Miscarriages of Justice: Litigating beyond Factual Innocence

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This Guide is intended to serve as a collection of miscarriage of justice avenues of relief, to discuss the varied possibilities for this rarely used litigation tool. The creation of this Guide was spurred on by three related trends: 1) Supreme Court decisions limiting federal habeas corpus, and the increased focus on post-conviction relief in state courts; 2) Conviction Integrity Units in Prosecutors’ Offices increasingly reviewing and vacating convictions based on miscarriages of justice rather than solely proof of innocence; and 3) post-conviction litigators successfully bringing claims based on a holistic review of the evidence, interest of justice, and expanded applications of state constitutional provisions. Simultaneously, some legislatures have passed statutes allowing for the review of convictions based on the presence of racial bias, the age of the convicted person at the time of the crime or sentence, or excessive or otherwise unfair sentences. Given the important shift in power to state post-conviction proceedings, this Guide attempts to collect and analyze seemingly disparate cases across the country to move forward the conversation of miscarriage of justice avenues in many locales: state courts, state prosecutors offices, and state legislatures. 

This Guide was produced in a collaboration of legal scholars, Conviction Integrity Unit Directors, public defenders, and innocence litigators, who formed a working group led by the Academy for Justice at the Arizona State University Sandra Day O’Connor College of Law.

The Miscarriages of Justice: Litigation Beyond Factual Innocence Guide will be unveiled at the Miscarriages of Justice Symposium and a PDF linked here for future download.


Authors

Valeena Beety headshot

Valena Beety

Professor of Law, Arizona State University Sandra Day O’Connor College of Law, Deputy Director of the Academy for Justice

Valena Elizabeth Beety is professor of law at Arizona State University Sandra Day O’Connor College of Law and the deputy director of the Academy for Justice, a criminal justice center connecting research with policy reform.  Previously, Beety served as a law professor and the founding director of the West Virginia Innocence Project at the West Virginia University College of Law. Her experiences as a federal prosecutor in Washington, D.C., and as an innocence litigator in Mississippi and West Virginia, shape her research and writing on wrongful convictions, forensic evidence, the opioid crisis and incarceration. She is the co-editor of the Wrongful Convictions Reader and the Scientific Evidence Treatise. Professor Beety has successfully exonerated wrongfully convicted clients, obtained presidential grants of clemency for drug offenses, and served as an elected board member of the national Innocence Network, an invited board member of the Research Center on Violence, and an appointed commissioner on the West Virginia Governor’s Indigent Defense Commission. 

Read more about Valena Beety.

Karen Newirth headshot

Karen Newirth

Founder and Principal, Newirth Law, PLLC

Karen Thompson headshot

Karen Thompson

Civil Rights Attorney, ACLU New Jersey

Karen Thompson is a Senior Staff Attorney at the ACLU-NJ. Karen works on a wide range of issues, both civil and criminal, with a particular focus on racial inequality. She litigates in trial and appellate courts and advocates in an array of venues, including state agencies, school districts and municipalities.

Prior to joining the ACLU of New Jersey, she was a senior staff attorney at the Innocence Project, where she successfully represented clients in post-conviction and appellate proceedings, winning several motions for DNA testing and vacating the wrongful convictions of clients in Oklahoma, South Carolina, West Virginia, Arkansas and Pennsylvania. Karen was previously the Director of Scholarship Programs at the NAACP Legal Defense and Education Fund, where she advanced and modernized the programs for students interested in pursuing racial equity and social justice. As an associate at Morrison & Foerster and Orrick, Herrington & Sutcliffe LLP, she represented criminal defendants and asylum seekers as part of her rigorous pro bono practice.

Karen holds a B.A. in English and African-American studies from Carleton College, a M.A. in Performance Studies from New York University, and a law degree from Northwestern University School of Law. Karen started with the ACLU in May 2019.


Working Group Members

Valeena Beety headshot

Valena Beety

Professor of Law, Arizona State University Sandra Day O’Connor College of Law, Deputy Director of the Academy for Justice

Read more about Valena Beety.

Cynthia Garza headshot

Cynthia Garza

Chief of the Conviction Integrity Unit, Dallas County District Attorney’s Office

Cynthia R. Garza is the Special Fields Bureau Chief of the Dallas County District Attorney’s Office’s and Chief of the Conviction Integrity Unit (CIU).  Ms. Garza graduated magna cum laude with a double undergraduate degree in Sociology and Psychology, with distinction, from Southern Methodist University in 2001.  She received her law degree in 2004 from Southern Methodist University Dedman School of Law. 

