PROJECT SKETCH

The following project outline - partly shortened and updated here - was the basis for the initiation of the project:

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A German Wrongful Conviction and Reconviction Project 

with Post-Conviction Law Clinic

 

Project Outline

 

 

The German criminal justice system is not set up for the detection and correction of wrongful convictions. Two points are of central importance: The creation of the factual and evidentiary basis in the preliminary and main proceedings is insufficiently documented. In addition, the appellate system is structurally deficient because in those proceedings that begin in the first instance before the district courts and higher regional courts, there is neither a second instance of fact nor an appeal to review the findings of fact. The appeal cannot and should not do this; its purpose is to review possible errors of law. In addition, there are traditional control deficits in the preliminary proceedings, the importance of which is increasing all the time.

 

In addition, dealing with wrongful convictions has not played a significant role in legal education in Germany up to the present. In other words, there is a comprehensive lack of a culture of wrongful convictions.

 

However, such a culture has been established in the United States over the past 30 years. On the basis of our involvement with the phenomenon of wrongful conviction and with initiatives to overturn wrongful convictions in the U.S., particularly with the Innocence Project and the Post-Conviction Clinics at Cardozo School of Law, New York Law School, and Yale Law School and their partners in the practice of law and public prosecution, we want to attempt to launch a project in Germany that will improve the chances of retrials and, in parallel, support the academic study of the phenomenon. The approach chosen is practical work in a law clinic, so that at the same time practice-oriented legal training in Germany is strengthened and a sensitivity for faulty investigations and wrongful convictions is awakened among young lawyers.
 

 

I. Inadequacies of the readmission procedure

 

There are currently no reliable figures on the number and (failure) frequency of requests for readmission in Germany. The procedures are not recorded statistically. In their project "Rehabilitation and Compensation after Execution of a Prison Sentence and Successful Reopening," Dessecker et al. were only able to compile a total of 29 successful reopenings in the period from 1990 to 2017. In her dissertation published in 2018, Dunkel examined 48 retrials from 2003 to 2015 in the Hamburg Higher Regional Court District (Dunkel, Fehlentscheidungen in der Justiz, 2018). Arnemann's dissertation is dedicated to the deficits of retrial in criminal cases, which attests practical ineffectiveness to the right of retrial as a result of a dogmatic analysis and an empirical study (Arnemann, Defizite der Wiederaufnahme in Strafsachen, 2019).

 

Strafverteidiger:innen know that they are repeatedly approached by those seeking assistance in attempting to challenge final criminal court decisions by which they feel they have been wrongly convicted. Such requests often fail due to the time and resources involved. In many cases, the inquirers are complimented away. Many defense attorneys are unable to make the effort required for a promising retrial without additional work, given the generally limited resources available to them. In addition, there is a lack of support from the public prosecutor's office and often a lack of evidence - for example, in the form of usable (DNA) evidence. Finally, the legal situation created by law and case law is often an insurmountable obstacle to requests for reopening. Thus, many attempts come to nothing, and even more are not even undertaken.

 

In Germany, more recently, more than forty years after Peters' studies on "Sources of Error in Criminal Proceedings" (1970), there have been various projects in academia dealing with the problem:

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II. Current research approaches in Germany 

 

1. In his 2018 dissertation "Das strafgerichtliche Fehlurteil - Systemimmanenz oder vermeidbares Unrecht?" Böhme conducted expert interviews with ten judges who work or have worked in appellate courts. Even this study, however, could do little to change the fact that, according to the current state of knowledge, there is still a lack of reliable, empirical bases for the frequency of wrongful convictions under criminal law. Research has always relied on estimates. Conjectures on the frequency range from 0.0018 percent (Böhme, Das strafgerichtliche Fehlurteil, pp. 65 ff., 74) to an estimated 25 percent (estimate by Eschelbach in: Süddeutsche Zeitung, 17.05.2015, https://www.sueddeutsche.de/politik/fehlurteile-ohne-jeden-zweifel-1.2479505).

 

2. Dunkel examines 48 retrials from 2003 to 2015 in the Hamburg Higher Regional Court district in her 2018 dissertation mentioned above. She provides a detailed overview of the national and international state of research and spreads a differentiated picture of "risk factors" that can lead to a wrongful conviction. In a recently published article together with Kemme, she also deals with Strafbefehl and Fehlurteil (Kemme/Dunkel, Strafbefehl und Fehlurteil - Erkenntnisse zu einer wenig beachtungten Verbindung, StV 2020, 52 ff.).

 

In two publications, König has dealt with the U.S. approach to the phenomenon of wrongful conviction and with the effects of poor (professional) defense on the occurrence of wrongful convictions (König, Schlechte Verteidigung als Ursache von Fehlurteilen? In Barton (ed.): Strafverteidigung 2020, 71 ff; König, Fehlerquellen im Strafverfahren - Ursachen von Fehlurteilen: Developments in the USA. In Dessecker/Harrendorf/Höffler (eds.): Applied Criminology - Justice-Related Research, 2019, 379 ff.).

