FAQ: Request Legal Assistance

Why must the person requesting legal assistance be convicted of a felony crime in a Montana state or federal court?

Our organization is based in Montana. The attorneys we work with are licensed to practice in either Montana or federal courts and have experience working in these courts. If an applicant is convicted in another court outside of Montana, we do not have access to attorneys that would be licensed to practice in those courts, but we may be able to refer you to another organization in that jurisdiction that might be able to assist you.

At this time, our organization is restricting our services to felony cases based on the practical matter that on average, it takes seven years from the time innocence organizations receive an application to the time the person’s conviction is overturned (assuming success). By definition, the punishment for a misdemeanor cannot exceed one year of incarceration (there may also be a fine). Therefore, in most cases a misdemeanor applicant’s sentence will have expired long before the conviction would be overturned. 

Why must the person requesting legal assistance have completed their trial, sentencing, and direct appeals?

We are limited to assisting someone who is wrongfully convicted, thus trial and sentencing must be completed prior to MTIP considering an application for assistance. Moreover, you have a constitutional right to an attorney during trial, sentencing, and (if there is a basis to appeal) during direct appeal. If you cannot afford an attorney, there are dedicated, competent attorneys with the Office of the Public Defender and the Office of the Appellate Defender that can be assigned to represent you.  While MTIP is committed to providing legal assistance to innocent, convicted persons, we must prioritize assistance to those who do not have a right to an attorney.

Why must the person requesting legal assistance not currently be represented by an attorney or have access to a public defender?

This question is addressed above, but also, it is unethical for any attorney to communicate with a person represented by another attorney without that attorney present. It is not the role or position of the MTIP to intervene or get between an attorney and client. MTIP encourages represented applicants to communicate concerns with representation and questions/concerns regarding their case with their attorney and, if after the applicant has attempted such communication and has determined  communication is either not possible or non-existent, the applicant should alert the court of this issue.

Why does MTIP give priority to cases where convincing and corroborating new evidence can establish actual innocence? And why is MTIP unlikely to accept a case without independent and verifiable evidence to support innocence claims?

This is based on Montana law. Most cases we assist with are brought through a petition for post-conviction relief, which is governed by Montana Code Annotated, Title 46, Chapter 21. Under this law, a person must either file within a year of their conviction becoming final or within one year of discovering new evidence of innocence. (Most applications we review fall into the latter category.)  Specifically, if MTIP agrees to represent an applicant, MTIP has to be able to show the Court new evidence that, “if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted.” 

This is very hard to do for a multitude of reasons, and because of this law, there are many applications we cannot assist with because there is no way to prove someone is innocent, even if he/she/they are innocent. 

“New” means the person who was accused and/or their counsel could not have known at the time of trial that some evidence existed. 

To explain this better, imagine A is accused of assault by B. 

If A’s attorney received B’s statement saying, “A didn’t hit me” prior to trial, and A’s attorney didn’t bring B’s statement up at trial, unfortunately, this is not considered “new” evidence. 

However, if a year after A’s conviction, B comes forward and says, “A didn’t hit me”, this is considered “new” evidence. 

If you have questions about whether or not your case has “new” evidence, please write to us about your case, so that we can better evaluate the evidence you believe proves you are innocent.

Why does MTIP not give legal assistance to convicted persons who are an admitted accomplice, co-defendant, or co-conspirator, even if the role was relatively minor?

We are committed to fighting against injustice. However, the mission and title of our organization currently mandates that the people we provide legal assistance be innocent of the crime for which they are convicted. Thus, even if a person’s role in perpetrating a crime was minor, we cannot provide legal assistance to that applicant.”

Why does MTIP not give legal assistance to convicted people who are solely claiming that their rights were violated or that they were not adequately represented?

Although convictions based on a violation of a person’s constitutional rights are intolerable, the violation on its own does not necessarily mean the person is innocent of the crime.

Montana and federal courts require that certain arguments and objections be raised at specific parts of criminal proceedings. For example, as a general rule, if an attorney does not object or provide evidence available at trial, the accused cannot later raise these issues on direct appeal. 

However, new evidence of innocence can be raised for the first time in a petition for post conviction relief. (see answer for why we prioritize cases with corroborating evidence of innocence above).

Why is MTIP unlikely to assist in the event the convicted person admits to killing or assaulting someone but claims it was done in self–defense?

We are currently unlikely to assist when the convicted person claims self-defense because, necessarily, they are not claiming innocence of the crime for which they were convicted, but rather claiming their criminal conduct was justified.

Why is MTIP unlikely to assist in the event that a convicted person admits to sexual contact but claims the person consented to the contact?

Short of a recantation from the victim of the alleged contact, often there isn’t any evidence to prove a sexual act was consensual.   

Why is MTIP unlikely to assist someone convicted as an accessory who claims they did not play a major role in the crime?

See answer to FAQ where an applicant is an admitted accomplice, co-defendant, or co-conspirator, above.

Why does MTIP not assist convicted people with filing civil suits, legal research, appealing to the Board of Pardons and Parole, or any other issues unrelated to actual innocence?

We are a non-profit organization with limited resources. While we are committed to fighting against injustice everywhere and promoting and referring applicants to organizations that do this essential work, our organization’s work is presently focused on the prevention of wrongful convictions and freeing the innocent. 

Why does MTIP not review cases based solely on information given by a friend or family member?

We cannot represent a person without that person expressly requesting our assistance. An attorney represents and has a duty to act in a client’s best interest. This relationship cannot be established through a third party. We must hear from the convicted person directly.