, a prisoner may write saying, “The prosecution’s star witness lied about seeing me there.” Even if the witness did lie, the jury accepted the testimony as true, and a reviewing court will not reconsider the case absent either (1) the witness’s recantation, or (2) cognizable new evidence that the witness lied.
Or, a prisoner may claim, “My cousin’s brother-in-law heard that some other guy confessed to this crime.” Reading the appellate briefs will answer the question of whether or not this is newly discovered evidence. If there is no mention of this witness, then there is a possibility that newly discovered evidence does exist and this claim should be investigated further. Speaking with the trial attorney to inquire about whether he or she knew anything about this witness is essential. It might also help to write to the prisoner for more specific information asking what the witness claims to know, what the relationship is between the various witnesses and the prisoner and to obtain contact information for the witness.
In addition to newly discovered DNA evidence (discussed below), the following are potential (though not exhaustive) areas for securing new evidence to support post- conviction relief:
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Brady violations: Prosecution’s failure to disclose exculpatory evidence pursuant to Brady v. Maryland and its progeny Other Police Misconduct: While difficult to prove police, dishonesty and planting of evidence can establish grounds for relief Reliance on now debunked or “junk science” at trial – an evolving area that has been highlighted in Chapter 5 of the NAS Report, “Strengthening Forensic Science in the United States: A Path Forward.” Areas that warrant review include: o Gunshot residue evidence o Firearm tool mark and bullet comparison evidence o Faulty fingerprint comparisons o Arson – discredited accelerant evidence o Microscopic hair comparison o Bite mark analysis o Faulty time and cause of death conclusions o Shaken Baby Syndrome testimony Other obviously powerful new evidence, such as identification of the true perpetrator
Students will work with their supervising attorney to develop an investigation plan and strategies for discovering new evidence to support a prisoner’s claim of innocence.
Motions for Post-Conviction DNA Testing
RCW 10.73.170 governs post-conviction DNA testing of biological material and the preservation of biological material evidence for testing in Washington. Such evidence may include bodily fluids collected in a rape case, fingernail scrapings recovered from the hands of the victim in a murder or assault case, hair or blood found at a crime scene, or even a cigarette butt left at the crime scene. Any item of evidence handled by the perpetrator can yield a DNA profile upon testing. Often prisoners will not know what biological evidence existed in their case. Students will need to track down the trial attorney, the original trial records, including police reports and evidence logs, to determine whether any such evidence was collected.
Students will learn about DNA testing and are expected to fully understand the post- conviction DNA statute and be familiar with cases interpreting the Washington statute. Occasionally, the IPNW Clinic may assist a federal prisoner convicted in a federal court in Washington who is seeking post-conviction DNA testing. A separate federal statute and process governs these cases. See 18 U.S.C. § 3600.
Tracking Down the Evidence In a case with biological evidence, our task is to track down the potentially exculpatory physical evidence. This often requires extreme persistence and ingenuity. Each locality has different procedures for preserving trial evidence. In most jurisdictions, items admitted into evidence are stored in the property room of the law enforcement agency that collected the evidence. Evidence may also be stored at the courthouse where it was admitted as an exhibit at trial. In some cases, the state or local crime lab retains evidence.. Evidence may also have been returned to defense trial counsel or the Prosecuting Attorney’s office. 10
A good place to begin a search for physical evidence is with the local law enforcement agency that investigated the crime. These agencies keep logs of evidence collected during the investigation. The evidence logs can be requested through a public disclosure request. The requests often require precise wording and must be submitted to specific evidence divisions to ensure necessary records are received. The investigative police reports written by officers of the same agency will often describe where and how the evidence was collected and are available through public disclosure. A client or defense trial (not appellate) counsel will sometimes have copies of the police reports. Students will work with the DNA paralegal to coordinate requests for records.
Once students have confirmed that evidence was collected, they must determine whether it still exists. Each jurisdiction has its own policy on how long and under what circumstances evidence is kept. There is no statewide policy on evidence retention. A call to the property room can sometimes yield results or finding out what evidence still exists may require another public disclosure request. Again, each locality has different procedure and several phone calls may be necessary to locate the evidence.
If the evidence was admitted at trial, a good place to begin your search is with a phone call to the Clerk of the Superior Court. Follow-up calls to trial and/or appellate attorneys or court personnel may be necessary.
Statements by a law enforcement official, clerk, or attorney that the evidence has been destroyed do not close the case. You must investigate the source of this individual’s knowledge (politely, but firmly) to determine whether or not it is correct. IPNW does not close a case until we have reliable, written confirmation that the relevant, testable items have been destroyed. We have successfully located evidence in cases after being told the evidence was destroyed. Written confirmation should include 1) the date of destruction, 2) an inventory of what was destroyed, and 3) the authority or statute under which the evidence was destroyed. Be sure to request a copy of the destruction order if applicable.
In many cases, although the actual physical evidence (i.e., the bloody t-shirt, the soiled underwear) has been destroyed, slides made during the criminal investigation by the Washington State Patrol Crime Laboratory (WSPCL) still exist. These slides take up far less space than physical evidence and laboratories routinely save them. A student’s investigation should include a phone call to the WSPCL (or private laboratory), that performed tests on the evidence. IPNW has successfully located slides at the WSPCL when the law enforcement agencies or courts destroyed evidence.
If the victim went to a hospital for treatment, the hospital may have kept its own slides from the victim’s treatment. Call the hospital’s evidence custodian to determine whether it maintained its own slides separate from those the hospital turned over to the law enforcement agency.
Once students have located evidence, consult with the supervising attorney to assess whether a preservation letter or Motion to Preserve Evidence should be prepared and served in the case. 11
Impact of DNA Evidence For a DNA test result to meet the standard for relief, the circumstantial evidence must suggest that the DNA to be tested came from the perpetrator.
Examples of when DNA testing generally may be appropriate:
1. Biological evidence is highly probative simply because of where it was found or because it is a certain type of material, e.g., Semen taken from the victim shortly after a rape. Biological material found under the fingernails of a murder or assault victim that did not come from the victim, and the evidence suggests that the attacker struggled with the victim. A pubic hair found in a rape victim’s genital area that an expert testified did not come from the victim.
2. Evidence made probative by the way prosecution presented it at trial (remember, a piece of evidence that would not otherwise be probative can be made probative by the way the prosecution argued the case at trial), e.g., Cigarette butt found at scene. Normally this would not be a probative piece of evidence, as it could have left by anyone before the attack. However, if the prosecution argued at trial that the cigarette butt was highly persuasive evidence that the defendant committed the crime, because it was his brand and a rare brand, excluding the defendant as the donor of the saliva on the filter is worthwhile. Blood found on the defendant’s clothing. If the prosecution argued that the defendant was guilty because he was found with large amounts of blood on his clothing when he was arrested after the attack, then a DNA result showing that this blood belonged to a friend who had just been cut and the defendant was trying to stop the bleeding, was animal blood (defendant had been hunting or cleaning fish), or at least that it did not come from the victim, is worthwhile and might be sufficient if combined with other exculpatory evidence. Defendant was matched to evidence at crime scene through junk science. For example, if an “expert” testified microscopic comparison showed that the hair found clutched in the murder victim’s hand belonged to the defendant;DNA testing of the hair may prove this testimony is false. Or, if an expert testified that the bite marks left on the victim match the defendant’s teeth, DNA testing the saliva from the bite or from the clothing on top of the bite might prove this to be false.
3. Trial evidence shows that attacker touched or might have left skin cells or other biological material, on several pieces of evidence. In these cases, if unknown DNA is found on all the items, and they match each other, and they do not belong to the defendant, an argument for exoneration can be made, e.g., Female victim was strangled with rope and male attacker accidentally left his baseball hat at the scene (victim testifies that it fell off attacker’s head and he left it there). If (1) the rope is tested and a male DNA profile is found, and (2) the hat
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band is tested and a male DNA pattern is found, and (3) the two DNA profiles match one another, and (4) this profile does not belong to the defendant, then a strong case for innocence has been developed.
4. Alternative Suspect cases: If an alternate suspect exists, testing nearly anything from the crime scene and matching it to the alternate suspect might be highly probative. If the alternate suspect is the victim’s friend and would likely have left DNA at the scene for innocent reasons, then this might not work. However, if the alternate suspect did not know the victim and had no innocent reason to be at the crime scene, then matching the alternate suspect to nearly anything will be highly probative.
Types of DNA Testing Three types of DNA testing are frequently used in forensic testing: STR (often called “nuclear”), YSTR (also called y-chromosome testing) and mitochondrial (MtDNA). PCR is sometimes referred to as a type of DNA testing. That is not technically accurate, as PCR is a process used to amplify small amounts of DNA for testing. STR, YSTR and MtDNA all use PCR.
STR testing STR/Nuclear is the most common type used by crime labs, and has been around for many years.
Advantages: DNA profiles generated can potentially be entered into the Combined Offender Data Information System (CODIS). This can generate a “hit” to another offender, allowing identification of the true culprit and exoneration of an innocent person. It is extremely unlikely to find two unrelated individuals with a complete 16 loci DNA profile match, thus clear exclusions and inclusions are likely. Cheaper than other methods of DNA testing.
Disadvantages: Cannot be used for hair unless fleshy root or skin cells are left on shaft. Sometimes degraded DNA will not reveal a full profile Sometimes difficult to get a clear, conclusive reading, particularly when the item tested has both female and male DNA on it. If the ratio of female to male DNA is high, STR will sometimes not even register that male DNA is present, because it is overwhelmed by the female contribution.
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YSTR testing YSTR has been around for just a few years. It reads the DNA profile in the Y chromosome of men. Thus, this type cannot be used for female DNA.
Advantages: The biggest advantage of YSTR is that it ignores female DNA. Thus it is ideal for items with mixtures of both genders. A clean reading on the male is possible even when small male traces are mixed with a high concentration of female DNA. It is often useful for vaginal swabs or female underwear, as they will likely contain more female DNA than male. Is more sensitive and able to test smaller amounts of biological material than STR (typically only need 1/5th of what is required for STR). YSTR also can pick up a DNA profile from old, degraded biological material where STR testing could not. All men have the same YSTR profile as their father. If you are trying to match the DNA to an alternate suspect who is hard to find, the DNA of the suspect’s father, son or brother (if they have the same father), will be the same. Very powerful in its ability to exclude.
Disadvantages: More expensive than STR Cannot put profile in CODIS database to get a hit. Each male does not have a totally unique YSTR profile. YSTR run in family lines on the paternal side, so inclusions and matches are not as persuasive as STR. For example, there may be 1,000 men in the U.S., or maybe more, who have the same YSTR profile. It becomes a matter of how rare the profile is (how prevalent or rare the defendant’s male lineage markers are in the general population).
Mitochondrial (MtDNA) testing Mitochondrial has also only been around for a few years (early to mid-1990s). It is most often used for hairs, bone and teeth.
Advantages: Allows you to test hairs that cannot be tested using standard PCR/STR technology. Everyone, both male and female, has the same mitochondrial DNA profile as their mother (everyone in the same maternal line will have the same MtDNA profile). Thus, if you are trying to match to an alternative suspect, you can get the DNA from that suspect’s mother or anyone born to her (suspect’s brothers and sisters). The profile is from the mitochondria of the cell, which degrades at a slower pace than other parts of the cell. MtDNA can be used on old, degraded types of biological material. Very powerful in ability to exclude.
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Disadvantages: More expensive than STR Cannot put profile in CODIS to get a hit MtDNA profiles are similar to YSTR—they run in family lines on the maternal side, while YSTR is paternal, so inclusions and matches are not as persuasive as STR. Cannot interpret mixtures—biggest limitation.
