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             Defendant Timothy Horton was charged with breaking and entering with the intent to commit larceny as a fourth habitual offender. Horton agreed to plead no contest to the charge, in exchange for being charged as a second habitual offender. At the sentencing hearing, Horton moved to withdraw his plea, claiming that it was not freely, knowingly, and voluntarily made. His motion was denied and he was sentenced.

            Mr. Horton requested the appointment of appellate counsel who filed an Application for Leave to Appeal and Motion to Remand. The brief and motion claimed Defendant’s trial counsel was ineffective for:

(1) Failure to make a motion to dismiss for violation of a speedy trial,

(2) Failure to inform defendant if he pled no contest unconditionally without reserving the right to appeal issues involving speedy trial violations by the trial court, it constituted a plea waiver of these issues.

            The defendant argued that his plea was not knowing, intelligent, and voluntary and it was error to deny his motion to withdraw his plea prior to sentencing. In support of the Motion to Remand, Mr. Horton signed a sworn statement asserting that his trial counsel never informed him that an unconditional no contest plea would waive his rights to raise the violation of his speedy trial rights and his rights to the effective assistance of counsel on appeal. In addition, Mr. Horton would not have accepted the plea offer unless it was a conditional plea offer that allowed him to raise the speedy trial issue on appeal. Absent a conditional plea offer, Mr. Horton would have gone to trial.

            The Court of Appeals denied the motion to remand and denied leave to appeal. Mr. Horton filed a pro per Application for Leave to Appeal to Supreme Court. On December 9, 2015, the Supreme Court granted leave to appeal, People v Horton, 498 Mich 932, (2017) (Docket 150815), on the following issues:

            The Supreme Court, on July 25, 2017, after reviewing the briefs and oral arguments, remanded the case to the Court of Appeals for consideration. Stating that:

“A defendant who has entered a plea does not waive his opportunity to attack the voluntary and intelligent character of the plea by arguing that his or her counsel provided ineffective assistance during the plea bargaining process.”

            On remand, the Court of Appeals was to consider: (1) whether a speedy-trial claim is “nonjurisdictional” (2) if not, whether, by entering a plea of no-contest, the defendant waived his right to argue that his counsel was ineffective for failing to assert his constitutional right to a speedy trial before he entered his plea, and (3) whether the defendant’s no-contest plea was involuntarily entered based on his claim that his counsel provided ineffective assistance when counsel failed to advise the defendant during the plea proceedings that he would waive his right to raise his speedy-trial claim on appeal.

            In Horton’s brief on appeal, he asked the court to remand his case to the trial court to allow him to withdraw his plea. The parties filed a joint motion to remand the case to the trial court, which the Court of Appeals granted. This case may be one to watch since the questions raised by the Supreme Court have not been answered. 

           
             Defendant Jeffrey Titus, convicted in 2002 by jury trial of the first-degree premeditated murders of Doug Estes and James Bennett, likes to spend time in litigation. We first wrote about him in Estes v Titus (July 2008) where the wife of Estes was trying to collect a wrongful death judgment from Titus who had transferred all his assets to his wife when they divorced. The Supreme Court ruled - with a caveat - that a property division in a divorce could be the subject of a Uniform Fraudulent Transfer Act action. Speaker Law Firm wrote the amicus brief for the Family Law Section (the Supreme Court disagreed with our position, but the concurring opinion by Marilyn Kelly did agree with us).

            In People v Titus. No. 329770, posted May 4, 2017, defendant Titus filed the latest of his appeals. The MCOA affirmed his convictions in 2004 in People v Titus, (Docket No. 243642). In 2014, defendant filed a motion for relief from judgment in the trial court. Defendant appealed when his motion for relief was denied. People v Titus, unpublished order of the Court of Appeals, entered March 24, 2016 (Docket No. 329770).

