In this case of consolidated appeals,
People
v Thomas, No.
329448 and
People v Gordon, No.
329449, the Michigan Court of Appeals affirms the case against Clifford
Thomas but vacates Jasmine Gordon’s conviction and remands for a new trial due
to the ineffective assistance of Gordon’s counsel.
FACTS:
At age 22 months, Jamila, Gordon’s daughter
was evaluated because she couldn’t walk, talk or stand without support. It was
discovered that she had a brain malformation resulting in 30% loss of her
brain. Jamila continued to have numerous medical problems throughout her short
life.
Gordon and Jamila’s father separated in March
2014. Several months later, Gordon and Thomas began living together. Gordon was
the breadwinner of this new family unit. While Gordon worked, her sister and
father sometimes cared for her children. At other times, Thomas was in charge.
Over time, Thomas became Jamila’s regular caregiver.
On September 18, 2014, Thomas called Gordon at work to tell her that something was wrong with Jamila and to come outside her work where he was waiting in Gordon’s car with Jamila who was in backseat and unresponsive. Gordon did CPR on her as they drove to the hospital. Jamila couldn’t be resuscitated. She was declared dead at the hospital.
The Trial:
The defendants were tried together with
separate juries. Gordon’s jury convicted her of child abuse and involuntary
manslaughter while Thomas’s jury convicted him of involuntary manslaughter and
resisting and obstructing a police officer, finding him not guilty of child
abuse.
Dr. Kilak Kesha, a forensic pathologist
employed by the Wayne County Medical Examiner’s Office, performed an autopsy on
Jamila. At the trial, Kesha testified that Jamila’s “lacerated pancreas caused
the sepsis, which caused the pneumonia, which killed the decedent.” Dr. Kesha
said Jamila’s multiple injuries indicated she was the victim of child abuse. He
ruled her death a homicide.
Dr. Ljuvisa Dragovic, the chief forensic
pathologist and chief medical examiner for Oakland County, testified only on
Thomas’s behalf. Dr. Dragovic did not testify for Gordon. His
opinion departed from Dr. Kesha’s in several important ways. In Dr. Dragovic’s
view, Jamila did not have sepsis. Rather, she had bronchial pneumonia which
caused her death. He emphasized that had he performed the autopsy, he would not
have called Jamila a victim of child abuse.
Gordon’s Appeal:
Gordon contends
that her trial counsel’s performance was constitutionally deficient, leading to
her convictions. Gordon preserved this issue by successfully moving in this Court
for remand to conduct a hearing on this issue.
For an ineffective assistance of
counsel claim, appellant must show:
1.
That counsel’s performance was deficient; that
it fell below an objective standard of reasonableness under “prevailing
professional norms,” and
2.
That the deficient performance prejudiced the
defense—that there is a reasonable probability that but for counsel’s errors,
the result of the proceedings would have differed.
The MCOA ordered
a Ginther hearing at which John McWilliams, Gordon’s attorney,
testified. McWilliams theory of the case was that Jamila died due to “natural
causes from a congenital birth defect.” His theory that Jamila’s 2014
pancreatic laceration was related to the 2013 “failure to thrive” diagnosis or
to her brain malformation was unsupported by any medical expert. More
importantly, the court noted, McWilliams knew his theory was scientifically
bankrupt before he decided to employ it, but he rested Gordon’s defense on it
nonetheless.
At the trial,
McWilliams told Gordon’s jury in his opening statement that the medical
examiner for an “adjoining county” would testify as a defense expert witness.
The doctor was not called.
Counsel’s performance was
deficient:
First,
several courts have held that that a defense attorney’s decision to break a
promise made during opening statement to a jury may qualify as ineffective
assistance of counsel. He knew what Dr. Dragovic had to say and that Dr.
Kesha’s autopsy was incorrect in other respects. Nothing changed during the
trial, other than McWilliams’ failure to elicit any concessions supporting his
theory from Dr. Kesha. Nor did McWilliams ever explain what had happened to the
expert he promised to produce. “But McWilliams’ broken promise, standing alone,
would not require us to reverse Gordon’s conviction.”
Second, the
failure to call to the stand Dr. Ljuvisa Dragovic, who had been retained by
McWilliams as support for an exculpatory theory of the child’s death was
ineffective. “McWilliams’ strategic decision to forego the expert and instead
present an unsupportable medical theory through his argument and
cross-examination constituted ineffective performance.” It was said to be a
“fundamentally unsound theory strategy and constitutionally ineffective.”
Conclusion:
The court
concluded that but for McWilliams deficient performance there is a reasonable
probability that the outcome of Gordon’s trial would have been different. A
jury that heard both Drs. Kesha and Dragovic apparently rejected Dr. Kesha’s
view of the cause of death. In light of their verdict, Dragovic’s absence
during Gordon’s trial raises a reasonable probability of her acquittal and
undermines confidence in the jury’s guilty verdict.
The verdict in
Gordon’s case is vacated and remanded for a new trial.
Labels: appeal, child abuse, Court of Appeals, deficient performance, Dr. Ljuvisa Dragovic, forensic pathologist, ineffective assistance of counsel, Michigan, People v Gordon, People v Thomas, Wayne County
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