How to choose which type to use in a case: If testing pubic hair from a rape kit, the only type that will be available is MtDNA, unless the hair has a fleshy root or skin cells still attached. If testing something that is likely to have a female/male mixturewhile trying to get the profile of the male, YSTR is usually the best if STR fails. If testing a sample that has a good quantity of DNA from a single male donor in it, or if the goal is to put the profile in CODIS to get a hit, then STR might be the way to go. Keep in mind that each person has a different profile for each type of testing. For example, a man’s STR profile will be different from his YSTR profile and his MtDNA profile. A woman’s STR profile will be different from her MtDNA profile. Thus, your goal is to test several items at a crime scene with the hope that they all match the same person and not your client. You may need to utilize multiple testing methods to cover all the evidence you have.
Questions to Ask Before Conducting DNA Testing Before conducting DNA testing, it is important to consider the ramifications of such testing. For example, the samples could have been contaminated at some point during the criminal process. Questions to consider include: How was the evidence collected? o Who collected the evidence? o What type of evidence is there? Was the evidence examined? o By whom? o For what? o What was not examined, and why? Could it be useful to your case theory? Where was the evidence stored before trial? o How was the evidence stored? How was the evidence handled during trial? o Was the evidence envelope opened? o Was it handled without gloves? o Did the jury handle it? o Was the evidence replaced in the original container? What testing has already been done to the evidence? What happened to the evidence after trial? o Was it used as an exhibit? o Is it still in police custody? 15
o Could the evidence be in another possible location?
Obtaining a DNA Testing Order Once the existence of testable evidence is established, students will work with their supervising attorney to compile necessary materials and consult with forensic scientists as needed. Students will assist in drafting memoranda and motions for post-conviction DNA testing. IPNW is often able to obtain agreed orders for post-conviction DNA testing after negotiating with the local prosecuting attorney on the case. In some cases litigating motion in court pursuant to RCW 10.73.170 is necessary.
Federal Post-Conviction Practice The procedures governing federal habeas petitions are too complex to detail in this Manual. Students should be aware that the statute of limitations for a habeas corpus petition in federal court will begin on a different date than in state court. For purposes of the federal limitations period under 28 U.S.C. § 2244(d)(1)(A), a judgment is considered final either at the conclusion of direct review or the expiration of the time for seeking such review. The period of limitations is statutorily tolled during the time in which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. See 28 U.S.C. § 2244(d)(2). Furthermore, state prisoners must exhaust their remedies in state court prior to filing a petition for habeas corpus. See 28 U.S.C. § 2254(b)(1)(A).
CASE PROCESSING OVERVIEW
Each month IPNW receives about 40 letters from prisoners requesting assistance. The immediate task when sorting through the correspondence is to determine whether the request for help falls within the IPNW Clinic criteria. Several levels of screening and review take place before the IPNW Clinic assumes representation of a client. A prisoner does not become a represented client of the IPNW Clinic until a supervising attorney makes a determination that the IPNW Clinic will assume the person’s representation and a signed Legal Services Agreement (LSA) is obtained. Students may not commit to client representation without prior approval from a supervising attorney. The following flow chart details the IPNW case review process for DNA cases.
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CONFIDENTIALITY
Given the important nature of the contents of our client’s files, you are not, under any circumstances, allowed to take all or any part of a client’s file out of the IPNW Clinic/CLP Office area, except to meet with your supervising attorney in her office. You are required to return the files to their appropriate file cabinet or shelf once you are finished using them. Furthermore, these files are confidential. Names of prisoners who have contacted the IPNW Clinic are held in confidence and cannot be revealed without the person’s consent. You are not to have visitors in the Clinic and cannot let others have any access to these files. The facts of the cases must not be discussed among your friends, acquaintances or students outside the IPNW Clinic.
Student’s using remote access in our outside of the law school to work on client’s electronic files must follow proper protocol for maintaining the security and privacy of these materials. Additionally, only your uw.edu email account should be used for IPNW clinic-related emails. Caution should be used to avoid emailing confidential information. Emails should be saved as pdf files, stored in the client electronic file, noted in AMICUS and then deleted from your individual email accounts. If you use a smartphone to receive email, ensure it is password protected and that all CLP related email is deleted after saving to the clinical files.
You are responsible for reading and understanding the Confidentiality section of the CLP Student Office Manual.
OFFICE SUPPORT
Because the Clinic’s staff is limited, students work side by side with staff to ensure the efficient functioning of the office.
Phone Duties
Coverage of the Clinic phone calls is critically important to Clinic operations. Crucial case information or witness contacts can be lost if messages are not accurately documented and timely delivered. Clinic students will be assigned a week during the quarter where they will be responsible for returning Clinic messages as directed by the IPNW Administrative Assistant.
Office Organization
IPNW staff manages the Clinic’s main mailbox and distributes student mail. Each student team has a mailbox on the right hand counter just inside the IPNW Clinic office (Room 251). Students should check their mailbox regularly. Client correspondence and important case related documents will be placed in the student mailbox. These documents will normally be scanned and saved to the client’s electronic folder by staff before being placed
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in the student mailbox. Documents which are not scanned will be marked as such and students must then scan and save the document in the client’s electronic folder. Instructions for scanning and saving documents are in Appendix F. Students will need to review and promptly file these documents in the client’s file and note their receipt in Amicus. Student mailboxes are not to be used for client or other file storage.
Student teams are assigned a shelf in the IPNW Clinic office. All case materials and student working papers should be stored in the assigned shelves and filed and labeled according to the “IPNW File Organization Structure” (see Appendix C). Countertops are reserved as work space for students working on cases in the Clinic. Thus, client materials and personal items should not be left on the desktops. General office supplies are located in drawers and are available in the workroom (Room 266) outside the secure CLP space.
Professional Atmosphere
Students work side-by-side with staff in the IPNW Clinic office. Staff often take calls from clients and attorneys in the office. It is important to keep the office noise level to a minimum so students and staff can work effectively. Interview rooms (Rooms 258 & 259), the Clinic Library (Room 261) and the Conference Room (Room 260) are available for conference calls or team meetings. These rooms may be reserved through the CLP staff.
Students are also responsible for helping to keep the IPNW Clinic office clean. There are no trash receptacles or janitorial trash removal in the Clinics! Students are responsible for depositing their trash in trash cans in the workroom or law school hallways. Perishable food items can be stored in the refrigerator in the workroom. Boxes for recycling and a box for documents that require shredding are located in the Clinic office. Please do your part to empty recyclables when the boxes are full. Work study students are responsible for shredding. Students may also use the shredder in the workroom.
Students are reminded not to leave personal items in the Clinic office.
CASE MANAGEMENT
The importance of keeping files complete, up-to-date and organized cannot be overemphasized. You will recognize how important this is the first time you try to make sense of, or find something, in a poorly organized file. Sloppy files can lead to unproductive and costly use of time.
Maintaining your case summary and status report in AMICUS and your Case Management Report form (Appendix J) are critical responsibilities. These reports are integral to keeping IPNW Clinic staff updated about case status and ensuring other students or attorneys can quickly familiarize themselves with the case status and history when transitions are required. Reports must be sufficiently detailed to enable someone with no knowledge about the case to get an understanding of the basic procedural and factual history (when and where the client was convicted, of what crimes, appellate posture and post-conviction
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motions, nature of the evidence against the client), whether DNA issues are involved, and what work has been completed on the case.
Every client has an AMICUS Attorney file, an Electronic File and a paper file. You will receive training on how to maintain the AMICUS file. The Electronic File is used to store documents (letters, motions, file summaries) related to each case. The paper file is referred to as the client’s “Case File.” The Case File contains hard copies of documents pertinent to the case that are frequently referenced. All documents received in a case are scanned to the electronic file as pdf files before being integrated into the Case File (see instructions in Appendix E). Files pending screening and review are kept in a file cabinet in the Clinic. Case Files assigned to student teams are kept on designated student shelves in the IPNW Clinic space. As documents are collected, files are expanded to binders. All client files must be maintained according to the file organization structure in Appendix E and documents must be saved using the document naming protocol in Appendix D.
All major activities, including every telephone call made and letter sent must be noted in the Status Report tab of AMICUS Attorney. These records should always include the date of the communication, the parties involved, and what information was conveyed. In addition, you should keep careful notes concerning all of the information you gather about the case, including factual data and legal research. Your files must provide a clear record of everything you have done and prevent against unnecessary duplication of work by a future attorney or student.
All important contacts should be entered into the AMICUS Contacts (See instructions at Appendix I). In addition to your Case Management Report, you will be required to prepare a number of case analysis documents as you proceed with your case review and investigation. Cases that enter the litigation phase will require particular attention to proper file maintenance and documentation as set forth below.
COMMUNICATION
Working on IPNW Clinic cases requires thoughtful, accurate and effective communication skills. Developing good communication skills is an important educational goal of the clinical program. Students make many phone calls, frequently to attorneys previously involved in a case. They communicate with attorneys by letter, either as a follow-up after a telephone conversation, or as a “next step” to an attorney who has been uncooperative by phone. In some cases, it is necessary to contact client’s family members or friends, speak with former witnesses, or experts who testified at trial. Students communicate directly with clients by mail and occasionally by telephone and in person.
The ability to communicate in a concise and professional manner with people from varying backgrounds is an important skill for lawyers. To avoid any misunderstandings all letters and emails drafted by students must be edited and approved by a supervising attorney before mailing.
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Contacting Attorneys by Telephone
Students will typically make phone contact with previous defense counsel - the trial attorney, the appellate attorney, or both. Students need a full grasp of the facts and the client’s claim(s) and should make notes of important facts and questions to ask and discuss the contact in your team meeting before making contact with any attorney.
Although trial and appellate attorneys who have worked on a case are no longer being paid for their work on that case, they remain an invaluable resource for information and documents. Requests that they search their records, draft declarations, or perform work on a case will likely burden their already busy schedules. You must exercise diplomacy when contacting them. Some will be very forthcoming with information, others will be too busy working on their current cases to give attention to the case the student is calling about, and others may be defensive based on a prior claim of ineffective assistance of counsel.
When calling a law office, the goal is to get the attorney on the line. It is better not to launch into long explanations of the reasons for the call to the receptionist. An example of an opening line that has proven successful: “Good afternoon. This is Sandy Student from University of Washington Law School for Andrew Attorney.”
Once the attorney is on the phone, the conversation might continue like this:
“Hello Mr./Ms. Attorney, I’m Sandy Student from the University of Washington School of Law (or the Innocence Project Northwest Clinic). We are doing some post-conviction investigation on a case you were involved in back in 1992. The defendant’s name is Paul Prisoner. Do you recall this case?”
Briefly describe the IPNW Clinic, your status as the student assigned to investigate the client’s claim(s). Offer to fax a copy of the client’s signed Consent for Release of Information. If you must leave a message, be sure to leave the IPNW Clinic phone number and the reason for your call.
Contacts with attorneys and others must be carefully documented in the AMICUS Status Report tab. Any significant conversations should be memorialized in a detailed memorandum to the client electronic file using the IPNW Memo template.
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Writing a Business Letter to Attorneys and Others
One of the most common business letters to an attorney is a letter requesting that the client’s file be turned over to the IPNW Clinic. The letter must be accompanied by consent from the client that the file be transferred to the IPNW Clinic. The Washington State Bar Association has clearly indicated the file generated in the course of representation, with limited exceptions, must be turned over at the client’s request. The letter to the attorney must make it clear that original materials (including personal notes and memos) are to be turned over in accordance with the client’s request. If the lawyer wants to retain copies for the lawyer’s own use, the lawyer must pay for the copies. Consult with a Supervising Attorney to determine the best method for requesting the file.
