Timothy J. McGintyCUYAHOGA COUNTY PROSECUTORTO:All Assistant County Prosecutors and Administrative PersonnelFROM:Timothy J. McGinty, Cuyahoga County ProsecutorDATE:April 17, 2014SUBJECT:CCPO Conviction Integrity UnitEffective:Immediately___________________________________________________________________This Memorandum details the procedure for presenting a post-conviction claim ofinnocence to the Cuyahoga County Prosecuting Attorney outside of court proceedings.It provides for the careful and expeditious handling of wrongful conviction allegations.The decision to review and investigate a claim does not infer acceptance of the validityof the alleged innocence claim. Moreover, in consenting to allow DNA testing, the Stateof Ohio takes no position on the significance (or lack thereof) of any DNA results thatmay be obtained.Regional Supervisor Jose A.Torres has been designated as the Conviction IntegrityCoordinator. Any questions concerning the procedures described below should bedirected to:Jose A. TorresConviction Integrity CoordinatorCuyahoga County Prosecuting Attorney’s Office1200 Ontario Street, 9th FloorCleveland, OH 44113(216) 443-7779jtorres@prosecutor.cuyahogacounty.usOFFICE OF THE PROSECUTING ATTORNEYThe Justice Center • Courts Tower • 1200 Ontario Street • Cleveland, Ohio 44113(216) 443-7800 • Fax (216) 443-7601CUYAHOGA COUNTY PROSECUTOR’S OFFICECONVICTION INTEGRITY UNIT PROTOCOLI.OVERVIEWThe Conviction Integrity Unit (CIU) shall be established for the review ofconvicted offenders’ legitimate extrajudicial post-conviction claims of innocence.The CIU is comprised of a Conviction Integrity Coordinator, an AdministrativeAssistant, a Conviction Integrity Committee and a Conviction Integrity PolicyAdvisory Panel.The Conviction Integrity Coordinator organizes the work of the Committee andleads all re-investigations of any cases that present a meaningful claim of actualinnocence.The Conviction Integrity Committee is comprised of nine senior members of theCuyahoga County Prosecutor’s Office including the Criminal Division Chief, theAppeals Unit Supervisor, the Conviction Integrity Unit Coordinator and six othersenior Assistant County Prosecutors.An Administrative Assistant will be designated to receive all requests, preparecase files for the Conviction Integrity Unit, and track responses and outcomes toall cases.The Conviction Integrity Policy Advisory Panel is comprised of at least threeleading criminal justice experts, including legal scholars and former prosecutors,who advise the Office on national best practices and evolving issues in the areaof wrongful convictions.Notwithstanding other statutory remedies, a criminal defendant may only submita request for review of a conviction based on a claim of actual innocence to theCIU.II.CASE INTAKEThe following types of submissions will be accepted:A. Non-motion claims of actual innocence1. All requests must be submitted in writing. In order for the ConvictionIntegrity Unit to carry out a preliminary review of a conviction, thefollowing prerequisites must be met:a. The conviction must have been in Cuyahoga County CommonPleas Court,b. The convicted offender must be a living person,c. There must be a claim of actual innocence, not a legal issue,d. New and credible evidence of innocence must exist,e. The claim must not be frivolous, andf. The convicted offender waives his or her procedural safeguardsand privileges, agrees to cooperate with the Unit, and agrees toprovide full disclosure regarding all inquiry requirements of the CIU.(See Waiver).2. The request must be in writing and shall include the offender’s name,case number, evidence of innocence and, if applicable, how the CIUwould be able to look further into that evidence.3. The CIU does not review non-innocence related claims such as thoseconcerning procedural errors at trial, trial court rulings or ineffectiveassistance of counsel. Such cases may be screened and summarilydismissed by the CIU.4. Priority will be given to those cases in which the convicted defendant iscurrently incarcerated solely for the crime for which he or she claimsactual innocence.5. A convicted offender can submit a request on his/her own or bycounsel. If the convicted offender is represented by counsel, allcommunication with the Conviction Integrity Unit must be through theattorney.B. Post-Conviction MotionsAll post-conviction relief petitions (R.C. 2953.21), applications for DNAtesting (R.C. 2953.72) and new trial motions (Crim. R. 33) will be handled bythe Appeals Unit. The Appeals Unit Supervisor may notify the CIU of any ofthe above motions claiming actual innocence that contain newly discoveredevidence bearing on innocence or issues including, but not limited to, one ofthe following:1. Misidentification by the victim(s) or witness(es),2. Recantation by the credible witness,3. A criminal defendant’s meaningful claims of an alibi, and/or4. Information provided by new witnesses not locatable at the time of trial.III.CONVICTION INTEGRITY UNIT REVIEWA. Initial Review1. After receiving a request, the Conviction Integrity Coordinator will carryout a preliminary review. If the Conviction Integrity Coordinatordetermines that Section II-A-1 prerequisites were not met, theconvicted offender and/or legal representative will be notified that nofurther action will be taken.2. If Section II-A-1 prerequisites are met, the Conviction IntegrityCoordinator will designate CIU member(s) or another senior AssistantCounty Prosecutor to review the claim as soon as administrativelypossible and prepare for the CIU a brief memorandum outlining themerits of the claim of innocence. Particular scrutiny will be given toclaims of actual innocence based upon the following grounds:Misidentification, untruthful statements made by informant/CI, alibi,witness recantation and any newly discovered evidence that bears oninnocence.3. The Conviction Integrity Committee shall review the memorandum