            In this appeal, the defendant raised the issue of ineffective assistance of counsel. The court wrote that to prove ineffective assistance of counsel, the defendant must show that counsel’s performance fell below objective standards of reasonableness and that, but for counsel’s deficient performance, there is a reasonable probability that the result of the proceedings would have been different. Effective assistance of counsel is presumed and the defendant bears a heavy burden of proving otherwise.

            Since the defendant already filed a motion for relief from judgment which was denied, the court noted that it could not grant this motion if it alleged grounds for relief that could have been raised on direct appeal from the defendant’s conviction, unless the defendant demonstrates:

• “Good cause” for the failure to raise the grounds for relief on appeal, and 
• “Actual prejudice” from the alleged irregularities.

            Titus argued that he satisfied the good-cause requirement because appellate counsel was ineffective for failing to raise the issue of defense counsel’s ineffective assistance of counsel on direct appeal. The test, wrote the court, for ineffective assistance of appellate counsel is the same as that applicable to a claim of ineffective assistance of trial counsel. Thus, a defendant must show that appellate counsel’s decision not to raise an issue on appeal fell below an objective standard of reasonableness and prejudiced the appeal.

            The defendant raised several issues about the trial as examples of the ineffectiveness of the trial counsel and, by extension, appellate counsel. The court carefully reviewed each claim finding:

“Because defendant has failed to establish that defense counsel’s performance was deficient, appellate counsel was not ineffective for failing to raise the claims of ineffective assistance on direct appeal. Defendant has failed to establish good cause, MCR 6.508(D)(3)(a), and defendant is not entitled to relief on his claims of ineffective assistance of counsel.”

            Defendant also argued that the prosecution violated Brady v Maryland, 373 US 83, (1963) by failing to disclose that Det. Mattison had theorized that two shooters perpetrated the murders. To establish a Brady claim the defendant must show:

            The court found no Brady violation noting that not every stray thought of the detectives of the case need to be revealed by the prosecution. The court decided that two-shooter theory was not required to be disclosed.

            Defendant also argued that the trial court abused its discretion in concluding that the prosecution’s character evidence and [defendant’s] offhand remarks about the killings of his co-workers somehow outweighed the new evidence of innocence. Concluding that the defendant was trying to raise an argument regarding cumulative error, the court wrote that, since defendant failed to establish that he was denied the effective assistance of counsel or that there was a Brady violation, there are no irregularities that could be combined to determine a cumulative effect of errors.
Affirmed.

             
                Ineffective assistance of counsel is an incredibly difficult burden for a criminal defendant to prove – “to establish a claim of ineffective assistance of counsel, the defendant must show that ‘counsel’s representation fell below an objective standard of reasonableness’ under prevailing professional norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” People v Gioglio, 296 Mich App 12 (2012), quoting Strickland v Washington, 466 US 668, 688, 694; 104 St Ct 2052; 80 L Ed 2d 674 (1984). People v Carver, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2017 (Docket No 328157), deals with the issue of the defense attorney who had knowledge of an essential expert witness, but failed to utilize this expert.  In Carver, the mother of the victim was bathing the child when she noticed a speck of blood on the wipe used for the victim. Slip op at 1. The victim then told her mother that her brother touched her, but then changed the story to identify the defendant as the person who touched her after the mother did not seem to believe the first statement. Slip op at 1.

               Defendant was aware of an expert in child suggestibility which is the idea that when you suggest an answer that a child gave is incorrect they will give a different answer in hopes of appeasing the person asking the question. Slip op at 3. Even though this expert gave all of this information on child suggestibility, defense counsel chose not to call this expert as a witness. Defense counsel defended himself stating “he preferred to highlight the discrepancies between the victim’s various statements and emphasize that children can lie.” Slip op at 7. Defense counsel modeled his trial strategy around the fact that the story of the victim was continually changing. This is an appropriate trial strategy as long as the proper investigation was done to determine it to be the best strategy. Defense counsel gave testimony about his preparation for trial, which included: consulting with other lawyers from his firm, reviewing forensic interview protocols, and based on this chose to utilize his trial strategy he had developed. The problem with his strategy arose when he acknowledged that there were crucial aspects of the case that he had not investigated fully, “he could not state the distinction between a child lying and a child relating a false memory, and only knew one factor that implicated suggestibility.” Slip op at 8. This suggests that defense counsel had not properly investigated the issue because had he done so this distinction would have been easily identified and understood.