Students should feel free, and will occasionally be required, to custom-draft a letter from an existing template as needed. All business letters must be submitted to a supervising attorney for review. The attorney will edit the letter and return it to the student for revision. The letter can only be mailed after the supervising attorney approves the final draft. The final version will be saved in the client’s electronic file, Case File and noted in the AMICUS Status Report tab.
Correspondence with Prisoners
Ethical Considerations The attorney/client privilege applies to all communications with prisoners communicating with the IPNW Clinic for the purpose of becoming a client. The fact that the prisoner has contacted us for the purpose of representation is held in confidence and cannot be revealed without the prisoner’s authorization. Materials sent by prisoners should not only be held in confidence, but they must be preserved. Eventually, the file will be returned to the client or forwarded to another attorney. It is the student/attorney’s duty to memorialize all contacts. AMICUS Attorney will contain a log of communications that reflects the evolution of the case. A letter to the client should always follow a telephone contact in which significant information was obtained. The letter should describe what was done, who we communicated with, and the result of that communication. Keep the communication on a professional level. Do not agree to do favors that are beyond the scope of advancing the innocence claim. Clients sometimes ask for photographs, money, legal research, or other things. They sometimes ask students to communicate with other prisoners or people on the outside; do not do it. Never forward mail from a client to another prisoner or person outside the IPNW legal team. It is important to set professional boundaries to avoid jeopardizing your ability and the IPNW Clinic’s ability to send confidential communications in the future.
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Legal Considerations
The Washington State Department of Corrections has very explicit rules about communications with prisoners. A breach of those rules could lead to sanctions against the lawyer involved and against the prisoner. The prisoner could lose his or her ability to carry on confidential communications and be subject to penalties and further loss of privileges. As such, all correspondence by students must be reviewed and approved by a supervising attorney before being sent.
Legal mail is not subject to usual screening and search by prison personnel and should not be copied or read. For IPNW Clinic mail to be considered Legal Mail, the mail must be correspondence to or from an attorney (the Director or Supervising Attorney) and the front of the envelope must be clearly marked “Legal Mail” and “Confidential.” Legal Mail may be touched, smelled or visually scanned, but it will not be read. DOC 590.500. Do not include stamps or return envelopes when sending legal mail to prisoners. Additional requirements apply to prisoners who are in federal custody – please consult with your Supervising Attorney for the most current requirements for sending legal mail to federal prisoners.
Sometimes prisoners are transferred to a new location. You should always verify your client’s location prior to sending out correspondence through the Washington State Department of Corrections Find an Offender website. Make sure to update any new location information in AMICUS.
Client and Potential Client Prison Interviews
Students working with the IPNW Clinic may have the opportunity to conduct legal interviews at a prison. When scheduling, be clear with all prison staff that you are requesting a legal interview and not a “visit.” There is a vast difference in the eyes of the correctional staff and you should be accorded respect and privacy to the extent possible in the setting. In return, you must follow institution procedures in scheduling and attending the interview.
Each institution has its own unique procedures for scheduling prison interviews. (See Prison Visit Guide). Find out the procedures for that particular institution. Generally, the prisoner’s counselor will facilitate the visit. Fax or mail the necessary forms and documents well in advance of the scheduled date, confirm their receipt, and check to make sure the interview is cleared and actually on the schedule before starting the trip to the institution. There are strict clothing requirements for prison visitors. Review the online regulations or contact the institution in advance of the visit to review what particular regulations apply at that institution.
Like any visitor, a violation of any laws governing association with prisoners, a violation of regulations, or a violation of the local procedures established within the institution may result in the termination, suspension, restriction, or denial of contact.
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A letter to the client should follow every interview. If crucial information has been provided during the interview, it should be memorialized in memorandum to the client file. Always seek verification that the information is correct.
Prisoner Telephone Contact
Telephone calls with prisoners are the least favored form of communication because they are the least secure. Letters (sent as “Legal Mail”) are the preferred method of communication. If telephone calls need to be made, the prisoner can place a collect call to a supervising attorney’s phone on the institution’s legal phones. These calls should be pre-arranged with the attorney and prison staff. Calls on legal phones cannot be intercepted, recorded or monitored. DOC 450.200.
Prisoners may call, oftentimes collect,. This practice is not encouraged. Prisoner initiated calls may be monitored, intercepted and recorded. Prisoner initiated calls are not covered by the attorney-client privilege. Collect calls initiated by prisoners can be arranged and require a supervising attorney’s prior approval.
If a student answers a client’s telephone call, that student should remind the client that the call may be recorded and discourage any communication about privileged matters. Students should attempt to assist the client to the extent reasonably possible and must record the substance of that conversation. If difficulties are encountered, ask the client to send a letter or a telephone number where a message can be left.
Witness Interviews
Interviews with potential witnesses must be strategically planned and handled thoughtfully and carefully. Additional guidance on this specialized form of communication is set forth at page 31 below and will be the topic of both class sessions and team meetings.
STUDENT CASE REVIEW RESPONSIBILITIES
Students may be assigned to work on cases at various stages of investigation and review. The tasks anticipated at various stages of IPNW case processing are set forth below.
Screening Inquiries
Initial screening of a potential case may take place when a prisoner writes or calls to request assistance or after a prisoner returns an application. Most eligibility review is performed by staff, but occasionally students will be called upon to apply eligibility criteria to cases.
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In order to qualify for representation, a prisoner must meet the following minimum eligibility criteria (Appendix B):
Be wrongly convicted of crimes in Washington; Be unable to afford counsel; No longer have the right to appointed counsel; Have completed the direct appeals process; Have at least three years of prison time remaining to be served; Have a claim of actual innocence that can be proven through DNA testing or other newly discovered evidence; and Have no involvement in the crime whatsoever (IPNW does not take cases in which the prisoner claims an affirmative defense such as self-defense, insanity or accidental death, or cases in which the prisoner seeks a reduction of his or her sentence).
If a case appears to meet the initial screening criteria, notify administrative staff so that an Application can be mailed to the prisoner.
Callers convicted of crimes outside of Washington State are referred to other state Innocence Projects. If the Applicant is still in the process of a direct appeal, he or she is asked to contact IPNW after the direct appeal is completed. If an Applicant has counsel, he or she should be directed to contact IPNW when counsel is no longer available.
Cases that do not fit within the IPNW Clinic’s other criteria are rejected. We do not typically have resources to provide referral information.
Application Screening – Case File Established
When the Application is returned, a staff member will open both a paper and electronic case file and begin documenting case events in the AMICUS case management system. Although the Application contains a great deal of information, it will usually be necessary to collect and review additional documents before determining whether a case will be assigned. Appellate decisions are gathered and police reports, evidence logs and/or crime lab reports are often requested. After relevant documents are collected, the file is marked pending and is entered into a queue for more thorough screening. Screening may be conducted by staff or students as determined by a supervising attorney.
If a case makes it through the screening process, it will usually be necessary to conduct further investigation before deciding to accept the Applicant as a client. The supervising attorneys work closely with Clinic students during the investigation process. Students are normally assigned to cases in teams of two. Teams meet weekly with attorneys to plan and carry out review and investigation. Students will review all documents pertinent to the case and request additional documents as needed such as trial transcripts and attorney files. Students may also interview witnesses and/or request testing of evidence. The length of the investigation varies based upon the complexity and the individual facts of the case. Once an Applicant is accepted as a client through entry of a Legal Services Agreement 25
(LSA), the students and attorneys will pursue all legitimate avenues of appeal available to the client.
Initial Review
If you are asked to conduct an initial review for a case, the goal is to help identify whether this is a case that is appropriate for further investigative review. You will complete the following tasks and follow up with appropriate inquiries or requests for further information to the Applicant as needed.
Read the client’s Application and check AMICUS and electronic correspondence for background Check for potential conflict due to past or present student employment (a general conflicts check is conducted by staff, but you will need to ensure that you do not a have a conflict with the client based on your past or present employment and/or personal contacts) Collect and review the appellate court opinions, dockets and media articles pertaining to the case Create a brief case summary in the Summary tab of AMICUS Note your review work in the Amicus Status Report Draft a memorandum that considers the following: o Does this case have potential for DNA testing? o What is the client’s theory of innocence? o Do we have enough information now to reject or accept for further investigation and review? o What additional information/documentation is needed in order to make a determination? o What questions do you have for the applicant?
Meet with a supervising attorney or staff member to determine next steps Track all time you spend reviewing the case in AMICUS using established time keeping protocols (see Appendices H & I).
Investigative Review
The majority of your Clinic work is likely to involve working on cases in the Investigative Review phase. This requires students to conduct a thorough review of the case by completing the following tasks in an effort to determine whether a case is appropriate for further litigation:
Read the client’s Application and check AMICUS and electronic correspondence for background 26
Check for potential conflict due to past or present student employment (a general conflicts check is conducted by staff, but you will need to ensure that you do not a have a conflict with the client based on your past or present employment and/or personal contacts) If the case transferred to you from another student team, read the prior team’s IPNW Case Management Report Review the appellate court opinions, dockets and media articles pertaining to the case, and collect additional materials if necessary Create and maintain a brief case summary in the Summary tab of AMICUS Continue to enter tasks and actions performed in the AMICUS Status Report tab. Prepare a Case Assignment Letter to the Applicant Inventory the file and create a Document Index listing all documents (paper and electronic) related to the case and their source Begin setting up case binders and organizing documents according to IPNW’s File Organization Structure (see Appendix C) Read all documents in the paper and electronic file Regularly update the IPNW Case Management Report Identify additional documents needed to complete the investigative review and work with IPNW staff to order necessary records Begin completing Case Analysis documents outlined below as appropriate Meet with supervising attorney to determine next steps and develop an investigation plan to identify DNA and non-DNA evidence to support the claim of innocence Conduct necessary interviews and investigation tasks Track all time you spend reviewing your case and searching for evidence in AMICUS using established time keeping protocols (see Appendices G & H)
Case Investigation
Investigation is the gathering of information that supports or refutes the legal elements of a case. For IPNW Clinic cases, the crux of the investigation will be to determine (1) whether the client’s claim of innocence can be proven and (2) whether there are sufficient facts to support a legal claim that the client’s conviction should be reversed. These are generally different inquiries.
The first inquiry, whether we can prove a client’s factual claim of innocence, rests on the facts of the offense. For example: Are there witnesses to support the client’s alibi? Are there witnesses to support the client’s claim that the prosecution witnesses lied? Are there witnesses to support the client’s claim that another person committed the crime?
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The second inquiry, whether there are sufficient facts to support a legal claim that the client’s conviction should be reversed, requires determining why the client’s claim of innocence was not raised before. Did trial counsel provide ineffective assistance? Did the prosecution hide exculpatory information? Is there a legally justifiable reason that the facts of the client’s innocence were not discovered earlier? These facts are (probably) required to overcome the procedural hurdles raised in post-conviction litigation.
[NOTE: The law is unsettled as to how proof of actual innocence may overcome the procedural hurdles. Thus, it is preferable to have facts that explain why the claim was not raised sooner.]
We begin the investigation by asking questions of the client and obtaining and reviewing the trial file. The client will tell us why he or she claims to be innocent. The client’s statements and the trial file will start to answer the question of why the claim was not (adequately) raised at trial. While the trial defense team (attorney, investigator, paralegal, and experts) can also assist in answering these questions, there are often strategic reasons to postpone interviews with them. An analysis of the trial file should generally be completed prior to conducting substantive interviews with trial defense team members.
