INNOCENCE PROJECT NORTHWEST
PROJECT MANUAL
I. Introduction
The Innocence
Project Northwest (IPNW) Clinic assists
prisoners who were convicted in Washington, Oregon, Alaska, Idaho or Montana, and who are now seeking to advance claims of factual
innocence. Much of IPNW Clinic work will
involve screening inmate requests and identifying those cases where
there may be a viable claim of innocence and where there is evidence, such as
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 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 this
project is dependent upon your tenacity and commitment.
This manual is designed to provide you
with a general overview of the goals and objectives of IPNW and the procedures
in place for implementing those goals.
II.
Student Responsibilities
& Office Procedures
A.
Academic, Case Management, Office & File Management
IPNW student
responsibilities fall into three categories:
1. Academic: Class attendance and participation; reading
course materials and coming to class prepared to discuss materials and
cases. The course syllabus is posted on
a website:
http://faculty.washington.edu/jackiem/IPNW_Clinic/index.html
Course
materials are available through Internet sites 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 Clinic.
2. Case
Management: Moving assigned cases
forward from beginning through completion.
3. Office
and File Management: IPNW has no
support staff. For the time being,
students are responsible for ensuring that the office is efficiently run. Each student team is responsible for one
“Office Day” per week, which will consist of two hours of office hours in the
IPNW office. Student teams will
maintain the same “Office Day” throughout the quarter. On their “Office Day,” students must collect
mail from the IPNW mailbox and process the mail. They are responsible for answering the phone, checking the IPNW
answering machine and relaying phone messages to other students or the
professor.
Every
student, whether in the office for office hours or answering the phone for any
other reason must know how to handle incoming telephone calls. Important messages can be lost because of
the call taker’s inability to handle the call properly. Critical case information or witness
contacts can be lost. Students need to
know (1) how to leave a request for follow-up by another person if the student
is not in the office at the time a student’s phone call is returned and (2) how
to handle incoming calls. Please take
particular care to read and understand the following Telephone Procedures and Protocol.
B. The Telephone - Basic Information
a. The
IPNW office number and fax number is: 206-616-2130.
b. To
place a long distance phone call, dial 77-1-Area Code-Telephone Number and when
you hear a dial tone: dial 39795298 (the IPNW long distance account number).
c. To
fax documents to a long distance number, dial 77-Pause-1-Area Code-Telephone
Number-Pause-Pause-39795298.
d.
Do not use the long distance account number for
personal calls or faxes.
C. How to Leave a Telephone Message
a. State
clearly why you called and what specific information you need.
b. Request
that your call be returned at a time when you expect to be in the office.
c. 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.
d. Create
a phone call follow-up memo containing a list of the questions you want
answered and other pertinent information.
(See Form Letter 01: Phone Call Follow-up Memo)
e. Put
the phone call follow-up memo in the blue phone call follow-up binder located
near the telephone phone.
D. How to Handle Incoming Calls
·
Greet the caller
with “Innocence Project, this is ________”
·
Calls for types
of legal assistance we don’t provide:
1. Don’t
let the caller spend time telling you their story. Ascertain quickly that the
request is not for IPNW.
2. Refer
to Columbia Legal Services, or to the prison’s legal services provider, if
appropriate.
·
Calls from an
attorney, witness or others with case information:
1. When
you answer the phone and the caller asks for a student who is not in the
office, ask the caller if they are returning that student’s call.
2. If
the return call is about a case, ask the caller to hold while you check the
phone call follow-up binder to see if the student left questions for the
caller.
3. If
so, tell the caller that you have the questions handy and proceed to record the
answers.
4. Do
not volunteer any information unless specifically asked. If the caller presses you for details or
information about the case, tell the caller that you will have the student get
back to her or him when the assigned student returns.
5. After
you have recorded the answers, place the completed memo into the student’s
mailbox and send the student a follow up e-mail.
6. On
your “Office Day”, be sure to check the follow-up binder in advance to prepare
yourself for expected telephone calls.
IPNW office
procedures are for everyone. With more
than ten people actively engaged with the project and working on hundreds of
cases, compliance with office procedures is essential. However, procedures may change as we work
our way through the structure of the new Clinic. We’ll be working in a crowded space, with little in the way of
resources. Collaboration, creativity
and patience (coupled with good humor) will be key in making sure that we
profit and learn from this new experience and that our clients are well served.
