Organization Profile – ASU Post-Conviction Clinic
Organization Profile
ASU Post-Conviction Clinic
Reclaim Your Future (RYF) is a statewide campaign funded by a grant from the Arizona Department of Health Services to help people expunge, or seal, their marijuana-related public criminal records. The campaign is run by organizations in central, southern and northern Arizona that make up the Arizona Marijuana Expungement Coalition.
As part of our efforts to better inform the public about Prop 207 and expungement, we are profiling the members of our Coalition and helping them explain the work they do. This week, meet the Arizona State University Post-Conviction Clinic and its supervising attorney, Randy McDonald.
RYF: Randy, explain to folks what exactly post-conviction relief is and why the clinic is so important in the community that you serve.
Randy McDonald: Post-conviction relief is, as the term implies, anything legal that a criminal defendant can do to attack his or her conviction after it is final. So, we do a number of different things. We represent criminal defendants in parole hearings. We do post-conviction appeals. We help people file applications for commutation. And now with the help of the Arizona Justice Project (AJP) and the grant we received from the state of Arizona, we are helping people go back and expunge marijuana convictions that became final many years ago.
RYF: Can you give us a real-world example of post-conviction relief?
RM: Sure. I think the type of case that people might be most familiar with is a DNA-type case. After DNA technology became more prevalent, a lot of prisoners and criminal defendants began going back and testing biological samples that were collected, but were unable to be tested, and discovered that, in fact, the DNA profiles that were found in these cases didn’t match them. And so, they would file a post-conviction relief petition with the court to say, “I found this new evidence. This DNA test shows that I am not the person who committed this crime, so my conviction should be overturned.” And so, I think that the most prevalent types of post-conviction cases that we’re most familiar with are DNA cases where DNA results have exonerated someone.
But it doesn’t have to be DNA testing. It could be any kind of new evidence. It could be a change in the law. It could be evidence of a constitutional violation, for instance, if we discovered that the prosecutor had withheld evidence from the defense that could have helped the defense. Post-conviction is a bunch of things. It is sort of the umbrella term that we use to describe any kind of legal relief that you’re seeking after the conviction becomes final.
RYF: How is that different from an appeal?
RM: An appeal is something that happens right after the conviction, and it happens as a right. In most American jurisdictions, you have an automatic right to an appeal before your conviction becomes final. And in an appeal, you can challenge legal issues that had to do with the trial. So, for instance, you can say, “This evidence shouldn’t have been admitted against me at trial.” Or you can say, “This particular jury instruction was wrong, and it didn’t correctly describe the offense.” So, when you’re looking at an appeal, you’re basically reading the transcript of a trial and you’re looking for errors that happened at trial. Whereas a post-conviction petition involves any type of new evidence you can bring in any kind of claim that wasn’t necessarily part of the original trial. That’s why newly-discovered evidence is kind of the archetype of a post-conviction petition.
RYF: Can anyone access the legal aid that the Clinic provides? Anybody in the community?
RM: The vast majority of our clients are individuals who are incarcerated in Arizona’s prison system. We do have very few folks that we have helped who have either [already] served their sentence or are in the federal prison system. But anyone who has a criminal conviction could access the help of the Post-Conviction Clinic. We typically partner with the Arizona Justice Project, who does a lot of the intake of our cases. So, people write to AJP, and AJP will refer to us cases that seem like they would benefit from some of our investigation.
RYF: Would you explain to folks why it’s called a “clinic”?
RM: We operate within the Arizona State University College of Law. I’m an attorney, and there is one other attorney who works with the Clinic. But other than that, everyone who does work for the Clinic is a law student. And so, the clinical education program here at ASU has a number of components. There’s a Civil Litigation Clinic, there’s an Immigration Clinic, and there is the Post-Conviction Clinic. And so, it is a clinic in the sense that we are providing clinical education or hands-on education to students, and those students are providing legal services for people in the community.
“And now, we represent folks who have marijuana convictions who, by expunging those convictions, are able to go back and seek re-sentencing to get out of prison earlier.”
RYF: Got it. How long has the ASU Post-Conviction Clinic been around?
RM: So, AJP, which founded the Post-Conviction Clinic, was founded several years ago. And it was one of the very first state-level innocence projects. So, I think a lot of people are familiar with the Innocence Project, which is the nationwide project that seeks to overturn wrongful convictions. The Arizona Justice Project is a project like that, but it operates exclusively in Arizona. And it doesn’t only take on cases of innocence, but cases of what we call “manifest injustice.” So, lengthy sentences, juvenile offenders, [and] cases where perhaps innocence and guilt aren’t being contested, but AJP thinks that there’s some sort of injustice that has occurred, and they want to represent the defendant.
The Clinic came about because, around 2008, the United States Congress created a grant called a Bloodsworth grant, named after Kirk Bloodsworth, who is the very first person on death row who was exonerated using DNA technology. This grant funded programs that would investigate post-conviction claims of innocence using DNA technology. And AJP was awarded one of these very first grants and, using that grant, founded the Post-Conviction Clinic at ASU. There are many clinics like ours at law schools across the country, but like the Innocence Project, many of these clinics are geared toward proving claims of innocence. In other words, they only take cases where the clients claim that they are innocent of the crime charged. The Post-Conviction Clinic is a little bit different in that we do take innocence cases. We do try and overturn wrongful convictions. But we also take many cases in which we think there’s been a manifest injustice.