Locating Witnesses The contact information for witnesses will need to be confirmed and updated. Sources that are available to the IPNW Clinic are JIS-Link, Lexis and Westlaw people locator services, the telephone directory, and Internet people finder tools (including facebook and myspace). Although the information from these sources is limited, they are a good place to begin. The directory is less helpful for witnesses who have common names. Many people now have unlisted telephone numbers or cell phones.
Other sources are public records, including civil and criminal litigation files in county court houses, traffic court records, property ownership and tax records, fictitious business name records, and corporate officer records. These records are also useful in developing background information about witnesses and alternative suspects.
There are also subscriber database services, which can be used. Please contact your supervising attorney if you feel further investigation of the case requires the assistance of a professional investigator.
Interviewing Witnesses Witness interviews are a critical and challenging aspect of any case investigation. We will discuss further techniques for interviews during class sessions and team meetings. Do not attempt to contact potential witnesses via phone, email or social media without authorization from your supervising attorney.
Witness interviews cannot be approached casually. You should be armed with as much information about the witness as possible, and know what you want to learn from the witness before making contact. Good preparation includes familiarity with all prior statements by the witness, all statements of others about the witness, and a list of issues
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that you want to review with the witness. Students should consult with their supervising attorney to prepare for all prospective witness interviews.
Interviews should be in person, if at all possible. The best general policy is to go to the witness’ home or office without warning rather than attempt to make an appointment, unless you are sure the witness will agree to see you.
Unless a witness is a friend, relative or colleague of the client, the witness has no stake in talking to you and getting involved in the case. Thus, you will need to overcome a witness’ reluctance to the interview. This is best accomplished by expressing interest in who the witness is and what the witness has to tell you. That means that you begin the interview with very open-ended questions and you listen and acknowledge what the witness tells you. An interview is not cross-examination; it is not even direct examination. It is a conversation that you have with another person who is giving you fascinating information. That is the attitude and demeanor you want to convey.
A good interview begins with your explanation of why you want to talk with the witness and a broad question that asks them to tell you what happened. Only after the witness relates the full story in his or her own words, at his or her own pace, and in his or her sequence of events should you seek out the details and the clarifications. By allowing the witness this freedom, you will learn information that you would never discover by conducting the interview as a question-and-answer session.
When you ask the detailed questions, try to use the witness’s words to demonstrate that you listened carefully to what he or she said. If you do not understand jargon or slang, do not be afraid to tell the witness that. Rather than appearing to be ignorant, you will communicate your interest in understanding the witness. It is sometimes helpful to have a witness repeat a particular portion of the story to ensure that you have the facts correct. Leave questions of a personal nature to a point in the interview where you sense the witness is relaxed and trusts you.
At the end of the interview, leave the door open to re-contacting the witness for additional information. You should confirm (or get) the witness’ telephone number, place of business, and determine whether the witness intends to leave the jurisdiction (either temporarily or permanently).
Note Taking and Report Writing Witnesses are often put off when investigators approach them with a big legal pad, or worse, a tape recorder. Your initial goal is to put the witness at ease. Wait to begin recording the interview (by note taking or recorder) until the witness is comfortable. Then ask permission to take notes or turn on a tape recorder. If you are recording on tape, be sure to get on the tape at the outset that the witness knows s/he is being taped. Washington law prohibits non-consensual taping of conversations. Because witnesses can be easily intimidated by a tape recorder, it should be done rarely and only after consultation with the Director.
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Witness interviews must be memorialized as quickly as possible after the interview is conducted. Be sure to enter the witness in AMICUS as a contact (instructions at Appendix H). The accuracy of interview memos cannot be understated. The purpose of the report is to (1) provide a quick reference for someone who needs to contact the witness again, (2) inform the reader of the report and the substance of everything the witness said, (3) give the reader some sense of the kind of witness the person will make, (4) as a potential tool to refresh a witness’ recollection or impeach a witness who may testify in the future.
The top of the report should list contact and identifying information of the witness (name(s), date of birth, address, telephone number, place of business). The first paragraph should introduce the witness to the reader: a brief physical description (never be unflattering, though, in case the witness sees the report – use a separate memo to describe relevant, unflattering characteristics of the witness) and an explanation of the witness’ relationship to the case. It should also tell the reader when and where the interview took place, and identify the interviewer.
Interviews do not follow a logical sequence; often a witness will jump from one topic to another. In your report, organize the information around topics or in chronological order. If a witness had trouble relating the story coherently, make note of it. Try to use the witness’ language when possible. You do not need to quote the witness extensively but, if the witness used a particular phrase to describe something, quote that.
Stylistically, attempt to use the active voice in your writing. Use footnotes and parentheses only rarely, if at all. Everything the witness told you deserves the same attention, so put it in the body of the report.
Each report should be comprehensible on its own. Remember that your reader might be unfamiliar with the case so provide more rather than less explanation. Remember, too, that your report might be discoverable so do not put attorney-client communications or work product, such as your impressions, strategies, suggestions for other investigation, into it. Those matters belong in a separate memorandum to the file.
Case Analysis Forms and Protocol
The IPNW Clinic has developed a number of case forms to assist students in analyzing and documenting evidence collected in a case. Use of these forms will ensure the work you complete is well documented and is available for review and assessment by your supervising attorney and future students or attorneys who may work on the case. In addition to these forms, students should continuously update AMICUS Status Report, Summary and Contacts (See Appendices G, I, & J).
Case Management Report The Case Management Report (CMR) is a living document that provides important procedural and factual history about the case and client. Students will use the CMR to outline the case status and documents all efforts to investigate and litigate claims of innocence. Student teams must update the CMR regularly, and at least 30
weekly. Supervising attorneys will review the CMR prior to team meetings to assess progress, monitor deadlines, prepare for student questions, and assist the team in prioritizing tasks and coordinating the ongoing analysis and investigation.
Case Chronology, Witness List When conducting the initial Investigative Review, the facts of the case should be analyzed through the development of a case chronology. The chronology allows you to organize the facts of the crime and the case (i.e., the pretrial and trial proceedings) to understand more clearly what happened and what gaps of information and inconsistencies exist. As you receive more documents (e.g., the appellate briefs, police reports, and defense investigative reports), the case chronology should be updated.
While you are reviewing documents to create the chronology, you should also prepare an alphabetized and annotated witness list. The witness list should include:
all names used by the witness, last known contact information (address, phone number, employer), identifying information (date of birth, social security number), relationship to client and/or case (relative, friend, employer, parole officer, etc.; testifying witness, non-testifying witness, eyewitness, etc.).
This list will also be updated as you learn more about the facts of the case and the witnesses. Do not cull out people at an early stage; you do not know who will be important until much later in the investigation. .
Transcript Summary Careful review and summary of the transcripts is necessary to assess the claim of innocence and to assist in future litigation efforts. It may be helpful to initially read the opening and closing arguments in a transcript and then begin a chronological review of the proceedings. It is important to note that trials are not always conducted in a logical order and witnesses may start and resume their testimony on different days. A brief index of the various overall witnesses and trial events may be helpful in lengthy cases. The Transcript Summary form should be completed to identify the witness and location in the transcript, and provide a brief summary of the nature of their testimony. Documenting certain evidentiary rulings and significant case events from the transcript is also important. Accurate citations to page numbers will assist with future case review and providing accurate citations to the record when drafting court pleadings for the case.
Police Report Summary The Police Report Summary provides a helpful investigative document that sets forth the major evidence in the case as identified by the law enforcement agency. Reports of witness interviews and evidence collection and processing can be critical to our review. Often there is significant information contained in police reports that does not become part of the trial transcript record.
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Physical Evidence Summary An Evidence Summary outlining the various items of physical evidence collected in a case, along with the nature of any testing that may have been done, is critical to assessing the strength of a client’s innocence claim and establishing possible sources for post-conviction DNA testing. A focus of this review and analysis should be on the chain of custody, location, and handling of the evidence, while completing an assessment about the potential of further scientific testing to establish innocence.
Evidence Analysis Notebook In cases involving biological evidence that has already undergone testing, or cases with significant amounts of physical evidence, students may be asked to prepare an evidence analysis notebook. The idea is to review and compile information about a critical piece of evidence as one might for a critical witness. Students will complete an Evidence Detail form and compile and organize relevant documents such as test results, transcript summaries, police reports, and evidence logs, pertaining to the items. This assists attorneys and scientists in reviewing the case to determine whether future or additional DNA testing is appropriate.
LITIGATION
When it is determined that a case warrants further litigation – either a motion for post- conviction DNA testing, a motion for new trial, a Personal Restraint Petition, or other collateral attack—the IPNW will enter into a Legal Services Agreement (LSA) with a client that clearly outlines the work IPNW is agreeing to take on for the client. Students may not enter into an LSA with a client without approval from a supervising attorney. Students may assist in drafting an LSA in consultation with their supervising attorney. They may also meet with clients to review and obtain a signed LSA after preparing for this process with their supervising attorney. The importance of carefully advising clients about the scope of an LSA is critical.
Once an agreement is reached, the IPNW Clinic will initiate litigation by entering a notice of appearance in the appropriate court and preparing necessary pleadings. Students will assist in drafting pleadings and may be able to participate in court hearings. Because we practice across the state, students will work with their supervising attorney and the IPNW paralegal to ensure they are familiar with all local rules and filing procedures.
It is important to keep clients apprised of the status of litigation and to carefully document events and maintain current and organized paper and electronic file of pleadings and materials.
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REJECTION
Preparing A Case For Rejection
Students must investigate cases with an open mind, remembering that the client’s ability to articulate the claim of innocence can be low. Students must thoroughly investigate all avenues open to them in their attempts to substantiate or refute the client’s claim(s). Appellate briefs must be read and fully understood. Former attorneys should be contacted, as well as any other individuals with relevant information. The student must have full grasp of the facts before considering rejection.
It is an unfortunate fact that most IPNW Clinic cases will end in rejection. This can be disheartening for students. It is helpful to remember that students are looking for needles in the haystack. The haystack is very, very large, but the needles are there. Moving cases through to rejection frees the student up to find the “needle.” And, prisoners often appreciate the mere fact that the IPNW Clinic took an interest in their case.
Once a student has gathered and processed all the case information and has participated in team meetings, the student may schedule the case for Rejection Review meeting. In preparation for this meeting, the student must update the Case Management Report and include their recommendation for Rejection. A Rejection Review meeting is then scheduled with a supervising attorney.
Rejection Review Meeting
At the meeting, the students will present the case overview, the procedural history, the client’s claim(s) and the investigation results. The supervising attorneys will either approve the rejection or send the case back with instructions for further investigation. At the conclusion of the meeting, the student must document the Rejection Review meeting in a memorandum to the file.
The Rejection Letter & Closing Tasks
When the case has been rejected, the following steps must be taken:
Rejection letter drafted for approval by supervising attorney. Rejection letter sent to client Copy of rejection letter saved in “Case File” and electronic file. Ensure all client materials have been scanned to computer folders Upon approval from supervising attorney, return appropriate client documents After consulting with clinic staff, assist in shredding or preparing paper copies of documents for storage.
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MEDIA INQUIRIES
IPNW Clinic cases may generate the attention of the news media. Students are not authorized to communicate with the media concerning any IPNW case and must promptly forward all inquiries to a supervising attorney. This is necessary to ensure compliance with client confidentiality and ethical rules governing attorney contacts with the press. Clinic teams may work to develop media strategy in certain cases when appropriate.
EXONERATIONS
Successful IPNW exonerations are due to the creative, collaborative and tireless work of many students, staff, volunteers and attorneys over an extended period of time. While your contributions to the IPNW clinic may not result in an exoneration during your clinical year, your efforts are an invaluable contribution to the IPNW mission.
