Law Links - October 2015

School of Law’s Innocence and Justice Project is launched

John R. Nuchereno.

John R. Nuchereno at the 2015 Buffalo Law Review Dinner where he was an honoree.

After the conviction and the appeals are over, John Nuchereno says, most convicted persons find themselves without a lawyer. Typically they have no money, and most lawyers know little about post-conviction remedies. They may plead with the court to look at their case again, but usually those pleas amount to little more than “I didn’t do it.”

That’s where the Innocence and Justice Project, a new initiative of the School of Law's Advocacy Institute, picks up the story. Under the direction of adjunct professor and trial attorney John Nuchereno, of the Buffalo law firm Nuchereno & Nagel, a select group of second- and third-year law students will identify cases in which there is strong evidence of a miscarriage of justice and, in their role as student attorneys, press the case for redress.

“I’m really excited about this project,” says SUNY Distinguished Service Professor Charles Patrick Ewing, who oversees the school’s Advocacy Institute. “With the current focus on mass incarceration and flaws in the criminal justice system, this only makes sense.”

As the name of the project suggests, student attorneys will take on two types of cases: those claiming that they did not commit the crime of which they were convicted, and those who were not afforded the due process of law.

“Most people in jail are guilty of something,” says Nuchereno, who has won exoneration for four wrongfully convicted persons in his private practice. “But many of those people are guilty of something less than they were convicted of. There are some who are completely innocent, and the biggest number really didn’t get due process and were wrongly convicted. If you’re going to be convicted and spend years in jail, that should be done by the book.”

The classic case, he says, is “a guy sitting in jail, his appeal is over, it’s three years after the crime, and he files a Freedom of Information Act request – and here are documents, names, witnesses he never knew existed. He starts investigating this, and realizes if he had known this information, it would have changed the outcome of the trial.”

Under Nuchereno’s direction, the students chosen for the project will examine so-called 440 motions, which are filed by inmates asking the court to vacate their convictions. He will then assign each case to a two-person team of students, who will then pursue a post-conviction remedy. That might involve talking to the petitioner’s attorney or his appellate attorney, examining the appeal record, talking to family members and the prisoner himself. “In some cases we will withdraw from the case without filing papers,” Nuchereno says, “but in some we’ll prepare a motion, file it with the court, and the students will appear in court as the client’s attorneys.”

The Innocence and Justice Project spans both fall and spring semesters. Thirty students are now enrolled in Nuchereno’s fall-semester course in State and Federal Post-Conviction Remedies. He will soon choose eight for the spring semester when they will begin processing claim-seeking post-conviction relief. Practical considerations will limit the cases they will consider, he says. For example, they will look at petitions resulting from convictions only in Erie and Niagara counties, and only from inmates serving their sentences in Western New York.

Students in the project will receive course credit, and the hours that they work will count toward the state-mandated requirement of pro bono service in order to be licensed as lawyers.

“The students are wildly enthusiastic,” Nuchereno says. “This isn’t generally taught in law schools. It’s just rare. But we will function as a law firm within the Law School. We’re doing a start-up. And it’s going to bring some attention to this law school, for the good work that the students are capable of doing.

“If you plan to study criminal law, this will be the law school you will want to attend.”