Conviction Review in Name Only?


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Ronald Sullivan was the first African American to serve as a faculty dean of a residential dorm at Harvard College. He had served in that role at Winthrop House for a decade when the Dean of the College, Rakesh Khurana, asked him to step down because students were protesting his legal representation of  Hollywood mogul Harvey Weinstein in a criminal trial over allegations of sexual assault. 

Long before he found himself in the #MeToo movement’s crosshairs, Sullivan was a highly decorated attorney who ran Harvard Law School’s criminal law clinic. In that role, he had helped overturn thousands of wrongful convictions, freeing inmates from incarceration. In his wrongful conviction work, Sullivan coined the term “CRINO”: Conviction Review In Name Only. It describes Conviction Integrity Units that aren’t wholly dedicated to rooting out bad dispositions in criminal cases. 

And it may be an apt description for the Conviction Integrity Unit that has operated in Connecticut since 2021. At the close of 2023, the Unit’s second full year in operation, the public has a window into only three of the more than 200 cases that had been received by the end of last year. And the picture isn’t pretty. 

A CIU that doesn’t want to review Brady/Giglio violations

In the memo on Taylor’s case, the unit makes it clear it doesn’t want to review allegations that prosecutors may have a hand in wrongful convictions. The committee stated

“CIU declines the vast majority of Ineffective Assistance and Brady/Giglio because a Habeas trial is the better venue to resolve most of these claims.”

Brady and Giglio violations are roughly the same but they’re not identical. A Brady violation refers to the failure of the prosecution in a criminal case to disclose evidence that is favorable to the defendant and material to either guilt or punishment. It’s named after the 1963 U.S. Supreme Court case Brady v. Maryland, where the Court ruled that the prosecution must provide the defense with any evidence that could be favorable to the accused. This includes evidence that could be used to impeach the credibility of government witnesses, evidence that could exonerate the defendant, or evidence that could affect the outcome of the case. 

A “Giglio violation” — called that for the 1972 U.S. Supreme Court case Giglio v. United States — is slightly different in that it refers to failures to disclose evidence that could affect the credibility of a witness only. In Giglio, the Court ruled that prosecutors must disclose to the defense any evidence that could be used to impeach the credibility of government witnesses, especially if it pertains to deals, promises, or incentives offered to a witness in exchange for their testimony. 

That slight difference in the types of discovery violations doesn’t erase the fact that prosecutors contribute to possible injustices in criminal cases. And it looks like they committed both types of violations in Derrick Taylor’s case — a Brady violation in withholding Frank DeJesus’ statement and a Giglio violation in not disclosing Fitzalbert Williams’ extensive criminal history and the fact that he took a walk on serious drug charges. But only the possible Giglio violation is addressed in the CIU memo on Taylor’s case. The ostensible Brady violation was hidden — again. 

Even though Connecticut prosecutors advertise “open file” discovery, the state has yet to make it an official policy. Bills proposed to do just that in 2018 and 2019 didn’t receive a hearing, much less a vote.  

It’s not just Taylor’s case that has the CIU dancing around Brady and Giglio. Attorney Samantha Conway of the Brodeur Law Firm in Middletown shared an interaction with the CIU with the Connecticut Criminal Defense Lawyers Association listserve on February 6, 2023, writing that: 

“We wrote to them asking that CIU investigate the integrity of a conviction where there is a very valid Brady claim, and the CIU would not review it. I was told that the CIU’s review is for “forensic and credibility issues”. When I countered that Brady is certainly a credibility issue, and clearly deals directly with the integrity of the prosecutor, I was then told that the “CIU is concerned about credibility issues where there has already been prior testimony” – which narrows it down to what, recantations? So cases where the integrity of the [State’s Attorney’s] office and handling of the case doesn’t actually matter?”

To be clear, it’s within the CIU’s discretion to decide which cases it will handle and which it won’t. If CT takes only innocence claims that cannot be litigated in post-conviction proceedings (that is, it will investigate only claims of innocence that have no other forum), it’s not the only statewide conviction integrity office that does this. Delaware requires that there must be a claim of actual innocence, not a legal issue, 

In Massachusetts, the CIU will only consider cases where a person has exhausted all their state-level post-conviction appellate rights (for example, filed an appeal in the appeals court and a decision has been issued).  

But that’s not what Connecticut’s CIU is doing. By limiting the “funnel” of cases that come through the CIU betrays a commitment to finding any cases where the conviction doesn’t inspire confidence anymore. 

