Avoiding Personal Conflicts:

Having a trial or appellate prosecutor who handled the underlying conviction work be part of a post-conviction review is problematic because the prosecutor has taken multiple stances to affirm the conviction that only serve to cement the “correctness” of that conviction in their mind. The trial prosecutor, especially, may have developed a relationship with the victim or the victim’s family and be invested in protecting them and their sensibilities in a post-conviction review.

Basic requirement: A strong Conflict of Interest Statement excludes any prosecutor who participated in the underlying conviction or helped to preserve it on appeal from a post-conviction innocence claim review.

• Prior prosecutors may be consulted as fact witnesses insofar as they are the ones most familiar with a case and its dynamics, but they should not have any role in deciding whether relief should be granted.

More robust provisions:

• A written policy detailing when/how prior prosecutors will be consulted in the review process
• A written policy explaining how prior prosecutors will be notified of the outcome of a given review

Avoiding Officewide Conflicts:

It is more difficult to deal with conflicts that impact an entire office, its finances, or its general reputation. Exonerations and reversals of convictions by their nature call into question the ethical and moral work of the office that achieved and enforced the conviction. Moreover, offices may be concerned with potential widespread civil liability for cases of endemic misconduct by prosecutors or law enforcement. Finally, as heads of prosecutor offices are elected officials, there may be concerns over what the political fallout will be should relief be granted on a particular case—a situation amplified by a high profile, notorious, or otherwise difficult conviction and/or when the victim or the victim’s family does not support the outcome.

Offices should have an understanding of these potential conflicts and, to the extent possible, have policies in place that address issues related to potential civil liability in the event of a successful exoneration or conviction reversal.

In order to intelligently waive their right to protected information or communication, a convicted individual/petitioner must fully understand both the risks of working with a conviction integrity or review unit (CIU) as well as what they are giving up vis à vis confidentiality with their attorney.

First, the policy should explain how the potential client will be made fully aware of the implications of the risks in working with the CIU. Although it would include the benefits of potential agreement on reversal of conviction and release from imprisonment, it also must include that the convicted individual will be handing information to the prosecutor’s office that could be detrimental to them. The convicted individual should be advised:

• The outcome of the investigation or collaboration cannot be predicted from the outset.
• It is possible the prosecutor will uncover information conclusive of guilt or involvement in the case, or that implicates the person in other crimes for which they were not prosecuted or could be prosecuted.
• The prosecutor may uncover information which implicates a friend or loved one in criminal activity for which they can be prosecuted.
• It is also possible the CIU could stop its investigation at any time or the process could turn adversarial. Should the process turn adversarial, the convicted individual should know what the process would be for moving out of the CIU and into the prosecutor’s office generally.

In addition, the potential client must be fully apprised of what they are potentially giving up to have the CIU review their case, particularly where a waiver of privilege or confidentiality is expected or required in order to have the unit review and investigate the case. For example, the client should be informed:

• They are losing some protections afforded by the attorney-client relationship.
• The attorney working with the CIU may have to turn over or produce documents prepared by other attorneys who have represented the convicted individual; therefore, any conversation or communication the client had with prior attorneys may be subject to disclosure.
• The CIU may be able to get information from other attorneys that the current defense attorney/innocence organization does not have.
• The work product—memos of interviews with other witnesses, family members, or experts—would be subject to being turned over.
• Information concerning the client’s or their family members’ involvement in other crimes would be turned over.
• The waiver would not only apply to the innocence organization or attorney representing the client in front of the CIU but to all attorneys who represented the client in the process, including trial or appellate attorneys.
• Discussions about why the petitioner did not testify at trial or other trial strategic discussions would be subject to disclosure.