III.
CASE PROCESSING PROCEDURES
A. What is an Innocence Project Northwest
Case?
Each
month IPNW receives an average of 50 letters from inmates interested in
obtaining the Project’s assistance. The
immediate task when sorting through this correspondence is to determine whether
the request for help falls within the Project’s mandate. Several levels of screening take place
before IPNW assumes representation of the inmate. An inmate does not become a client of the IPNW Clinic until the professor makes a determination
that the IPNW Clinic will assume the
inmate’s representation. Students may not commit to inmate representation
without prior approval from the professor.
When an inmate writes to IPNW, the case is “pre-screened” to determine
whether the case fits within IPNW’s criteria.
In order to qualify for representation, an inmate must: 1) be wrongly convicted of crimes in Washington, Oregon, Alaska,
Idaho or Montana; 2) not be able to afford counsel; 3) no longer have a right
to appointed counsel; 4) have already completed the direct appeals process; 5)
have a substantial amount of prison time remaining to be served; and 6) have a
cognizable claim of actual innocence that can be proven through DNA or other
evidence. Cases outside of the
geographic area that IPNW serves are sent back to the inmate with a referral to
another Innocence Project. (See http://www.innocenceproject.org/about/other_projects.php
for an up-to date list of Innocence Projects in other states. See Form Letters 02(a) – (h):
Referrals to other Innocence Projects).
If the inmate has counsel, the inmate is notified that he or she may
contact us if counsel withdraws from the case.
(See Form Letter 03(a): Case Rejection – Counsel). If the
inmate is still in the process of a direct appeal, he or she is asked to
contact us after the direct appeal is completed. (See Form Letter
03(b): Case Rejection -Appeal). Cases
that do not fit within IPNW’s other criteria are rejected. (See Form Letter 03: Case
Rejection).
If a case meets the initial pre-screening criteria, a Case
File is opened (See Section III.B) and the inmate is sent a
detailed Questionnaire, accompanied by a Cover Letter. (See Form Letter 04: Questionnaire
Cover Letter and Form Letter 05: Inmate Questionnaire). When the Questionnaire is returned, the Case
File is assigned to a team of students who review the completed form and
conduct a more thorough screening process.
Although the Questionnaire contains a great deal of information, it will
usually be necessary to conduct further investigation before deciding to accept
the inmate as an IPNW Clinic client. The
professor and clinic students work together closely during the investigation
process. Students will interview
witnesses and victims and review and/or request testing of evidence. The length of the investigation varies among
cases and is based upon the individual facts of the case. Once an inmate is accepted as a client, the
students and professor will pursue all legitimate avenues of appeal available
to the client.
B. Case Assignments - Where to Start
When a student team receives a case assignment, certain
steps will assist in the case investigation process.
1. Read
every paper in the file through one time.
2. Organize
the documents in the file. (See Section III.C.2.)
3. If
there is no conflicts check, make that request. (See Form Letter 06:
Conflicts Check Request &
Section III B. 1.)
4. If
the case is being transferred to you from another law student, prepare the Case
Assignment Letter (See Form Letter 07: Case Assignment) to
the inmate.
5. Prepare
a Status Report/Activity Log
(See Form Letter 08: Status Report/Activity Log & Section
III.B.1 & III.B.2). Keep the
report/log on the left side of the Case File folder and keep the report/log up
to date.
6. Prepare a Time Chronology and Witness
List (See Section V.B.) Make
a list of the people who you think might provide useful information on the
case, and what questions you would ask them.
1.
Conflicts
Check
The IPNW Clinic is part
of the University of Washington’s Clinic Law Program. As such, we must ensure that we do not undertake representation
that presents a conflict of interest with one of the other clinics (i.e.
accepting a case in which the adverse witness against the inmate is a former
client of Unemployment Law Clinic).
When you get a case assignment request a Conflicts Check (See Form
Letter 06: Conflict Check Request).
Request updated checks with the names of new witnesses as the case
investigation proceeds.
