Thursday, September 26, 2013
Rachel Cohen and Krista A. Dolan (Georgetown University Law Center and American University - Washington College of Law) have posted Drowned Out Without Discovery: Postconviction Procedural Inadequacy in an Era of Habeas Deference (Criminal Law Practitioner, 2014, Forthcoming) on SSRN. Here is the abstract:
This paper discusses discovery mechanisms in Kentucky and the existing inadequacies of those mechanisms. It further discusses the need, in light of recent Supreme Court decisions and federal statute, to expand access to discovery in the postconviction context. It considers the “fast-track” provision of the Anti-Terrorism and Effective Death Penalty Act and its failure to address a postconviction litigant’s access to discovery. It also discusses the need for adequate postconviction discovery procedures, as well as an overview of existing state law. This paper analyzes Kentucky’s Open Records Act and associated issues with obtaining records via open records procedures, and finally, it discusses potential options for implementing a mechanism providing postconviction litigants with meaningful access to discovery.