Appellate Investigation Project: Making Investigations More Accessible for MAACS Appeals

Currently taking requests from MAACS attorneys

Access to investigative services and expert witnesses can have profound effects on individuals seeking to appeal from their felony convictions. Yet, access to investigative services is a challenge faced by many indigent appellate defendants and their attorneys. Nearly 75% of all indigent appellate defendants in Michigan are assigned counsel through the Michigan Appellate Assigned Counsel System (MAACS). In order to hire investigators or experts, MAACS roster attorneys must first request funding approval from judges at the trial court level. These requests present their own challenges and are far from certain to be granted. MAACS roster attorneys are, thus, often faced with the unenviable task of conducting investigations on their own while facing mounting caseloads and limited resources.

The lack of access to investigators on appeal can have devastating results. The National Registry of Exonerations reports that of Michigan’s 55 exonerations of actually innocent people wrongfully convicted of crimes, 29 were achieved through more complete investigations. Twelve more were achieved through the use of expert witnesses. These exonerations account for over 200 years wrongly spent in prison. Aside from exonerations, there are also individuals whose convictions were obtained due to erroneous eyewitness identification, faulty forensic science, lack of investigation by trial counsel, false confessions, involuntary or unknowing pleas, and other unreliable evidence that calls into question the integrity of the convictions.

The new Appellate Investigation Project (AIP) hopes to change the status quo. The AIP is federally-funded through the Byrne Justice Assistance Grant, and is an innovative collaboration between SADO and MAACS to provide MAACS roster attorneys with greater access to investigators, as well as training on spotting and litigating extra-record issues and cases in need of expert witnesses.

Katherine Marcuz will serve as the Principal Attorney and Andrew Lee will serve as the Investigative Attorney of the AIP. Both Katherine and Andrew come from investigative backgrounds and have significant experience in conducting investigations in their own cases, Katherine at the appellate level and Andrew at the trial level.

Katherine Marcuz has been an Assistant Defender at SADO for the past three and a half years. She is known in the office for performing investigations in nearly every one of her cases, sometimes with the help of the office investigator, and sometimes on her own. She works tenaciously to meet the 56-day deadline for filing motions for new trial in the trial court, and she regularly files substantial motions to remand with particularized offers of proof in the Court of Appeals seeking further development of off-record issues. In a two-year period, Katherine has performed over six evidentiary hearings in various trial courts throughout the state. Prior to SADO, Katherine clerked for the Honorable Catharine F. Easterly of the District of Columbia Court of Appeals. She is a graduate of Sarah Lawrence College and the University of Michigan Law School where she worked as a student attorney with the Michigan Innocence Clinic. Before law school, she worked for a number of years as a high school English teacher in Brooklyn, New York. She also holds a Master’s degree in Education from Brooklyn College.

Andrew Lee is an experienced trial attorney having worked for nearly three years at the Orleans Public Defenders in New Orleans, Louisiana. As a trial attorney, Andrew regularly conducted investigations in the field, working alongside attorneys and investigators to find and meet with witnesses, collect written statements, and visit crime scenes. Many of Andrew’s investigations revealed mitigating or exculpatory evidence, saving clients many years in state custody. Andrew graduated from the University of California, Berkeley with a degree in political science before receiving a J.D., cum laude, at the Benjamin N. Cardozo School of Law. During law school, Andrew worked as a student attorney in the Innocence Project Clinic from 2011-2012.

Katherine and Andrew have been working diligently in these past few weeks to develop a screening protocol, eligibility criteria, and policies and procedures that will ensure MAACS attorneys the greatest opportunity for access through the AIP. As Principal Attorney, Katherine will screen cases submitted by MAACS attorneys, and will provide MAACS attorneys with litigation assistance and help formulating investigation strategies. As Investigative Attorney, Andrew will execute those strategies by finding and interviewing witnesses, collecting and analyzing evidence, and consulting with clients. Although grant funding is not available for direct payment of expert witness fees, the team will provide assistance on identifying expert needs, obtaining local funding, and interacting with expert witnesses.

The AIP is working with SADO’s Criminal Defense Resource Center to design trainings for appellate counsel in 2016, as well as resources and materials on investigations in appellate cases.

By: Marilena David-Martin
Administrator, SADO's Criminal Defense Resource Center

This project is supported by Byrne JAG State FY 2016 grant # 2015-MU-BX-0964,0, awarded by the U.S. Department of Justice (DOJ), and administered by the Michigan State Police (MSP). Points of view or opinions contained within this document do not necessarily represent the official position or policies of the MSP or DOJ.

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How to Request AIP Services:

The AIP is currently accepting cases for consideration as laid out in the “Case Criteria” document located at: http://www.sado.org/content/pub/10575_AIP-Case-Criteria-.pdf.

MAACS roster attorneys who wish for their case to be considered by the AIP should complete the AIP request form, available here in a fillable PDF document version: http://www.sado.org/content/pub/10637_Updated-AIP-Form.pdf.

The AIP can be reached at 313-256-9833, or by emailing Katherine Marcuz at kmarcuz@sado.org.

Conflicts Policy:

The AIP thoroughly screens cases for potential conflicts. The AIP has developed a conflict policy for scenarios where a co-defendant is represented by a SADO attorney. Firewalls are in place for this scenario and MAACS attorneys should feel free to discuss this further with the AIP if a conflict is identified.

AIP Forensic Training Series:

  • 1/14/16, 2pm to 4pm - SADO Detroit, Identifying, Investigating, and Litigating Cases Involving "Abusive Head Trauma" and How the AIP Can Help
  • 2/26/16, 3pm to 5pm - SADO Detroit, Challenging Bad Science on Appeal: Litigating Ineffective Assistance of Counsel for Failure to Raise a Daubert Motion
  • 4/13/16, 2pm to 4pm - SADO Lansing, Fundamentals of DNA Analysis in Criminal Cases
  • *More dates and topics coming soon*

AIP in the News

"Katherine Marcuz on the Appellate Investigation Project" - Detroit Legal News, March 31, 2016 (PDF)