2. Status Reports
Your
status reports are one of your most important responsibilities. These reports are critical to keeping our
files updated as well as allowing another student or attorney to take over the
case. The reports must be sufficiently
detailed to enable someone with no knowledge about your case to get an
understanding of the basic procedural and factual history (when and where client
was convicted, of what crimes, appellate posture and post-conviction motions;
nature of the evidence against the client), whether DNA issues involved, and
what work that has been completed on the case.
During
scheduled Case Review sessions, you must be prepared to discuss your
cases. The meetings will also give you
an opportunity to ask questions and to listen to the other students present
their cases. The procedure for
completing and handling in your status reports is as follows. On the day before your Case Review meeting
make sure that a copy of your report distributed to other students in the
course and the professor. It is
important that you distribute the reports at the required time, to give other
Clinic students time to adequately review the reports in preparation for the
meeting. When the meeting is done, put
your copy into the hard file.
To
assist you with structuring these reports, follow the form Status Report. (See Form Letter 08: Status
Report/Activity Log). For an
example of a Status Report, completed at the Innocence Project at Cardozo
School of Law, See Form Letter 08(a): Status Report – Example).
3. Maintaining an Activity Log
Every activity
that is done in connection with a case must be simultaneously recorded in the Activity Log, which must always be kept
as the top page on the left side of the inmate Case File folder.
For example, if a telephone call is made, the fact that the call was
made and a brief description of what occurred must be documented e.g. “
10/01/02, 5 p.m., Called inmate’s sister, Barbara Whipple. Left message. Student initials”. Or,
when reviewing the case file, the following notation can be made; “10/05/02,
1-3 p.m., file review. Student initials.”
When new documents arrive, note the date the document was received,
“11/03/02: Received Court Transcripts.”
4. Reviewing the Documents
Following
a criminal conviction, an inmate may seek post conviction review by an appeal,
(which requires the filing of briefs and results in a written opinion) or by a
personal restraint petition or habeas petition. Appellate briefs, personal restraint petitions, habeas petitions
and court opinions on these matters can be obtained in almost all cases and are
of great assistance in the investigation of innocence claims. In an appeal, the court always writes an
opinion deciding the case, which may or may not be published. The court opinion can usually be obtained on
Westlaw or Lexis.
Claims of
actual innocence raised after trial and appeal, are raised in state court
through a personal restraint petition.
Grounds that will support a personal restraint petition are
limited. Among these limited grounds,
and the predominant claim in innocence cases, is the assertion that there is new evidence, i.e. evidence previously
unavailable to the defense, that supports the inmate’s claim of actual
innocence. To determine whether
evidence is new, the evidence already
presented and considered at the trial must be reviewed. This not
new evidence will be detailed in the statement of facts and discussed in
the legal argument contained in the appellate briefs and court opinion.
To determine
whether evidence is newly discovered, you 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
“new evidence”. Consequently, it is
common for inmates to write IPNW seeking assistance in cases where they claim
innocence but where their claim is unsupported by “new evidence”. Usually, these inmates are making claims
based on evidence that has already been presented and rejected at the trial
level. Such evidence will not support
an innocence claim raised in a personal restraint petition.
For example,
an inmate 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’ recantation, or (2) – Cognizable new
evidence that the witness lied.
Or, an inmate
may claim, “My cousin’s brother-in-law
heard that some other guy confessed to this crime” With a claim like this
one, reading the appellate briefs will answer the question of whether this is
new evidence or not. If, upon reading
the appellate briefs, there is no mention of this witness, then there is a
possibility that new evidence does exist and this claim should be investigated
further. A conversation 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 inmate for more specific information asking what the witness claims to
know, what the relationship is between the various witnesses and the inmate and
to obtain contact information for the witness.
C. Organizing
the Innocence Project Northwest Case File
The
importance of keeping your files complete, up to date, and in order cannot be
overemphasized. Every single telephone
call you make and letter you send should be noted in the computer file and the
hard file. These records should always
include the date, the parties involved, their address/telephone number, 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.
Every
inmate has a computer file and a paper file.