Ms. Garza established her own law firm after graduation and later joined a criminal defense firm where she honed her skills in appellate and post-conviction criminal defense.  Ms. Garza joined the Dallas County District Attorney’s Office’s Appellate Division in 2008 and joined the Conviction Integrity Unit in January 2010.  Ms. Garza served as Acting Chief of the Unit for 10 months before being named the Chief of the CIU in July 2017.  She has been involved in a significant percentage of the Unit’s exonerations. 

Read more about Cynthia Garza.

Stephanie Hartung headshot

Stephanie R. Hartung

Senior Attorney, New England Innocence Project

Professor Stephanie Hartung teaches in the first-year Legal Skills in Social Context program. She has written extensively in the area of state and federal criminal procedure and wrongful convictions, specifically focusing on procedural bars to post-conviction innocence claims. She recently proposed a federal post-conviction innocence track to address the issue. Additionally, her scholarship focuses on the intersection of legal writing and social justice.  She currently serves as the Resident Fellow for the Center for Public Interest Advocacy and Collaboration (CPIAC) at the law school, where she is involved in the Cradle-to-Prison (C2P) Pipeline research project, designed to help address and combat mass incarceration.  She is the principle investigator for the C2P Tier 1 grant and is overseeing an expansive prison survey component of the project.  Professor Hartung is also the faculty advisor for several student organizations, including the Criminal Law Project, the Mental Health Alliance, and the Women’s Law Caucus.  She currently serves on the board of the Journal of Legal Education and the Wrongful Conviction Law Review.

Read more about Stephanie R. Hartung.

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Lisa Kavanaugh

Associate Justice, Middlesex County Superior Court in Massachusetts

Lisa M. Kavanaugh is the director of the Committee for Public Counsel Services (CPCS) Innocence Program, a unit of the statewide public defender agency in Massachusetts that identifies innocence cases and provides litigation support and funding for the investigation and expert resources needed. In addition to litigating cases and administering Innocence Program resources, Ms. Kavanaugh is actively involved in developing statewide training programs on flawed forensic evidence and other leading causes of wrongful convictions. In 2013, she formed a Working Group of criminal justice leaders to improve access to post-conviction DNA analysis and reform evidence handling practices. A frequent lecturer at local and national CLE training programs, she has also served as a Visiting Lecturer of Law at Harvard Law School, an Adjunct Professor with the Boston College Law School Innocence Clinic, and training faculty member for trial skills programs at Harvard Law School. She presently serves on the Supreme Judicial Court’s Standing Committee on Eyewitness Identification and heads the Running for Innocence Program.

Karen Newirth

Founder and Principal, Newirth Law, PLLC

Carrie Sperling headshot

Carrie Sperling

Director of the Conviction Review Unit, MN Attorney General’s Office

Carrie Sperling joined the University of Wisconsin Law School in August 2013 where she now serves as the Interim Director of the Frank J. Remington Center and Co-Director of the Wisconsin Innocence Project. Sperling has a broad range of practice, teaching, and management experience. Her legal practice has focused on civil-rights and post-conviction litigation, and she has taught legal method, persuasion and advocacy at Arizona State’s Sandra Day O’Connor College of Law and at the University of Oklahoma College of Law.

Read more about Carrie Sperling.

Karen Thompson headshot

Karen Thompson

Civil Rights Attorney, ACLU New Jersey

Cheryl Brown Wattley headshot

Cheryl Brown Wattley

Professor of Law, Director of the Joyce Ann Brown Innocence Clinic, UNT Dallas College of Law

Professor Cheryl Brown Wattley joined the inaugural faculty of the UNT Dallas College of Law from the University of Oklahoma College of Law, where she served on the faculty from 2006 through 2013 and was Professor of Law and Director of Clinical Education. Professor Wattley teaches Criminal Law in the first-year curriculum. She also teaches the upper level courses, The Trial Process and Courtroom Advocacy. Professor Wattley serves as the Director of Experiential Education overseeing the law school’s externship program; the Community Lawyering Centers; the Joyce Ann Brown Innocence Clinic; and the law school’s Community Engagement Program. Professor Wattley graduated from Smith College, cum laude, with high honors in Sociology. She received her Juris Doctorate degree from Boston University College of Law, where she was a Martin Luther King, Jr. fellow and recipient of the Community Service Award.

Read more about Cheryl Brown Wattley.