IPNW EXONEREES
Larry Davis, James Anderson, Ted Bradford, Alan Northrop
Jeramie Davis (center) with Anna Tolin and Laura Fox
Paul Statler, Robert Larson & Tyler Gassman
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APPENDICES
35
Appendix A - IPNW General Information
IPNW GENERAL INFORMATION
Mailing Address: Innocence Project NW Clinic U of W School of Law P.O. Box 85110 Seattle, WA 98145-1110
Physical Address: William H. Gates Hall, Suite 265 4293 Memorial Way N.E.
Clinic Numbers & Emails: General Clinics: 543-3434
Jackie: 543-5780 jackiem(at)uw.edu Anna: 221-8411 atolin(at)uw.edu
Peter: 685-7804 psmoreno(at)uw.edu
Admin. Asst: 616-8792 TBD
Fernanda: 616-8008 ftorres(at)uw.edu
Laura: 616-8009 lauraf6(at)uw.edu
Lara: 616-8736 zarowsky(at)uw.edu
Student Phone: 616-8792
IPNW Toll Free: 1-866-550-2980
Fax Number: 206-685-2388
Long Distance Dialing: 77-1-area code-number, then enter 3795298
Copier Code: 22042
Computer Help: email [email protected]
Law Library Reference: 543-6794 or [email protected]
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Appendix B - IPNW Eligibility Criteria
37
Appendix C – Clinic Phone Duty Protocol
IPNW Clinic Phone Duty Protocol
Telephone Basics
1. The IPNW Clinic office number is 206-616-8792
2. Local phone calls are placed by dialing 9 + seven-digit number
3. Long distance phone calls are placed by dialing 77 + 1 + the area code and number. After dialing this sequence you will hear another dial tone: enter the Long Distance Dialing Code, 3795298
4. Phone calls to other UW campus numbers are placed by dialing the last five digits of the person’s phone number (e.g., the Clinic phone would be reached by dialing 68792)
5. Voicemail messages are present when a red light appears next to the envelope symbol on the phone display. To retrieve voicemail messages, pick up the receiver and press the speed dial button labeled "Voice Mail." When you hear "Innocence Project," enter the “Voice Mail Password” (posted on the bulletin board above the phone). For more information on working with voice mail, see www.washington.edu/admin/comtech/vmail/vm.main.html.
6. The Clinic’s Long Distance Dialing Code is not to be used for making personal long distance calls.
Leaving a Telephone Message
1. Identify yourself immediately as a law student working at the Innocence Project Northwest in Seattle.
2. When returning a call, clearly leave your name, the return call phone number and a brief explanation of what you need.
3. Suggest a time best for you to receive a return call (e.g. when you will be in the Clinic office).
4. Because your return call may come in when you are not in the office, you must make sure that whoever answers the call has access to the information related to your questions.
5. Create a: “To Do/Event Detail” in the Client’s AMICUS file that contains a list of the questions you want answered and other pertinent information.
6. Assign the “To Do/Event Detail” to the IPNW Clinic so students can access the questions you want answered and other pertinent information when the call is returned.
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Appendix D - IPNW File Organization Structure
The IPNW Clinic uses the following structure to store documents related to a client’s case. Each client will have both an electronic file and a paper file.
All documents generated by IPNW and/or scanned from paper files must be kept in the client’s electronic file located on the J: drive. The empty file structure with subfolders can be copied from the “Joe Template” client file folder at the outset of the case. Paper files should be kept in binders with tabs set up to correspond to the file organization structure.
Case Information • Application (formerly Questionnaire) • Consent for Release/Authorization for Evaluation & Preservation • Legal Services Agreement • Investigation Plan • Document Index • Trial Docket • Transcript Summary • Police Report Summary • Evidence Summary • Witness Charts • Timelines/Chronology • Transfer Memos Correspondence Client Correspondence Document Requests • Police reports • Crime lab reports • Court documents General Correspondence (Rename/copy as appropriate – some cases may need additional folders named for specific people frequently corresponded with, e.g. prosecuting attorney) Appellate Court Decisions & Case Events • Appellate Decision from Westlaw • Case Events from ACORDS (appellate docket) Expenses Experts (label files with “trial” or “new”) John Doe (new) • Resume/CV • Retainer Agreement • Chart of Materials Provided • Articles • Interview Memos
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• Reports • Declarations • Court Orders Jane Doe (trial Memos & Notes • Memos from calls/visits with client • Memos from phone calls and/or meetings • Memos of witness interviews (a copy should also be in the Witnesses folder) • Memos of expert interviews (a copy should also be in the Experts folder)
Pleadings • Trial Court Pleadings
• COA Pleadings
• Supreme Court Pleadings • Post-Conviction Pleadings Press Reports & Evidence • Police Reports (Identify Agency) • Photographs (Identify Source) • Crime Lab Reports • DSHS Reports • Others
Research • Related Cases (may want sub-folder for specific issues) • Articles Trial Transcripts • Volume/Date Witnesses (label files with “trial” or “new”) John Smith (trial) • Interview Memos (Identify interviewer source & date) • Criminal History/Background Info • Excerpts from other documents (police reports, transcripts) Jane Smith (new)
Paper File Notes: • Pleadings are filed in chronological order • Correspondence is filed in reverse chronological order (most recent on top)
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Appendix E - IPNW Document Naming Protocol
Consistent naming of documents is crucial to maintaining the organization of clients’ electronic files and assists students and staff in locating documents within the file.
Every document in a client’s file will include the name of the document and the client’s last name, in that order. Here are some examples:
Transcripts Vol 1 Jones.pdf – Provided by client and scanned as pdf to electronic file
Document Index Smith.docx – A Word table inventory of all documents in a case file
State v. Rogers.pdf – Appellate court decision, saved as pdf from Westlaw to client file
Some documents will include a date. The date needs to be sortable so we use the four- digit year followed by two digit month and then two digit day of the month. All correspondence, memos, notes and pleadings will include a date. Here are some examples:
2012-10-02 Letter from Jones.pdf – Letter from client scanned as pdf to electronic file
2012-10-02 Involvement Rejection Smith.docx – A rejection letter to the applicant 2012-
09-30 Spokane PD Request.docx – A public disclosure request for police reports 2012-
07-30 Motion for New Trial Davis.docx – Final motion filed by IPNW
Information Bradford.pdf – A copy of the Information filed with the Court in the Bradford case
Tips:
• Always include zeros in front of single digits in dates—if you forget the documents will not sort in chronological order. Correct: YYYY-MM-DD Letter from Jones.docx Incorrect: YYYY-M-D Letter to Jones.pdf
• Delete old drafts – Often multiple drafts of motions are generated during the process of review and editing. It is important that once the motion is finalized that only the final copy is maintained in the client’s electronic file. Students are responsible for periodically deleting unneeded draft documents
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Appendix F - Instructions for Scanning Case Documents
NOTE: The copier in the workroom has both a touchscreen and a keypad. These directions will differentiate between the two.
1. On the copier’s touchscreen you should see 4 option boxes (Copy, Fax, Workflow, Email). Press the E-mail box at the far right
2. At the Accounting screen, enter the code for the IPNW Clinic (22042) on the copier’s keypad then press Enter in the upper right hand corner of the touchscreen
3. Select New Recipient
4. Type in your UW email address, then press the green +Add button
5. Press Close At the bottom of the new screen you will see options for scanning. The one you will most use is the 1-sided/2-sided button. If you are running single sided documents you don’t need to do anything. If you need to scan two sided documents, press the button and choose the appropriate option
6. Place document(s) face up in the feeder and press the green Start button on the copier’s keypad. The copier will feed your document just as if you were making photocopies, but it is scanning your document into a pdf file that will be sent to your email.
7. Once the scan process is complete, you can start another scan right away by pressing Program Next Job in the upper right hand corner
8. When you are finished scanning, press the IPNW Clinics green button in the upper right hand corner
9. Select Logout
10. Confirm log out by press Logout again, when it asks you if you’re sure you want to logout
NOTE: If, when you go to the copier you see any screen other than the start screen mentioned above, it probably means that last user did not log out. Press the button in the upper right hand corner of the touchscreen and select Logout. Confirm the log out by pressing Logout again. The machine should return to the start screen.
11. The final step in scanning is to open the document from your email and complete the Save As process, saving the document to the appropriate client’s J: file (and subfolder). Be sure to use the appropriate naming protocol.
12. To help maintain confidentiality, delete the emails from your email account once the files have been saved.
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Appendix G - Student Use of Amicus Attorney in the IPNW Clinic
Amicus Attorney is the case management software used by the Clinical Law Program. It is important that you learn to effectively use Amicus to manage your case and track your hours. Learning to use Amicus will also help you prepare you for future employment as most law offices use similar case management software programs.
You will use four of the Tabs (or modules) in Amicus to manage your case.
1. Summary Tab – Use this space to summarize the case and other basic information related to the case. The summary tab is intended to be a snapshot of the case. It will likely be the first place someone unfamiliar with the case will look when they have a question or need to get up to speed on the case. Most of the information you will need to add here can come straight from your Case Management Report. Be sure to update the Summary Tab as you update your Case Management Report.
A template for this summary will be pre-loaded into your client’s summary tab. Your client’s summary tab should resemble the example below. If not, contact a staff person to help load the template.
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2. Status Report Tab – This tab is used as an Activity Log – a chronological log of new events and tasks performed in your case.
The most recent activity should always be at the top of the list. To log an activity, put your cursor in front of the most recent entry and press Ctrl + T. This inserts a “timestamp” with your initials and the date/time. After the timestamp enter brief details about the action taken such as those in the example below.
3. Timekeeping - All your hours will be tracked in the Amicus. Detailed instructions for entering your time in Amicus are contained in a separate Appendix, “Instructions for Timekeeping in Amicus.”
4. Contacts – Enter contact information for critical parties in a case with whom you make contact such as the client, prison counselor, family contact if appropriate, prosecuting attorney, former defense attorneys and key witnesses. Detailed instructions for entering Contacts in Amicus are contained in a separate Appendix J, “Instructions for Adding Case Contacts in Amicus.”
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Appendix H - Timekeeping in Amicus Attorney
All IPNW student time is entered and tracked in Amicus Attorney. Time spent on a client’s case will be entered in the client’s Amicus file. Time spent in class, preparing for class and on other activities not specific to a client’s case will be entered in the Class Work & Prep client file.
Step 1: From the Files menu, find the client file that you will enter time for and double click on the client name.
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Step 2: At the client’s screen, click the Time Spent link on the lower left menu. The right side of the client screen will now read My Time. Click New to enter a new time entry.
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Step 3: Enter the date for the time entry. This field defaults to Today (the date that you are creating the entry). Only change the date if you are adding entries for past dates.
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Step 4: Select the appropriate Activity Code from the pull down menu—Refer to the Amicus Activity Codes for Timekeeping handout in the IPNW Student Manual.
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Step 5: Add a brief note about the nature of the activity.
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Step 6: Enter the time spent in the lower right corner.
There are two ways to do this:
1. If you are initiating the task you can click on the Stopwatch icon and a timer will start. You can minimize Amicus, complete your task, and then return to Amicus and click the Stop sign. Amicus will automatically calculate the time you spent on your task.
2. If you have already completed the task, you can manually enter the time spent with hours to the left of a colon and minutes to the right (e.g., for 2 hours and 41 minutes enter 2:41). Amicus automatically converts your minutes into the corresponding decimal equivalent.
Finish: After entering information in steps 1 through 6, click OK (next to green check mark).
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Amicus has now created a time entry for you. The total amount of time you’ve spent on a client is kept as a running total. Additionally, staff will generate periodic reports to track student progress toward required clinic hours.