The computer file is found at: \\sherman\home\ipnw\. Go to the InnocenceProject1 folder – the
Clients folder is located there. (For
assistance in accessing the information from your personal computer, see the
professor). The hard file is placed in one or more file
folders and is referred to as the inmate’s “Case File.” This file represents our basic work and
involvement in a case. Case Files are
separated into different categories, depending upon the status of the
case.
1.
Manila Folders – Unassigned Cases
Manila folders
are used for cases that have made it past the “pre-screening” process and are
awaiting a completed Questionnaire Form from the inmate. These Case Files are kept in alphabetical
order in the “Awaiting Questionnaire” filing cabinet drawer. Once the Questionnaire is received, the
Inmate should be sent a Case Update Letter (See Form 09: Case Update
Letter) and the Case File should be placed in the professor’s inbox for
assignment to a student team.
Manila Folders
are also used for cases that have been rejected and that have substantial work
product. These Case Files are kept, in
alphabetical order in the “Work Product” filing cabinet drawer.
Manila Folders are
additionally used for cases where the inmate has sent in a completed
Questionnaire, but the case is still in the process of direct appeal. The inmate is sent a letter with
notification that IPNW will not take any action during the course of the direct
appeal. The letter advises the inmate
that he or she needs to contact IPNW again once the appeal is decided. The inmate is informed that we will retain
the documents, unless we are notified to return the documents. (See Form Letter 03(c): Case
Rejection – Hold for Appeal). These
Case Files are kept, in alphabetical order, in the “Awaiting Appeal” filing
cabinet drawer.
2.
“Accordion Files” – Assigned Cases
Assigned cases are
ones where we have undertaken a client’s representation, and cases that need
further investigation before a decision is made about whether or not to accept
representation. These cases are
assigned to a student team for investigation or representation. In most instances, cases are assigned
to students in the order in which the Project received the requests. However,
exceptions are occasionally made for cases with promising leads and/or time
constraints that necessitate immediate attention. These decisions are strictly
the province of the professor, although student input will be considered and is
appreciated.
Once assigned, the
case will be put in Accordion
files. Each assigned case has what is
called “Accordion I.” This file
represents our basic work and involvement in a case. It is divided into three manila folders labeled: “Case File,”
“Correspondence” and “Student Work Product.”
Case File folders contain the
official interoffice communication regarding a case, specifically, the
Questionnaire Form, all Status Reports/Activity Logs (in reverse chronological
order), and any memos from the professor regarding that case. The Status Report/Activity Log should be
kept on the left hand side of the folder.
Correspondence folders contain all
correspondence in the case, in reverse chronological order, with the most
recent letter on top.
Student Work Product folders contain all
research done by the student including case law, summaries, and notes.
“Accordion
II” folders contain all the inmate’s legal documents such as transcripts,
briefs, motions, police and laboratory reports, and anything else the client
has sent to us in reverse chronological order, with the most recent document on
top.
All “Accordion I,” “Accordion II” (and
“Accordion III”, as needed) files
are filed, in alphabetical order, in the “Assigned Cases” filing cabinet
drawers.
D. Confidentiality
Given
the important nature of the contents of these files, you are not, under any
circumstances, allowed to take all or any part of an inmate’s file out of the
University of Washington School of Law.
You are also required to return the files to their appropriate file
cabinet once you are finished using them.
Furthermore, these files are confidential. Names of inmates who have contacted IPNW are held in confidence
and cannot be revealed without the inmate’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.
IV. COMMUNICATION
A.
Introduction:
Investigating an
Innocence Project case requires good communication skills. An important educational goal of the program
is to teach students to become effective communicators. Much of the work of the IPNW Clinic involves
contacting individuals and communicating with them to achieve the project
goals. 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. It some
cases, it is necessary to contact inmate family members or friends, speak with
former witnesses, or experts who testified at trial. Students communicate
directly with inmates by mail and occasionally by telephone.
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 drafted by students must be edited and approved
by the professor before mailing.
B. Contacting Attorneys by Telephone:
Every student
will make phone contact with previous defense counsel, either the trial
attorney, the appellate attorney or both. Students need a full grasp of the
facts and the inmate’s claim(s) and should make notes of important facts and
questions to ask 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. Attorney, I’m
Sandy Student from the University of Washington School of Law (or Innocence
Project Northwest). We are doing some
post-conviction investigation on a case you were involved in back in 1992. The
defendant’s name is Igor Inmate. Do you recall this case?”
