JURIST Guest Columnist Daniel J. Wright of the Law Offices of Daniel Wright discusses how post-conviction procedure rules hinder the ability to seek truth in faulty sentences…

Those accused of a serious crime are entitled by the Sixth Amendment to the United States Constitution to representation by an attorney. This right extends in most states not only to the initial trial, but also to at least one level of direct review. In many states [PDF], more than half of the criminal docket is handled by public defenders or attorneys appointed by the court to defend the indigent.

Following a conviction and appeal, there may or may not be further review of the judgment by way of a permissive appeal to the state’s highest court. Review is normally discretionary, and the highest courts emphasize that they are not merely courts of “error correction.”

But some kinds of errors escape this form of review, and are only correctable later by way of post-conviction proceedings. These would include allegations that the defendant did not receive effective assistance of counsel, for example, either at trial or on direct review. In some states, post-conviction representation is offered through the public defender’s office to prisoners, just as at trial. For example, Maryland offers post-conviction counsel to defendants through the public defender’s office.

Typically, post-conviction cases involve the most serious crimes—murder, armed robbery, burglary, and so on—and prisoners with the longest sentences. This is because prisoners with shorter sentences parole out of the system before their post-conviction cases can be heard by the courts. Non-violent criminals in Maryland are generally eligible for parole after serving 25 percent of their sentence. Even defendants convicted of a crime of violence are parole eligible after serving half their sentences. However, the most serious crimes can result in life sentences, life without parole (LWOP), or a term of years stretching past the life expectancy of the defendant (death-in-prison, or DIP). A defendant convicted of murder in Maryland typically receives a life sentence, plus another twenty years consecutive if a handgun was used in the crime. A second-degree murder or carjacking defendant may receive a sentence of more than a hundred years.

LWOP and DIP sentences are disproportionately [PDF] applied to minorities.The defendants typically are between the ages of 18 and 30 and normally lack a strong educational background. They seldom come from families able to afford private legal representation.

Overworked public defenders often meet with their clients only a few times before trial. This leads to a hands-off approach by many defendants. They allow the attorney to do his job and are not actively involved in their defense. Likewise, when a direct appeal is taken from a trial court’s judgment, it is not unusual for the appellate attorney to develop the arguments and draft the brief without substantial input from the defendant, who may be locked up in a prison hundreds of miles away from his attorney. Communication can be difficult in both directions. Post-conviction proceedings can be equally as difficult.

When all the appeals are exhausted, and the initial post-conviction proceeding is completed, the defendant for the first time is faced with the reality that he alone is now responsible for any efforts to overturn his conviction and win his freedom. At this point, the defendant’s attorney may for the first time hand over the file. A freedom of information request for police files may take a year or more and may be prohibitively expensive.

Legally, however, the situation is most difficult. The defendant has already been convicted and finished a post-conviction proceeding. Any further review is discretionary at best. Judges are often very reluctant to grant post-conviction relief. In states where judges are elected, public opinion often supports a tough-on-crime approach that is anything but defense-friendly.

Nevertheless, when the defendants review their transcripts and court papers, sometimes years after the trial, errors often are revealed. Sometimes this is because the prisoner—with time on his hands—spends months or even years educating himself on the law and reviewing the details of his case. The prisoners sometimes form study groups to help each other learn. Maximum-security prisoners are not always let out of their cell every day, and often have limited access to a law library. For them to learn the applicable law of their case can take years. And yet, even under the horrific circumstances of America’s prisons, many do just that.

Jarmal Johnson was incarcerated for more than 16 years when he discovered that he had been convicted of a crime for which he had not been indicted by the grand jury. He was indicted for Attempted Murder, but convicted of Assault with Intent to Murder, a different crime with different elements. Maryland’s highest court ultimately vacated the conviction. His prior attorneys had simply not noticed the discrepancy.

Edwin Pile faced three trials. One trial resulted in a hung jury, the second judgment was overturned on appeal, and the third resulted in a conviction. He had different lawyers. After 20 years of incarceration, his personal review of his docket records revealed that a judgment of acquittal had been entered in the first trial to his crime of conviction in the third—a clear Double Jeopardy violation. This only came to light, however, because his attorney died and the firm sent him his file. He reviewed all the papers from his trial for the first time almost two decades after his conviction.

The case of John Artis involved faulty jury instructions concerning the definition of reasonable doubt. Mr. Artis fought for more than 20 years against the trial judge’s instructions to the jury concerning reasonable doubt. The court has now conceded that the instructions were erroneous, yet at every turn in the road over the course of more than a decade of appeals the defendant faced resistance, disbelief and stonewalling over his claims of error, from both the prosecutors, the courts, and even his own court-appointed attorney.

Some prisoners benefit from a change in the law. Prior to 1981, courts in Maryland routinely informed jurors that the judge’s instructions were merely advisory and not binding. The jurors were free to disregard the instructions of the judge. This situation was overturned in the early 1980s and made retroactive about 30 years after that. State prosecutors tried to argue, for example, that Jarmal Johnson had waived his right to object to being convicted of a crime for which he wasn’t indicted.

Similarly, prosecutors sometimes try to raise high evidentiary bars to post conviction defendants. Rules may require defendants to produce transcripts of trials when files have long since been discarded. The file of Edwin Pile was missing from the clerk’s office, yet state officials tried to have the case dismissed because a transcript was not compiled.

Federal rules require an inmate to bring a post-conviction challenge to a state court conviction within 12 months. This is an unrealistic time frame given the delays in state courts and the reality that prisoners rarely will have their paperwork available to them in that time, yet such a challenge can normally only be made by a prisoner on his own.

Joseph Miller was convicted of armed robbery in 1988 and sentenced to life without the possibility of parole under Maryland’s repeat offender statute. A review of his case, however, showed that his court appointed attorney had not made an opening statement, not made a closing statement and failed to ask a single question of any witness. The situation came to light more than 25 years after the initial trial. Maryland rules, however, impose higher legal standards on attempts to reopen post conviction proceedings and prevent them altogether if an inmate hasn’t filed within the first ten years.

The legal system cannot be faulted for giving priority to defendants facing trial for the first time. However, post-conviction procedures impose an array of rules that, however well intended, prevent a court from seeking the truth. The reality is that often an inmate’s own efforts years after the fact will uncover errors at his trial. For a variety of reasons these efforts are not likely to occur soon after the initial trial. Concepts such as waiver and time limits on filing petitions (such as 12 months at the federal level) fail to reflect the grim reality that errors are made at trial, often significant errors, and they cannot necessarily be brought to light in the same time frame as a small claims case or landlord-tenant matter. These rules are in derogation of the truth seeking function of the court, yet are imposed on inmates who are often seeking review of life-without-parole or death-in-prison sentences.

Daniel Wright is an attorney in the State of Maryland. He has been practicing law for 35 years and concentrates on trial work, including criminal trials and post conviction. He is a graduate of the University of Wisconsin Law School.

Suggested citation: Daniel J. Wright, Can’t Complain: How Post \-Conviction Procedure Rules Inhibit Truth Finding, JURIST – Professional Commentary, Oct. 31, 2015, http://jurist.org/professional/2015/10/Daniel-Wright-cant-complain-how-post-conviction-procedure-rule-inhibit-truth-finding.php.