Tooby's California Post-Conviction Relief for Immigrants

Factors somewhat different from normal criminal defense strategy may play an important role.  The case may be quite old, sometimes many years old, before post‑conviction relief is sought to reopen the conviction.  The prosecution may have difficulty proving its case if the conviction is successfully reopened because of lost witnesses, destroyed evidence, faded memories, witnesses who are reluctant to reopen the closed incident or trauma, lost prosecution or police files, new prosecutors, etc.

            Moreover, the prosecution, court, police and victim(s) may not care whether or not the client is convicted again because, for example, the client has served the sentence, the client has enjoyed a good record before and since the original conviction, or the wounds have healed.  Also, court and counsel often now have greater consciousness about the need to protect clients against adverse immigration consequences of criminal convictions.  Court and prosecutor often have limited willingness to devote time and attention to a case they view as an old, closed case.  They many feel there is no benefit for them from the extensive work of reprosecution of the case.

            Many of these factors work against the client in attempting to reopen a conviction, but work powerfully in the client's favor once the conviction has been forced open.  For a general discussion of evaluating the chances of obtaining post-conviction relief, see Chapter 3, supra.