The Postconviction Workgroup: Cooperation Between Adversaries in Exoneration Cases

AuthorElizabeth Webster
Published date01 October 2022
Date01 October 2022
Subject MatterArticles
Criminal Justice Policy Review
2022, Vol. 33(8) 870 –890
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/08874034221094449
The Postconviction
Workgroup: Cooperation
Between Adversaries in
Exoneration Cases
Elizabeth Webster1
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.
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.
1094449CJPXXX10.1177/08874034221094449Criminal Justice Policy ReviewWebster
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.

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