Reversing Wrongful Convictions
Resulting From
False Allegations of Abuse
Provided by Allen N. Cowling

This page provides basic information specific to a wrongful conviction. For additional information, see Our Step-by-Step Procedure, linked at the bottom of this page. That page describes, in detail, exactly what we do, and why, when we are representing a client who was has been wrongfully convicted.

The last thing I want is any confusion or misunderstanding about what I do when I am retained to assess a conviction. First, understand that I am not an attorney. My role in these cases is somewhat that of a trial consultant and a defense strategist. My involvement does not assure that any conviction will ever be reversed. In order to honestly understand my role, consider an actual case. This case was a shooting, not a false allegation of sexual abuse, but there could be no clearer explanation of exactly what I do in any case.

In my example case, my client had, in fact, shot and killed someone. There was no question that the shooting took place, the only real question was, "Why and what happened?" "Was the shooting murder or self-defense?"

I was initially contacted by my client's family and retained to review the trial transcripts, appeal briefs and all other documentation regarding the case. I was told that an appeal had been filed following the conviction, the Appeal's Court had upheld the conviction, and my client's family said they had been told by attorneys there was nothing else that could be done. The following are the steps I took:

  • I met my client's family, had a brief discussion with them about the case, they provided me with all documentation they had and I began to review everything.
  • Based on my overall analysis of all the documents I had been provided with, I learned that my client had an altercation with another man. The other man was shot and died as a result of the gunshot wound.
  • My client was initially arrested and charged with homicide. When his trial ended, the jury did not find him guilty of homicide, but they did find him guilty of man-slaughter.
  • As I continued to review the material that had been provided to me, one thing that stood out was the fact that the State had used a ballistics expert at trial, but the defense did not.
  • Another very important issue was the fact that the prosecutor had argued that my client lied because he had given two versions of the shooting; one to the grand jury and the other to his trial jury. Amazingly, the defense did not have, nor were they ever provided with a recording or transcript of my client's grand jury testimony prior to or during his trial.
  • One of the things that greatly concerned me was the fact that a shooting is normally a very traumatic event and it is somewhat impossible for the "shooter" to recall specific details. Years ago, I taught an investigative class. On the night that each class would begin, one of my employees would enter the class, ask for me and when I responded, they would pull a 38 and shoot me 4 times. Although I was being shot with blanks, it was very loud and very realistic. When the shooting happened we saw students climb under their desk, attempt to get out of the classroom and building, push other students, climb on other students and do whatever was necessary to try and get out of the area. The scene was total chaos and when I would stand back up, you could hear a pin drop. I then explained to the students, "You just witnessed a crime." "Describe everything you remember." On most every occasion the descriptions given were far from what had actually happened. The person who shot me was black, but we have had students actually state that a "white man entered the room and shot me." As previously stated, I was shot 4 times. Reports would state I was shot once, or as may as 6 to 8 times. There was also no accuracy as to the type of gun used. In other words, the students had no idea the shooting was coming, they were caught completely off-guard and when they tried to explain what happened, they were far from accurate.
  • In the case that I was evaluating, my client was physically confronted and assaulted by man, hit numerous times in his face and pushed before he shot the other man. The lie the prosecutor was so obsessed with was my client's explanation of "how the man he shot had tried to get the gun away from my client." On his best day, I would not expect my client to have a logical or accurate explanation for that.
  • Based on the analysis of the material that I had, I located a ballistics expert who had a great deal of experience and a great deal of crediblity with the local Courts. I discussed the case with him at length, then provided him with the portion of the trial transcript that dealt with the shooting along with all testimony of the State's ballistics expert.
  • After locating the ballistics expert, I began looking for a mental health professional that deals with the trauma of shootings. Most police departments have such an expert on retainer to evaluate police officers who have been involved in a shooting. I found such a psychologist who had a great deal of experience in the field of shooting trauma. I discussed the case at length with him and he made arrangements to review my client's trial and grand jury testimony, then to meet with and to evaluate my client.
  • The mental health professional evaluated my client and then he talked with the ballistics expert who had already prepared a report that was very beneficial to us.
  • Once I had reports and opinions from the ballistics expert and the mental health professional, I took everything I had on the case and referred it all to an attorney. That concluded my involvement with the exception of continuing to talk with my client's family occasionally.

