Lawyers from Oregon Innocence Project speaks to law students

The Lewis & Clark Law School hosted the Oregon Innocence Project (OIP) on Feb 20, which focuses on  innocence and criminal justice law. Kenneth Kreuscher, managing attorney, and Kassidy Hetland, staff attorney, served as OIP representatives during the event. 

OIP was founded in 2014, and according to their website, “launched with a mission to exonerate the wrongfully convicted, train law students and promote legal reforms aimed at preventing wrongful convictions.” 

OIP is overseen by the Oregon Justice Resource Center, which houses a variety of programs targeted at reducing mass incarceration and promoting overall criminal justice reform. 

The definition of innocence work was a major topic of the presentation, as it differs greatly from the work of criminal defense. For one, the cases accepted by OIP are coming from people who have already gone through conviction, and are seeking their last chance for exoneration. After the inquiry, an incarcerated convict typically fills out a questionnaire that details their case and OIP then assesses whether there is a possibility to prove innocence. 

The process usually entails months of case research, and if OIP staff are able to find substantial evidence, they will accept the case. However, sometimes the convicts will provide the evidence themselves. Kreuscher underlined the importance of reviewing an inquirer’s case before accepting, as the implications of accepting a case where the convict was not innocent would be detrimental to the organization’s ethics and optics.

Once a case has been accepted, there are several avenues OIP may take towards exoneration after the initial appeal. The first step is filing a direct appeal in appellate court, challenging the decision based on the fairness of the judge and jury or the adequacy of the defense attorney. If the direct appeals are not successful, the convict can file for federal habeas relief, which claims that the felon’s conviction was obtained in violation of their federal constitutional rights. 

Kreuscher explained that habeas relief is incredibly difficult to achieve due to the Supreme Court’s narrowing of protection under the constitution. Another route is to seek clemency relief, in which a governor, president or administrative board can grant release of the convict upon proof of innocence. 

Hetland and Kreuscher asked the audience what they thought might be the top causes of wrongful convictions. Among the answers were faulty forensics, police and jailhouse misconduct, false confessions and systemic racism. The discussion then delved into each of these causes, elaborating on the different impacts and histories they have. 

Faulty forensics — particularly DNA testing — were the original catalysts of innocence work. Before the advancement of forensic analytics, defense attorneys could not rely on DNA evidence to prove innocence. Since then, successful exoneration cases exclusively dealt with DNA evidence, and it has only been in recent years that innocence work has won cases on non-DNA grounds. 

An attendee brought up the role of systemic racism in wrongful convictions, and while this reason is not a unanimously agreed upon attribute in innocence work, Hetland and Kreuscher both emphasized the reality of systemic racism, particularly in innocence work. Kreuscher explained that racism can infiltrate every aspect of the conviction; bias is present with judges, juries and prosecutors, as well as in official misconduct, identification and even in the forensic analysis. Hetland illustrated the effects of such biases in OIP’s most recent exoneration case, that of Danyale Gill. 

In March of 1994, Gill, a Black high school student, was visiting his Uncle in Northeast Portland when an armed robbery occurred. Gill was wrongly identified onsite by police as the perpetrator and convicted for attempted murder, assault and unlawful firearm use. During his trial, the prosecutor incited reductive and blatantly racist narratives targeted at the majority-white jury, referring to Gill and others as “young thugs shooting bullets at one another.” He also used fear mongering statements asserting that gun crime is something that white and affluent neighborhoods need to worry about, saying, “It happens everywhere and it’s coming to your community.” 

The victim of the robbery was not present at the trial and later would testify that Gill was not the shooter. There were several other witnesses who confirmed Gill’s innocence, and it was widely known in the Black community who had committed the crime. 

Despite the evidence of his innocence, Gill was sentenced to three years of prison and upon release, had to deal with the harsh realities of being a Black man with a criminal record. Struggling with finances, housing and substance abuse, Gill was arrested again in 1998, and this time received a sentence that was set through 2042. 

In 2007, Gill filed for a new trial after acquiring an affidavit from the actual shooter admitting to the original crime and a witness who was with the shooter at the time of the crime. The court denied the filing due to untimeliness. 

It was in 2018 that OIP took on Gill’s case, extensively interviewing his family and community members to confirm his innocence. They also worked with a DNA analyst to re-examine a strand of hair that had been used as evidence in the initial trial. At the time, DNA technology matched the hair to Gill’s blood, but newer developments in the field of forensics found that the hair would have matched up to 15% of African Americans. 

OIP argued in post-conviction court for the dismissal of the sentencing for the 1994 crime and subsequent adjustment for the later 1998 sentencing. The court remanded the sentence, and in September 2023 Gill was finally released from prison. 

Racial bias was evident in the prosecution of the initial trial and the misidentification of Gill as the shooter. It can be similarly attributed to the treatment Gill faced after being released for the first time, from housing and employment discrimination to over-policing in his neighborhood. Even at the microscopic level, the lack of research surrounding African American DNA led to a wrongful generalization that was used as evidence presented to a jury. 

With many current law students in attendance at their presentation, Hetland and Kreuscher spoke to the day-to-day work of being an innocence lawyer, as well as coping with the mental and ethical dilemmas specific to the field. 

Lawyers for OIP “provide 24 hour, wraparound services” to their clients, said Kreuschner, which can be taxing. Due to the nature of the client seeking post-conviction relief, conversations with clients can be intense. 

“When these folks call me, they are often going through the worst moments of their lives,” said Kreuscher. 

Kreusher also spoke about what it takes to be an innocence lawyer.

“In order to be effective, most people have to engage in functional compartmentalization. I know people who for one reason or another struggled with separating themselves from their work, and many of these people are not lawyers anymore,” Kreuscher said. 

Hetland emphasized the complex emotions involved with cases. 

“Even when you win a case in innocence work, it’s still terrible,” said Hetland. “Someone still was locked up for a crime that they didn’t commit. It’s bittersweet.” 

Kreuscher focused on the potential to influence future cases with each exoneration. In accordance with the historical trend, as more cases are added to the National Registry of Exonerations, prosecutors and District Attorneys are becoming more willing to review cases. 

OIP has several internship opportunities for law students, as well as volunteer opportunities for a myriad of skill levels. You can learn more about the work of OIP on their website, as well as OJRC on theirs.