Thursday, March 15, 2012
Joshua A. Tepfer (pictured) and Laura H. Nirider (Northwestern University - School of Law and Northwestern University - School of Law) have posted Adjudicated Juveniles and Post-Conviction Litigation (Maine Law Review, Spring 2012) on SSRN. Here is the abstract:
Post-conviction relief is a vital part of the American justice system. By filing post-conviction petitions after the close of direct appeal, defendants can raise claims based on evidence outside the record that was not known or available at the time of trial. One common use of post-conviction relief is to file a claim related to a previously unknown constitutional violation that occurred at trial, such as ineffective assistance of counsel. If a defendant’s trial attorney performed ineffectively by failing to call, for instance, an alibi witness, then that omission is unlikely to be reflected in the trial record – but in post-conviction proceedings, the defendant may seek to expand the record to include evidence of such ineffectiveness.If a court sitting in post-conviction hears that evidence and sides with the defendant, the usual remedy is to grant a new trial. Without access to the opportunities to supplement the record that are afforded by post-conviction proceedings, however, a defendant who suffers ineffective assistance of counsel often has no opportunity for relief. Post-conviction proceedings are also often used to raise newly discovered evidence of innocence. This use of post-conviction proceedings, in particular, has met with much success, especially since the development of DNA technology has enabled attorneys to subject trial evidence to scientific testing and to introduce those test results post-conviction as newly discovered evidence of innocence. To date, 289 individuals have been exonerated by DNA testing, almost all of it conducted through the vehicle of post-conviction proceedings. Each of these individuals stands as living proof of the fact that access to post-conviction relief is an essential part of a justice-seeking judicial system. This article examines the troubling disparities in access to post-conviction relief between adults and juveniles that appear to occur in many jurisdictions. Some states explicitly make post-conviction relief unavailable to defendants who are tried as juveniles while granting such access to adults. In many other states, legislatures have drafted laws governing the availability of post-conviction proceedings that are vague and ambiguous, leading to uncertainty about whether juvenile defendants may take advantage of such proceedings. This disparity exists despite the fact that those tried in juvenile court need access to post-conviction remedies just as much as those tried in adult court.