In the above case, I was not attempting to practice law. I simply took a case that my client's family had been told there was nothing that could be done, carefully analyzed all documentation, found issues and problems, looked for and found the necessary experts, then put the entire matter in the hands a of caring and competent attorney. Simply put, this is what I do. When involved in any conviction, I am interested in what happened and what can be done about it, period. The best I can possibly do is evaluate the case, look for problems and/or issues, locate experts to deal with those issues, then refer everything to an attorney. I have no power to have anyone's conviction reversed or to get them out of prison. Only the Courts do and, as a non-attorney, I have no power or standing to even present anything to a Court. That requires an attorney.

Under ordinary circumstances, when an innocent person is convicted of crimes they never committed, they are totally devastated and have no idea what to do or where to turn. Any possibility of resolving the matter will usually rest with a family member and the normal procedure would be to have the trial attorney or another lawyer file an appeal brief in behalf of the person who was convicted.

One problem with the appeal process is that most people have no understanding as to what it is or what it accomplishes. An appeal is basically a study of the trial transcript by the higher court to determine if the lower court committed reversible error and, if it has and those errors are significant and properly identified by the defense attorney, the higher court can reverse the conviction, but usually in favor of a new trial. Right back to square one. Never lose sight of the fact that if the trial attorney was incompetent and never objected to crucial issues, the lower court would have had nothing to rule on and therefore, the higher court would have nothing to reverse on.

During the appeal process, the convicted party often sits in prison for as much as a year before an appeal brief is prepared and filed and then, possibly another two years waiting for a decision from their Supreme Court. In most cases, the Supreme Court will simply uphold the conviction. If the appeal is denied, then there are other avenues of post-conviction relief available, such as a Petition for Writ of Habeas Corpus, but each has a price-tag and each takes time.

The fact is, attempting to reverse a wrongful conviction should be handled by an experienced attorney, but that is not always possible. What about the accused who was convicted simply because their attorney was totally ineffective in representing them. If the specific reason for the conviction was ineffective assistance of counsel, it is often difficult to get another attorney to even discuss the issue, even an attorney who was retained to prepare an appeal. In a specific case, a man was convicted solely because of ineffective assistance of counsel. He had absolutely no defense whatsoever. Following his conviction, a court-appointed attorney was assigned to prepare an appeal. That attorney knew, without question, the specific reason for the conviction, but absolutely refused to address any ineffective assistance issue in the appeal. Because of that, the higher court then rejected the ineffective assistance argument raised later in other petitions, stating that the issue had not been addressed at either the trial or appeal level.

In most cases, when considering an attorney to prepare an appeal brief, it is a good idea to have someone other than the trial attorney do so. If the appeal is being prepared by the trial attorney, depend on the fact that they will never raise any ineffective assistance issue which would, in reality, mean they were referring to themselves as incompetent.

While an appeal brief may benefit many, it does not benefit everyone. As previously stated, it deals specifically with a study of the trial transcript and if the trial attorney was ineffective and did not properly object when required, again, the lower court had nothing to rule on and the upper court has nothing to reverse on. Also consider that a great many of the issues regarding ineffective assistance of counsel and prosecutorial misconduct most probably took place prior to trial, therefore cannot be raised in appeal.

One of the major complaints we hear is, "I was convicted because my attorney was completely incompetent." In some cases that we have been involved in, ineffective assistance of counsel was one of the major factors specific to the conviction, but anyone, even considering such a defense must understand certain facts.

We are all fully entitled to proper, adequate and effective legal representation as provided by the Constitution of the United States and, as a result, ineffective assistance of counsel is a direct violation of our Constitutional Rights.

