The main point in this article is to underscore how important investigation is in changing the narrative of your case so you can obtain relief in the criminal justice system. The law is what it is, it is its application to a set of facts that makes or breaks a case. If you are convicted of a crime, you need to develop new facts to give you the best chance at success in your post-conviction journey.
Once you have been convicted of a crime, it is critical to start analyzing your case from the very beginning to see what went wrong and then create a plan for reversing the conviction. Prior to your trial or your plea, you likely believed that you knew everything there was to know. Almost certainly, you did not. It will take working with an experienced lawyer to know exactly how to conduct this post- conviction investigation, but here are some areas that have proven fertile in the past, and so I offer them to you as potential starting points.
- The State or government’s evidence against you. This is the most obvious place to start, and it can bear very useful fruit. When you are beginning your post-conviction investigation, your attorney should request a copy of the prosecutor’s evidence against you (the prosecutor will not always provide these materials, but in my experience, prosecutors have always provided access to the material so I can review the materials in a secured location). At the very minimum, you need to request these materials, and if a prosecutor is not allowing you access, then you may need to litigate the issue.
- Trial counsel’s file. This is also an obvious place to start, but it is also a very important place to investigate. You need to review trial counsel’s file closely in time to the review of the prosecution’s case because one thing you are looking for is to see whether the materials that are contained in the prosecutor’s file match what was contained in trial counsel’s file. It is not at all uncommon for various pieces of evidence to not make it into trial counsel’s file, either because the material has been purposefully withheld or by accident. It has certainly happened that some prosecutors do not provide material to defense counsel because they do not deem it relevant or “material” to the case. But in my experience, I can tell you that what defense counsel believes is relevant or material is often not the same as what prosecutors believe is relevant or material. We live in a world where prosecutors are given wide discretion in producing discovery to defendants and it is exceedingly rare for prosecutors to be held accountable when they fail to provide useful documents. Searching for these missing documents is a critical part of any meaningful post-conviction investigation. If you discover information that is not contained in trial counsel’s file that is contained in the prosecutor’s file, this could provide a basis for relief in either post-conviction or federal habeas. But even though you cannot use it in a direct appeal, you need to search for this material now. Files get moved and lost, floods and fires happen. Take the bull by the horn and find the material in your case that you need as soon after conviction as possible. Your lawyer can scan the materials so there will always be a digital copy of it available.
- Law enforcement materials. There are various places to search for these materials. When our firm conducts post- conviction investigations, we file Freedom of Information Act requests with all law enforcement agencies we identify in the discovery. If any forensic testing has occurred, we request the results of that testing. Depending on the importance of any piece of evidence (say, for example, DNA matches), we may request the raw data from the agency to provide to an expert witness for review. Again, you will want to compare these items you receive with what is contained in trial counsel’s file. The prosecutor has a duty to know what is contained in other law enforcement agency files, so if a law enforcement agency failed to provide material evidence to the prosecutor, the prosecutor can still be guilty of committing a Brady violation pursuant to current United States Supreme Court law. Again, this may be a basis of relief in either post-conviction review or in federal habeas proceedings. In some federal cases, defendants will have to sign waivers attesting that they will not request documents under FOIA regarding their case. Frankly, I think this is unconscionable and should be challenged. But also, maybe someone other than you can request the documents! It is hard to imagine what possible government interest is served by denying a defendant the right to request documents about his case. Pick a fight. Witness interviews.
