Overview
During the audit period, NWDA’s Conviction Integrity Committee (CIC) did not follow the recommended practices of the Massachusetts Conviction Integrity Working Group’s Conviction Integrity Programs: A Guide to Best Practices for Prosecutorial Offices, dated March 2021. Specifically, CIC did not have written policies and procedures for the program and did not provide all the recommended information about the program on both its website and to relevant entities such as prisons and houses of corrections, county sheriffs’ offices, prisoner advocacy groups, and the Committee for Public Counsel Services. In addition, we identified an exception during our testing of the six cases related to post-conviction review.
Since its implementation in 2020, CIC has prepared an “Application for Review of a Criminal Conviction” that defendants complete to request the review of their case and an “NWDAO Post-Conviction Open File Discovery Policy” to regulate open files’ discovery requests for post-conviction discovery. However, CIC has not developed policies and procedures to regulate its post-conviction review process regarding actions such as intake, screening and investigation, and referring official misconduct9 to relevant authorities. As noted in the "Post-Audit Action" section of this report, CIC reported to us that it has since drafted policies and procedures over its Conviction Integrity Program.
CIC has published information about its activities on NWDA’s website. However, our review of the website revealed that it only contained a mailing address and did not contain an email address for the program or the name of CIC’s director. In addition, we found that CIC has not prepared documentation about its post-conviction review and its requirements, which should be posted with relevant entities such as prisons and houses of corrections, county sheriffs’ offices, prisoner advocacy groups, and the Committee for Public Counsel Services. Convicted defendants and their attorneys and families may be unaware of this program if they are unable to access this information because it is not posted with the entities cited above. The exclusion of alternate forms of contact does not promote transparency and may hinder CIC from operating effectively.
In our review of the six cases related to post-conviction review, we found that for one of the six cases (17%), CIC did not officially notify the attorney of the convicted defendant of CIC’s decision to close the application for post-conviction review.
By not developing policies and procedures that cover all its roles and responsibilities and by not generating and maintaining all documentation relevant to the post-conviction review, NWDA may not maximize efficacy and transparency for the review of alleged wrongful convictions. The development of, and adherence to, policies and procedures may have prevented the exception we identified in the review of case files. Failing to provide the official final decision of the post-conviction review to the convicted defendants also reduces government transparency.
By not publicizing the Conviction Integrity Program more widely, NWDA may limit the number of cases that and defendants who could benefit from the program, potentially affecting equal opportunity for all defendants who may benefit from post-conviction review.
Authoritative Guidance
The Massachusetts Conviction Integrity Working Group’s Conviction Integrity Programs: A Guide to Best Practices for Prosecutorial Offices, dated March 2021, states the following:
Communication with either counsel or a pro se defendant [a defendant who defends themself in court without counsel] or their representative should include timely updates regarding the status of the review, the sharing of evidence gathered, application of an open-file discovery policy, and an explanation of actions taken and next steps anticipated.
[District Attorney Offices (DAOs)] should develop policies and procedures for the operation of their CIUs that are designed to encourage the submission of claims of wrongful conviction, unjust prosecution, and other miscarriages of justice. . . . DAOs and the [Office of the Attorney General (AGO)] should develop policies and procedures for intake, screening, and investigation by the [Conviction Integrity Unit (CIU)]. These policies and procedures should specify the criteria that must be met to advance a case to each subsequent stage of review. . . .
The CIU staff should record its determinations and any recommendations in writing, and these documents should be made part of the case file and provided to the District Attorney or the Attorney General for their review and final decision. . . .
DAOs . . . should establish written policies and procedures about how and when to refer to the relevant authorities official misconduct by prosecutors, law enforcement, expert witnesses, defense counsel, or judges that is identified during a CIU review. . . .
At a minimum, the [CIU] website should include the mailing address, email address, and telephone number of the program; identification of the Director of the CIU; a description of the CIU, including its policies and procedures and the types of cases it reviews; and instructions as to who may submit an application for review, how submissions may be made, and how to learn the status or disposition of a matter submitted to the CIU for review. The DAOs and AGO should also make this information and any updates available to individuals incarcerated in state prisons and houses of correction, the Commissioner of the Massachusetts Department of Correction, the county sheriffs, prisoners’ legal services, member organizations in the Massachusetts Innocence Network, the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers, and the local and regional bar associations.
