Post-conviction review is an essential component of our constitutional legal system. Many people are being held in prison unfairly or due to constitutional errors. Post-conviction litigation is the only way to right those wrongs. Post-conviction is usually the only opportunity to challenge the performance of defense counsel at the trial level. Generally, it is also the best opportunity to raise claims involving the integrity of the jury, alleging prosecutorial misconduct, or seeking DNA or other forensic testing.
Of course, post-conviction cases are always uphill battles. The presumption of innocence no longer applies, and the burden shifts to the defendant to prove that she did not receive a fair trial or that new evidence proves her actual innocence. Even in the very best cases, winning post-conviction relief is a long shot.
Successful post-conviction litigation requires, more than anything else, investigation. Most of the time, the only way to persuade a post-conviction court that a conviction or sentence was imposed illegally is to present previously unknown or unavailable evidence. Sometimes that evidence may have been unknown because a defense attorney didn’t do his job correctly. Other times, it may have been unknown because the prosecution hid it. But claims of ineffective assistance of counsel and prosecutorial misconduct are most successful when a petitioner can point to evidence that was not presented at trial and convince the reviewing court that it would have made a difference in the conviction or sentence.
At Donovan & Engle, we believe that every case deserves post-conviction scrutiny to ensure that the rules were followed and that the people involved in the prosecution and defense performed their jobs correctly. But because the process can be costly and is rarely successful, we believe that post-conviction litigation should be approached incrementally. Initially, we will be happy to schedule a free in-person or telephonic consultation with you to discuss the status of your (or your loved one’s) case and determine what possible post-conviction remedies are available. If you decide that you would like to proceed with a post-conviction case, we will negotiate a fee to obtain and review the record of your case and conduct a limited preliminary investigation. We will then meet with you again to discuss our review and possible avenues of relief. At this stage, while we can never guarantee an outcome, we should be able to give you a good assessment of the strength of your potential post-conviction claims. If you would like the case to proceed, we will enter a retainer agreement that covers the cost of a more comprehensive investigation, and drafting and filing a petition for post-conviction relief.
The rules governing post-conviction cases are complicated and confusing. If you would like to discuss the possibility of hiring Donovan & Engle to represent you, please get in touch with us to schedule a free initial consultation. We will be happy to discuss the posture of your case and help you understand your options for no cost.