Ken Strutin’s article presents a significant collection of expertly selected resources on clemency and other established post-conviction projects. It also includes general resources that can be used in the process of starting up a clemency clinic or a project in a law school, bar association, law firm, university, college or any entity interested in undertaking a role in arena of work. Ken documents how innocence projects and law clinics are good models for clemency projects because they pursue claims frequently raised in pardons. He also identifies how schools of journalism, paralegal and legal assistant programs, and private law firms, defense providers, individual attorneys and not-for-profits spearheaded by those directly affected, have embraced a mission to address injustice in their particular ways.

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Ken Strutin’s guide comprises recent publications and other notable resources concerning the relationship between the administration of bail and the requirements of due process. Pretrial detention of suspects directly impacts the presumption of innocence. The cornerstone of the justice system is that no one will be punished without the benefit of due process. Incarceration before trial, when the outcome of the case is yet to be determined, cuts against this principle. The Founders were aware of the dangers inherent in indiscriminate imprisonment, which is one of the main reasons behind the inclusion of the Eighth Amendment in the Bill of Rights, prohibiting excessive bail.

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Ken Strutin reasons that any accounting of the justice system would put the presumption of innocence at the top of the ledger. The premise underlying this evidentiary rule is that no one should be found guilty of a crime unless the state has convinced a jury with proof beyond a reasonable doubt. The materials Ken has researched and documented for this guide focus on the drift from unitary innocence, which encompasses all possible claims to a wrongful conviction, to factual innocence rooted in exoneration jurisprudence. According to some scholars, factual exonerations may have confounded the wisdom behind the Blackstone Ratio and its overarching message, i.e., criminal law and procedure ought to be weighted in favor of innocence to avoid wrongful conviction, even if there is a chance that the guilty will benefit as well. In other words, a system of justice that is fair to all and seeks to protect the innocent from wrongful prosecutions must apply safeguards that will be over inclusive. The calculations of truth and fairness are rooted in a system of justice based on due process (or a presumption of due process). The scholarship collected here attempts to address questions of whether the concept of innocence is selective or categorical.

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Ken Strutin has written extensively for LLRX.com on criminal law issues. He argues that false confessions, bad eyewitness identifications, and faulty forensics, among other problems, have shown that seemingly iron clad adjudications can reach the wrong result. A ‘guilty’ verdict only indicates that the government has proven beyond a reasonable doubt that the defendant committed each and every element of the crime, and not that the defendant actually committed the crime. A freestanding claim of actual innocence is a potentially powerful tool to assail a verdict that points to the wrong person. Still, courts have made only small gains in recognizing actual innocence generally as a basis for contesting a wrongful conviction. This article collects selected scholarship on “actual innocence” and litigating post-conviction claims that go beyond the procedural metrics of the trial process.

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Interpreting Rule 1.6(b)(1) of the ABA Model Rules of Professional Conduct in the context of wrongful convictions is complicated by evidentiary and practical considerations surrounding the potential use of such information. This article by Ken Strutin examines resources about several notable cases and the scholarly literature analyzing different approaches to resolving this dilemma.

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