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Un-making a murderer

ASU's Post-Conviction Clinic works to free the wrongfully convicted

A jail cell stands empty.
January 06, 2016

Since its release last month, the Netflix documentary series "Making a Murderer" has inspired a host of social media debates, many soaked in outrage aimed at an alleged injustice.

The series follows the murder case against Steven Avery in Manitowoc County, Wisconsin, and the accusation that the county's law enforcement conspired to frame him.

Although Avery's innocence is in question, one thing is certain: We devour these stories. Other binge-worthy, fact-based productions built around the premise of being accused of or getting away with murder — such as the podcast “Serial" and HBO's docu-series "The Jinx" — enthrall and enrage the public, casting a light across the criminal justice system and making us wonder: How can justice prevail?

One way is through the ASU Post-Conviction Clinic, which is partnered with the Arizona Justice Project, giving Sandra Day O’Connor College of Law students the opportunity to work on real cases with claims of actual innocence. The clinic recently received nearly $1 million from the National Institute of Justice to work on cases where DNA evidence could exonerate the wrongfully convicted.

Katherine Puzauskas is the supervising attorney for the ASU Post-Conviction Clinic, and previously held the position of director of the Arizona Justice Project. Robert Dormady is a graduate of ASU Law, who is now an ASU Law Fellow and serves as the program coordinator for the clinic. The two contributed answers, via email, on this subject for a Q&A with ASU Now.

Q: With programs like “Making a Murderer” and “The Jinx,” there seems to be a heightened public interest in criminal cases that suggest errors in assessing guilt or innocence. Has there been an increase in individuals and legal groups taking on such cases?

A: While wrongful convictions are not a new phenomenon, it has only been during the past few decades that scientific advancements have allowed organizations to systematically identify and assist wrongly convicted prisoners. The Innocence Project, started in 1992 at the Benjamin N. Cardozo School of Law in New York, uses DNA testing to prove innocence in post-conviction cases nationwide. Since the creation of the Innocence Project, other projects have emerged across the country; the Arizona Justice Project is the fifth project to address claims of innocence post-conviction in the nation. There are now more than 70 innocence projects worldwide.

Q: Have the tools changed over the past decade or so making the reconsideration of old cases more productive?

A: Yes. All states across the country have passed DNA testing statutes allowing prisoners to seek post-conviction DNA testing of specific items of evidence. As DNA testing technologies evolve and improve over time, there’s a greater chance a DNA profile can be generated. More than half of the states in the U.S. have passed evidence preservation statutes that require the care and conservation of certain evidence for potential post-conviction testing. That helps explain why there have been 336 DNA exonerations nationwide since 1989, as well as nearly 1,400 other exonerations proven through other types of evidence. In addition, several states have passed legislation or have otherwise worked toward reforms to address eyewitness ID procedures in an attempt to prevent eyewitness misidentification, which is currently one of the leading cause of wrongful convictions.

Q: In your work with the ASU-Post-Conviction Clinic and the Arizona Justice Project, how do you choose which cases to take on? And how tough is it to decide which cases to take?

A: The Arizona Justice Project screens all cases before referring cases to the ASU Post-Conviction Clinic. In order for the Project to undergo an initial review of a case, the person applying for assistance must be challenging a conviction that occurred in Arizona, and must have exhausted their appeals and no longer be entitled to legal representation at public expense. If a prisoner meets that criteria, he or she must complete a questionnaire answering several questions about their criminal case. The prisoner’s case is then screened by a lawyer who identifies any potential issues. If there are specific issues that warrant further investigation, such as new evidence, the lawyer recommends that case for further review. Each case undergoes a thorough review and, sometimes, the case is paneled before senior lawyers who help make a decision about whether the case should proceed.

Q: You’ve surely confronted cases when innocent people have been locked up unjustly. How do you begin to make these right?

A: It’s a long arduous process that can be complicated by the age of the conviction and complexity of the issues. After the prisoner’s case has been screened and a preliminary investigation has taken place, generally the next step is to gather the case records, which include the trial record, transcripts, police reports, appellate records, medical records, etc. That process can take a long time depending on the age of the case and how many hands it’s passed through.

Simultaneously, the case reviewer will contact the lawyers who represented the prisoner, and requests are made to police agencies and crime labs for police reports and evidence testing and storage information. The lawyers meet with the prisoner, and may interview witnesses and/or revisit the crime scene. If evidence of innocence is discovered, the case proceeds through post-conviction relief proceedings in the court system. If the prisoner is successful, a plan for release is developed and a whole new set of obstacles begin.

Q: What sort of challenges do the wrongfully convicted face both during their proceedings and after release? How does the conviction affect their loved ones, and even those who are victims or the families of victims?

A: The challenges faced by the wrongly convicted, and inmates generally, during incarceration are beyond what we can comprehend; however, we have seen difficulties dealing with the insurmountable stress, fear and anxiety associated with the prospect that they may never be reunited with their family, or that their physical and mental well-being may be compromised while incarcerated. Upon release, new challenges arise such as finding permanent housing, employment, social services and lasting relationships. What may be simple to you and me, common-place situations — living alone, taking public transportation, trusting people around you and doing day-to-day tasks such as going to the grocery store or ordering a meal at a restaurant — can be extremely stressful and difficult for prisoners re-entering society. Loved ones are also affected by not knowing whether they’ll ever get to see their family member or friend released from incarceration, and not knowing whether they’re safe while in custody. Victims and society at-large are affected because if the wrong person is convicted, the true perpetrator goes unpunished and may commit more crime.

Q: Does the heightened focus in the media and by legal groups suggest that there may be a greater willingness by judges to revisit old cases?  

A: We hope it brings to light that our criminal justice system is not infallible. Errors are made, and consequently there are innocent people in prison. With greater awareness about the causes of wrongful conviction, we hope there is a corresponding willingness of the courts and prosecuting agencies to revisit old cases.

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