How Do Convicted Felons Obtain Relief from a CIU?

Structure of the CIUs

In Macomb, Wayne, Oakland, and Washtenaw Counties, the CIU is an independent part of the county prosecutor’s office. For all other counties, the CIU is an independent part of the Michigan Office of the Attorney General. The prosecutor’s office or the Attorney General’s office assigns attorneys and investigators to the CIUs to process all applications.

The CIUs investigate claims of innocence, but they are limited to making recommendations to the prosecuting attorney (for the counties with their own CIU) or to the Attorney General (for the remainder of the counties). The prosecuting attorney or the Attorney General makes the final decision on the action to be taken on an application, which may include denial of the application or referral to a court for immediate discharge of the defendant or for a new trial. Only a court can overturn a conviction.

Steps in the Investigation Process

Step 1: Eligibility

Before filing an application for investigation of a claim of innocence, a defendant must be sure that he or she meets certain eligibility requirements. First, the person must have been convicted in Michigan of a felony crime. To apply to a county CIU for investigation, the person must have been convicted in that county.

To be eligible to have the Attorney General’s CIU review a claim of innocence, the applicant must first have been convicted of a felony in Michigan, whether by jury verdict, court verdict, or a plea of guilty or nolo contendere. The applicant must also meet the following criteria:

  • he or she has already appealed the conviction and the decision on appeal has become final;
  • he or she is asserting a claim of factual innocence (that he or she did not commit or participate in the commission of the crime for which he or she was convicted);
  • the claim is supported by new evidence, that is, evidence that was not presented to the jury (or judge, in a trial to the court) in the original trial;
  • the existence of the new evidence was not raised in any post-conviction motion or other proceeding, such as an appeal, a petition for habeas corpus, or a motion for relief from judgment;
  • the claim is capable of being investigated and resolved, and if substantiated, would bear directly on the issue of innocence.

Because the CIU focuses on claims that could completely exonerate a defendant from any role and therefore any guilt in an offense, the CIU generally will not investigate claims that newly discovered evidence would show the existence of an affirmative defense, such as consent, self-defense, or lack of intent.

In Oakland County, the criteria for review of an application are different. The CIU investigations are much broader than those of other counties. The applicant must still have been convicted in Oakland County, and he or she must have no appeal pending. To be entitled to an investigation, the applicant must claim:

  • that he or she is actually (not factually) innocent of the crime of which he or she was convicted;
  • that the case involved misconduct by law enforcement, prosecutors, or other participants in the legal process; or
  • that he or she discovered evidence after the trial that was not previously litigated by the court.

Eligibility for an investigation by the CIU in Oakland County extends to circumstances that other counties do not consider. While other counties require factual innocence, or a complete lack of involvement in the crime, Oakland County investigates claims of actual innocence, or innocence in the particular role or crime with which a defendant was charged. For example, if a defendant were convicted of aggravated assault, a claim of factual innocence would require showing that the defendant played no role in the crime—such as proof that he or she was restrained by someone else during the assault. A claim of actual innocence could be based on an allegation that the defendant committed the assault in self-defense.

Also, Oakland County investigates claims in which the defendant claims “actual innocence” or the existence of new evidence. Other CIUs require “factual innocence” and new evidence. These distinctions are significant as they define the types of cases that will or will not be investigated and that might result in reversal of a conviction.

Oakland County also investigates claims of prosecutorial misconduct or misconduct by the police or other persons involved in the legal process. Other CIUs specifically exclude these kinds of claims from investigation.

Step 2: Application

Once the defendant is certain that he or she is eligible to have his or her case reviewed by a CIU, the defendant must file an application to have the CIU investigate. A CIU will not investigate a claim of innocence unless the defendant or someone authorized by the defendant files an application.

