Project aims to increase appellate investigations
There is a lack of funding for investigation and experts across the board with indigent defense.
While it is not an innocence project, those behind the newly launched Appellate Investigation Project do hope it might help attorneys win exonerations for some criminal defendants appealing their convictions.
The Appellate Investigation Project, or AIP, launched in December with the goal of providing Michigan Appellate Assigned Counsel System, or MAACS, attorneys with increased access to an investigator, as well as training on spotting and litigating extra-record issues and cases in need of expert witnesses so they can achieve the best outcomes for their clients.
Access to investigators is seen as particularly important for those appealing convictions because, according to the National Registry of Exonerations, “of Michigan’s 55 exonerations of actually innocent people wrongfully convicted of crimes, 29 were achieved through more complete investigations, and twelve more were achieved through the use of expert witnesses.”
AIP is a collaboration between MAACS and the State Appellate Defender Office, or SADO.
SADO already has a full-time, on-staff investigator who assists its approximately 25 attorneys with investigations.
“A number of the exonerations SADO has been able to accomplish in the last 20 years have been the result of investigations. The hope of the project is to use that model and bring more resources to the MAACS roster,” said Katherine Marcuz, who has served as an assistant defender at SADO and is now serving as the principal attorney for the AIP.
SADO handles approximately 25 percent of indigent appellate defendants in the state, while MAACS’s 140 attorneys handle the other 75 percent of these defendants.
Marcuz said until now, the only route a MAACS attorney could take to access an investigator would be to make a request through the trial court. She said those motions can be challenging and are not always granted.
Now a MAACS attorney can request investigative help from Marcuz and the AIP’s investigative attorney, Andrew Lee, an experienced trial attorney who formerly worked as a public defender in New Orleans.
“I have the perspective of a trial attorney and a lot of experiences going out and talking to people and witnesses and developing relationships and getting the information you need to substantiate a case,” Lee said.
Marcuz said, while some cases are potential innocence cases, the real point of the AIP is to substantiate any legal issues.
“It can be investigation that is important for litigating evidence for sentencing, or for other legal issues where the claim isn’t necessarily ‘this is a wrongful conviction,’” she said.
In addition to being on the MAACS roster, an attorney seeking AIP’s help must meet the following criteria: He or she must be representing an indigent defendant; a meritorious legal issue must be identified, along with the need for investigation or expert testimony to support that issue; the attorney must have conducted a preliminary investigation, vetting it to the extent he or she believes an investigation will be fruitful; and there needs to be a likelihood the new or previously un-presented evidence undermines the confidence in the verdict or the sentence.
AIP has so far assisted on 13 cases since its launch, and interest is growing.
“I think we are ahead of the schedule we envisioned when we started the program, and we’ve been able to start doing actual case work sooner than we’d anticipated,” Lee said.
The response has been positive.
“I think it’s working really well,” Marcuz said. “There was such a great need for this and I feel like we’ve been able to work with some really great attorneys and give them support to best represent their clients.
“We’ve been able to locate and interview witnesses who attorneys were unable to find, to provide strategy support with evidentiary hearings, and to assist in their motion practice — writing motions that have been granted.”
AIP received a Byrne Justice Assistance Grant to support the program in its first year.
Marcuz said the program will seek renewal of the grant, and she hopes, over time, to establish a need for the program so it will be able to receive funding through an alternate source.
That need shouldn’t be too hard to establish, given Michigan was ranked 44th in the nation during the last decade for its level of public defense system funding.
“There is a lack of funding for investigation and experts across the board with indigent defense, not just on the appellate level but also on the trial level,” Marcuz said. “A lot of times appellate attorneys are getting a case on appeal that didn’t have the thorough investigation that was necessary at trial, making the need for investigation on an appeal even greater.”
“Justice for our clients shouldn’t be contingent on the amount of money they have to hire experts or investigators or to hire attorneys who have lighter case loads and more time and resources,” Lee said.
“By making investigations more available to indigent clients and making our services available to MAACS roster, hopefully we are helping to even the playing field a little bit.”