By Maitreya Badami, NCIP Assistant Legal Director

One of the most frustrating aspects of innocence cases is how slowly they seem to move. According to the National Registry of Exonerations, the average exoneration occurs nearly 11 years after the conviction.

NCIP cases are no different. Our clients have all been in prison long enough to have completed their appeals and been denied relief, which typically takes three years or more. Many of them have pursued one or more habeas corpus petitions on their own before learning of the existence of NCIP. And each one of our cases has undergone a multiple-step screening process before being assigned to an attorney at all.

Why is the exoneration process so slow?

Post-conviction cases come to NCIP from a variety of sources, and all that they have in common is the fact that the defendant was convicted. Because of the diversity of our cases, there are no real “short cuts” or templates available for how to conduct an investigation. A great deal of time is often needed simply to track down a copy of the trial transcript which is required for us to know the details that supported the conviction. As cases age, these space-intensive documents tend to migrate into storage spaces, relatives’ attics or garages, or, sadly, into the trash. In older cases, this very fundamental document may no longer be held in the court storage and unless the client has a copy, the transcript may not exist anywhere but the state’s historical archives. To make matters worse, not all trial transcripts are preserved in those archives, so finding the ones that are not can be a challenging task.

Even before (or while) searching for a trial transcript, NCIP seeks to obtain copies of documents from the client’s trial attorney’s file. Those documents include the original police reports from the case, the charging documents filed by the prosecutor, investigative reports and forensic reports completed by prosecution and/or defense investigators and experts, the attorney’s notes on investigation or trial strategy, motions filed by both sides, jury instructions, and court orders issued before and at trial. One of the first steps in many investigations is to contact the trial attorney and attempt to review the file.

Very frequently, however, the trial attorney’s file no longer exists. The attorneys are sometimes deceased and have left no meaningful access to their stored case files. If they are alive, quite frequently they have either lost or disposed of files or have given them to the client, who has lost them. Unless an inmate has been sentenced to death or life without the possibility of parole, they are not entitled by law to post-conviction discovery. California is the only state in the country which exempts police reports from its public records act. That exemption makes it exceedingly challenging to obtain the police reports in our cases if neither the client nor their trial attorney has copies of them.

The time taken in efforts to track down and obtain copies of these case-related documents is critical because without those materials, it is very challenging if not impossible to conduct an effective investigation. When we locate a potential witness or piece of information, we have to ascertain whether that evidence was already explored at trial in order to determine whether it is “new” or simply the same information the client unsuccessfully relied upon at trial.

When we have gone through the painstaking process of collecting these far-flung documents, we must then begin our actual “legal work” of post-conviction investigation and litigation. A non-exhaustive list of potential case tasks includes:

tracking down physical evidence to see if forensic or DNA expertise may be needed;

traveling all over the northern and central parts of the state to review court files and stored exhibits;

locating a local investigator in one of our many northern or central California counties;

summarizing key documents and theories to guide experts and investigators;

researching, writing and litigating motions for DNA testing in cases in which such testing could support an innocence claim;

traveling all over the state to interview witnesses and potential clients in prison;

conducting legal research, drafting petitions, responding to opposing briefs, and participating in evidentiary hearings and oral arguments.

Along the way, we try to work with district attorney’s offices as cooperatively as possible, and sometimes this cooperation helps advance our cases. However, in some instances, district attorneys’ offices contribute to additional delays by failing to conduct their investigations for months at a time, simply because post-conviction cases are not a priority in their trial-oriented offices.

NCIP staff attorneys work on several cases at once, which are always at different stages of the investigation and litigation process. However, even if an attorney had only one case to pursue, s/he could not actually speed up the process meaningfully because it simply takes time to both track down the materials and the relevant people, and because there is no way to minimize the challenge of locating key information. Our pro bono law firm partners have seen this phenomenon and are frequently shocked by how much time our investigations take, even when conducted by fully funded professional investigators.

We put a great deal of work into our investigations, and sometimes we pursue cases for many months, only to learn that critical evidence has been destroyed. On other occasions, in cases that appear very promising, we uncover evidence later in the investigation that undermines our belief that the client is innocent. If we cannot in good faith pursue the innocence claim, we close the case file and redirect our resources to other promising cases.

Finally, even when we have completed all of our necessary steps to bring a case to court with a filing for petition for writ of habeas corpus, we have no control over how long a court will take to order the prosecution to respond to it. While the superior court has 60 days to respond under the statute, the rules of court permit the court to grant itself extensions of time to respond. Even after the court has ordered a response, the state’s attorneys can delay. In more than one of our cases, the fully briefed petition sat for more than a year in a superior court while the state’s attorneys sought extension of time after extension of time to respond to the allegation of wrongful conviction.

Overturning a wrongful conviction is a long, complicated process which requires a vast amount of resources. When we finally locate that needle in a haystack (possibly getting scratched up a bit in the process) and conduct additional investigation, we must be convinced by the evidence ourselves. Then we must convince the court that the claim is valid and that the client is actually innocent. It is a slow, painstaking process. But every step of the process is necessary and in the end, absolutely worth it. There is no greater reward in this work than to see a wrongly convicted client exonerated, taking those first steps out of prison to freedom.