The Attorney General’s website as well as Oakland, Wayne, Washtenaw, and Macomb counties’ prosecutor’s office websites have an online application that a defendant may fill out and file or return. Using the website applications is the best way to obtain a review of a case since all the information that the CIU needs to determine eligibility is included on the application. However, a CIU will accept a written application for investigation. While a defendant may hire an attorney to assist in filing the application, there is no right to appoint counsel.

The application may include the following, depending on the county in which the defendant was convicted:

  • an acknowledgement of the CIU policies that apply when an application is filed, such as its policy that an application does not guarantee investigation of the claim, that the information provided is not confidential, and that a defendant does not have the right to appeal the rejection of an application;
  • if the defendant was convicted on multiple charges, identification of the charges for which he or she claims innocence;
  • a list of every person or entity (such as another CIU or an innocence project) that has investigated the defendant’s claim of innocence;
  • the prosecution’s theory of the case against the defendant;
  • an explanation of the claim of factual innocence (or actual innocence in Oakland County);
  • identification of the newly discovered evidence that supports the defendant’s claim of innocence;
  • whether the case involves certain types of evidence, such as fingerprints, DNA, or ballistics, and whether any of that evidence was available but not used at the trial.

The applicant does not, and in fact should not, send supporting documentation to the CIU. If the CIU determines that it needs the documents for review of the case, it will inform the applicant.

The key to a successful application is the identification of new evidence, evidence that has come to light after the trial, that supports a finding that the defendant did not commit or participate in the crime of which he or she was convicted. Arguments about innocence that are not based on new evidence will simply fail (except in Oakland County). A defendant should focus first on pointing out the new evidence and then state how such evidence shows that he or she is innocent of the crime. This is the crux of a CIU investigation, and identifying the new evidence will go a long way toward a thorough investigation of a claim of innocence.

IMPORTANT NOTE: The information the applicant provides the CIU is not confidential. It may be shared with the county prosecutor or the Attorney General, and it may be used against the applicant in subsequent proceedings.

Every application for investigation is reviewed, but not every application is investigated. Whether the CIU investigates depends on whether the case is eligible for investigation.

Step 3: Determination of Eligibility

After an application is filed, the CIU examines it to determine whether the applicant is eligible to have his or her claim of innocence investigated as set out above. An application may be rejected without investigation if, for example, the applicant failed to identify any new evidence that supports innocence, the evidence was already presented in the trial court or in post-conviction proceedings, or the evidence would not in any case support a claim of factual innocence (or actual innocence in Oakland County). Once the CIU determines that the application shows the defendant’s eligibility to have the claim investigated, it will proceed to the investigation stage of the process.

Step 4: Investigation

An application for a CIU investigation does not guarantee that the application will be investigated. A CIU may be able to tell from the application itself that no new evidence exists, that the evidence was raised in a prior post-conviction proceeding, or that the evidence, even if its existed, would not demonstrate factual innocence (or actual innocence in Oakland County). However, if an application shows that the case is eligible for investigation, it will be investigated.

A CIU investigation may include an interview of the defendant (although the defendant has the constitutional right to decline to be interviewed) and any witnesses to the crime; review of documentation, such as the record of the proceedings, police reports, available medical records, or results of DNA testing or fingerprinting; and review of any new evidence identified by the applicant. The CIU may also interview the defendant’s trial counsel (with the defendant’s permission) and the prosecutor in the case. A prosecutor may provide evidence but cannot be involved in the determination of the validity of the claim of innocence.

Forensic testing of evidence and consultations with experts may take place during the investigation, as the CIU sees fit. The authority of the CIU to request and review records, interview witnesses, and examine evidence is broad so the CIU may fulfill its mission. A CIU may also work cooperatively with an independent innocence project to gather and review evidence.

The CIU may deny the application at any time in the investigation process. If the evidence that the defendant claims will exonerate him or her cannot be found (such as a previously unknown eyewitness) or does not indicate innocence, the investigation will end.

