Once an individual is convicted of a crime, it is extremely difficult to convince appeals courts of that individual’s innocence. Our appellate process presumes that trial verdicts are accurate. Unfortunately, the startling number of wrongful convictions in our country has proven that this assumption is incorrect. Many jurisdictions still have inadequate post-conviction remedies to address these problems.

MAIP’s jurisdictions have made tremendous strides in recent years, but they still have room for improvement. In Virginia, prisoners used to be barred from bringing forward new evidence of innocence more than 21 days after their conviction, which meant that people with conclusive proof of innocence had no way out of prison except for the pardon process. In 2004, however, Virginia’s legislature changed the law to allow for post-conviction DNA testing and for motions for exoneration based on the results of this testing. The law also allows motions for release based on newly discovered non-biological evidence that was not available to the prisoner and the time of trial.

While these changes represent a huge step forward from what used to be one of the most restrictive “actual innocence" statutes in the nation, the new statute dealing with non-DNA evidence has a few significant problems: (1) prisoners who pled guilty cannot apply, although many wrongfully convicted individuals have pled guilty; (2) it penalizes prisoners for the failure of their attorneys to investigate cases or listen to their clients; and (3) it limits prisoners to one petition, even in cases where they discover even more new evidence of innocence after they have been denied.

In Maryland, the law provides that a person convicted of murder, manslaughter, or a serious sexual offense may file a petition at any time for DNA testing. The court will order the testing if it finds a reasonable probability that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence. If the results prove favorable to the petitioner, the State is required to pay for the cost of the testing. If the results are exculpatory, the court must open or re-open a post-conviction proceeding. The statute also provides that the State must preserve potential biological evidence for the length of the defendant’s sentence unless it notifies the defendant of its intention to destroy the evidence and the defendant does not object.

In the District of Columbia, the D.C. Council passed the D.C. Innocence Protection Act, which provides for post-conviction DNA testing and for motions based on other newly discovered evidence of innocence. The District of Columbia’s new statute has been relatively restrictive but is a model for other jurisdictions. In 2004, Steven DeWitt was released under the D.C. Innocence Protection Act after spending 13 years in prison for a crime he did not commit. The Mid-Atlantic Innocence Project and the law firm of Akin Gump now represent Mr. Dewitt in his civil suit against the District of Columbia, seeking damages for the time he spent in prison. Innocent individuals not falling within the requirements of these laws have no remedy available to them in the courts and must rely on the clemency process. We recommend that the laws be improved to extend the availability of post-conviction remedies to prisoners who entered pleas other than not guilty; to prisoners whose evidence of actual innocence may have been available at the time of trial, but was not presented due to ineffective assistance of counsel; and to prisoners who have already attempted to prove their innocence through earlier petitions.

For more information about post-conviction remedies, please consult the following resources:

Brandon L. Garrett, Innocence, Harmless Error, and Federal Wrongful Convictions Law, 2005 Wis. L. Rev. 35 (2005).

Cynthia E. Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence under Innocence Protection Statutes, 42 Am. Crim. L. Rev. 1239 (2005).

Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655 (2005).

Michael A. Millemann, Collateral Remedies in Criminal Cases in Maryland, 64 Md. Law Rev. 968 (2005).