Briefly describe
the IPNW, your status as the student assigned to investigate the inmate’s
claim(s). Offer to fax a copy of the inmate’s signed consent for release of
information. If you must leave a
message, be sure to leave IPNW's phone number and the reason for your call.
C. Writing a Business Letter to Attorneys
or Others:
One of the most
common business letters to an attorney is a letter requesting that the inmate’s
file be turned over to IPNW. The letter
must be accompanied by a written request by the client that the attorney
transfer the file to IPNW. 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. (See
Washington State Bar Association Formal Opinion No. 181 at: http://www.wsba.org/rpc/fo/181.htm) 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. (See Form
Letter 10: File Request, See also Barrie Althoff, Files, What
to Do with Them, So They Don’t Do You In, Washington State Bar News: March 1998
at:
http://www.wsba.org/barnews/ethicsandthelaw/ethics-files.html)
Students should
feel free, and occasionally will be required, to custom draft a letter on a
template as needed. All business
letters must be submitted to the professor for review. The professor will edit
the letter and return it to the student for revision. The letter can only be
mailed after the professor approves the final draft. The approved paper letter will be sent on IPNW stationery (See
Form Letter 11: Letterhead) and the final version saved in the
inmate’s Case File and computer file.
D. Correspondence with
Prison Inmates
1. Ethical Considerations:
·
The attorney/client privilege applies to all
communications with inmates communicating with IPNW for the purpose of becoming
a client. The fact that the inmate has
contacted us for the purpose of representation is held in confidence and cannot
be revealed without the inmate’s authorization.
·
Materials sent by inmates should not only be held in
confidence, but they must be preserved.
Eventually, the file will be returned to the inmate or forwarded to
another attorney.
·
It is the student/attorney’s duty to memorialize all
contacts. The file should contain a log
of communications that reflects the evolution of the case. A letter to the inmate should always follow
a telephone contact in which significant information was obtained. The letter should describing 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.
Inmates sometimes ask for photographs, money, legal research or other
things. Sometimes they ask that
students communicate with other inmates or people on the outside. Don’t do it. Learn to set professional boundaries to avoid jeopardizing your
ability and the Innocence Project’s ability to send confidential communications
in the future.
2. Legal
Considerations
The Washington
State Department of Corrections has very explicit rules about communications
with inmates. A breach of those rules
could lead to sanctions against the lawyer involved and against the
inmate. The inmate 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 the professor before being sent.
Legal mail does not go through the usual screening and search
by prison personnel. For IPNW mail to
be considered and handled as Legal Mail, the mail must be correspondence to or
from an attorney (the professor) and the front of the envelope must be clearly
marked “Legal Mail.” Legal Mail may be
touched, smelled or visually scanned, but it will not be read. (DOC 590.500).
E. Prison Inmate Interviews
Students working
with the Project may have the opportunity to conduct legal interviews. When
scheduling, be clear with all prison staff and inmate workers 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 inmate interviews. (See http://www.wa.gov/doc/facilitydescriptions.htm
for a list of corrections facilities in Washington State) Find out the procedures for that particular
institution. (Generally, the inmate’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 also strict clothing requirements for prison visitors. Each prison should be contacted in advance
of the visit to find out 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.
A letter to the
inmate should follow up every interview.
If crucial information has been provided during the interview, it should
be memorialized in writing. Always seek
verification that the information is correct.
F. Inmate Telephone Contact
Telephone calls
are the least favored form of communication because they are the least secure
and because they are expensive. Letters
(sent as “Legal Mail”) are the preferred method of communication. If telephone calls do need to be made, they
should be arranged through the inmate’s counselor and are paid for by
IPNW. A staff member may maintain
visual contact of an inmate during a pre-arranged attorney call, but the call
will not listen to the call. The call
cannot be intercepted, recorded or monitored.
(DOC 450.200)
Occasionally inmates
will place a call, oftentimes a collect call, from the prison to IPNW. This
practice is not encouraged. Offender
initiated calls may be monitored, intercepted and recorded. Offender initiated calls are not covered by
the attorney client privilege. Collect
calls from inmates can be arranged and will be permitted under extraordinary
circumstances. However, collect calls
require the professor’s prior approval.
