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1. One thing I think doesn’t get enough attention/theorizing from the progressive prosecutor movement is the relationship of the Appeals sections of these offices to the progressive goals.
2. In most of these offices the Appeals sections are still largely acting the way they have always acted: mindlessly defending convictions, invoking procedural bars, seeing no ongoing affirmative duty to scour the file for evidence that should have been disclosed.
3. And unless the Conviction Integrity Unit affirmatively identifies the case as “of interest,” — because of an innocence claim (or in a few offices a material constitutional defect at trial) — and seizes the case from Appeals, then appeals are treated as they always were.
4. But why is that? Why should Appeals units mindlessly invoke procedural bars or retroactivity limitations against weighty substantive claims? Is that really a “best practice” for a “progressive prosecutor”?
5. And why shouldn’t Appeals units in “progressive prosecutor” offices affirmatively scour every case for Brady material that should be turned over — and actively support efforts to vacate the conviction unless the violation is truly inadvertent and de minimis?
6. And shouldn’t they scour the record for other constitutional violations, not so as better to defend against those claims but instead so as to reveal the ways they (or judges) screwed up, with an eye for improving their behavior and bringing relief to harmed defendants?
7. To put it differently, courts may allow invocation of procedural bars, courts may place limitations on retroactive application of new rules, courts may impose “materiality” standards, but that doesn’t mean Appeals units have to make those claims.
8. In some/many places some/many of those claims are *waived if not invoked, but even where that’s not the case, progressive prosecutors don’t have to mindlessly support, via the arguments they choose to make, those kinds of understandings of law as applied to particular cases.
9. For example, in nonunanimous jury cases, under Teague v. Lane the new rule of Ramos v. Louisiana may or may not be retroactive, but in no way does a progressive prosecutor have to defend against a post-conviction Ramos claim by invoking Teague.
10. Maybe the prosecutor thinks that the racial justice aspect of the nonunanimous conviction or the Sixth Amendment jury trial right interest is just so important that it’s not going to cite Teague as a bar — and maybe it’s even going to join the defense motion for new trial.
11. You can imagine the same thing, refusing to invoke a time bar to an otherwise meritorious innocence or non-innocence constitutional claim. “We think the underlying interest is important so we’re not gonna invoke the time bar.”
12. Obviously courts will do with that what they will. Depending on the state and the claim, in some cases the failure to invoke will constitute a waiver.
13. In other situations judges may embrace the agreement of the parties. In other situations the judge may reject it and/or see themselves as having an affirmative obligation to weigh facts and make findings.
14. But that ultimately shouldn’t determine how the “progressive prosecutor” acts. They have a responsibility to act in an enlightened way, independent of what judges do. A whole unit devoted to mindless defending constitutional violations by invoking procedural bars ain’t it.
15. To put it slightly differently shouldn’t the entire Appeals unit be a Conviction Integrity and Sentence Review Unit? Those shouldn’t be separate spaces from Appeals, **every appeal should be looked at in that conviction integrity/sentence review framework.**
16. I might add: in some states postconviction appeals are largely handled by Attorney Generals offices and so the bad actors are AGs who claim to be progressive but who rubber stamp “procedurally barred” and “not material” on every case filing.