The standard for reviewing claims of ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland is twofold:

  • Was defense counsel's performance deficient when measured by the objective standard of reasonable professional competence, and if so;
  • Was the defendant prejudiced by such failure to meet that standard?

When using an argument of ineffective assistance of counsel, the defendant/appellant must show, without question, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Depend on the fact that any Court, reviewing an ineffective assistance of counsel complaint, will initially side with the attorney the claim is being made against. A claim of ineffective assistance of counsel, by its very nature, refers to the totality of counsel's pre-trial and trial performance and defense counsel will be presumed competent. The burden of proving otherwise rests entirely on the defendant/appellant.

As previously stated, and without question, the issue of post conviction relief should be left in the hands of a qualified and skilled attorney. If, however, that simply is not possible, consider the alternative. It has been said that an inmate with no attorney stands no chance of having their conviction reversed, either through appeal or by post conviction relief. Not so. Any inmate can represent themselves, Pro Se (without an attorney) in their post conviction effort and can have someone assist them with legal research and document preparation, specifically, writs. Most commonly, writs are used either in conjunction with an appeal, or following an unsuccessful appeal, as a vehicle to present to the Court of Appeals or Supreme Court, any arguments based on information outside the record on appeal.

A post-conviction writ can be used to establish issues that affected the defendant's rights to be properly and fairly tried, such as:

  • Denial of the right to counsel.
  • The conduct of the trial counsel and its impact on a fair and proper trial are related to ineffective assistance. The issues most commonly addressed in a writ are:
    • failure to conduct a proper investigation.
    • failure to present known witnesses.
    • failure to make proper objections and requests at trial.
    • failure to disclose a conflict of interest.
  • Lack of lower court jurisdiction to try the defendant even if such defense was not asserted in the trial court.
  • Suppression of material evidence by the prosecution resulting in the denial of a fair trial (Brady violation).
  • Presentation of newly discovered evidence.
  • Proof of a conviction that is based on false evidence.
  • Proof of an invalid or excessive sentence or invalid probation condition.

It has been our experience that most people are afraid to even consider representing themselves Pro Se, simply because they do not feel that they are educated or smart enough and do not want anyone to think they are attempting to practice law, but in some cases, representing one's self is the only manner in which they may find relief. A Pro Se appellant/petitioner has no reason to fear what is not politically correct and therefore, is in a good position to bring out all the facts that resulted in their conviction.

For additional information pertaining to issues and laws regarding individuals representing themselves Pro Se, without an attorney, see our link, Pro Se Issues/Laws.

Anyone who even considers representing themselves Pro Se, should at least have a basic knowledge of how to conduct legal research. For an explanation of the basics, see Basic Legal Research.

Understand that there are many individuals who have represented themselves Pro Se and filed petitions that did nothing more than waste the court's time. If you are asking a court to reverse, your facts must be accurate, positive and you must be able, without question, to prove, support and backup every issue and every argument.

The cases that we do accept and get involved in are usually for clients who are innocent and were convicted primarily because of ineffective assistance of counsel, prosecutorial misconduct, impartial jury or a host of other reasons. Our success is mainly due to the fact that we excel in breaking down and analyzing every aspect of the case, most especially the involvement of the defense attorney, prosecutor, judge, witnesses, expert testimony, documents, pretrial discovery, pretrial investigation and the jury who heard the case. As an example, there was a case where we discovered, following a conviction, that a jury member had been molested as a child, but the defense attorney had never addressed that issue or asked prospective jury members that question during voir dire. A perfect example of ineffective assistance of counsel and a violation of the accused's constitutional rights; the right to be tried by a fair and impartial jury. How could a jury member, who had been molested as a child, possibly be impartial when deciding on a sex abuse case.

