FY 2021 Upholding the Rule of Law and Preventing Wrongful Convictions Site Based and Training and Technical Assistance Program

Continuation of question:

With the RFP requesting that grantees “identify and apprehend, whenever possible, the actual perpetuator of the crime,” the PD wanted to confirm our eligibility and understand grant responsibilities since the law office does not conduct criminal investigations.

Answer:

Investigation into actual perpetrators is not limited to prosecution of the perpetrators. Defense counsel can and do share information to law enforcement, prosecutors, or the judiciary related to the fact that an exoneration occurred and may also provide other investigative information in these cases. There may also be information of which the CIU unit is aware which they could identify within their ethical parameters. Defense offices need to think through and have a process for what will happen in cases where one of their clients is identified as the actual perpetrator.

Every agency will need to identify a mechanism for prioritizing which potential cases of wrongful conviction they will review and how they will move through their queue. Strategic review of cases helps maximize the impact by ensuring an initial assessment using set criteria to assess the potential value and challenges with action of a claim, before making the significant commitment of resources related to the post convictions review legal work in a case. These considerations could vary a lot in a innocence project vs a CIU in a defense agency.

Applicants should have a plan to track and use data to identify patterns of kinds of issues or cases where there is higher potential for risk of error. This can help inform modifications to the strategic review process. In some places this data on trends has been used by criminal justice leaders as insights to inform efforts to prevent wrongful conviction via mitigation strategies, but we are not mandating this or giving priority points. For example, letting local law enforcement know that XX% of exonerations involve issues with eye witness testimony errors so that they may consider examining their eye witness testimony procedures.

Continuation of question:

But on page 6, under Specific Information, the applications says that the ROL/WCR program supports "Wrongful Conviction Entities providing high quality and efficient post-conviction representation for defendants in post-conviction claims of innocence." Obviously, as a prosecutor's office they do not and cannot "provide" representation to defendants.

Answer:

The FY21 solicitation is focused on funding WCR entities that provide post-conviction representation for defendants. It may include a partnership with CIUs or other prosecutor’s office but the WCR entity is the applicant. The categories on page 2 were kept broad to allow for a wide range of potential WCR entities.