DETROIT, Oct. 13, 2009 -- At the Frank Murphy Hall of Justice in Detroit last Friday, three University of Michigan law school students starred in a court appearance that could have been scripted by "Law and Order."
The students, who are part of the school's newly formed non-DNA evidence innocence clinic, were in court to convince Judge Timothy M. Kenny to hold an evidentiary hearing on their claim that Dwayne Provience, a man serving a prison sentence for the 2001 murder of Rene Hunter, is innocent.
By the time Robyn Goldberg, 27, finished her presentation she had produced police "progress notes" that had never been shared with Provience's defense lawyer and indicated two other people were responsible for Hunter's murder.
Goldberg was followed by Brett DeGroff, 34, who argued before the judge that Provience's legal defense was so shoddy that not a single witness to the murder was called to rebut the prosecution's version of events.
Law student Nick Cheolas went last with the most devastating arguments. The 24-year-old produced documentation that the prosecution's star witness, a convict named Larry Wiley, has since recanted his testimony implicating Provience.
In addition, Cheolas introduced court records showing that two years after Provience's conviction, prosecutors argued at the trial of a hitman that he had been hired by a pair of drug dealers to kill an associate they feared was going to implicate them in Rene Hunter's murder.
The judge, after hearing some procedural motions from the prosecution, announced that he would grant the evidentiary hearings that the clinic had hope for. At a hearing scheduled for November, students from the U. of M. innocence clinic will get a chance to present all the new evidence.
It's a major first victory in the case, the first big step in Provience reclaiming his freedom.
If this were "Law and Order," the trio would be seen standing on the top step of the courthouse now with Sam Waterson giving them a look of approval.
Instead of Waterson, however, the students were under the courtroom supervision of their professors, Bridget McCormack, the law school's dean of clinical affairs, and her partner in leading the innocence clinic, David Moran.
"The truth is they are doing a better job than most lawyers in the state," McCormack says with a wide smile.
The U.of M. clinic takes up where the more established Innocence Project leaves off. The Innocence Project takes cases where DNA can prove guilty or innocence and as of September 2009, was credited with proving the innocence of 242 people wrongly convicted.
The U. of M. students represent clients who they believe have been wrongfully convicted in cases where no biological evidence exists. The clinic started work last winter, and this summer students won their first case by getting the 2001 convictions of two men overturned. The students work on all aspects of the cases, including arguing motions in court.
Before cases make it to court, the U. of M. clinic conducts extensive research. Students look over old court documents and try to hunt down witnesses to find new evidence.
It was in-the-street, gutsy investigative work that led student Maria Jhai, who is in her second year, to the "progress notes" in the Provience case. The mother of a confessed murderer in another case turned over the notes to Jhai, giving the clinic major new evidence.
"It took me a couple of read-throughs to realize what we had," Jhai says.
What she had was evidence connecting two other people to the murder of Rene Hunter. Jhai describes her clinical work as hugely important to her law education.
"I don't think law students take a job where they see the reward of their work. And it's so gratifying," she says. "It's a totally different experience practicing law. You're representing a client that you meet. I've met Dwayne's mom. You get to see and be involved with your client's family."
The U. of M. innocence clinic has received more than 3,500 applications from people claiming that they were wrongfully convicted. The clinic is currently litigating or about to litigate eight cases. They are investigating another 50 cases. Moran says the clinic has a high standard for selecting cases.
"The question we ask, is this a person who has a plausible point of being innocent, and is there a plausible chance we can do something about it?" Moran says. "And if the answer to both those questions is yes, then we designate the case for further investigation."
McCormack and Moran say a non-DNA clinic is necessary because only a small fraction of all felony convictions involve DNA.
In most of the cases the clinic is working on, the defense attorney for the convicted person did a terrible job at trial, the clinic says. That's another reason why the innocence clinic is so vital, the group says.
"We have seen case after case in which we have seen some of the most wretched lawyering for the defense at trial," Moran says. "Michigan has one of the nation's worst systems for ensuring the quality of defense lawyers at trial." Most states have a statewide system to fund indigent defense, but in Michigan it is funded by the counties.
Neither Moran nor McCormack worry that the students might make a major mistake during their appearances in court.
Goldberg reviewed her index cards of notes and rehearsed a change in his presentation under McCormack's watchful eye 10 minutes before court.
DeGroff exuded confidence before his presentation. He had rehearsed while driving to court and made his mom listen to the argument the night before.
DeGroff encountered minor bumps in his presentation. Arguing the ineffective counsel point, DeGroff explained that the witnesses' testimony would have "directly and forcefully" contradicted the prosecution's witness. Perhaps sensing a teaching moment, the judge cut DeGroff off in midspeech and chided him over his use of language.
"I'm sure your professors have told you sometimes adverbs diminish the effectiveness of your arguments," Kenny explained, referring to DeGroff's use of "directly" and "forcefully." DeGroff conceded the judge's point and continued his presentation with confidence.
Cheolas was equally confident. "You simulate it in law school a lot, and I've done mock cases," he says.
Even if a student were to mishandle something in court, the professors are always ready to take over.
"They have the luxury of having time to get ready," McCormack said. "They are working on usually one big case and then a number of investigative cases, so unlike a busy lawyer with a volume practice, which is what most of the indigent defense bar is, they have all the time in the world to get ready for a hearing."
Fighting without DNA evidence is "significantly harder," McCormack says. "I often have the thought if only we had a DNA test to turn over to the prosecutor that this might be a lot easier." But, she says, the litigation makes for a more interesting learning experience for the students.
Among the other obstacles facing the clinic, prosecutors are reluctant to sign on to motions to reverse convictions. In the Provience case, the fact that police had evidence that shows someone else committed the crime and that evidence was withheld is infuriating, McCormack says.
"It makes us pretty mad. I mean, when we learned about that police report we were pretty furious," she says. "And we kind of hoped the prosecutor would have a similar reaction. We hoped the prosecutor would see it, and say, 'You've got to be kidding me,' and maybe just join our motion, but no such luck."
The Wayne County prosecutor's office declined comment about the Provience matter until the conclusion of the case, but did speak about the adversarial role the office must play with the U of M clinic.
"We both have the same goal in mind," said Maria Miller, spokeswoman for the Wayne County Prosecutors office. Miller said the prosecution doesn't have any problem with students handling cases. "Law school is a training ground ... as long as they are appropriately supervised there is nothing wrong with them doing work and appearing in court."
Michigan Innocence Clinic's First Victory
One of the men who won his innocence in the U of M clinic's first victory was in court for the Provience hearing. His name is Deshawn Reed. With help from the innocence clinic, Reed and his cousin, Marvin Reed, were released from prison, cleared of a 20-year sentence for assault with intent to commit murder.
Reed and Provience are friends. They met in prison and became workout partners. Reed encouraged Provience to write the law school clinic. He did, and that's how the U of M students got involved with the Provience case.
"Dwayne [Provience] would talk about what happened and people who are guilty don't talk about things," Reed says.
Outside of the Provience hearing, Reed greets members of Provience's family. Reed says it was very important that he attend the court hearing as a show of support for the U of M clinic.
"I love them. Whenever they give me a call, I'm there," he says.
Reed has not been able to find work in the four months since he's been free, but he says he's glad to have his life back.
He says, "I'm just thankful I've got my freedom."