On cases where we are retained to assist someone in reversing a wrongful conviction, we schedule an initial trip that usually averages between five (5) to nine (9) days to meet with the client, gather all documents and material related to the case and begin our analysis. The number of days spent depends entirely on the amount of material to be studied, including, but not limited to trial transcripts, preliminary hearing transcripts and the entire attorney file. We will not hesitate at identifying the specific "reasons" for the conviction, regardless of what they were, including ineffective assistance of counsel or prosecutorial misconduct.

Once the initial analysis is completed and we have determined the specific reasons for the conviction, we discuss various methods with the client that will most likely reverse it. If, after that analysis, the client desires to continue, we will assist in the preparation of whatever documents are necessary to request a reversal and a new trial. It is vital that any potential client fully understand that no conviction will be reversed during our initial visit. That visit is primarily used to determine what is wrong and the best possible methods available to correct it. For anyone to believe that we can reverse a conviction following a 5 to 9 day trip is completely unrealistic. The very most that we can accomplish is to provide specific details as to what would be necessary to reverse the conviction and then the client must make a determination as to what is in their best interest; proceed or stop.

In order to reverse a conviction, you must offer absolute proof as to why the conviction should be reversed, be it ineffective assistance of counsel, prosecutorial misconduct, or the fact that new evidence was obtained. In those cases where there is evidence of ineffective assistance of counsel or prosecutorial misconduct, depend on the fact that some time will be spent in attempting to obtain all case files. I have yet to see an attorney, guilty of ineffective assistance, willing to provide his entire file when that file itself could easily be the cornerstone for a legal malpractice action against them.

The fight to reverse is not an easy one. Even if and when the conviction is reversed, it will be in favor of a new trial. Our goal, when retained in any matter regarding a wrongful conviction, is to have prepared and provided enough evidence so that not only is the conviction reversed, but we are able to completely destroy the prosecution's case as well so they will dismiss all charges. Only then, is it over.

If you have been wrongfully convicted, consider all of your options carefully. Are your actions regarding appeals and other petitions, "blowing smoke" and wasting time, or will they end your nightmare? There is simply no justification for an innocent person being convicted but, unfortunately, it happens frequently. In many cases, when it does, the accused sits in prison for years without a clue about what to do, wondering what happened. Meanwhile, those responsible for putting the innocent party in prison just get on with their daily lives. Hey, they lost nothing.

If you are assisting someone who was wrongfully convicted, their very life is in your hands. Simply based on your involvement, you are giving them hope that their incarceration nightmare can and will end. It takes a special individual to dedicate themselves to reversing a conviction. It is not an easy task. It takes a great deal of planning, strategy, effort and work. It saddens me every time I talk to someone who is only "playing a game," at turning things around, yet allowing the person sitting in prison to believe that they honestly care and are sincerely doing everything in their power to get them out. Some of these people do this because it makes them feel important by "assisting," while others may feel some responsibility for the conviction. Some may be family members who want to ease the guilt of simply doing nothing. One thing that most have in common is, they have no direction at all, no plan and usually, in a panic, run from one person to another in an attempt to get help, but nothing ever seems to get done. Anyone who was convicted of sexually molesting a child and is innocent is sitting in prison, wondering what happened to the very system that was supposed to have found the truth. The system that was supposed to have protected them. They are sitting there with the realization that they have done nothing wrong, but had all freedom taken from them. They are also sitting there, as a convicted child molester, hated by even rapists and murderers. The last thing they need is for someone they believe represents their key to freedom, to be playing a game with their life. For the sake of the convicted and innocent, either do it right or don't get involved.