We’ve represented folks who have terminal illnesses trying to get commutation or clemency. We represent folks who were juveniles when they committed their offenses and are in prison for the rest of their lives. We represent them in parole hearings and in post-conviction proceedings. And now, we represent folks who have marijuana convictions who, by expunging those convictions, are able to go back and seek re-sentencings to get out of prison earlier than they otherwise would have.
RYF: Sounds like a lot of work. Tell us about who works with you at the clinic.
RM: I’m the supervising attorney. I work here full-time, and I supervise the rest of the staff and the students who work at the clinic. There’s another attorney who works with us part-time, Joey Dormady, who is in the administration here at ASU and also helps me to supervise some of the cases. We have a legal fellow who is funded by the Prop 207 grant that we received, Andi Humphreys. And she is a recent law school graduate and soon to be an attorney. In fact, she should [pass the bar exam] within a few days here, we hope. And she is helping us by basically overseeing all of the marijuana expungement-related litigation that our students are working on.
And then there are the students themselves. In any given semester, we have 10 to 15 students who are working with us on various cases. Each student will be assigned their own caseload. They’ll be responsible for investigating the cases for drafting any documents related to the cases for speaking to the clients, for developing any legal strategy.
RYF: Besides the work that you’ve done with the Coalition, what are some of the clinic’s big victories for the people who have sought your assistance?
RM: I think the biggest impact that we’ve had is for people who are seeking either clemency or parole. We’ve represented a number of people who committed offenses when they were juveniles. We’ve represented them at parole hearings, and a number of them have been paroled and are now out in the community and really thriving. We know that by and large, people who commit criminal offenses as juveniles are much less likely to re-offend than people who commit offenses later in life. And so, we have helped a number of those folks get parole and sort of reintegrate back into the community. And what that means is representing them at the parole hearing, helping them by putting together release plans, and helping them do the things that they need when they get back out into the community.
RYF: There are seven organizations around the state, including the Post-Conviction Clinic, that are part of the Arizona Marijuana Expungement Coalition. Tell us about the Post-Conviction Clinic’s contributions to the Coalition.
RM: We have focused on representing individuals who are incarcerated in Arizona prisons who have sentences that are enhanced by prior marijuana convictions. In Arizona, when you commit a criminal offense, if you have historical prior criminal offenses, the state can lengthen your sentence because you’re a [so-called] “repetitive offender.” What we have been doing is we’ve been finding folks who have longer sentences because of previous marijuana convictions. We’ve been expunging those convictions, and we’ve been getting back into court and asking courts to re-sentence these folks so that their sentences can be shorter. And we’ve had a lot of success with that. We have helped a number of people so far either shorten their sentences or walk free, almost immediately.
Another issue that we’ve come up against is the question of whether a person who is convicted of possession for sale [of marijuana] is convicted of possession of marijuana, which is expungable, or is convicted of selling marijuana, which is not expungable. Although the statute approved by Arizona voters may seem pretty clear, there are a lot of gray areas that are not really explained in the law that we need to litigate and ask the courts to decide. Other organizations in the Coalition have been referring us cases that get a little bit more complicated and require a little bit more working up and litigating in the state trial and appellate courts.
“It’s an emotional thing to have happen. It’s exciting work to be able to get these folks back to their families and back out in the community where they need to be.”
RYF: Presumably, those particular cases where you’re able to get somebody home, those are especially rewarding.
RM: Yes, I agree with that. I can think of one [client] in particular. Because of Covid restrictions, we had not been able to meet with this client until he literally walked into the courtroom where he was going to be resentenced. And so, my first opportunity to actually meet him was when we were sitting in the courtroom and he was being resentenced, and the judge was basically resentencing him to time served. So, he was going to leave the courtroom, go back to the jail, and be processed out almost immediately. It’s an emotional thing to have happen. It’s exciting work to be able to get these folks back to their families and back out in the community where they need to be.
RYF: How do you think the Clinic might evolve going forward with laws changing in Arizona such as the legalization of adult recreational use of marijuana and the expansion of expungement opportunities?
RM: One thing that we have been able to do much more recently is working with prosecution offices in the state of Arizona to sort of reach a common goal that we both agree should happen. So, for instance, with these marijuana resentencings, the state agrees with us that these folks should be resentenced. They just need representation to walk through that process. And we’re finding that there is much more of an appetite for criminal justice reform now, such that county attorney’s offices that historically have been very tough on crime—and when I say tough on crime, I mean they want lengthy prison sentences for offenses that are not always violent, do not always necessarily require these lengthy sentences—the county attorneys are now willing to work with us to get folks with longer sentences either resentenced or get them out on parole or get them out on some sort of supervised release. Because they realize that justice does not always mean throwing someone in jail and throwing away the key.
So, I will say I’m hopeful that we’re able to work with prosecution offices more frequently in the future towards a common [goal]. We’re not always going to agree with the prosecutors. We’re going to litigate some cases. We’re going to fight with them on occasion. But I think both the prosecution office and the Clinic want to serve the ends of justice. And when we can agree on what justice is, that’s a happy time for everyone. So, I’m hopeful that, as the Clinic evolves, we will be able to do more of that type of work.
To learn more about what students do at the Post-Conviction Clinic at ASU, go to: https://law.asu.edu/experiences/clinics/post-conviction.