               Shortcomings do not necessarily mean that there will be a valid claim for ineffective assistance of counsel. Not only must the defendant prove that counsel made professional error, but you also must show that the professional error caused an unfavorable result to the client. It was fairly easily proven that defense counsel did not properly investigate and hold himself to the objective professional standard. This unprofessional error could be harmless if there is a determination made that regardless of the error the outcome would have been the same.

               The Court of Appeals held that the error may have changed the outcome of the case. With the testimony of an expert, defense counsel could have adequately argued that the child’s accusations were false and that the jury could have possibly resulted in a favorable outcome had this information been presented and argued. According to the Court of Appeals, “but for counsel’s unprofessional conduct the outcome could have been different.” Slip op at 12.

              The reason this is such a hard burden to prove is generally counsel has the ability to determine what their strategy will be so long as they complete a full investigation into the circumstances surrounding the case. This is a sense of professional leeway allowing the attorney to decide with their professional judgment what the best approach to the case will be. This allowance is obtained through the many years of schooling, and professional conduct expected for a lawyer.

MCR 2.613(B) sets out the limitations on error-correction by one judge of the orders of

another judge and provides the following:

A judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act. If the judge who entered the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be entered by a judge otherwise empowered to rule in the matter.

Morrissette v Doe, (DocketNo. 331941), (a no-fault case) is an interlocutory appeal concerning a procedural issue, namely, a reversal by one judge of the orders of another under MCR 2.613(B)

FACTS:

            Defendant State Farm Mutual Automobile Insurance Company (State Farm) appealed by leave the orders of Wayne Circuit Judge Susan L. Hubbard which granted motions to quash State Farm’s re-notice of the taking of depositions on non-parties Lawrence Falzon and Clem Barney.

            The case was originally assigned to Wayne Circuit Judge Lita M. Popke, but, when she took on the business court docket, her civil docket was reassigned to Judge Hubbard. Judge Popke had ordered Falzon to appear for a deposition, but Judge Hubbard concluded that the deposition was irrelevant and granted Falzon’s motion to quash the taking of his deposition. Judge Hubbard also granted Barney’s motion to quash on the same grounds. Judge Popke had not expressly ordered Barney to appear for a deposition but she had ruled that his role in the case was relevant.

            The only question raised on appeal is whether Judge Hubbard had the authority to reverse or rescind Judge Popke’s earlier orders.

            The Michigan Court of Appeals (MCOA) said “yes” concluding that Judge Hubbard did indeed possess such authority.

Standard of Review:

            The interpretation and application of court rules and the scope of a court’s powers are
questions of law subject to de novo (anew) review. A trial court’s decision regarding discovery is reviewed for an abuse of discretion. The motion to quash the taking of Falzon’s deposition is a motion to reconsider Judge Popke’s earlier order granting State Farm’s motion to show cause; in that context, the trial court’s decision to grant the motion is reviewed for an abuse of discretion.

Analysis:

            The MCOA began its discussion stating the purpose of MCR 2.613(B) is “to ensure that the motion at hand is before the judge most qualified to rule and to prevent so-called “judge shopping,” which “ ‘would obviously detract from the dignity and stability of judicial action . . . .’ ” Clemons v Detroit Dep’t of Transp, 120 Mich App 363, 364. The court concluded that because the parties had no impact on the re-assignment of Judge Popke’s cases, there was no evidence of “judge shopping.”

            Considering the issue of whether a judge can change an order, the MCOA cited MCR 2.119(F)(3) which gives the trial court, until a final order is issued, the discretion to reconsider a prior decision and determine it was mistaken. In this case, the order is not final and thus can be reconsidered.