When we are retained to assist in a conviction reversal for someone who was falsely accused, our normal approach, after determining all the facts, is to go directly to the root of the problem. The root is simply that a false allegation is a lie and that lie must be exposed. While that, in itself, may not be an easy task, it certainly can be done and is, by far, the best approach. Unfortunately, that approach is seldom ever used or even thought about by others. In several prior cases, where the clients came to us after other attempts had failed, I was shocked and amazed when they said they had been told "You are wasting your time trying to prove the allegation was a lie." "You cannot do it." To me, the word "can't" simply means "won't." No one will ever convince me that a lie cannot be exposed under the proper circumstances, but any attempt to do so should be left in the hands of those with expertise in the field. When attempting to expose a lie that could easily make the difference of whether an innocent person remains in prison or not, there is absolutely no room for mistakes. If someone, inexperienced and with no specific plan of attack, attempts to expose the lie and fails, they only make it far more difficult, and in some cases impossible, for it to be done properly at a later time.

Exposing the lie alone will not reverse a conviction, but it will be the cornerstone of everything necessary to petition the court for a reversal and, in most cases, that petition will be based on newly acquired evidence.

Unfortunately, however, there are some "wrongful conviction" cases that we will not get involved in. One example was a contact we received from a family member who wanted assistance with a relative's conviction. During the caller's initial contact with us, based on the questions they asked, it was clear that they had not read the information on this page, yet, without knowing what we do, how we do it or the approximate cost, they wanted to retain us immediately. They even went so far as to state that they had been skeptical when they located us on the web, but several attorneys assured them that we knew what we were doing. Only during their second call, after I advised that it would be impossible to complete their case in "one" day, did they ask the approximate cost, how much time would be required and how fast we could get there. After the third conversation, a 3-day trip was scheduled for them, however there were several additional calls in which they expressed concern that the materials we would need to study, may not be available. Experience has proven that it is best for us not to accept any case where the potential client is motivated by panic. This is especially true if the caller just had a loved one convicted. In many cases, they are angry and have a desire to take their frustrations out on the world. Since the caller was "demanding" immediate action, and looking for a "one" day, instant solution to a problem that had been going on for more than two years, we told them it would be in their best interest to work with a local attorney rather than with us. Several days later, they contacted us again and said they wanted the same 3-day time slot we had originally scheduled for them. When they were told that slot had been filled, they became angry and said they told us to "hold the time open," again, something our webpages clearly state that we do not do. After talking with them that time, and with great effort, we did manage to rearrange our schedule so that we could meet with them during the time that they initially requested. Amazingly, after all the calls they had made to us, after the schedule had been arranged and rearranged again, we received another call, asking if we were licensed as a private investigator in their state. They said that they had been told by attorneys that, if we were not, we could not work there. Had that concern been addressed during their initial contact with us, I would have told them that we are licensed in Mississippi and, because the work we do originates in Mississippi, we have never had a problem working in any state. I would also have advised them that, when we are doing an evaluation for someone who was wrongfully convicted, there is no "private investigative" work involved. We are simply working as a "defense strategist," reviewing all records and documents, determining what a proper defense should have been and then attempting to determine what went wrong and how it might be corrected. In that particular case, that caller raised that concern after repeated conversations with us and, even after they had a 3-day trip scheduled for them. When they stated that "attorneys" told them we could not practice if we were not licensed in that state and, they were worried about the funds they were about to spend, I had my office manager tell them we believed it would be in our best interest to simply cancel the trip. The caller, again got angry and said, "I did not mean to offend you, but I think that was a legitimate question and I have a legitimate concern." They said they still wanted the time. While they were placed on hold, the office contacted me for instruction. I told them to advise the caller that I was sorry their relative was convicted, but there was nothing we could do about it. Following an ugly comment, the caller hung up. Amazingly, I could not help but wonder where all those caring and concerned attorneys were when their relative was being convicted in the first place, but that never seemed to occur to anyone and, at the very least, I wonder how those "helpful" attorneys plan to assist in reversing that conviction. Simply put, all of the contacts we had from that particular caller were conducted in panic and, again, it benefits no one to even attempt to work under those circumstances. While my heart does go out to anyone who has a family member that was wrongfully convicted, based on a false allegation of child sexual abuse, we must be practical about cases we do become involved in. If we are dealing with a parent of a convicted child, unfortunately, it is impossible to search for a real solution when one is blinded by hate and anger.