To say no to a Brady case just outright assumes that that’s the only issue in the case, that it’s not also an issue of actual innocence either because of or in addition to the potential Brady violation. So that’s what would cause a little concern in terms of using that as a strict rule for types of cases that they’re looking at because they would just miss rape cases that they actually wouldn’t want to investigate because they are potential innocence cases only because they’re presented as a Brady claim,” Marissa Bluestine, Assistant Director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School explained in an interview. 

The CIU’s resistance to investigating other state’s attorneys withholding exculpatory evidence reflects its reluctance to admit that members of its own team have erred or worse, purposely held their thumb on the scale in certain cases.

An intake form that doesn’t follow best practices

The Quattrone Center at The Penn Carey Law School at the University of Pennsylvania researches conviction review practices and publishes, gratis, best practices and scholarly inquiry into the best ways to remedy incorrect criminal convictions. 

The Quattrone Center is a resource for any organization that wants to ferret out wrongful convictions. None of the Center’s recommendations are binding and there’s no reason not to consult them. 

And the Connecticut CIU did that, according to an email from Alaine Griffin, Director of Communications for the Division of Criminal Justice. “The Conviction Integrity Working Group reviewed the Quattrone Center Report throughout its work. The Quattrone Center Report is specifically referred to in the Working Group Final Report to then-Chief State’s Attorney Richard J. Colangelo, Jr.”

“The Working Group also reviewed practices from many actual Conviction Integrity Units nationwide.  The Final Report presented a general structure that combined the best practices that the group believed best fit Connecticut’s unique prosecutorial structure and criminal justice system,” Griffin continued. 

One aspect of the CIU that doesn’t follow the Quattrone Center’s recommendations is the unit’s intake form. According to Griffin, the CIU designed it and decided to ask for a narrative. 

The form gives the applicant the freedom to describe what he or she thinks is wrong with their case. On its surface, the form seems open, even generous. But for some attorneys, including New Haven attorney Alex Taubes, the form invites a kind of free-ranging candor that the CIU can ultimately use to find weaknesses in cases preemptively and then buttress the evidence to prevent having to admit that a state’s attorney was wrong. 

“I honestly think part of what they’re doing is like an information gathering expedition by the state… ‘Show us all of your evidence. Show us all of your points. Show us all of the things that you’re thinking about and talk to us with no lawyer privilege and talk to with no confidentiality, and sign this release authorizing us to get all the documents from all of your cases’. It’s a huge exploitation, dragnet, burying unit,” Taubes said in an interview

CIU doesn’t have to be a lost cause

The CIU’s shortcomings don’t have to be fatal flaws for the office. In general, when conviction review panels aren’t functioning, two groups have a particular pull in getting them to change: taxpayers and lawyers. 

If you’re a constituent, then you raise it with the elected and you take them take a report like we have, or you take the checklist like we have …and you go to your elected [representatives] and you say you’re not doing these things and this is not a productive use of my taxpayer dollars in terms of how we’re running this unit,” Bluestine said

It’s not clear if anyone has approached legislators about the CIU. The natural place to start, the Judiciary Committee, is chaired by State Senator Gary Winfield who represents New Haven, the home of more than half of the state’s exonerees; the people who have been most harmed by wrongful conviction in the state are his constituents. Winfield’s office did not respond to a request for comment on whether he had considered any oversight hearings on the CIU. 

Lawyers can strip it of its power by refusing to use it. In an email obtained by the Connecticut Examiner, Attorney David Keenan urged other attorneys to avoid using the CIU because it violates its own stated rules on what constitutes a conviction with integrity. 

“For CT to have a functional CIU, what is needed is a wholly independent CIU with subpoena powers, including the ability to take sworn depositions and operate transparently with public hearings and recommendations, though I’m afraid for constitutional and political reasons the ultimate decision will remain with the individual States Attorneys. 

Maybe some people will view that as a pipe dream politically, but until that happens I would strongly urge everyone to avoid the CIU lest you waste your time and give the process a veneer of legitimacy that it has not earned and does not deserve. If your client does proceed with the CIU, demand total transparency and an opportunity to address the panel and review ALL memoranda filed by the CIU as well as ALL investigative materials created in the course of its investigation (if necessary, agree to limited confidentiality for a finite duration, excepting all Brady material). Finally, review the protocol carefully and remind the CIU and Panel constantly of all the ways they are violating it.”

It’s better not to have a unit looking at potential wrongful convictions at all than to have one that’s doing it poorly. The CIU may have already made the case for its own demise.