            The MCOA also wrote that because “Judge Popke’s entire civil docket was transferred to another judge or judges, it is reasonable to conclude that Judge Popke was “absent or unable to act,” thus satisfying the requirements of MCR 2.613(B).

            The court concluded that Judge Hubbard, as successor to Judge Popke through reassignment, had “authority to revisit and reverse the earlier order issued by Judge Popke because no

appellate court had affirmatively ruled on Judge Popke’s order and because the case was still

pending with no final order issued.”

Affirmed.

           
            In the case of Shimel v. McKinley, (DocketNo. 329144), the Michigan Court of Appeals remanded the matter to the trial court because the order changing the child’s school district altered the joint-custodian’s parenting time from every other week to alternating weekends and resulted in a change in the child’s custodial environment which requires the moving party to prove by clear and convincing evidence that the change was in the child’s best interests. 

            Following a more complete hearing, the trial court received additional evidence, considered the statutory best-interest factors, and found by clear and convincing evidence that primary custody with plaintiff was in the child’s best interests. On the second appeal, the Michigan Court of Appeals affirmed the lower court’s decision.

FACTS:

            The parties shared joint physical and legal custody of the child after their divorce until

late 2015, when they no longer resided in the same city and agreed that the child should

attend a single school rather than different schools pursuant to her alternating residence with the

two parties, but couldn’t agree on which school. The trial court entered an order purporting to modify parenting time and finding it was in the child’s best interests to “attend Onaway Public Schools and have her principal residence with plaintiff during the school year.”

            Because, according to the COA, the trial court’s order effectuated a change in the child’s established custodial environment, thus the decision was reversed and remanded for further hearings.

A Change in the Established Custodial Environment:

            A party seeking to change a child’s custody arrangement must first present the court with a preponderance of evidence to show that there is a proper cause for such change under MCL 722.27(1)(c). In other words, the party must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. Again, not just any change will suffice, for over time there are normal life changes. It must be shown that the material changes have had or will almost certainly have an effect on the child.

            In this case, the original order was entered when the child was an infant. During the early years the child resided alternatively with each party and was able to attend two different preschools. The parties agreed that she should attend one kindergarten school but couldn’t agree on the school and they lived too far from each other for the child to alternatively live with each parent.

            Because of these facts, there was proper cause to revisit the original custody arrangement within the definition as set forth in Vodvarka v Grasmeyer, 259 Mich App 499. The COA, after a review of the court’s findings on the best interests factors as stated in MCL 722.23, held that the trial court committed no error. 
           In affirming the lower court, the COA concluded that 1) the trial court’s best-interests findings were not against the great weight of the evidence, and 2) that the trial court did not abuse its discretion by finding that in total those findings constituted clear and convincing evidence that it was in the child’s best interests to award primary custody to plaintiff.

             A divorce judgment has been entered, with a retirement plan involved. How long do the parties have to enter their QDRO (qualified domestic relations order) to effectuate the division of the retirement accounts? This question is commonplace after a judgment of divorce. A recent opinion from the Michigan Court of Appeals is changing the way this question is answered. As a general rule under MCL 600.5809, the statute of limitations to enforce a judgment is ten years. While this is the general rule, Joughin v Joughin, ___ Mich App ___ (2017), Docket 329993, is changing the way this statute of limitations is viewed.

A judgment of divorce requires that a QDRO be filed in order to receive the benefits from a retirement plan associated with the divorce. This is subject to the ten year statute of limitations as outlined by MCL 600.5809, which states:

(1) A person shall not bring or maintain an action to enforce a noncontractual money obligation unless, after the claim first accrued to the person or to someone through whom he or she claims, the person commences the action within the applicable period of time prescribed by this section.

(3) Except as provided in subsection (4), the period of limitations is 10 years for an action founded upon a judgment or decree rendered in a court or record of this state, or in a court of record of the United States or of another state of the United States, from the time of the rendition of the judgment or decree.

