What is post-conviction? In most criminal cases there are three phases – the trial phase, the direct appeal phase, and the post-conviction phase. Each phase has a uniquely different goal and feel. For simplicity’s sake, the trial phase is an effort to investigate and explore all avenues of the case to obtain the most favorable outcome possible. After trial, the next phase (if needed) is the direct appeal. On direct appeal, the attorney is challenging the legal issues in the case based on the facts established in the trial phase. The best trial attorneys know that every case may be litigated on direct appeal and they enter every possible fact into the record in anticipation.
The third phase is post-conviction, and it is the phase that strikes fear in the hearts of new attorneys who are often appointed to these cases. Post-conviction challenges require a tremendous amount of work. Attorneys are required to scrutinize the actions of the trial attorneys to determine if their work in the trial phase was ineffective or erroneously performed. They review the trial that already occurred and then, actually recreate the trial. PC counsel is also looking for issues that may not have been known to prior defense counsel, for whatever reason – issues with jurors, exculpatory evidence that was not provided to trial counsel, or new evidence of any kind (eyewitnesses, DNA testing, new scientific studies or expert witnesses). Success in post-conviction is extremely difficult – as I’ve mentioned before, convictions aren’t meant to be overturned. There’s no training session for new attorneys on how to work a post-conviction, but discovery and investigation are critical in proper work-up.
Requesting discovery from the District Attorney’s office can result in a couple of different responses – “look in the clerk’s file,” or “get it from the trial attorney” are the two of the most popular. A recent decision from the Tennessee Court of Criminal Appeals held that the District Attorney’s office has an obligation to produce and provide discovery to post-conviction counsel, regardless of whether it was given to trial counsel. In Bennett v. State, decided on January 31, 2018, the defendant-petitioner appealed after requesting discovery from the Knox County District Attorney’s Office. Instead of providing discovery, the DA’s office requested that the judge order trial counsel to provide his/her file to the post-conviction attorney. The defendant argued that Supreme Court Rule 28 required the State to provide all discovery materials. In a written order, the trial court found that the State was required to turn over discovery materials to the post-conviction attorney, but only materials relevant to the issues raised in the post-conviction petition. The trial court also held that the State was not required to produce any discovery material to the defendant “at this time.”
Bennett filed an interlocutory appeal challenging the trial court’s ruling. The appellate court accepted the appeal as a matter of first impression and found that the post-conviction statute was “clear and unambiguous.” The Court found that the State has an obligation in post-conviction proceedings:
“Nothing in either the statute or the rule suggests that the State fulfills its obligations in the post-conviction proceeding by disclosures that occurred prior to the commencement of the post-conviction proceeding. Said differently, that the State fully complied with its discovery obligations prior to trial does not absolve it of the discovery obligation imposed by the law governing postconviction proceedings.” (P. 12.)
Bennett provides instruction on what materials are to be turned over to the State of Tennessee. The Court broadly construed the statute and Rule 16 as providing materials to the Petitioner, even if the materials would be deemed irrelevant to the claims of the post-conviction petition.
“It should be noted that nothing in the rules limits post-conviction discovery materials to materials that existed prior to or during the trial; it is possible that materials developed after the trial may become discoverable as relevant to the issues in a given post-conviction proceeding.” (P. 13.)
So, what does this holding mean? It means that PC attorneys should be asking for any and all materials - and receiving any and all materials that are discoverable. A prosecutor telling a defense attorney, "go get it from someone else," is no longer an acceptable answer. The justice system is part of government, and government should be
Read the full opinion here.
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