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Appendix I - Amicus Activity Codes for Timekeeping
Class Activities • Prepare for class • Attend class and needed training • Support Clinic operations • Complete other tasks not related to a specific client case
Intake • Receive & review prisoner correspondence • Send applications as appropriate • Process Referral and No Resource letters • Mail application receipt letters • Enter prisoners sent applications into Amicus
Screening • Screen incoming applications for adherence to eligibility criteria • Open files (paper, electronic and in Amicus) • Process automatic rejections • Conduct conflicts check in Amicus
Locating Evidence • Order WSPCL reports • Order police reports and transcripts as needed • Obtain appellate decisions • Request evidence logs & current inventory of evidence retained from law enforcement • Request exhibit lists from Courts • Request exhibits from prosecutor and/or defense attorney
Review • Collect dockets, court opinions and request case file from former attorney • Create Document Index • Review and summarize case documents such as transcripts, police reports, etc. • Create Evidence Summary & determine items most appropriate for testing • Draft Motion for Preservation of Evidence (litigation but normally performed during case review process) • Attend student team meetings • Locate and interview witnesses
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• Consult with experts • Research • Request further information and/or send hard questions letter to applicant
Litigation
• File Notice of Appearance and/or sign Legal Services Agreement • Draft motions for DNA testing • Draft motions for new trial, personal restraint petitions, etc. • Attend student team meetings • Communicate with client
Closing Cases
• Prepare rejection summaries • Review rejection recommendation with team and supervising attorney • Communicate with client • Return and/or shred materials • Document status and close file in Amicus
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Appendix J - Adding Case Contacts in Amicus
Step 1: At your client’s screen, press CNTRL + SHIFT + N to create a new contact. In the new box, select the radial buttons for New and Individual and type in the first and last name of your contact. Then click Next.
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Amicus will check for duplicate Contact records.
Step 2: If Amicus detects an existing duplicate contact, and you are certain this is the same contact you are trying to enter, you can highlight the appropriate contact, choose the “Use Selected Contact” radial button, and click “Finish.” Then skip to Step 7. OR…
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Step 2: If the Contact you are entering is not already in Amicus, click the radial button next to Create New Contact NOT based on an existing record and click Finish.
56 Step 3: Add your contact’s mailing address. At the new screen, double click on the
57
In the new box, enter the appropriate contact information and click OK. (If there is a separate physical address, you can repeat the process by adding another address record.)
58
Step 4: Add phone and fax numbers and email addresses. At the same screen from Step 3, double click on the
59 Step 5: Designate a Group for your contact. At the menu to the left, click on Groups then click the Add button.
60 In the new box, select from the list at left the group that most accurately reflects the type of contact you are entering. Examples suitable for IPNW cases include Counselor, Family Member, Lawyers, Police Dept., and Witnesses.
Once you have highlighted the appropriate contact type from the menu, click on the right arrow. The group you selected will move to the right hand box. Then click OK.
61 Step 6: All the new information you’ve entered should now appear on the “business card” box in the center top of the screen. Click Save & Close to save your new contact.
62 Step 7: Now you must attach your new Contact to your client’s file. On your client’s main screen, click the Add button.
63 Use the search box to type in the last name of the contact you just created. Once highlighted, click the right arrow. The contact you selected will move to the right hand box. Then click OK.
64 Finish: Click Save & Close. Once completed, this process adds a contact to your client’s file that you can return to for information. All the contacts for a particular case are listed above the “business card.” Highlight the desired contact, and their information will appear in the business card.
When drafting correspondence, you can right click on the business card, and highlight “Copy Address” and then paste it directly into you letter.
65 Appendix K - Sample Case Forms
66 67 67 68 68 69
69 70 70 71 71 72 72 73 73 74 74 75 75 76
76 77 77 78 78 8579 Appendix L - Innocence Network’s Guide to Ethics & Best Practices
80 GUIDE TO ETHICS & BEST PRACTICES FOR INNOCENCE PROJECT PRACTITIONERS
i STATEMENT OF PURPOSE
This guide is meant for practitioners whose practice involves aiding persons with wrongful convictions claims.
The guide does not attempt to address every likely issue that may confront the practitioner – only those that tend to arise with some frequency, as well as several that may not arise as frequently but that are unique to, and pose particular problems for, practitioners in this area.
This guide is not meant to substitute for practitioners’ state or local rules of professional responsibility, nor is it meant to be an exhaustive treatise on the issues that it does address. Virtually all of the issues discussed below are significantly more complex than this guide can adequately address. Practitioners and others should consult their local rules or other treatises to address whatever ethical or best practice issues they may face.
This guide should be treated as its name implies – as a guide to begin thinking about these areas of practice in order to prevent future problems, or, in the event that they do arise, as the beginning of a conversation about how to resolve them professionally. The ultimate goal of this effort is to create a community of innocence practitioners who are not only engaged in important and critical work, but also engaged in it at a consistently professional level.
This guide is also cognizant of the diversity of innocence organizations and the ways in which the rules may or may not apply to each. As a general matter, this guide speaks to three different types of projects: (1) “No Representation” projects – projects where none of the staff are attorneys; (2) “Limited Representation” projects – projects that limit their representation to clients who have actual claims of innocence; and (3)
ii
“Full Representation” projects – projects that represent clients whether or not their innocence claims continue to have merit during the course of the representation.
That said, the ethical concerns and best practice goals of this document, though they may be enforceable as a professional matter only as to lawyers, are nevertheless relevant for all members of the Network. So, for example, even though a journalism- based innocence organization might not create an attorney-client relationship in the same way that lawyers do, such organizations must have procedures in place that preserve shield laws or other similar protections so that the client may enjoy the same basic guarantees of confidentiality afforded by the attorney-client relationship. Likewise, attorney-based projects that collaborate with journalism projects must between them ensure that typical client protections are not compromised as a result of the collaboration.
Over and above the examples just cited, procedures and policies regarding several of these ethical and best practice concerns are requirements for Network membership. To the extent that some or all of one of the issues discussed below are pre-requisites for membership, a note to that effect is made at the beginning of each such section.
NOTE
The Innocence Network extends particular appreciation to two practitioners and writers in this area: Dean Ellen Suni of the University of Missouri-Kansas City, and Clinical Professor Keith Findley of the University of Wisconsin. Both have provided excellent guidance in these areas over the years. This guide borrows heavily from their work, and their work is a good starting point for broader and more in-depth consideration of the issues addressed below, as well as many others.
See, e.g., Ellen Suni, Ethical Issues for Innocence Projects: An Initial Primer, 70 U. Missouri-Kansans City L. Rev. 921 (Summer 2002), and Keith Findley, The Pedagogy of Innocence: Reflections on the Role of Innocence Projects in Clinical Legal Education, 13 Clinical L. Rev. 231 (Fall 2006).
3
This guide also references several codes of professional conduct: The Model Rules of Professional Conduct (hereinafter “Model Rules”); Restatement (3rd) of the Law Governing Lawyers (hereinafter “Restatement”); and American Bar Association, Annotated Model Rules of Professional Conduct (4th Edition) (hereinafter “ABA Rules”).
4 CHAPTER 1
1 THE ATTORNEY CLIENT RELATIONSHIP
§ 1.01
The creation of the attorney-client relationship
• Some organizations devoted to aiding the wrongfully imprisoned have no attorneys on staff. By definition these offices cannot create attorney-client relationships. These offices are guided, if at all, by professional codes of conduct separate from the codes and rules of professional conduct that guide attorneys.
Projects that involve attorneys – whether those attorneys are within the office or brought on from elsewhere – need to be aware of precisely when a fiduciary relationship – the “attorney-client relationship” – is formed, as the existence of the relationship carries with it certain professional obligations.
As a general matter, the relationship forms when a person communicates in whatever fashion to a lawyer, or to a non-lawyer associated with that lawyer, the person’s intent that the lawyer provide legal services for the person and (a) the lawyer communicates to the person the consent to provide legal services, or (b) the lawyer fails to communicate the lack of consent, and the lawyer reasonably should know that the person is reasonably relying on the lawyer to provide the services.
Organizations involved in innocence work must be mindful that given the character of this work there is ample opportunity for an attorney-client relationship to be created inadvertently. Once created, lawyers are obligated to abide by their fiduciary duty to the client.
• Many innocence organizations solicit, either directly or indirectly, requests for assistance from inmates seeking help with their innocence claims. Once requests are received, the organizations often screen them and then, if merited, begin work on the claims.2 Often this initial work can be quite intensive – both in time and effort – and can involve several different individuals from one or even several organizations over time. These activities, in part or in whole, alone can raise an expectation in an individual that an attorney client relationship has been formed, even if that was not the intent of the project. No formal representation agreement or retainer is required.
1 Network Membership Requirement: Network members must develop a policy and related series of letters – ranging from solicitation and intake letters to retainer agreements and termination letters – that articulate the relationship your organization has with the person seeking assistance. Each letter should include but not be limited to clarifying what relationship your organization does/does not have with the person at that stage and what services your organization will/will not provide. 2 Tracking and Counting Cases: Network members must develop a system for counting and tracking cases, including initial requests for assistance, which clearly defines the stages of investigation and/or representation.
5 Attorneys and their support staff should be made aware of this possibility and conform their contact with potential clients accordingly. It is advisable to use disclaimers in initial written communications with such individuals informing them of the precise nature of the relationship going forward. Any early in-person meetings should also include such disclaimers, which are then memorialized in follow-up written communications.
These disclaimers should make clear that information gathered, work undertaken, and communication engaged in is for a limited purpose – screening the case, for example – and should not be considered as consummation of an attorney-client relationship. Once a decision has been made to accept the case and an attorney-client relationship is imminent, projects are encouraged to reduce the agreement in writing in a retainer agreement.
• Most projects are underfunded, understaffed, and overworked. As a result, pending applications for aid or cases in the screening stage can sometimes linger for long periods of time. Projects should be aware of the unintended consequences that can result: namely, the applicant’s belief that the passage of time is an implicit sign that the project has decided that the case is meritorious and that an attorney-client relationship has been formed. Projects should continually reevaluate the time it takes to screen pending applications and include language in initial communications with applicants about the expected time period for processing applications or screening a case. The language should state explicitly that the passage of time is not a signal that the project is working on the case or that the project believes that the case has merit or that the project has accepted the case for representation. If the screening period is lengthy, it may also be advisable to send additional, intermittent disclaimers.
• In some cases, it becomes necessary to draft pleadings or other legal material for a person before a decision has been made to represent him or her. This might occur because a deadline is approaching and a potential client’s claim must be preserved, or because it is necessary to continue the screening and investigation of the claim. Some innocence organizations prepare and file the documents as the petitioner, without making a formal appearance in the case – a practice known as “ghostwriting.” Questions arise about the propriety of this practice, but the various rules of ethics do not yet speak conclusively to this issue. Project staff should recognize that the propriety of “ghostwriting” remains unclear and that engaging in the practice requires careful thought and rigorous justification. Though there is a trend to “unbundle” legal services – to allow clients to take advantage of discrete legal services without either lawyer or client committing themselves to the complete set of obligations that flow from a typical attorney-client relationship – the rules and law remain unsettled on this approach. This guide recommends consulting John C. Rothermich, Ethical and Procedural Implications of ‘Ghostwriting For Pro Se Litigants: Toward Increased Access to Civil Justice, at 67 Fordham Law Review 2687 (1999) and Jona Goldschmidt, In Defense of Ghostwriting, 29 Fordham Urban Law Journal 1145 (2002).
AUTHORITIES:
Restatement Section 14: An attorney client relationship arises when (1) a person manifests to a lawyer the person’s intent that the
6 lawyer provide legal services for the person, and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the layer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.