Prosecutorial offices should request that the Commissioner of the Department of Correction and county sheriffs make the CIU information available to persons in their custody by posting it in their facilities and including it in their orientation materials.
Reasons for Issue
Regarding the lack of policies and procedures to regulate its post-conviction review process, for intake, screening and investigation, NWDA told us that the Conviction Integrity Program is a new program, and policies and procedures will be developed once NWDA has completed more post-conviction review cases. After we discussed the issue with NWDA, it provided us a draft of the policies and procedures. Since these policies and procedures were drafted after the audit period, we did not evaluate the adequacy of these policies and procedures.
Regarding the missing information on NWDA’s website, NWDA stated that potential convicted defendants could use the agency’s main phone number if they want to communicate with CIC. Additionally, NWDA does not publish an email address for CIC on NWDA’s website because the “Application for Review of a Criminal Conviction” cannot be filed digitally and must be printed and mailed. We do not dispute that the application must be mailed; however, including an email address does provide more transparency and offers potential convicted defendants additional methods to contact NWDA. Further, Massachusetts Conviction Integrity Working Group’s Conviction Integrity Programs: A Guide to Best Practices for Prosecutorial Offices suggests that contact information should be readily available for use by convicted defendants. NWDA is a partner organization of this working group.
Regarding the information that was not posted with other entities, NWDA said that it does not work directly with convicted defendants and that it would be a violation of its ethics to deal with convicted defendants who represent themselves. However, making convicted defendants aware of this program would allow them to contact their counsel, or seek counsel if they are pro se, to determine whether their case could be reviewed. Even if a defendant continued to represent themself pro se, notifying them of the program would not appear to violate the concerns expressed by NWDA if these defendants were pro se before and after the conviction.
For the one case we found in our exceptions, NWDA said it did not notify the attorney of the convicted defendant in writing of CIC’s final determination because the attorney did not make the requested updates to the application.
Recommendations
- NWDA should develop policies and procedures to regulate the post-conviction process. These policies and procedures should address, among other things, intakes, screening and investigation, and referring official misconduct to relevant authorities.
- NWDA should include the email address of the Conviction Integrity Program and the name of CIC’s director on its website so that convicted defendants can communicate with CIC.
- To promote equal opportunity for potential convicted defendants, NWDA should publicize its Conviction Integrity Program by posting information, and including this information in orientation materials, at relevant entities such as prisons and houses of corrections, county sheriffs’ offices, prisoner advocacy groups, and the Committee for Public Counsel Services.
- CIC should record its reviews, determinations, and final recommendations from its post-conviction reviews in writing and provide this information to convicted defendants and their attorneys. This information should also be maintained in convicted defendants’ case files.
Auditee’s Response
We appreciate the Auditor’s careful review of the Northwestern District Attorney’s Conviction Integrity Committee (CIC), which is a discretionary program created by the District Attorney to ensure that defendants’ claims of innocence and wrongful conviction are handled efficiently and fairly by prosecutors who are trained to review such claims. As an original member of the Massachusetts Conviction Integrity Working Group, our office has been a leader in conviction integrity practices in the Commonwealth. Our representative Assistant District Attorney was one of the authors of the Working Group’s Best Practices Guide, cited by the auditors. Our CIC follows all general best practices including: leadership from the top recognizing the need to reexamine convictions in appropriate cases; direct report to the District Attorney; structural independence from trial and appellate units; screening out of prosecutors involved in the backgrounds including criminal defense; training of members; open file discovery practices; and clear and publicly accessible information about the program and how to request review. The CIC has created policies governing intake and screening, which are incorporated into its application for review, and for discovery. It is currently drafting a policy to address investigation and the referral of official misconduct.
Although our website does not include direct contact information for specific staff members due to noted security concerns, the NWDA website does provide a direct email link to contact the CIC directly along with a description of the CIC, a mailing address to contact the CIC, a link to the application for review, and a link to the discovery policy and request procedure.
