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THE PROJECT

Once the seal of res judicata has been affixed to a person who has been struck down by the guillotine of a wrongful conviction, there is little prospect of salvation. This is particularly fatal if the verdict is a custodial sentence. Defense lawyers are familiar with such cases. They often suffer with the fate of clients who, in their opinion, have been wrongly convicted, not infrequently against the fierce, futile resistance of the defense. Afterwards, there is usually only resignation.

In Germany, we know little about the phenomenon of wrongful conviction, its frequency and its causes. Since the groundbreaking study by Karl Peters on the "Sources of Error in Criminal Proceedings" in 1974, science has hardly dealt with it. Re-trials and their results are neither statistically recorded nor systematically evaluated. Only recently has this begun to change. Until now, miscarriages of justice have hardly ever been a subject of legal education. Awareness of the fact that the existing remedies and precautions against wrongful convictions in the rules of criminal procedure are not sufficient to prevent them is just as little developed as an understanding of the need for effective means to overturn even legally binding wrongful convictions. A culture of error is underdeveloped in the criminal justice system.

This is different in other countries. Primarily in the USA. Here, initiatives such as the Innocence Project or the National Registry of Exonerations have been dealing with wrongful convictions and their causes for decades. Not only that. The Innocence Project, founded by two criminal defense lawyers from New York, Barry Scheck and Peter Neufeld, tries to uncover and correct wrongful convictions. And it does so exclusively with the help of DNA analysis. Since 1992, the year the project was founded, it has succeeded more than three hundred times. In the meantime, there is a worldwide Innocence Movement, which also includes initiatives in several European countries. But not in Germany.

In legal practice in this country, reopening proceedings hardly play a role. There are only a few specialists who work in this field, occasionally with spectacular success. An initiative comparable to the Innocence Project does not yet exist. It is time to change that. Because:

Recently, some movement has come into this backyard of criminal justice. The dissertations by Böhme (2015) and Dunkel (2019) deal with criminal court miscarriage of justice and miscarriages of justice, respectively. Arnemann's dissertation (2019) examines deficits in criminal retrial. In Strafverteidiger 2020, 52 ff. the results of a study by Kemme and Dunkel on penalty orders and wrongful convictions were published. A research project by Professor:in Bliesener, Altenhain, and Volbert deals with "Errors and Reopening in Criminal Proceedings."

It is therefore long overdue to attempt to systematically address the detection and correction of wrongful convictions in Germany as well. Defense lawyers know that this is not a phenomenon that is limited to spectacular individual cases that have made it through the media.
 
The many individual fates that are not even uncovered remain hidden also because retrials fail due to numerous practical and legal obstacles. Often they are not even tackled because convicted persons, if they had money to finance their defense, are penniless at the latest when their conviction becomes final. For lawyers, involvement at this stage of the proceedings is mostly a pro bono activity, if it is taken up at all. At best, they are assigned to the case and receive a modest fee.

 

An initiative, which Prof. Dr. Kirstin Drenkhahn, Prof. Dr. Kai Ambos, Prof. Dr. Stefan König and Prof. Dr. Carsten Momsen have initiated, must start from this situation. We want to try to improve it with given means. For this we need the help of committed lawyers who are willing to qualify and engage themselves in the field of reopening.

 

However, by linking with university teaching projects, the lawyers will now have the opportunity to work with highly motivated and specially trained students, thus sharing the workload without increased costs. The students participating in our law clinics are characterized by a keen interest in the practice of defense and consistently above-average commitment.

Specifically, we plan to:

 

  • We are creating a central point of contact for Germany to which people can turn who believe they have been wrongly convicted and seek correction of their conviction. Currently, volumes of worn-out, closely-written appeals for help with stacks of attachments wander from lawyer to lawyer like the notebooks of a reading circle through the republic. Most recipients try to get rid of them quickly.

  • With the help of specially trained students and under the guidance of lawyers and academics, inquiries received by this contact point are first examined to determine whether they appear suitable for the initiation of reopening proceedings.

  • A special curriculum is offered to the students within the framework of the existing law clinics at the FU Berlin and the University of Göttingen (these are formats in which theoretical training is combined with practical assignments with attorneys), in which they are instructed in the law of retrial, in criminological sciences, in causes of wrongful convictions and in the practice of retrial proceedings. The curriculum is being developed in cooperation with other universities (currently Bielefeld, Augsburg, Greifswald, DHPol Münster).

  • For lawyers who are interested in special knowledge for the conduct of retrial proceedings, an advanced training course is to be offered by the Working Group on Criminal Law in the DAV, which will provide an introduction to the law and practice of retrial proceedings. FAO certificates will be issued for participation in the events.

  • If they wish to support the project with the knowledge they have gained, the lawyers trained in this way will accompany students of the law clinics in the examination of incoming inquiries within the framework of internships. In the initial phase of the project, the number of these examinations will have to remain limited. They will be processed in the order in which they are received. If the capacity is full, requests received later will have to be deferred. However, we hope to be able to expand capacity as the project gains momentum and initial experience is gained.

  • At present, no remuneration can be paid for the guiding activities in the selection phase. If inquiries prove to be promising for a retrial, then - if the litigants do not provide funds - a request for assistance can be made. The Innocence Project in the U.S. is a donation-funded law clinic, which has also become successful through the pro bono commitment of many American criminal defense attorneys. We will try to raise funds for the German project as well, but also hope for the commitment of criminal defense attorneys motivated by the cause.

 

We therefore need supporters from the legal profession. An initiative similar to the Innocence Project is long overdue in Germany. It must not be limited to cases in which wrongful convictions are brought down with the help of DNA analysis. It must cover the entire spectrum in which reopening of criminal proceedings is possible under current German law.

 

We therefore ask for letters from interested colleagues who would like to participate. Please contact us via info[at]wiederaufnahme.com.  We will provide more details on content, speakers and duration in due course. We also ask you to let us know if you are willing to participate in the Law Clinic in Göttingen, Augsburg, Cologne, Greifswald, Frankfurt (Oder), Gießen or  Berlin.

The project will be scientifically accompanied. It will also deal with the causes of wrongful convictions and systematically record retrials that are initiated. Extensions in many directions are conceivable here. The Innocence Project in the USA is also active in legal policy. It has initiated and enforced reforms of criminal procedure in various states. These are also goals that the project has set for Germany.
 
Gerhard Strate noted at the end of his article "Wiederaufnahmenverfahren" in the Munich Lawyers' Handbook on Criminal Defense (2nd ed. 2014, § 27): "The practice of the law of reopening has so far made itself comfortable in the twilight zone. It is time to take a sharp look at it."
Let's start there!

Prof. Dr. Stefan König
Prof. Dr. Carsten Momsen

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