§ 1.02 Duty of confidentiality3
•The duty of confidentiality prohibits attorneys or those working on the attorney’s behalf from disclosing client information or using that information to the disadvantage of the client. Information gained during the course of the attorney-client relationship is naturally protected.
Innocence practitioners, though, face a somewhat unique problem in that it may be the case that even though an attorney-client relationship has not been formed, the attorney still owes a duty of confidentiality to the person. In fact, virtually any information gained during the screening or initial investigatory phase of a case is likely to fall within the ambit of Rule 1.6 (see below). Thus, even though the innocence organization may have been explicit about the nature of the work being performed during the screening stage and explicit about its work not being construed as forming an attorney-client relationship, a duty of confidentiality may arise.
• Often lawyers and their staff must contact others outside the organization to discuss a case. It is advisable therefore to obtain from the person a release of information that grants permission to share otherwise confidential information to advance the person’s goals. Special considerations arise when information is shared with prosecutors and law enforcement. Such communications are no longer confidential, but they are often necessary to advance the person’s goals. Although Rule 1.6 allows implied authorization when it is necessary to further a client’s goals, that authorization should be considered limited. The decision to share otherwise confidential information should be ratified by the putative client or client and ideally reduced to writing.
• Individual lawyers and staff involved in innocence work frequently resort to e-mail in order to gather helpful information about a particular case. Care should be taken not to disclose confidential information about a case in an e-mail or other communication
3 Network Membership requirement: Network members must develop a policy and associated documents related to the confidentiality of information learned while assisting a person in his/her claim of innocence, whether or not that person has been formally accepted as a client. The policy should consider various means of disclosure, including in-person communication, email, blogs, more traditional media, etc. For relevant considerations, see Network Guide § 1.02. At a minimum, the documents must include the following: A. A Release Form to be signed by the person seeking assistance to clarify, as a general matter, with whom your organization may share information. Supplemental releases may be required as the investigation and litigation of a case progresses; B. Confidentiality Agreements for all staff, students, volunteers, board members, and others associated with your organization who are privy to confidential information. The Agreements should be signed and kept on file.
7 soliciting help or advice. Additionally, it may be helpful to include in the release of information agreement a section that discusses the possible need to use e-mail groups – like the Innocence Network listserv – to discuss issues surrounding an individual’s case. This section may necessarily have to be general in the agreement, but to the extent that an e-mail or some other form of communication falls outside the general written agreement, additional permission should be gained.
• Lastly, it is frequently the case that lawyers or other staff need to communicate about aspects of a case with non-lawyers outside of the office. Most of these communications – with forensic testing personnel, for example – are in furtherance of the aims of the potential litigation and are therefore impliedly authorized, but they should nonetheless be referenced in the written agreement about sharing certain information. It is also advisable to seek additional consent that is more explicit about the nature of the proposed communication when such circumstances present themselves.
AUTHORITIES:
Model Rule 1.6 (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (6) to comply with other law or a court order.
American Bar Association, Annotated Model Rules of Professional Conduct, Sixth Edition 2007, Preamble: A Lawyer’s Responsibilities Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
§ 1.03 The Duty of Loyalty -- Avoiding Conflicts of Interest4
• In contrast to confidentiality, the duty of loyalty arises only when an attorney-client relationship has been formed. Strictly construed, then, this means that projects that are
4 Network Membership Requirement: Network members must develop policies and procedures for identifying, guarding against, and responding to potential and actual conflicts of interest.
8 engaged in screening or investigating a case where no attorney-client relationship has been formed owe no duty of loyalty to that person. This therefore would technically allow organizations to screen and investigate cases where a potential conflict may arise – e.g., multiple defendant cases – but pursuing this course of action involves certain risks.
If, for example, during the course of screening and investigation of a case, a project determines that two defendants have equally viable claims of innocence, then it is theoretically possible for the project to represent both defendants without violating the duty of loyalty owed to each – in other words, without a conflict of interest arising. In almost every case, however, the innocence claims will not be of equal merit and will in some way intersect, requiring the election of one client’s interests over the other’s. In such a scenario, continued representation of both defendants is not possible, and withdrawal from one case may not cure the problem. This scenario arises with some frequency. The urge, of course, is to remain in the stronger case and withdraw from the other. However, once enough information is ascertained to discern which is stronger, too much information may have been obtained from the other defendant that disclosure or use of that information – helpful to one person and damaging to the other – is prohibited. See Model Rule 1.9(c)(duties to former clients). Therefore, the organization would likely be disqualified from representing either person, and the fact that “actual” representation never occurred – i.e., an attorney client relationship was never formed – is immaterial. The policy basis of Rules 1.6 and 1.9 anticipate this scenario and prohibit it. These scenarios can also arise between organizations, especially when they work in multiple or overlapping jurisdictions. Defendants frequently apply for aid at more than one place, or a witness in one organization’s case may be a client at another one. It is advisable to engage in due diligence with the organizations working in your jurisdiction, though care should be taken not to breach any confidences when making these inquiries.
AUTHORITIES:
Model Rule 1.7 (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Model Rule 1.8 (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
Model Rule 1.9 (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to
9 the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
§ 1.04 The Duty of Zealous Representation: Competence, Diligence, Communication and Advancing the Client’s Legitimate Interests
• Attorneys engaged in innocence work have the same duties of zealous representation, diligence and communication attendant to any attorney. In full representation projects, the decision to represent a client in achieving his or her exoneration carries with it all of the above duties, regardless of the ultimate viability of the client’s claim of innocence. In limited representation projects, however, the purposes of representation may be more limited – to represent a client, for example, only insofar as it’s possible to establish that client’s claim of innocence. Model Rule 1.2(c) allows for a limited representation agreement as long as the agreement is ethically appropriate. What this means as a basic matter is that the terms of the limitation must be reasonable, and the client must give his or her informed consent.
• Because innocence work involves screening cases in a fashion unlike virtually any other type of practice, this period of time raises particular concerns about the duties owed to the person. Put more simply: what duty of zealous representation is owed during the screening or investigative stage of the process? The relevant Model Rules and the Restatement presuppose an attorney-client relationship; thus, arguably, no duty arises until that point. That said, even with no attorney client relationship, attorneys owe potential clients a reasonable duty of care. Beyond that, though, inasmuch as the possibility exists that the person may actually become a project client, it is advisable to render a duty of care consistent with the duty required by the attorney-client relationship. Such an effort can only serve to foster a more efficacious relationship in the future.
• Projects that use law students must also consider what effect that has on the scope of representation. Most clients are pleased to have someone – anyone – working on their cases and paying attention to their claims. That attitude should not be taken as an explicit understanding or agreement that law students may work on the case. Anyone involved in clinical legal education will recognize that student-lawyers are some of the more energetic and talented of lawyers. But that recognition also does not substitute for an implicit agreement by the client to allow students to work on the case. It is advisable to inform clients that students will be working on the case, explain what role the students will play, and the supervision that will be provided by clinic attorneys. It may be helpful to view this as limiting the scope of representation, and limitations require informed consent from the client.5
5 Student assistance/representation: Network organizations that work with students and non-lawyer volunteers must clearly define the scope of the students’ and non-lawyer volunteers’ involvement in the work of the organization. This definition should be written and disseminated to the relevant person/groups, and training should be provided that reflects the definition. Where applicable, the third-year practice rule governing student participation should be understood and followed.
10
AUTHORITIES: Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer . . .
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Model Rule 1.3 -A lawyer shall act with reasonable diligence and promptness in representing a client.
Model Rule 1.4 a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
11 CHAPTER 2
DEALING WITH REPRESENTED AND UNREPRESENTED PARTIES
§ 2.01 Communication with represented parties
• Model Rule 4.2 prohibits communicating with parties known to be represented by a lawyer about the subject matter of that representation. As discussed above, there is a legitimate question about when and under what circumstances a potential client becomes a client such that it can said that the lawyer is acting in a representative capacity – as opposed to continuing to screen or assess the case. Those issues should be considered in conjunction with this rule and section.
• Many incarcerated individuals have pending litigation matters, in which they are represented by other lawyers. In serious cases, those matters may take years to resolve, and, if they involve the matter that a project is investigating, project attorneys and staff may be prohibited from speaking to them about the matter without authorization from the other person’s lawyers to make that contact. It is advisable to engage in due diligence prior to engaging in any communication, and, if authorization is required, that it be in writing.
§ 2.02 Communication with unrepresented parties6
• Model Rule 4.32 provides clear guidance about dealing with unrepresented persons “on behalf of a client.” In those cases, lawyers must not
“state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.”
Chapter 1 of this guide makes clear, however, that, for the period of time that a project is screening or investigating a case, there may be no formal attorney-client relationship formed. Strictly construed, then, when speaking to a witness during this stage, the lawyer is not yet acting “on behalf of a client” as contemplated by the Model Rules. Nevertheless, there are both ethical and practical concerns to consider before concluding
6 Witness Interviews: Network members must develop policies and procedures for planning and conducting witness interviews, including the special considerations that arise with represented and unrepresented individuals, and requests for legal advice from witnesses (e.g., when a recanting witness asks if s/he will be libel for perjury).
12 that it is not necessary to follow the strictures of Rule 4.3. To begin, lawyers must be mindful of Rule 8.4 which prohibits conduct involving deceit or misrepresentation. In certain circumstances an omission of accurate identification may run afoul of that prohibition. Secondly, in many instances, any information gathered without proper identification and care to abide by Rule 4.3 will be of questionable value if ever used for any formal purpose. The circumstances under which information is obtained will either inure to the credibility, or lack of it, of the information itself. Additionally, witnesses may be more difficult to contact and speak with, or less inclined to cooperate if they feel they have been the target of some deception, even if permitted under the rules. Innocence organizations should develop a protocol and training for communicating with unrepresented persons, and among the considerations ought to be a disclosure about who the attorney is, who he or she works for, and on whose behalf he or she is appearing.
§ 2.03 Witness’ or others’ requests for legal advice
• Not infrequently witnesses in a case will ask for legal advice. One of the more common scenarios arises when witnesses want to recant an earlier statement made in court or to law enforcement and ask whether the recantation could get them in trouble. Answering this type of query with any type of legal advice is prohibited because it would likely create a conflict of interest. Instead, project staff should be prepared to field the question without running afoul of any prohibition. There are methods to answering these types of questions that are both ethical and that can inure to the benefit of your client, but those practice tips are beyond the scope of this guide. Project staff should familiarize themselves with them before conducting an interview where these issues may arise.
AUTHORITIES:
Rule 4.2 Communication With Person Represented By Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Rule 4.3 Dealing With Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
8.4 Misconduct
It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to
13 achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
§ 2.04 Use of Deceit
There has been much discussion recently about the propriety of lawyers in certain circumstances using false statements or other forms of deceit to advance the interests of a client. Prosecutors and law enforcement have long engaged in such practices in the advancement of criminal investigations and prosecutions. Arguably, the public policy permitting these measures could apply with equal force to lawyers and others who are engaged in other practice areas where a client’s interests are co-equal to the values claimed to justify these practices in other contexts.
Projects should recognize, however, that every ethical and professional rule governing attorneys currently prohibits attorneys from making false statements of fact or law or engaging in dishonesty, fraud, deceit, or misrepresentation. In many jurisdictions, the governing rules may also make attorneys vicariously liable for third parties’ acts of deceit or dishonesty – e.g., other attorneys or investigators who engage in these practices at the direction of an attorney. However, several states have amended the applicable rules so that, in certain circumstances, lawyers may engage in forms of this conduct. See, e.g., Oregon Rule of Professional Conduct 8.4; Comment to Ohio Rule of Professional Conduct 8.4(c); Wisconsin Rule of Professional Conduct 4.1(c). For the policy arguments supporting the allowance, see Peter Joy & Kevin C. McMunigal, Deceit in Defense Investigations, Criminal Justice, Fall, 2010; Roundtable on the ABA Defense and Prosecution Function Standards, found at http://www.law.wisc.edu/ils/2010abaroundtable/mcmunigal_paper.pdf
Be sure to consult the governing rules in your jurisdiction.