Step 5: Conclusion and Recommendation

At the conclusion of the investigation, the CIU determines whether the applicant has demonstrated by “clear and convincing evidence” that he or she is innocent of the crime of which he or she was convicted. It would not be enough for an applicant to show that he or she may be innocent of the crime, or that it is more likely than not that he or she is innocent. The new evidence must clearly and convincingly show that the defendant is innocent of the crime.

Once the investigation concludes, the CIU then makes its recommendations for further action or for denial of the application to the county prosecutor or to the Attorney General.

Only the prosecutor or the Attorney General, and not a member of the CIU, may decide whether a remedy exists for an applicant. The decision of the prosecutor or the Attorney General is final, and an applicant has no appeal rights. Neither the prosecutor nor the Attorney General may overturn a conviction, although they may bring the conclusion of the investigation to a court’s attention so that the court may decide whether to overturn the conviction or take other action.

Although a final decision on the application is with the prosecutor or Attorney General, there are parameters on the discretion of a prosecutor once he or she learns that a defendant may be innocent. A prosecutor is bound by certain ethical considerations to take action if he or she learns of “new, credible, and material evidence” that demonstrates that a “reasonable likelihood” exists that a convicted defendant is innocent. The prosecutor must disclose that evidence to the proper court and to the defendant and must investigate or cause an investigation to take place to determine whether the defendant is innocent of the crime. If the prosecutor knows that “clear and convincing” evidence exists that a defendant is innocent of the crime for which the defendant was convicted, the prosecutor must seek to remedy the conviction.

  1. How Do Convicted Felons Obtain Relief from a CIU?
  2. Other Effects of a Wrongful Conviction in Oakland and Macomb Counties

Other Effects of a Wrongful Conviction in Oakland and Macomb Counties

As indicated above, the CIU in Oakland County goes beyond investigating claims of innocence. It uses the information from an investigation to develop office-wide policies, protocols, and training as preventive measures against future wrongful convictions.

In Macomb County, if a CIU investigation shows that a defendant is clearly and convincingly factually innocent of the crime of which he or she was convicted, the CIU will make its recommendation to the Prosecuting Attorney for release of the defendant or for a new trial, as indicated above. However, Macomb County goes beyond this remedial action and performs other services.

First, the CIU will, to the extent possible, help a person exonerated of a crime with re-entry into the community. Helpful organizations and resources for re-entry are listed on the Macomb County Prosecutor’s website.

Second, the CIU in Macomb County provides training to prosecutors and others on the causes of wrongful convictions and other topics that relate to wrongful convictions. If the CIU investigation results in exoneration of a defendant, training may be provided in association with the Prosecutor on what led to the wrongful conviction.

Finally, if the CIU identifies system-wide errors or patterns that result in wrongful convictions, it will work with the Prosecutor’s Office, law enforcement agencies, and the court system to identify causes and remedy them.

A person wrongfully convicted of a felony in Michigan is not without a remedy. He or she may apply to a CIU (or CIEU) for an investigation of evidence that shows his or her innocence. But demonstrating eligibility, identifying the new evidence, and presenting an argument for why the evidence shows innocence are complicated and require an expert criminal law attorney. The importance of a proper CIU investigation of a wrongful conviction cannot be overstated. A wrongfully convicted person’s freedom depends on it, and having a seasoned attorney increases the chances that an application will be investigated and innocence proven.

Michigan defendants are fortunate to have a means by which someone with prosecutorial experience can conduct an investigation and, possibly, establish innocence. However, they need someone on their side of the investigation to guide the CIU to the right conclusion. A criminal defense attorney is the best person to do this.

CIUs act as a powerful check on the courts, providing innocent people who have fallen victim to the often unfair criminal justice system the opportunity to prove their innocence and achieve freedom. With CUIs as one of the last avenues for post-conviction relief, it is important that your argument and application are strong and sound. For help, don’t hesitate to call our experienced attorneys at Spolin Law for a free consultation.