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Custody Dispute Ends Up in Eavesdropping Conviction

Posted on Thursday, January 18, 2018


Eavesdropping: Any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both. (MCL 750.539c)
Kevin Clark and Erica Kosinski had a child together. Their tumultuous relationship ended in a child custody dispute. During that time, Clark found listening devices and GPS tracking devices concealed in the child’s clothing during his parenting time. He found what he described as some type of spy chip in the tongue of the child’s shoe, which he took to the police who told him it was a sound activated recorder. The sounds on the recorder were unintelligible and Erica denied any involvement so the matter was dropped. 
However, a month later Erica testified in a family court parenting time hearing that, concerned Kevin was abusing the child, she directed a tailor to put a recorder in her child’s jacket. That information was given to the detective who re-opened the case and she was later charged with eavesdropping. Following a jury trial, she was convicted. She appeals the conviction in People v Kosinski,No.332560.
The Michigan Court of Appeals (MCOA) upheld the conviction in an unpublished opinion.
Kosinski raised several issues on the appeal.
Sufficiency of the evidence:
            To convict defendant of eavesdropping under MCL 750.539c the prosecution must prove that defendant willfully used a device to eavesdrop upon a private conversation without the consent of the parties to that conversation. “Eavesdrop” or “eavesdropping” is defined as “to overhear, record or transmit any of a private conversation without permission of all persons engaged in the discourse. According to the Supreme Court, “private conversation means a conversation that a person reasonably expects to be free from casual or hostile intrusion or surveillance.”
            Although recognizing there were inconsistencies in the testimony regarding the recording device, the defendant did admit to placing a recorder in the child’s jacket, thus the court held that a “rational jury could reasonably infer that the defendant placed a recorder on the child.”
Defense of Duress
            Kosinski contends that the trial court’s refusal to instruct the jury on the defense of
duress deprived her of a fair trial. Specifically, defendant claimed that her fear that Clark was
abusing the child during parenting visits compelled her to place the recording device in the
child’s clothing in order to record the abuse.
            Duress, a common-law affirmative defense, is established when there is threatening conduct creating a fear of present, imminent bodily harm causing the defendant to commit an act to avoid the threatened harm.
                The MCOA upheld the lower court’s denial of the jury instruction stating “There is no evidence to show how defendant’s act of concealing a recording device on the child’s clothing during his visits with Clark could have directly prevented or avoided any present, imminent, or impending abuse.”
Perjured Testimony
            Kosinski claimed that Clark perjured himself during trial when he testified under
oath that he did not enter a no contest plea to poisoning the child during child protective
proceeding involving the child, rather, Clark testified that he pled to failure to protect the child while in the care of Kosinski. Kosinski contended that this statement was false because the transcript of the child protective proceeding shows that Clark pled no contest to failure to protect the child based on his own conduct.
            The appellate court found no error stating “At the outset, defendant does not explain how the prosecution knowingly presented the alleged false testimony, nor is it clear from the record that the prosecution actually knew that Clark’s testimony was false.” And, the court didn’t believe that the challenged testimony affected the judgment of the jury.
Admission of prior testimony
            Kosinski argued that the trial court erred in allowing the admission of the prior testimony she gave at the custody proceeding. She claimed that her prior testimony was obtained in violation of her Fifth Amendment right against self-incrimination, and thus, should not have been admitted in her criminal trial. The appellate court disagreed.
            While agreeing that her testimony during the prior custody hearing was incriminating, the court noted that she was entitled to assert her Fifth Amendment right against self-incrimination during the custody proceeding in regards to the questions tending to incriminate her. Kosinski didn’t assert those rights at the hearing and thus they were lost. Furthermore, because Kosinski was not testifying as a criminal in the parenting time hearing, she was not entitled to advice regarding the Fifth Amendment right against self-incrimination.
            Finally, Kosinski argued ineffective assistance of counsel and that her conviction should be reversed based on the cumulative effect of the errors, which she said deprived her of a fair trial. As to ineffective assistance of counsel claim, the court, after reviewing her complaints found that there was no ineffective assistance.
            The MCOA explained their opinion on cumulative error as follows:
“The cumulative effect of several errors can constitute sufficient prejudice to warrant
reversal even when any one of the errors alone would not merit reversal . . . .” People v Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007). However, only actual errors are combined to determine the cumulative effect. People v Bahoda, 448 Mich 261, 292 n 64; 531 NW2d 659 (1995). Because we found that there were no actual errors, defendant’s argument for reversal based on the cumulative effect of the alleged errors necessarily fails.
The lower court opinion was affirmed.