If
a student answers an inmate’s telephone call, that student should attempt to
assist the inmate to the extent reasonably possible and must record the
substance of that conversation. If
difficulties are encountered, ask the inmate to send a letter or a telephone
number where a message can be left.
V. CASE INVESTIGATION
A. Introduction
Investigation
is the gathering of information that supports or refutes the legal elements of
a case. For IPNW 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?
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 claims to be innocent; the client 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.
B. Chronology & Witness List
When
the inmate questionnaire arrives, 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. [For help with developing a chronology, See
Chapters 8-14 of Essential Lawyering Skills, by Stefan H. Krieger,
Richard K. Neumann, Jr., Kathleen H. McManus, Steven D. Jamar (Aspen Law &
Business 1999), On Reserve at the Law Library]. 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 (1) all names used by the witness; (2)
last known contact information (address, phone number, employer); (3)
identifying information (date of birth, social security number); and (4)
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.
C. Investigative Plan
After
you have reviewed the initial documents, and begun the chronology and witness
lists, the next step is to create an investigation plan. The plan is simply a list of tasks to be
undertaken, in the order they should be undertaken, and detailing a specific
plan for accomplishing the task. You
will determine the order for both practical reasons (e.g., you must locate a
witness before interviewing him/her) and strategic reasons (e.g., you want to
interview one witness first, before s/he learns from another witness of your
investigation).
In
most cases, you will want to gather documents before interviewing witnesses;
you will want to interview peripheral witnesses before crucial witnesses; you
will want to interview friendly witnesses before unfriendly witnesses. The goal is to be armed with as much
information as you can possibly have before speaking to the person(s) who is
critical to your case. Think of the
investigation as a series of concentric circles of documents and witnesses with
the crucial person in the center, you generally want to work inwards.
Sometimes
the general rule should not be applied.
For example, if you want to investigate the background of a prosecution
witness whom you believe lied on the witness stand, you will follow the rule by
gathering all of the documentation you can about the witness (marriage records,
civil lawsuits, criminal lawsuits, bankruptcies, liens, property records). When it comes to talking to people about
that witness, however, you might want to reverse the rule. You could well decide you should talk to the
witness before talking to his/her ex-spouse, ex-employers, neighbors,
etc. so the witness is not tipped off to your investigation.
D. Locating Witnesses
The
contact information for witnesses will need to be confirmed and updated. Sources that are free to IPNW are
Lexis/Nexus and WestLaw people locator services, the telephone directory, and
Internet people finder tools. 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. And, 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 data base services, such as ChoicePoint and Merlin, which
can be used. IPNW currently does not
subscribe to these but might in the near future. Please contact the professor
if you feel further investigation of the case requires the assistance of a
professional investigator.
E. Interviewing Witnesses
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 that you want to review with the
witness.
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 inmate, 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’ words to demonstrate
that you listened carefully to what s/he said.
If you don’t understand jargon or slang, don’t 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). [See
also, Chapters 5-7 of Essential Lawyering Skills, by Stefan H. Krieger,
Richard K. Neumann, Jr., Kathleen H. McManus, Steven D. Jamar (Aspen Law &
Business 1999), On Reserve at the Law Library].
F. Note Taking and Report Writing
Witnesses
are 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 professor.
Witness
interviews need to be memorialized in a report as quickly as possible after the
interview is conducted. 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 and (3) give the reader some sense of the kind of
witness the person will make.
The
top of the report should list contact and identifying information of the
witness (name(s), date of birth, social security number, 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, stay
away from the passive voice because the sentences will become too convoluted
and become difficult to read. 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.
G. Biological
Evidence and DNA Testing
Washington law
R.C.W. 10.73.170 governs
post-conviction DNA testing of biological material and the preservation of
biological material evidence for testing.
Such evidence might include bodily fluids collected in a rape case,
fingernail scrapings recovered from the hands of the victim in a murder case,
hair or blood found at a crime scene, or even a cigarette butt left behind.