- Witness interviews can be one of the most illustrious avenues of investigation. Ideally, your trial lawyer would have conducted all the necessary interviews for your case, but if you have been convicted, there is a chance the interviews either did not happen or the important questions were not asked of the witnesses. You will want to ask the witnesses about what they know, but you also want to ask them about their experiences with the law enforcement agents they interacted with. I have had witnesses tell me they gave their statements implicating clients because they felt coerced into doing so. I have had witnesses tell me law enforcement threatened to charge them with crimes or place their children in state custody if they did not give statements implicating my client. I have also interviewed witnesses who have told me they spoke to law enforcement agents but that the agents did not reduce their statements to writing because what they had to say was helpful to the defendant. In conducting witness interviews, not only are you looking for who was interviewed but also who was not interviewed, or who was interviewed but whose statements were not reduced to writing so they could be shared with trial counsel. Remember that in any investigation, law enforcement first conducts an investigation, identifies a suspect, and then oftentimes spends the rest of its investigation efforts working to buttress its case against the suspect. Law enforcement is overworked and underpaid. Mistakes happen. If you have been wrongfully convicted, you will have to conduct the investigation that you need to gain your freedom. Witness interviews are an important part of this process. One other thing: if you speak with a witness who has valuable information for your case, obtain an affidavit from that witness as soon as possible. Witnesses may disappear, lose their ability to reconstruct memories or be pressured by law enforcement to change their stories. Affidavits do not have to be overly formal. They can be in a person’s handwriting. Just get the statement, have it notarized if possible, and put it with your legal materials after your lawyer scans it for his or her file.
- Juror Interviews. You must be very careful with juror interviews because jurors, after all, are just doing their civic duty, and they do not wish to be confronted about their work. To be clear, you, as the defendant in the case should never approach a juror. That, my friend, would be a disaster. But you can have either an attorney or an investigator conduct limited juror interviews. I think juror interviews can be helpful to do, but your attorney or investigator must be extremely gracious and the interview should last just a few moments. You are not conducting an in-depth interview about their deliberations (this information cannot be used in any post-conviction action so there’s no value in even inquiring). The only thing you want to know from jurors is whether they believe their experience comported with the law and whether anything “unusual” happened. I also like to ask about their perceptions of the key players—defense counsel, the prosecution, and the judge. In one juror interview, counsel discovered that during the jurors’ sequestration during a capital trial, their rooms were being broken into and they believed law enforcement was snooping through their belongings. In another interview, counsel discovered a couple of jurors were sharing their personal knowledge of the defendant with other jurors in violation of the judge’s order that no extraneous information should be considered by the jurors. These sorts of things happen, and you won’t know about it unless you ask. But you should expect that any outreach to jurors may result in that juror calling the prosecutor to inform him or her of the contact. Still, juror misconduct can provide a basis for post-conviction relief so I think it’s only responsible to conduct a couple of juror interviews to explore whether something constitutionally significant occurred during the deliberations of your case so long as you are gracious and quick about it.
- Clerk of Court Records. This is easy investigation to do and it can be very helpful. Records in the Clerk of Court’s office are public documents so all you have to do is walk into the office and request to see the file. I suggest calling the Clerk’s Office before you come to schedule an appointment because oftentimes the clerks may be needed to assist with court or other members of the public. Also, if a case is older, it may be stored off-site so depending on the age of the case, you may need to work out some arrangements to see the file. I also recommend searching the file of any co-defendants and seeking out any public files of any potential witnesses. It is by searching a co- defendant’s public file for a serious case of mine that I discovered his long and very serious mental health history which was directly relevant to the credibility of his statements to law enforcement. The discovery provided by the prosecutor did not indicate any reason to call into question his statements, but there it was—in another file. I had no idea, until I searched that file, that the co-defendant had serious mental health issues and that there was a basis to challenge his statements to law enforcement implicating my client in a crime. By searching Clerk of Court files, you can also access bond information. You may discover, for example, that a co-defendant received bond just after he gave a statement to law enforcement. This could provide a valuable basis upon which to develop a challenge to both that co-defendant’s credibility, and how the prosecutor is handling the case. It is valuable impeach- ment evidence.
- Social Media. I hardly know where to begin with this universe of potentially highly useful investigation material. It is amazing to me what people will put out onto the Internet! Conducting basic internet searches can reveal pictures of witnesses with guns or flashing money. They may even post pictures of themselves committing crimes! If you are not conducting social media searches of all potential witnesses in your case, you are not serious about investigation.
This is just an overview of investigations. Each case is highly fact intensive so an experienced lawyer will have to help you figure out the best course to take in your individual case. Many firms work with forensic accountants, mitigation specialists, psychologists, neuro- psychologists, and computer forensics experts to help develop and explore useful areas of investigation.