Hal Humphreys hosts Allison Clayton, a Texas defense attorney, for a deep dive into criminal defense work, post-conviction cases, and investigating innocence.
Here’s a quick recap of our March 26, 2020 webinar, starring our brilliant friend, defense attorney Allison Clayton. As you’ll see in the photo above, Hal is staying safe and practicing social distancing, by setting up the webinar studio in his Nashville backyard. We’ll continue to shoot weekly briefings and webinars here until the all-clear comes.
Below, a few highlights, edited for clarity:
Investigating the Case Right the First Time Around
“Of the post-conviction innocence cases I do, 70-80% of those cases could have been avoided altogether if the defense attorney had just gotten a good investigator on the case from the get-go. It would have saved this person years of wrongful incarceration. It would have given the victim justice from the very beginning. And because sometimes we may not be able to get the person out of prison, we may never know who committed the crime. I cannot emphasize enough the importance of having a really good investigator on the case.” —Allison Clayton
Importance of Getting an Early Start
“The sooner [an attorney] gets an investigator involved, the more impact that investigator can have.”—Hal Humphreys
“You have this time frame that is absolutely critical. There’s a lot of evidence that if you don’t capture it in that moment, it’s going to be gone forever.” —AC
“One of the most important things [an investigator] can do is talk to the same people the officers have spoken to and make sure [the report] is accurate. We’ve had a significant number of cases where what the officer said in the report was not accurate. Not intentionally, but that summary did not capture what really happened.” —AC
“Most police officers and district attorneys are not trying to hide the ball. They’re trying to do the right thing, and they don’t mind having their paper graded. And if everybody’s looking for the actual truth of the matter, that’s the way it should work. But sometimes that’s not the case, and it’s imperative that we investigators dig as much as possible.” —HH
Attorney-Investigator Division of Labor
“Attorneys – I think their job is to take the facts and figure out how the law applies to those facts. Investigators – our job is to bring the facts, be they good or bad, so the attorney so they can decide how the law applies.” —HH
“That’s right. Say for example, I were to go into the field and speak with a witness, and they told me [a different fact on the stand than they told me in the field], I would have to get on the stand and testify. That’s all kinds of bad … opposing counsel gets to cross examine you … I would never take the stand in my own case.” —AC
“Other reasons are, y’all have a skill set I don’t have. Talking to people in the field and trying to interpret them is just not in the wheelhouse of a whole lot of attorneys. The other thing is, when you really believe in the client, you want your guy to be innocent. This is what you want the facts to be. And sometimes what you really need is someone you know and trust to come in and say, ‘I know this is what you want, but these are not your facts.’ You really need that balanced perspective.” —AC
How the Innocence Project Works
“Once a person has been convicted, we’re in a real mess. The further you get out from the incident, the more difficult it is to undo what’s been done. We have to have proof that either this crime did not happen or this crime did happen, and here’s who did it. That’s the reality of our situation. We have to become investigators. We have to start from the very beginning and figure out what really happened, where things went wrong, and how we can present this in a persuasive manner to get this conviction overturned. Very difficult to do. Imagine having that job and adding 20 or 30 years on top of it. It becomes a Herculean burden. But that’s the job.” —AC
How Investigators Can Help
“There’s Innocence Projects all over the country. If you go to the Innocence Network website, there’s an interactive map that will show you Innocence Projects in your state. From there, I would reach out to the local IP and say, ‘Hey, I’m an investigator. What can I do?’ There’s never a shortage of work to be done.” —AC
Getting Started as a Defense Investigator
“If you have research skills, if you’re already an investigator and you’d like to do criminal defense work, volunteer for an Innocence Project somewhere. Or talk to attorneys in your state who take appointed cases. They can get you appointed, if you’re licensed. And they can help you get the experience on an appointed case. The courts will pay for your services. You can learn on the job and still provide help they wouldn’t have gotten.” —HH
“The criminal defense world is a small community. The good attorneys know who the good investigators are. So if you break in on a case and you do a really good job for a good attorney, it will spread like wildfire. Once word gets out, you’ll be booked.” —AC
“Appointed cases: the money’s not good. In Tennessee, the administrative office of the courts pays attorneys $50/hour. They pay investigators $50/hour. I find that alone to be a criminal offense! But here’s the thing. In a time like this when insurance investigators are not out doing surveillance because everybody’s been ordered to stay home, appointed work is paid work, and $50/hour is better than $0/hour … Because I’ve got bills to pay and a life to live. And this work is bigger than any of our individual egos. I will take work for $50/hour because I feel like it’s really important work to do. ” —HH
“In these criminal defense cases, you [as an investigator] are saving lives, are changing lives. It’s really important work that can have lifelong impact for the individual and for our society. And if you are lucky enough to defend somebody, thank you for doing a really good job! At our Innocence Project, whenever we have somebody who does a really good job, we will go above and beyond to publicize people who help us. —AC
“Ha! If you can’t get your head around benevolence, you can at least get your head around business development.” —HH
The Feeling of Winning an Innocence Case
“Those are the moments I live for. When you see a man reunited with his family or a mother reunited with her son, there is no greater high in the world. In that moment, everything clicks, like, ‘This is why I have the skills that I have.’ It is indescribably fantastic. It will bring you joy for the rest of your life.” —AC
Watch the whole thing here:
If you’re interested in doing Innocence Project pro bono work, see Steven Mason’s article about his experience:
About our guest:
Allison Clayton is deputy director of the Innocence Project of Texas and adjunct professor of the Texas Tech School of Law’s Innocence Clinic. She runs a private appellate and post-conviction practice based in Lubbock, Texas, with cases pending all over the nation, at every level of the court system – from county courts all the way through the U.S. Supreme Court. She was recently appointed as chair of the Amicus Committee for the Texas Criminal Defense Lawyers Association. Allison steadfastly believes she was born to be an advocate for the poor and oppressed and a defender of the Constitution.
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