 

4. An extensive investigation is currently taking place in the form of the research project "Errors and Reopening in Criminal Proceedings." This study could provide a valid empirical basis for the first time. It is a collaboration between the Criminological Research Institute of Lower Saxony (Prof. Dr. Thomas Bliesener), the Heinrich Heine University of Düsseldorf, Chair of Criminal Law, Commercial Criminal Law and Media Law (Prof. Dr. Karsten Altenhain) and the Psychological University of Berlin, Chair of Legal Psychology (Prof. Dr. Renate Volbert).

 

The project aims to address the problem of possible wrongful convictions in criminal proceedings from two perspectives: On the one hand, potential errors in criminal proceedings will be explored, and on the other hand, the possibilities of convicted persons to claim errors will be analyzed. To this end, on the one hand, the initiation of retrial proceedings will be illuminated on the basis of expert interviews. With the help of a quantitative analysis of 750 files, the errors complained of and decisions made in retrial proceedings will be examined. In addition, a qualitative analysis of 150 files will be used to ascertain the exact circumstances that led to the errors that were reprimanded. The aim is to identify common sources of errors and their causation and to generate possibilities for avoiding these errors for the practice of law. 

On the basis of these findings, proposals for procedures and regulations are to be developed that help to avoid erroneous judgments as far as possible, or that are suitable for uncovering potential errors retrospectively.

In addition, selected rejected motions to reopen will also be analyzed qualitatively to examine how new errors are brought forward. In addition, an analysis of the interpretation and application of the right to reopen will be carried out on the basis of a selection of rejected motions, and an analysis of the new verdicts will be carried out on the basis of cases in which a new main trial was initiated, with regard to the role that the errors complained of played for the new verdicts. In addition, interviews with experts will be conducted, focusing in particular on the run-up to the motions for reopening.

 

5. Scientific projects are already underway to accompany our project. In his dissertation project, for example, Marius Braun is investigating the normative manifestations and causes of erroneous decisions in criminal proceedings, not only in the main trial. In another dissertation project in Carsten Momsen's team, Philipp Bruckmann examines the American "Innocence Projects" and their transferability to the German criminal justice system. Adja Niang's study of criminal court orders also addresses specific sources of error in this form of procedure.

 

Carsten Momsen and Paula Benedict are currently investigating American post-conviction clinics with regard to their significance in detecting wrongful convictions. Interim results are expected to be presented in the summer of 2021. A decision will subsequently be made on whether to pursue this in greater depth as part of a longer-term research project. This analysis will focus on the importance of "experiential learning" for the formation of a culture of wrongful convictions. This will involve collaboration with the Law Clinics at Cardozo School of Law, New York Law School, and Yale Law School. A collaboration with Prof. Dr. RobertSchehr, Professor for Criminology and Criminal Justice, Northern Arizona University, Flagstaff, is also planned. Robert Schehr can be considered a pioneer in Wrongful Conviction Clinical Education. He will come to Germany when circumstances permit. There are established or developing collaborations with all American institutions with the participating universities.

 

Carsten Momsen and Laura Diederichs have written an overview of the "Conviction Integrity Units" of American State Attorneys (to be published StV 6/2021). This brief study serves to introduce the working groups established at some state-level prosecutors' offices to detect investigative errors at all stages of proceedings. Conviction Integrity Units review investigations on an occasion-by-cause or random basis to detect errors and develop strategies to prevent them in the future. They are the result of a partially increased sensitivity (e.g., due to negative press reports) of some public prosecutors' offices and thus also an expression of a culture of wrongful convictions that is lacking in this country. The study was conducted in cooperation with the non-profit organization "Fair and Just Prosecution" in the USA. This organization, which works closely with the better-known Center for Court Innovation in New York and includes former senior prosecutors, trains newly appointed prosecutors. There is an established cooperation with Kirstin Drenkhahn and Carsten Momsen at the FU Berlin. 

 

6. The working group Alternative Draft (AE) deals with the documentation of the main trial and, among other things, the resulting possibility of being able to record miscarriages of justice in the factual area as well as the effects on the appellate system. Admittedly, the objective here is different from that of our project. However, there are synergy effects, since Carsten Momsen is a member of the AE.

 

7. A group of experts appointed by the Federal Minister of Justice and Consumer Protection is also examining the possibilities and effects of documenting the main hearing on the appellate system. The focus in this respect is on appeals. Synergy effects can also be expected here, as Stefan König is a member of the expert group. The AE is also partly involved in the Commission's deliberations.

