A Juneteenth message on client accountability to attorneys litigating innocence cases

By: Josh Tepfer

I have been a lawyer working in the innocence movement for fifteen years now. Since I’ve reached this level of experience, younger lawyers—or even experienced lawyers who take on a pro bono innocence case—often reach out to get my advice on an issue they are experiencing in their case.

For the last several years, overwhelmingly the most frequent inquiry I get on these types of consultations concern “Conviction Integrity Units”, or CIUs. CIUs are units formed by prosecutors’ offices that are purportedly tasked with re-investigating the reliability of past convictions secured by their own office. The promise is that CIUs will act similarly to defense-oriented innocence projects—an individual who asserts their innocence can, through retained counsel or even on their own, contact the CIU, and ask prosecutors to reinvestigate their case. The seeming extra benefit of a CIU over a defense-oriented innocence project is if the CIU agrees, the parties can move jointly for exoneration in court, and Judges tend to sign off when all parties are in agreement.   

Much has been written in innocence literature on how CIUs should be established, their proper role, the processes CIUs should follow, and the investigatory standard these units should apply when prosecutors consider whether to voluntarily agree to vacate the conviction it previously secured. Here is one article; here is another; here is another. You get the idea.

When lawyers contact me for these consultations, I’m often asked for my advice for working with CIUs, my opinions on the local CIU, or how I deal with CIUs in my practice. I receive questions about how I frame my initial inquiries to the CIU, what materials I give them to review, what I share about my own investigation, or how I communicate with them when I pitch them my case. Often, these consultations will be coupled with a lengthy story from the attorney that contacted me how they have been dealing with the CIU on their case, and I often hear expressions of frustration about the amount of time the CIU is taking or the lack of communication or ultimately positive results while an innocent client remains convicted and often incarcerated.

My answers to these types of inquiries have gotten shorter and simpler. My stock response is often: “I don’t deal with them.” Or the CIU is “irrelevant” to my practice.

I think these attorneys often take away from these conversations that I am frustrated with CIUs, or the prosecutors running them. That is actually not really true. I’m frustrated with the lawyers asking the question.

Let me take a detour and then I will get to why this frustrates me.

I am Jewish. During my Jewish education growing up, we spent a lot of time learning about the Holocaust. My main memories of these lessons were my mind wandering to the idea of how regular people could just allow something so purely evil to occur right in front of them. From a very young age, my instinct was to put my blame and anger not on Hitler or the Nazis but rather on the regular, otherwise unaffected, non-Jewish people who knew it was wrong and did nothing about it.

I often think about this in the context of slavery as well. Juneteenth commemorates the end of slavery in the US, the day that word of freedom reached enslaved people in Texas nearly three years after the Emancipation Proclamation was issued.  When I think about US’s history of slavery, my mind and blame don’t immediately go to the slaveholders themselves, but rather to the white non-slave owners who did nothing to try and stop white slaveholders from continuing to be slaveholders.

Do I think the bystanders described in the previous paragraphs are as evil as the actual white slaveholders or Nazis? Of course not. But I do not believe bystanders are blameless either. With privilege and morality comes some level of responsibility and action.

I’m not really interested in creating some sort of hierarchy of evilness, but I will pause and note there are at least some parallels to a convicted and innocent incarcerated person to a Black slave or Jew in a concentration camp during the Holocaust. At bottom, in all instances, the individual’s bodies are controlled by the State. 

It is the innocence lawyer’s job to get their client relief, earn their freedom, and get the client the result they want or deserve.

And ultimately, this brings me back to CIUs. At its very core, the CIU is filled with a bunch of prosecutors who seemingly are tasked with doing the exact same thing the innocent client retained the defense lawyer to do. For a defense lawyer who takes on that responsibility, turning that responsibility over to a CIU is not a satisfying answer to me. A responsibility for individual action requires more.

It is the innocence lawyer’s job to get their client relief, earn their freedom, and get the client the result they want or deserve. There are a million different ways and strategies to do that. One way might be persuading or convicting a prosecutor in a CIU to agree to that result. But that is hardly the only way, and in my experience, almost never the best way. And it is certainly never the best way to sit on your hands while you hope and pray for someone else to reach the same conclusion you have reached or otherwise do your job for you.

So my Juneteenth message to lawyers representing the innocent is don’t be a bystander waiting for someone else to pursue the justice you think is warranted. Go affirmatively win your case. Force the issue. Go to court. Find a way. If the prosecutor or the CIU eventually wants to go along for the ride and agree, all the better, as it certainly is true a judge is more likely to agree if all parties agree. But in the end, your client retained you to win his or her freedom. You are accountable, and you are doing a disservice crossing your fingers and asking someone else to do the same job your client trusted you to do. 

Insight

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