AUTHORITIES:
Rule 4.1 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third person; or(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with
14 the professional obligations of the lawyer; and(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved . . .
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;(d) engage in conduct that is prejudicial to the administration of justice;(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
15 CHAPTER 3
MULTI-JURISDICTIONAL ISSUES
§3.01 Multi-jurisdiction practice issues
• Innocence work often requires that lawyers and staff travel to or perform work in jurisdictions in which they are not licensed to practice. Though they may not be appearing in courts in that jurisdiction, visiting jails and prisons, speaking with witnesses, and performing investigation may well be considered the practice of law. This may also apply to telephone conversations with these same people even when the attorney or staff person working with the attorney has not left the jurisdiction in which the lawyer is licensed to practice. For the last ten years the law in this area has been unsettled. Project lawyers should familiarize themselves with it before engaging in multi-jurisdictional contacts that might result in the unauthorized practice of law. One of the leading cases – is often cited in local decisions dealing with the unauthorized practice of law: Birbrower et al v. Superior Court of Santa Clara County, 949 P.2d 1 (Cal. 1998).
AUTHORITIES:
Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so; (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
16 CHAPTER 4
7 MEDIA
§4.01
• A person’s First Amendment right to freedom of speech may never be as important as it is when a person can finally proclaim his or her innocence to the world. This public rebuttal for exonerated persons is not simply a right, but a hard-earned one. With it come several considerations, however. The first is not an ethical consideration per se, though ethical concerns flow from it. As a general matter, exonerees are not equipped to deal with the media and have many other concerns during the exoneration phase to deal with besides crafting press releases. Allowing an exoneree to confront the media alone can be damaging to the exoneree, as well as to many other people involved in the case. Therefore, during an exoneration, projects should, through consultation with the client, craft the approach to media.
§4.02
• Consideration should be given to the substance of the statements being made. Leaving aside the factual recitation that led to the wrongful conviction and exoneration, the substance and tone, among other things, raise issues regarding libel, defamation, and slander. Model Rule 3.6 has two built-in “safe harbors” – the exceptions listed in (b)(2) and (c) (see below) – but they harbors are directed at statements affecting an adjudicative matter and are not as relevant in the exoneration context. That said, most exonerees have borne the brunt of negative publicity at trial and, therefore, by logical (and, one hopes, defensible) extension of the Rule’s exception, have every right to respond in kind upon his or her exoneration. Additionally, through the normal course of litigation in these cases, project attorneys will almost always have filed lengthy substantive pleadings about the case, and that information, as well as the prosecution’s response to it, are part of the public record and may, in accordance with the Rule, be commented upon. Whether or not these statements are libelous is an entirely different question, though the above discussion should help guide project thinking.
§4.03
• An additional issue concerns the point at which statements about an exoneree’s case and the surrounding circumstances change from an effort to clear the client’s name and restore his or her reputation to an effort to advance larger issues surrounding wrongful convictions? Or, to put it more plainly, at what point do the statements inure to the benefit of the project as opposed to the client – and, in some cases, actually harm the client by prolonging his or her ordeal? Rule 1.8 addresses conflicts between lawyers and
7 Media Requests: Network members must develop policies and procedures for responding to media requests, including requests for information about individual cases, access to the person requesting assistance/the client, and access to the lawyer(s) working on the cases.
17 their clients, but is ultimately unhelpful as regards the experience faced by most innocence organizations. The better course might be to evaluate the use of media as it relates to the fiduciary duty owed by attorneys to their clients. From that perspective, Rule 1.4 is informative. Under that rule, attorneys are obligated to inform their clients about the opportunity to make public statements and the benefits and liabilities of that decision. Many clients are enthusiastic about expanding those pronouncements to increase awareness of innocence issues and, perhaps, aid others similarly situated. But clients do not share this feeling universally, and attorneys should not only explain the ramifications but continue to check with the client on the continued use of his/her case in the media.
• Projects also face the opposite side of the same coin: dealing with publicity about a case that turns out not to be viable, or DNA test results that are confirmatory of guilt. In essence, the lawyer’s role does not change. The lawyer still owes a duty of loyalty to the client, as well as a duty of confidentiality. In most cases, this would mean that the lawyer should not and cannot publicize the results of any test or outcome that incriminates a client. There are isolated anecdotal reports of prosecutors insisting that as a prerequisite to DNA testing that the results of the DNA tests, if inculpatory, be made public. Consenting to that condition would require an informed waiver by the client, which should be in writing.
§4.04
• Sometimes months or years after a case has ended, projects wish to make additional public statements about a case in order to advance policy initiatives. Arguably, a blanket or general consent to engaging in publicity has a reasonable time limit attached, even if only implicit. If a project believes that additional publicity about a case is warranted for whatever reason, and that publicity takes place at a certain remove from the exoneration itself, it is advisable to re-contact the client to gain additional consent after explaining the need for and the extent of the new publicity efforts.
AUTHORITIES:
RULE 3.6 TRIAL PUBLICITY
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a
18 lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
MODEL RULE 1.4
(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
RULE 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
19 CHAPTER 5 SPECIAL CONSIDERATIONS
§5.01 Negotiating plea agreements for "innocent" clients – or parole board "acknowledgement of guilt" statements
• On occasion innocence organizations are faced with a dilemma that defense attorneys face not infrequently when offering pre-trial advice to criminal defendants: whether to plead guilty or make some sort of acknowledgment of guilt – in front of a parole board, for example – in order to gain the benefit of the bargain, often release from prison. To begin, it is necessary to understand that the decision about whether to plead guilty or to offer an acknowledgment of guilt is the client’s decision alone. Lawyers should offer advice and persuasion, as necessary. The question in such cases tends to center around how much persuasion is acceptable.
§ 5.02 Staff, Volunteer and Student Safety Concerns
• This is a best practice issue and an important one. Almost all clients of innocence organizations are indigent and require the need of free or reduced cost legal services. In turn, the legal service providers themselves are usually undercompensated and rely on volunteer or reduced-fee help in order to manage the work. It is imperative that projects do what they can to create the best possible work environment for these employees. Among the concerns that are paramount is insuring the good health and safety of these staff members.
• Health and Safety Guidelines: Many projects require staff to spend a great deal of time in the field. Some of that work requires visits to jails and prisons as well as to areas that the staff member may be unfamiliar with, including high-crime areas. Staff must be made aware of potential risks, but it is also important that staff be made aware of the project’s commitment both to performing the work in spite of certain risks and to understanding and abiding by safety guidelines and the procedures for reporting and managing any incident that might occur. Given the possible risks, it is advisable for projects to provide instruction in safety and conflict resolution. In assessing whether or not to do this type of work, staff should be urged to consider the potential risks and decide about the appropriateness of their placement. Staff are also expected to discuss the project work with parents, guardians, spouses or anyone else who may have an interest. Staff are expected to provide emergency contact information and to keep all relevant persons informed of their location and work assignment areas during the time spent with the project.
• Malpractice Insurance: Organizations must maintain adequate malpractice insurance to protect their clients and organizations. They should also maintain other insurance consistent with the special considerations that follow.8
8 Malpractice and Other Insurance: Such insurance is a requirement for Network membership.
20
Health Insurance: Projects should be knowledgeable about whether staff are covered by the project’s health plan if there is one. Most students participating in legal clinics by virtue of their enrollment are eligible to enroll in the school’s student plan. It may be advisable for staff who are not covered by the project plan to have proof of coverage before beginning work. In addition to providing verification of insurance, each staff should also determine to what extent his/her insurance makes provisions for medical services outside the jurisdiction in which the plan was issued.
• Automobile/Vehicle Insurance: Staff whose position requires access to a car should either be covered under the project’s policy or be prepared to present proof of automobile insurance.
§5.03 Issues surrounding referrals for legal aid in securing compensation claims or other necessary legal services9
There are ethics rules that apply to these situations, but the Innocence Network believes that the rules do not speak adequately to the unique situations faced by many projects when it comes to issues of exoneree compensation. Improper handling of these issues can not only mean that the project runs afoul of various ethical rules, but that lasting damage may be done to the project and to whatever innocence work and awareness that project may have accomplished. As a general matter, the Network takes the position that projects, and project lawyers, should enter representation in these cases very cautiously and only after thoughtful deliberation. On the other hand, innocence practitioners have, on several occasions, witnessed their former clients being overcharged or otherwise taken advantage of by unscrupulous attorneys in situations where the innocence practitioners took too much of a "hands off" approach to their client's compensation claims. Because of this inherent tension of needing to avoid the appearance of impropriety, while simultaneously needing to protect our clients’ interests in their compensation cases, the following are the Network’s best practice guidelines for navigating these areas.
• Project Representation
Members of the Network may, in accord with all applicable ethical and professional rules of conduct, as well as the guidelines that follow, represent exonerees in securing compensation for wrongful convictions. As a general matter, however, the Network urges that projects avoid engaging in this type of representation because of the inherent risks of professional conflicts. In certain circumstances, however, a project’s direct involvement and legal representation in a compensation claim may be in a client’s best
9 Client’s Compensation Claims: Network members must develop policies and procedures for retaining or referring clients to lawyers for potential compensation claims and other legal matters. These policies should be reviewed with outside counsel to ensure that ethical obligations are met and that the non-profit status of the organization, if applicable, is carefully considered and adequately protected.
21 interest. Projects should use their best ethical and legal judgment in these types of cases and seek third-party counsel as the situation warrants.
• Referral
As a general rule, projects may refer exonerees to other non-project attorneys as long as the project has no expectation of monetary or other direct benefit.
If an exoneree requests a referral for representation in connection with a compensation claim, project staff should immediately notify the project’s chief executive officer, so that he or she can properly address the request consistent with local rules and this Guide.
It may be advisable to direct all compensation queries to an independent third party for an attorney referral. The third party could create a “referral list” from which the exoneree could select an attorney. The project should not attempt to influence the third party’s list, other than to satisfy itself as to the competence and good standing of the included attorneys. In order to avoid any appearance of impropriety, in the event that a third party includes in its referral list an attorney who has a financial, fiduciary, or any other professional relationship with the project, the referral list also should include at least two other attorneys for exonerees to choose from.
Projects should provide staff a sample script to use in advising exonerees who might be entitled to compensation in situations where either an exoneree asks about the subject or seems unaware of the potential for compensation. Among other things, the script should explain the following: (i) that compensation might be available to the exoneree, (ii) that time may be of the essence in securing such compensation, (iii) that the exoneree may wish to retain representation for that purpose, (iv) that the project is a non-profit entity that does not represent exonerees in such a capacity, and (v) the project’s referral method is set up according to the foregoing best practices. The project should also send a letter to the exoneree memorializing the information provided in the script.
Should an attorney engaged by the exoneree for compensation claims request access to an exoneree’s files or confidential information relating to the exoneree, consent of the exoneree must be received in writing prior to any such access being granted. Projects should not permit any non-project to use its intellectual property, including its name, in connection with the attorney’s for-profit legal work, and should endeavor to prevent such attorneys from publicizing their connections to the project in soliciting such work.
AUTHORITIES:
RULE 1. FEES
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results
22 obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent; (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client; (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case;
(e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.
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