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A Case to Watch - Voluntariness of Plea and Ineffective Assistance of Counsel - Now Back to Trial Court

Posted on Monday, October 30, 2017
   
             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:
  • Whether the defendant’s unconditional no contest plea waived his claim of ineffective assistance of trial counsel based on trial counsel’s failure to make a motion to dismiss for a 180-day rule violation or for constitutional speedy trial violations;
  • Whether the defendant’s unconditional no contest plea waived his claim of ineffective assistance of trial counsel for trial counsel’s failure to inform him that his plea would waive his right to appeal on the basis of a 180- day rule violation or constitutional speedy trial violations; and
  • Whether trial counsel’s failure to inform the defendant that his unconditional no contest plea would waive his right to appeal on the basis of a 180-day rule violation and constitutional speedy trial violation made defendant’s plea unknowing and involuntary.
            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. 

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Former Litigant in Family Law Case in Supreme Court Loses His Criminal Appeal

Posted on Thursday, October 19, 2017
           
             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 evidence was favorable to the defendant,
  • The prosecution suppressed the evidence, and
  • The evidence was material and its suppression prejudicial.
            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.

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Attorney Found to be Ineffective for Not Calling Witness of Child Suggestibility

Posted on Tuesday, October 17, 2017
             
                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.

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Failure to Call Key Witness Held Ineffective Assistance of Counsel

Posted on Friday, June 2, 2017

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.

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U.S. Supreme Court Clarifies the Standard for Granting Certificates of Appealablity in the Federal Courts and Addresses Racist Testimony in Capital Sentencing Cases

Posted on Wednesday, April 19, 2017

Buck was convicted of capital murder for killing his ex-girlfriend and her friend in 1995. At the time, Texas law required a jury to find beyond a reasonable doubt that a defendant was likely to commit future acts of violence that made him a continuing danger to society before imposing the death penalty. Buck’s defense counsel introduced the testimony of a psychologist, Dr. Quijano, who had prepared a report that ultimately concluded Buck was unlikely to commit future acts of violence. However, Dr. Quijano’s report also included an analysis of certain factors that he believed to weigh on a person’s predisposition to commit future violence. One of those factors was race, and Dr. Quijano’s conclusion as to this factor was that African Americans, like Buck, had an increased probability of acting violently.