anddetermine, by a majority vote, whether there is strong indicium that theconvicted offender is actually innocent.4. If a majority of the CIU Members determines that the request lackssufficient reasons to further consider the merits, the ConvictionIntegrity Coordinator will notify the convicted offender and/or legalrepresentative that no further action will be taken. The determination ofwhether to further review a claim is at the sole discretion of the CIU.5. Claims made by convicted offenders who plead guilty will have a highstandard to meet for review by the CIU. Only in rare and extraordinarycircumstances will the CIU initiate an in-depth review of an innocenceclaim by a convicted offender who has plead guilty.6. The CIU will not review claims where a convicted offender recants histrial testimony and offers a new theory of innocence.B. In-Depth Review and Re-Investigation1. The Conviction Integrity Coordinator will supervise the review of thosecases that warrant further consideration of the merits.2. Many post-conviction claims of innocence may be resolved byreviewing the file, appellate briefs, or addressing any open issues withthe Assistant Prosecuting Attorney that handled the case. Others mayrequire a more thorough examination. Each case will be sui generis.3. Once the in-depth review is completed, the designated CIU member(s)or another senior Assistant Prosecuting Attorney conducting the reviewwill submit a final report to the CIU.4. The Conviction Integrity Committee shall review the additionalinformation received and determine by a majority vote whether a validclaim of innocence is present. The final report, vote andrecommendation shall be sent to the Cuyahoga County Prosecutor.Dissenting CIU members will be able to include their position.5. The final decision is solely that of the Cuyahoga County Prosecutor.This final decision will be communicated in writing to the convictedoffender and/or legal representative by the Conviction IntegrityCoordinator. There is no timeframe by which the Cuyahoga CountyProsecutor must decide on the claim.6. Each case shall be maintained according to the following procedure:a. The CIU shall create and maintain a tracking system that willrecord the name of the convicted offender and the ultimateoutcome of the claim.b. Completed files will be maintained pursuant to the CuyahogaCounty Prosecutor’s Office record retention policy7. If an in-depth review and investigation regarding a claim of factualinnocence is granted, the Conviction Integrity Coordinator will notify thevictim(s) or survivor(s) in the case, if any. The Conviction IntegrityCoordinator will provide the victim(s) or survivor(s) notice that he orshe has the right to present his or her views and concerns throughoutthe investigation.8. Innocence Claim Investigation Processa. The investigation procedure may be unique to each case and caninclude:Information from a cooperating defendant,A checklist to be completed by the police officers involved in thecase,A Brady/Giglio checklist,An identification case checklist.b. Detailed records shall be kept by the CIU throughout theinvestigation.c. The case will then be presented to the CIU, which will make adetermination as to the merits of the claim of innocence.9. If at any point during the review of an innocence claim, the case doesnot meet the criteria set out in the initial request for review, the claimshall be rejected.10. Extrajudicial Requests for Post-Conviction DNA Testinga. All extrajudicial requests for post-conviction DNA testing on behalfof the convicted offender that meet the submission criteria will beforwarded to the CIU. The Conviction Integrity Coordinator willdesignate the Appellate Unit to review the claim as soon asadministratively possible upon receiving the request. Once thereview is complete, the Appellate Unit will prepare a briefmemorandum outlining the merits. In evaluating the request, theAppellate Unit will do the following:Verify the existence of DNA evidence,Verify if evidence is lost or destroyed, and if so, a CIUCommittee Member will notify the defendant via letter.If the evidence is located, the CIU will examine the nature of theevidence and its suitability for testing.If the evidence is unsuitable for testing, the CIU will determinewhether the evidence has been properly handled and storedand will determine if the storage or handling procedure hasreduced the likelihood of meaningful results. If the evidence isunsuitable or testing, the CIU will notify the criminal offender byletter.If the evidence is suitable for testing, the CIU will review theevidence depending on its significance in relation to the case.b. The CIU will consent to post-conviction DNA testing in any case inwhich the results will likely settle or be informative as to the issue ofguilt or innocence.c. If the CIU does not consent to testing located DNA evidence, theconvicted offender can file a motion and request that the Courtorder the testing.d. DNA testing will be performed by the Office of the CuyahogaCounty Medical Examiner or any accredited lab per RC 2901.07(C).Under no circumstances will the CIU consent to DNA testing at anunaccredited lab.11. In cases where the offender’s conviction resulted from a plea of guilty,the CIU will consent to DNA testing where the results would proveactual innocence.12. The CIU will consent to DNA testing in cases where the convictedoffender did not request DNA testing at trial because:a. DNA testing was unavailable,b. The existence of the DNA was unknown to the convicted offender,orc. There is reason to believe that the testing conducted at the time oftrial is now unreliable.13. Outcome Determinative DNA Non-Suspect Matches - Upon receipt ofDNA test results that indicate a DNA match between evidence that wassubmitted at the time of the crime and an individual who is not theconvicted offender, the CIU will notify the Cuyahoga CountyProsecutor of the DNA test results.