Wisconsin Innocence Project screens cases with an open mind
Dec. 13, 2011
The first innocence case Tricia Bushnell, a staff attorney for the Wisconsin Innocence Project, ever worked on involved an inmate who had been convicted of murder after being found driving the victim’s car with her blood on his socks.
Tricia Bushnell, clinical instructor with the Innocence Project at the University of Wisconsin–Madison, works in her office in the Law School Building reviewing letters from potential clients.
Photo: Bryce Richter
But the tale the inmate told was much different from what had been presented at trial: he said he was just a drug dealer who had traded drugs for the car. When he saw what he thought was dirt on the bumper of the car, he wiped it off. That dirt turned out to be the victim’s blood, and the car turned out to belong to the victim herself.
When Bushnell joined the WIP, she brought with her the experience of screening criminal cases with an open mind.
“That’s the big thing about screening—you get these cases that seem implausible but you have to throw your skepticism aside and say, ‘okay if all that’s true, how do I prove it?’ If I can’t prove it, even if I believe you, there’s nothing I can do,” Bushnell says.
Intake screening is the first step in an often-complicated process at WIP, a legal clinic at the University of Wisconsin Law School’s Frank J. Remington Center that screens applications, investigates and advocates on behalf of wrongfully convicted clients.
The process begins with every application first coming to the desk of Amireh Oettinger, the WIP intake specialist.
Oettinger checks to see if applications meet basic criteria: inmates must have at least seven more years to serve on their sentence; they must be incarcerated in Wisconsin; they must have exhausted all possible direct appeals; they can’t already be represented by an attorney.
Additionally, the project received a grant in 2009 to focus on DNA testing and sent out applications to every inmate in Wisconsin convicted of homicide or sexual assault. Out of roughly 5,000 people contacted, two-thirds wanted assistance. General applications are still screened, but DNA cases are currently the priority, with staff attorneys taking on non-grant cases depending on their caseload, Oettinger says.
Although the criteria might seem straightforward, the applications that come in can still present challenges to intake workers and volunteers.
Some applications are written partially in Spanish. Some applications contain no more information than the words “please help me” written as the answer for every question.
Some clients have contacted the WIP multiple times but leave the application blank each time.
Some applications simply say “no” to the first question of whether they have a claim of innocence and want to be represented by the WIP in the first place.
“People assume I get applications from every single prisoner in the state of Wisconsin, but that’s not true. There are people who admit they committed their crime, they are sorry, and they don’t want our help, they are serving their time. Some people just check ‘no,’” Oettinger says.
If a client meets the basic criteria, intake workers put together a background dossier, and that can sometimes be the most complicated step.
Bushnell says getting the trial transcript can be arduous. Intake workers may go to the former attorney first, but sometimes they no longer have their copy. Sometimes the client doesn’t even have it.
“The defendant has the right to one copy, but what if it was taken? What if he sent it to a family member and they lost it? What if his attorney never gave it to him? We can go to the court clerk, but they charge $1.50 a page. Transcripts are hundreds, sometimes thousands, of pages,” Bushnell says.
Sometimes evidence in police storage was destroyed. In the past year, there have been at least three cases where evidence was listed as destroyed but turned out to still be in storage when police double-checked, Bushnell says.
Sometimes the only information Paisley Morris, an intake worker, can find is that the client is currently incarcerated and that he or she meets the minimum criteria for a claim of innocence.
In other cases, there are multiple published appeals and opinions, which can be helpful to form a background story, Morris says, but it can also mean the claims a client is making in an application have already been explored.
Another issue WIP contends with during intake: Clients need to make a claim of innocence based on substantial new evidence, such as new DNA evidence, or a witness’ or victim's recantation, that has not already been presented.
After initial intake, law students working with the project fan out across the state to meet with inmates and gather more background information about the case. Often a face-to-face interview is more effective than the initial written applications because it can help overcome barriers such as illiteracy and incomplete information, says Monica Mark, a second-year UW–Madison law student.
Mark originally thought her main concern during interviews would be deciding whether a client was innocent.
“I’ve come to learn that shouldn’t be my primary focus. It’s not my place to judge, I wasn’t there,” Mark says. “Just because they come off as a liar to me doesn’t mean they are at all. They could be a poor communicator; they could be distrustful of lawyers. It’s my place to figure out whether they have a viable claim.”
When working to untangle stories, Morris says it is hard to remember is that while the crimes people are accused of are terrible, some people are wrongfully imprisoned.
Certain applications prove difficult for Oettinger, as well.
“The most difficult cases are where the defendant is young,” Oettinger says. “You think about the path you were on at that age and you wonder what their path was like. Normally I finish the screen and put it aside and I wait a day or two, and come back when I’m not feeling so attached to it.”
Reading applications, checking for basic criteria and doing background research can take 45 minutes to three hours, Oettinger says. Further research and investigation can take much longer, ranging from weeks to years.
All of this takes place before the WIP decides to take on a case, no matter how unbelievable a claim of innocence may seem when an application arrives.
In the case of the man with the bloody socks, Bushnell helped him win a new trial in 2010, though he is currently sitting on death row in Alabama as the state appeals that new trial.
“That’s what lawyers are, we’re storytellers,” Bushnell says. “The state has already told its side, but most likely no one has told the story from the defendant’s story in a way that shows it to be true or at least shows it to be plausible. The thing is, people are in bad situations and bad things happen.”