In order to protect convicted defendants’ rights, the CIC currently does not accept applications for review directly from defendants. Therefore, it would not be appropriate to advertise the CIC directly to convicted defendants at the facilities in which they are incarcerated. The Massachusetts Bar Association, the Committee for Public Counsel Services, the New England Innocence Project, and the Boston College Innocence Program are all very aware of the CIC and communicate frequently with its chair. These entities comprise the Massachusetts attorneys who work with convicted defendants on post-conviction claims. Additionally, as a member of the Massachusetts Conviction Integrity Working Group, the chair of the NWDA’s CIC created a form available on the public website of the Massachusetts Bar Association that includes the contact information for post-conviction review for every District Attorney’s Office in the Commonwealth and the Massachusetts Attorney General’s Office so that all attorneys in the Commonwealth would have direct contact information for all programs, including the NWDA. Therefore, we disagree with the Auditor’s conclusion that the NWDA’s Conviction Integrity Program may not be equitable, which conclusion notably does not relate to our actual review process and is based on the fact that we do not do direct outreach to incarcerated defendants. . . .
Additionally, we disagree with the Auditor’s claim that, in one case. The CIC “did not officially notify the convicted defendant of CIC’s decision to close the post-conviction review.” In that case, there was in fact no post-conviction review. While the defendant’s attorney has filed an initial, incomplete application for review, after he was advised that his application could not be considered unless he completed the application and provided additional information, he never responded to multiple attempts at contact. Therefore, no post-conviction review was completed. The defendant’s attorney was fully on notice of same. . . .
Auditor’s Reply
In its response, NWDA states that it has created policies governing intake and screening which are incorporated into its application for review, and for discovery. We acknowledged that NWDA has created these policies during the course of our audit in our Post-Audit Action; however, this was not the case during the audit period.
In its response, NWDA states that its website “does provide a direct email link to contact the CIC. . . .” While we acknowledge that its website currently contains a Conviction Integrity Contact Form in order to submit a question, the website did not contain this information during the course of the audit. When this issue was brought up to NWDA, it stated that it was working with its information technology department to add this information.
NWDA’s response discusses how NWDA thinks “it would not be appropriate to advertise the CIC directly to convicted defendants at the facilities in which they are incarcerated.” However, as stated in the finding above, this is a recommended practice by the Massachusetts Conviction Integrity Working Group, of which NWDA is a part. The guide published by this working group lists this recommendation under the “Promote Transparency” section, with the subsection “Ensure Public Accessibility and Accountability.” It further states “A CIU will not function effectively if it cannot be found or accessed by members of the public, including convicted persons and their families.” As such, not publicizing the recommended information is not promoting transparency, ensuring public accessibility and accountability, and ensuring that CIC is functioning effectively. We are not suggesting that NWDA publish this information so that convicted defendants can directly apply for post-conviction review. Rather, we are suggesting that making convicted defendants aware of this program would allow them to contact their counsel, or seek counsel if they are pro se, to determine whether their case could be reviewed. Further, NWDA claims in its response that Massachusetts attorneys who work with convicted defendants on post-conviction claims are aware of the CIC. We strongly encourage NWDA to reconsider its opposition to performing the outreach recommended in this audit and in the Massachusetts Conviction Integrity Working Group’s Conviction Integrity Programs: A Guide to Best Practices for Prosecutorial Offices, dated March 2021.
NWDA disagrees that one CIC case did not officially notify the convicted defendant of CIC’s decision to close the post-conviction review, because there was no post-conviction review and the defendant’s attorney never responded to the CIC. However, the guide specifically states,
A CIU should communicate and share information with persons petitioning to have their cases reviewed through their attorneys or, in the case of a pro se applicant, a designated representative, should the applicant so request. . . . Communication with either counsel or a pro se defendant or their representative should include timely updates regarding the status of the review, the sharing of evidence gathered, application of an open-file discovery policy, and an explanation of actions taken and next steps anticipated.
This means that these notifications should be applied to persons who petitioned for a post-conviction review and not just for those the NWDA identifies as having a post-conviction review completed. NWDA provided evidence of email communications with the defendant’s attorney; however, these emails do not include the CIC’s decision to close this petition.
| Date published: | December 30, 2024 |
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