The Postconviction Workgroup: Cooperation Between Adversaries in Exoneration Cases

• Author: Elizabeth Webster
• DOI: http://doi.org/10.1177/08874034221094449
• Published date: 01 October 2022
• Date: 01 October 2022
• Subject Matter: Articles

https://doi.org/10.1177/08874034221094449

Criminal Justice Policy Review

2022, Vol. 33(8) 870 –890

© The Author(s) 2022

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DOI: 10.1177/08874034221094449

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Article

The Postconviction

Workgroup: Cooperation

Between Adversaries in

Exoneration Cases

Elizabeth Webster1

Abstract

During postconviction innocence review, prosecutors and defense attorneys can set

aside their adversarial roles and cooperate on case reinvestigation and resolution.

This dynamic makes the postconviction setting especially worthy for a study of

attorney workgroup relationships. Yet, criminological research of these relationships

traditionally focuses on pretrial processes. Therefore, this study explores how

attorneys cooperate and even collaborate to investigate potential wrongful

convictions. It employs semistructured interviews with 19 defense attorneys and

20 prosecutors who have each helped exonerate a wrongfully convicted defendant.

Results demonstrate that prosecutors valued open communication and transparency,

ample time to review the case, and diplomacy and tact in protecting the reputation of

the prosecutors’ office. For example, prosecutors and defense attorneys may engage

in postconviction negotiations regarding media strategies and misconduct allegations.

These results may help guide policy proposals that promote the independence and

integrity of postconviction innocence review.

Keywords

courts, wrongful convictions, prosecutors

In the past 20 years, wrongful conviction case review has undergone a dramatic develop-

ment. Prosecutors—who were once expected to oppose claims of innocence on the basis

1Loyola University Chicago, IL, USA

Corresponding Author:

Elizabeth Webster, Department of Criminal Justice and Criminology, Loyola University Chicago, 1032

W. Sheridan Road, Mundelein Center, Ste 807A, Chicago, IL 60660, USA.

Email: ewebster1@luc.edu

1094449CJPXXX10.1177/08874034221094449Criminal Justice Policy ReviewWebster

research-article2022

Webster 871

of “case finality” (Findley & Scott, 2006) or out of fear of being seen as “soft on crime”

(Medwed, 2004)—have started formally adopting policies to facilitate exoneration in

some jurisdictions (Webster, 2020). Defense attorneys who recognize this shift may now

approach receptive prosecutors for assistance before initiating litigation in the courts.

This new opportunity for cooperation has transformed the nature of some postconviction

courtroom relationships. For example, cooperation between prosecutor-led conviction

integrity units (CIUs) and innocence organizations have produced dozens of exonera-

tions since 2018 (National Registry of Exonerations [NRE], 2019; Scheck, 2019).

Nevertheless, even cooperative postconviction relationships involve imbalanced

power dynamics. Prosecutors hold all the discretion when approached with an inno-

cence claim. They can choose among several options: oppose the defense argument

and stand by the conviction, do nothing and leave the decision to the courts, or support

the defense and ask the court to dismiss the case (Zacharias, 2005). This study explores

the relationships and decision-making involved in this final option: when prosecutors

support defense and overturn a wrongful conviction.

Since 1989, prosecutors have gradually become more willing to assist with exon-

eration (Webster, 2019). The pace of this assistance has grown exponentially since the

mid-2000s with the creation of the first CIUs (NRE, 2016). In just 5 years, the number

of CIUs—initiated by district attorneys from Los Angeles, to Chicago, to Dallas, to

Brooklyn—has quadrupled (NRE, 2020 “Exonerations in 2019,” p. 2). CIUs have

allowed for ongoing working relationships between prosecutors and innocence orga-

nizations. These “professional exonerators” work toward a common goal of providing

relief to the wrongfully convicted (NRE, 2019, p. 2). Meanwhile, less formalized rela-

tionships between prosecutors and defense attorneys continue on a case-by-case basis,

and these ad hoc collaborations also produce exonerations (Bowman & Gould, 2020;

Webster, 2020).

Still, it is the CIUs that have dominated the narrative and captured the imagination

of the public, and also of researchers (see, e.g., Fairfax, 2012; Hollway, 2015; Scheck,

2010, 2016; Thompson, 2017). The rapid development of the CIUs has also led to a

larger conversation about how state and local criminal justice systems can review

postconviction innocence claims and reproduce the success of the CIU. For example,

states can introduce a task force to study wrongful convictions and postconviction

remedies (Wolitz, 2010), establish a statewide CIU run through the Attorney General’s

Office, (NRE, n.d. “Conviction Integrity Units”), or operate an independent statewide

commission that investigates postconviction innocence claims (Hynson, 2016;

Mosteller, 2016; Wolitz, 2010).

The success of these efforts depends upon cooperation between prosecutors and

defense attorneys. Therefore, this study asks: What is the nature of these postconviction

relationships—both within and outside the context of CIUs? How do these relation-

ships differ from earlier stages? Given the power imbalance between the two parties,

how do defense attorneys secure and sustain prosecutors’ interest in postconviction

innocence review? Using interviews with 19 defense attorneys and 20 prosecutors who

helped secure an exoneration, this study explores these questions and their significance

for the postconviction workgroup and for postconviction policy and practice.