In Joughin, the Plaintiff and Defendant were divorced April 28, 2003. For normal purposes this would begin the accrual period on the QDRO. Then 12 years after the judgment of divorce was entered, on July 6, 2015, the Plaintiff entered her proposed QDROs to the court in order to receive the retirement benefits she was entitled to in the judgment of divorce. The Defendant argued that under MCL 600.5809, the retirement plan is unrecoverable because the statute of limitations of ten years had already expired. The Plaintiff in response argued that the accrual does not begin until a triggering event happens, and that in regards to the retirement the triggering event would be the Defendant’s retirement making the funds accessible.

The Michigan Court of Appeals in Joughin concluded “the entry of the proposed QDRO is not an action to enforce a noncontractual money obligation” Id. at 3. Since this is not a noncontractual money obligation, MCL 600.5809 will not apply to a QDRO. The effect this has is it now allows the Plaintiff to file this QDRO after the limitations period would have been up and still makes it viable for recovery.

In Joughin, Judge Jansen provided a lengthy dissent as to why she disagreed with the majority opinion stating “I believe that entry of a QDRO is an action to enforce a judgment of divorce and subject to the applicable statute of limitations.” Id. at 4. She also discussed that three other states have dealt with identical types of cases and all are resulting with different precedents. Judge Jansen spoke to the idea that it must first be determined when the recipient would gain access to the funds from the plan, and begin the ten year accrual period.
No application was filed in the Supreme Court.

               The Michigan Court of Appeals (MCOA) vacated and remanded the trial court’s order in Fante v Nova, Nos. 334735, 336085 saying of the changes made in this custody dispute that were not a short removal, even though classified as "temporary". "Removing a child for an indefinite time, however, equally obviously does implicate the Child Custody Act. Likewise, once a child is in a new environment for a significant length of time, the trial court must determine whether a new established custodial environment exists and may not simply “revert” the child back, even if the initial removal was intended to be temporary."

             
               Michigan Court of Appeals, in People v Killich, No. 329941, held that the Juvenile Code doesn’t allow for the imposition of a flat rate probation supervision fee, and vacated the trial court order imposing the fee and remanded for a corrected order of disposition.

FACTS: 

               Respondent Taylor Killich, a juvenile, pled no contest to a juvenile petition and was placed on probation for three months. She accepted the disposition ordered by the referee, but her attorney objected to the $100 probation supervision fee, citing People v Juntikka, 310 Mich App 306; 871 NW2d 555 (2015). The argument was rejected and she requested a review hearing before the trial court.

               At the review hearing, defense counsel argued that the court did not have statutory authority under the Juvenile Code to impose a pre-determined flat rate fee and that the Juvenile Code only permitted the court to be reimbursed for individualized costs of probation supervision services extended to individual juveniles.

               Petitioner argued that three statutory provisions allowed for the imposition of a probation supervision fee: 1) MCL 712A.18(1)(b), 2) MCL 712A.18(3), and 3) MCL 712A.18(12). The trial court upheld the fee.

Cat’s Paw Theory: 

               The term Cat’s Paw comes from an old fable in which a conniving monkey convinces a cat to reach into a fire to get roasting chestnuts. The cat is duped, burns its paw and the monkey enjoys the chestnuts with no harm. In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks decision making power, uses the formal decision maker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” (EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles,) 450 F.3d 476, 484 (10th Cir. 2006).

               The Sixth Circuit in the case of Marshall v The Rawlings Company LLC,No. 16-5614, used the Cat’s Paw Theory to reverse the district court’s dismissal of the summary judgment motion of the plaintiff’s claims of Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) retaliation claims. The matter was remanded for further proceedings.

           
              This week's Michigan Lawyer's Weekly issue covered the recent Speaker Law Firm published victory in Geering v Geering.

               Jennifer M. Alberts, plaintiffs attorney in the Geering case, said, "Grandparents do not have rights to visitation, so parents' rights will always be favored over the interests of the grandparents. The only concern that may outweigh the parents' rights is the well-being of the child, but it is presumed that parents act in their child's best interests.Thus, it is a high bar for grandparents to meet."