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. [See Post-conviction
DNA Testing: Report on the Act Relating to DNA Testing of Evidence (Washington
State Office of Public Defense: 2001) for a synopsis of different
jurisdiction’s procedures for preserving trial evidence at:
http://www.opd.wa.gov/PDF/12-31-01%20DNA%20Report.pdf) In many jurisdictions items admitted into
evidence are stored in the courthouse.
In other jurisdictions, evidence may be stored in a police property
clerk’s office or the state/local crime laboratory. Evidence may also have even been returned to trial counsel or the
Office of the District Attorney.
A good place to begin
your search for the physical evidence is with the Clerk of the Court,
particularly if the relevant evidence was introduced at trial. When you phone the Clerk, introduce yourself
as a law student working with the Innocence Project. After this polite introduction, you may want to ask: “I was
wondering if you could assist me with locating physical evidence introduced at a trial in your county in
1989. What is the procedure in your
jurisdiction for the disposition of trial evidence after conviction?” Follow-up calls to trial and/or appellate
attorneys or court personnel may be necessary.
A conclusory assertion
by a clerk or attorney that the evidence has been destroyed does 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. We do not
close a case until we have reliable, written confirmation that the relevant,
testable items have been destroyed. Written confirmation should include: the date of destruction, an inventory of
what was destroyed, and 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 underpants) has been destroyed, slides made during the criminal
investigation for use by the crime lab may have been preserved. These slides take up far less space than
physical evidence and laboratories routinely save them. Your investigation should include a phone
call to the crime lab (public or private), which performed tests on the
evidence.
Once
you have located the evidence, a Preservation Letter memorializing the
results of your investigation must be sent immediately. (See Form Letter 12: Preservation
Letter). The letters should be
faxed to the recipient immediately and a hard copy mailed. Your files should reflect both the date of
the fax and the mailing. Call to
confirm receipt. You will then work
with the professor to arrange testing in accordance with R.C.W. 10.73.170.
V. The Rejection Process
A.
Preparing A Case For Rejection
Students must
investigate cases with an open mind, remembering that the inmate’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 inmate’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 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”.
Once a student
has gathered and processed all the case information and has participated in
Case Review meetings, the student may schedule the case for Rejection Review
Meeting (RRM). In preparation for this meeting, the student must prepare the Rejection
Review Summary. (See Form 13: Rejection Review Summary). It must be completed fully, printed out and
a copy placed in the box of the professor.
An RRM will then be scheduled between the students and the professor.
B.
Rejection Review Meeting
(RRM)
At the RRM, the
students will present the case overview, the procedural history, the inmate’s
claim(s) and the investigation results. The professor will either approve the
rejection or send the case back with instructions for further investigation.
C.
The Rejection Letter
If the professor
approves rejection, the students will prepare the rejection letter. In the rejection letter, it is best to avoid
providing a very detailed explanation for why the case is being rejected. (See Form Letter 03: Case
Rejection). Detailed explanations
often encourage the inmate to write back with arguments for why IPNW was wrong
to reject the case. This leads to a great deal of needless correspondence with
inmates who do not have a viable innocence claim and takes time, energy and
resources away from those who do.
D. Closing the Case
When the case has been rejected,
the following steps must be taken:
1. Rejection
letter drafted for approval by professor.
2. Rejection
letter sent, along with all documents, to inmate.
3. Copy
of rejection letter saved in “Case File” and computer file.
4. Paper
file moved from “Assigned Cases” to “Work Product” filing cabinet drawer.
VI. Appendix – Form Letters
02. Referrals to
Other Innocence Projects: Generic
(a)
California
(1)
Northern
(2)
Southern
(b)
Florida
(c)
Idaho
(d)
Maryland
(e)
Michigan
(f)
Massachusetts
(g)
Missouri
(h)
Texas
03.
Case Rejection : Generic
(a)
Counsel
(b)
Appeal
(c)
Hold for Appeal
04.
Questionnaire Cover Letter
05.
Questionnaire Form
06.
Conflicts Check Request
07.
Case Assignment
08.
Status Report/Activity Log
(a)
Status Report Example
(b)
Activity Log
09.
Case Update
10.
File Request
11.
Letterhead
12.
Preservation Letter
13.
Rejection Review Summary
