In the course of investigating a possible wrongful conviction, it’s not surprising to be stonewalled by police and prosecutors while attempting to gather case documents and evidence. But it is surprising how often original defense attorneys also stonewall post-conviction investigators.
It is well established in the United States, at least, that a client’s file is the client’s property. If a former client requests his or her file, the former attorney is obligated to turn it over. But that rule is frequently ignored if the former client is in prison.
In the past year, I have had four defense attorneys fail to turn over their former clients’ case files after submitting information releases signed by the former client. My experience with a West Virginia attorney fit a familiar pattern. My inmate-client and his outside supporter had told me they had made several requests for access to the case file in the dozen years since his conviction but the attorney had never responded.
So I was pleasantly surprised when I first emailed the attorney and attached an information release signed by the client when the attorney responded positively. He said he had a “voluminous” file comprising several banker’s boxes and asked that I call him to determine what records I was most interested in. When I called the attorney at the agreed-upon time, he told me that he still strongly believed that the client was wrongly convicted and would be glad to help in any effort to get his case back in court. He told me he would go through the file to retrieve the records I was interested in and get back to me within the week.
When I hadn’t heard back from the attorney two weeks later, I sent him another email to ask if he had reviewed the file yet. The attorney replied that he had been very busy but would make a point of going through the file that weekend. That was the last I heard from him. The attorney failed to respond to repeated emails and phone calls over the next several weeks. He also didn’t respond to a letter the inmate sent to him requesting that he cooperate with me. This has greatly stymied any attempt to analyze the case and develop an investigative strategy.
My experience with an Ohio attorney I had recently voted for when he ran for a judicial position perhaps explains why many attorneys duck requests for a former client’s file. After the attorney failed to respond to numerous phone calls and letters over a period of several weeks, I finally decided to contact the client’s appeals attorney to see if he might have the investigative records I was most interested in. That attorney quickly provided me with copies of the records submitted as exhibits during the trial. While that was far from all the documents that apparently were turned over in discovery, they were nonetheless helpful.
The appeals attorney also, during our conversation, gave me a good clue as to why the trial attorney hadn’t responded to my multiple requests. He told me the trial attorney had recently called to ask him if he happened to have obtained a copy of the discovery in the case because he couldn’t find his. Although the client’s trial had occurred less than two years before, the trial attorney apparently had lost or disposed of his file. He apparently thought it was better to not respond to my phone calls and letters than to admit he had lost the file.
I’ve learned through experience, though, that some defense attorneys just don’t want to be bothered helping a former client. I’ve had some defense attorneys ignore my requests — and their former clients’ pleas for cooperation — until I threatened to file an ethics complaint against them. That sometimes gets their attention. In one case, the attorney drove 35 miles to deliver the file to my office the day after I informed him of my intent to file a complaint against him.
I understand that the average defense attorney has a tough road to hoe. Most defense attorneys are on their own or are part of a small firm with minimal support staff, if any. They also are forced to carry a heavy case load to make a living. But that’s no excuse for losing a former client’s file in two years or ignoring requests to turn it over to an investigator or organization interested in helping an inmate who just might be innocent.
Wrongful Convictions Blog 
Amen, Marty. Michele Berry-Godsey, my wife, just had a case recently on DIRECT APPEAL where the trial attorney refused to turn over the file, despite repeated requests and a letter from the client demanding that it be turned over. Felt like filing a disciplinary complaint. The role defense attorneys play in all these problems is overlooked and needs to be highlighted more.
Very good article…I agree with comment. Except I know someone who filed a disciplinary complaint 3 years ago and he never heard a thing from it. I told him to push it and he refused out of fear they would throw him in jail for filing it.
I need assistance in obtaining the state’s discoveries in my cases.I need that evidence to effectively prepare my motion for appropriate relief.My old trial court attorney lost my entire file before the 6 years was up pursuant to the NC Bar rules.I filed a complaint.They investigated.The conclusion was that he in fact did lose my file ,including the state’s discoveries,before the 6 year mark.Which was a violation of the NC Bar rules.But the only thing they did was give him a warning. This man has been arrested for cocaine and marijuana and driving with bottles of beer open.Has had 100 complaints filed against him.Been to rehab for months.Has had his license to practice law suspended.Been sentenceed to 10 days in jail for alledgedly lieing to the court.Has been ordered to pay back $50,000 total to numerous clients.Clients had complained that he failed to file suits before the statute of limitations ran. I find an attorney, after 7 years of chasing the state’s discoveries, to finally get a judge to issue an order for the DA’s office to furnish me with copies of their files because my attorney lost them, they refused to hand it over and instead have a hearing with the judge and pursuade him to take back his order.The prosecutor said they get 50 request a year for discovey and that they just can’t physically comply.And that, i don’t have a case pending. I can’t even get the basic necessities to investigate my own case.There is ample amount of reasons that indicate my old attorney didn’t investigate my case properly and people are doing whatever they can to prevent me from proving it. I need anyones help asap.