 

III.  Interim Balance

 

As far as can be seen, there is no project in Germany that aims to comprehensively address the detection, analysis and correction of erroneous decisions in criminal proceedings, including in casework and case management. This problem area has also not been addressed in student training projects to date. The only two criminal law-oriented law clinics in Germany are offered at Freie Universität Berlin (since 2014) and at the University of Göttingen (since 2018). Both are project partners and co-initiators. At Freie Universität Berlin, the criminal law law clinic offering has been expanded to include a Post-Conviction Law Clinic led by Kirstin Drenkhahn and Carsten Momsen and has been significantly broadened. The Law Clinic project, which is substantially supported by the Berlin Association of Criminal Defense Lawyers, has already included a project on "pro bono counseling in criminal court proceedings" since 2018. This consultation is conducted by the Berlin Association of Criminal Defense Lawyers and the FU Law Clinic. Within this framework, further findings on erroneous penalty orders are emerging, which are also of great benefit to our project. The project is also accompanied by scientific research at the chair of Carsten Momsen (Adja Niang, see above).

 

In the new "FU Law Clinic - Post Conviction", the third cohort is currently going through the program, which is designed for two semesters. In the summer semester of 2021, the approximately ten participants were involved in a first "pilot case" under the supervision of Stefan König and Carsten Momsen.

 

IV. Role Models in the USA

 

1. Post-Conviction Innocence Clinic, NYLS

 

The Post-Conviction Innocence Clinic has a cooperative relationship with, among others, the Conviction Integrity Bureau (CIB) of the Suffolk County District Attorney's Office. The CIB categorizes wrongful convictions into "standard cases," which carry a higher risk of wrongful conviction due to certain factors asked about in a form, and "systemic cases," which carry the same inherent risk due to their processing by authorities already on notice or even the timing, as well as other risk factors. Through prolonged collaboration and data collection, it is hoped that the risk factors that make up the standard case of wrongful conviction will emerge so that they can be prevented or addressed more effectively in the future.

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Students in the Post-Conviction Innocence Clinic are mainly concerned with the standard cases. With the help of an application form, wrongful conviction cases are brought to the attention of the CIB and forwarded to the students, who are divided into small groups. The students develop a proposal for further action, which (if the case is accepted) is followed by cooperation between the small groups and the prosecutor's office or a lawyer with regular joint review meetings. As part of the cooperation, the public prosecutor's office agrees to make relevant files and materials available and, if necessary, to obtain them from other authorities. Students are sworn to secrecy. 

 

Risk factors for system-immanent cases that have already been identified are certain evidence-gathering methods such as forced confessions and questionable forensic evidence (forensic science), authorities that have already become conspicuous, and pre-1990 homicides. In these cases, the CIB approaches the convicted persons on its own initiative and asks for consent to re-processing (which can then be done with the assistance of the students again, if necessary).

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The project has its own website, a hotline and an e-mail address. The application form can be found on the website. Assistant:ing positions have been established on both the CIB and Post-Conviction Innocence Clinic sites to cover coordination, identification, review, and data collection, as well as maintaining/updating a spreadsheet on the progress of each case (more detailed https://suffolkcountyny.gov/da/About-the-Office/Bureaus-and-Units/Conviction-Integrity-Bureau).

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There has been a close collaboration between the NYLS and the FU Law Clinic for several years. Prof. Frank A. Bress (NYLS) teaches at FU, Carsten Momsen (FU) is "Scholar in Residence" at NYLS. 

 

2. The Innocence Project (New York)

 

The internationally renowned "Innocence Project," which was founded in 1992 as a law clinic at the Benjamin N. Cardozo School of Law, operates in a similar way. Here, too, a very specific risk factor and thus standard case for wrongful convictions has been identified: Cases in which DNA material is available but no DNA analysis took place (or could not yet take place). Only such cases are handled by the Innocence Project to date. With the help of a form requesting details of the conviction and the previous proceedings in order to enable a pre-selection, affected persons can contact the project, which then examines the suitability of the case. However, there is no (longer-term) cooperation with the prosecutor's office. Students who participate in the Law Clinic are introduced to dealing with these specific cases in lectures, seminars, talks and practical visits, and are also allowed to participate in the processing. 

 

There is a cooperation agreement between Cardozo Law School and the Department of Law at the FU Berlin. Carsten Momsen and Paula Benedict (former exchange student at Cardozo Law School) are in ongoing discussions with the Law School about collaborating with the Post-Conviction Clinic, particularly with Adj. Prof. Sarah Lisa Washington, formerly of FU Berlin. Further discussions were scheduled for April (with various professors, including Barry Scheck), but were postponed due to the closure of both universities because of the COVID-19 pandemic.

Stefan König and Carsten Momsen have had discussions with Innocence Project staff in 2018 and 2019, which will continue.

 

Consideration of the organizational structure of the project will follow.