               "These cases largely reaffirmed what has been the law for years and what is clearly laid out in the statute.- Alberts, of Speaker Law Firm PLLC, said the "main takeaway from Geering is the definition of parental fitness: the Court defined a fit parent as one who 'adequately cares for his or her children.'"

               "This is important as the protections the statute affords to parents are specifically afforded to 'fit parents,'" she said. Whether there is a high bar depends on the circumstances, Alberts said.

               "If two fit parents deny grandparenting time, then under the statute, the case ends. That is all there is to it. If only one fit parent denies grandpa renting time, then the grandparent has to prove that the denial creates a substantial risk of harm to the child. The parent or parents who deny grandparenting time are unfit only if they do not 'adequately care for' their children. It is a high bar," she said.

               "If the parents disagreed, then the grandparents would have had to prove that the denial of grandparenting time created substantial risk of hann to the child, rather than having to prove that the parents were unfit," Alberts said.

               "It is still a high bar because there is still a presumption that the parent who is denying grandparenting time is acting in the best interests of the children, but it is a rebuttal presumption, rather than the irrebuttable presumption created by filing a joint affidavit."

Read our previous blog about Geering v Robinson HERE.

           
                 On June 15, 2017, the Michigan Supreme Court decided Kemp v Farm Bureau General Insurance Company of Michigan (Docket No. 151719), a case concerning a plaintiff’s claim for personal injury benefits when he was injured while unloading items from his vehicle. The Supreme Court first addressed whether the plaintiff satisfied the parked vehicle exception for lowering property from the vehicle, MCL 500.3106(1)(b). The Court found that the plaintiff was lowering property from his vehicle, and there was a question of fact as to whether he was injured as a “direct result” of that process. It was for the jury to decide whether the plaintiff’s property was “of sufficient size and weight to cause plaintiff’s injury.” Id., slip op. at 9. 

               Next, the Supreme Court considered whether the plaintiff had satisfied the transportational function requirement. The Supreme Court held that conveyance of one’s personal belongings is closely related to the transportational function of a motor vehicle and overruled the Court of Appeals decision in Shellenberger v Ins Co of North America to the contrary. The plaintiff had satisfied the test as a matter of law.

               Finally, the Court held that because the plaintiff had created a question of fact as to whether his injury was the direct result of lowering property from his vehicle, the plaintiff had also created a question of fact as to whether the causal relationship between his use of the motor vehicle as a motor vehicle and his injury was more than incidental, fortuitous, or but-for. The Supreme Court reversed the Court of Appeals and remanded for further proceedings.

             
                In this case of consolidated appeals of denial of motions to quash their bind-overs to Eaton Circuit Court on charges of owning a dangerous animal, People v Ridge, No. 333790 and People v Olney, No. 333791, the Michigan Court of Appeals reversed and remanded for entry of an order quashing the bind-overs.

FACTS: 

               Defendants Daniel Ridge and Debra Olney are married. At the time of the incident, they owned two dogs. The dog at issue was a "possible pit-bull, Shar-Pei mix" named Roscoe. On September 10, 2015, Jill Flietstra, employee of Scott’s Lawn Care, was spraying the yard next door to the defendants. Both dogs were out in their yard, separated by a chain link fence. Flietstra was spraying the yard when Roscoe got partially under the fence and grabbed her boot. The dog pulled off her boot, came under the fence and attacked her. The neighbors called 911. The police arrived, yelled at the dog who then released Flietstra. When Roscoe turned on the officer, he was shot and killed.

               Neighbors testified that Roscoe barked and attacked the tires of their lawnmowers and that the dogs would bark, jump, and bite the fence. Generally, the neighbors avoided the dogs and were afraid of them.

               Ridge and Olney were charged under MCL 287.323(2) which provides that “if an animal that meets the definition of a dangerous animal MCL 287.321(a) attacks a person and causes serious injury other than death,” the owner is guilty of a 4-year felony. A dangerous animal is defined as “a dog or other animal that bites or attacks a person,…”

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.