After Buck was sentenced, other cases in which Dr. Quijano had testified that a person’s race predisposed them to violence were appealed. The Texas Attorney General identified six cases, including Buck’s, where Dr. Quijano’s racially inappropriate testimony was relied upon for sentencing in capital cases. In all but Buck’s case, the Attorney General admitted that it was error to use this testimony and consented to resentencing of the defendants. The Attorney General distinguished Buck’s case from the other five because it was Buck’s counsel that called Dr. Quijano to the stand in his case, while the prosecution had been the one to call the doctor in the other cases.
Buck then filed his second state habeas petition (his first state habeas petition had been denied), which alleged that his trial counsel was ineffective because he introduced Dr. Quijano’s damaging testimony. The Texas Court of Criminal Appeals, however, denied this petition because Buck had failed to raise this issue in his first state habeas petition. Buck then filed a federal habeas petition again alleging ineffective assistance of counsel, which the District Court also denied because he had failed to raise the issue previously.
After the District Court dismissed Buck’s federal habeas petition, the U.S. Supreme Court decided two new cases, the combined effect of which was to relax the standard under which Buck could seek review of his ineffective assistance of counsel claim that he had failed to raise in his first habeas petition. Based on the change in law, Buck sought to reopen his federal habeas case under Federal Rule of Civil Procedure 60(b)(6), which allows courts to relieve a party from a final judgment for any reason the court believes justifies relief. This has been interpreted to mean that the moving party must show extraordinary circumstances. Buck argued that extraordinary circumstances existed in his case because of the change in law and the fact that his trial attorney introduced expert testimony that inappropriately linked race to violence. The District Court, however, found that Buck failed to demonstrate extraordinary circumstances that would warrant review of his unpreserved claim. Furthermore, it found that he failed to show that his trial attorney was ineffective for calling Dr. Quijano to the stand, because any impact the racist testimony had on the jury was de minimis when weighed against all the other evidence.
Buck then sought a certificate of appealability from the Fifth Circuit, seeking to appeal the District Court’s decision denying his Rule 60(b)(6) motion. When reviewing applications for appeal, the Fifth Circuit must determine whether the claim is reasonably debatable. In making this determination, the Court only needs to find that reasonable jurists could disagree with the District Court’s ruling that Buck failed to show extraordinary circumstances. The Fifth Circuit ultimately denied Buck’s certificate of appealability because it found that Buck failed to demonstrate extraordinary circumstances that would justify relief for his Rule 60(b)(6) motion.
In Buck v. Davis, however, the U.S. Supreme Court held that the Fifth Circuit should have granted Buck’s certificate of appealability for the District Court’s denial of his Rule 60(b)(6) motion. The Supreme Court reasoned that the Fifth Circuit should not have decided whether Buck had actually demonstrated extraordinary circumstances; rather, it was limited to deciding whether reasonable jurists could debate the issue of whether Buck showed extraordinary circumstances. The Supreme Court found that the Fifth Circuit basically decided Buck’s appeal on the merits, which is procedurally improper at the certificate of appealability stage. The Fifth Circuit was essentially sidestepping the requirement of first obtaining a certificate of appealability before a case will be heard on the merits, which the Supreme Court found was tantamount to deciding an appeal without jurisdiction.
The Supreme Court also held that the District Court abused its discretion when it denied Buck’s Rule 60(b)(6) motion for failure to show extraordinary circumstances. Ultimately, the Supreme Court disagreed with the District Court’s finding that Dr. Quijano’s racist testimony played only a de minimis role in the jury’s decision to sentence Buck to death. The Supreme Court held that there was a reasonably probability that Buck was sentenced to death at least in part because he was black, after Dr. Quijano had testified that African Americans are more likely to commit crimes of violence. This is sufficient to constitute extraordinary circumstances, particularly in light of the extraordinary measures that the Texas Attorney General had taken to remove the taint of Dr. Quijano’s testimony in five other death penalty cases in which he testified.
Finally, the Supreme Court held that Buck’s trial counsel was constitutionally ineffective. Under Strickland v. Washington, 466 U.S. 668, a defendant must show that his counsel performed deficiently, and that deficient performance prejudiced the defendant. The Supreme Court reasoned that the trial counsel’s decision to call Dr. Quijano to the stand and specifically elicit testimony that his client was more likely to be a future danger because he is black was deficient performance. This deficient performance prejudiced Buck because it was likely that a juror could have valued this testimony from a medical expert and applied it to preexisting racial stereotypes. Therefore, the Supreme Court reversed and remanded the case.

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MSC: Not presenting expert testimony equals ineffective assistance of counsel

Posted on Monday, February 8, 2016

The Michigan Supreme Court’s decision in People v Ackley shows just how crucial it is for defense lawyers to adequately investigate their client’s case and make good use of expert witnesses.
Otherwise, defense attorneys risk an ineffective assistance of counsel claim.
The defendant in Ackley was convicted of first-degree child abuse and felony murder after his girlfriend’s 3-year-old daughter died of a head injury while in his care. Five experts testified for the prosecution that the child’s death was caused by blunt force trauma and non-accidental shaking. The defendant maintained that the child had accidentally fallen out of bed and he found her lying on the floor. The defense, however, presented no experts to support this theory.
Defense counsel did contact one doctor as a possible expert. That doctor indicated he was not in agreement with the defense’s theory in the case, and gave defense counsel the name of a forensic pathologist to contact. However, defense counsel never got in touch with the forensic pathologist. Nor did defense counsel read any treatises or other scholarly articles about the medical issues involved in the case (i.e., shaken baby syndrome and abusive head trauma). Instead, defense counsel said that while it may have been “prudent” for him to have examined the information that’s available, it “wasn’t the strategy.”
The case came before the Michigan Court of Appeals twice. The first time, the court remanded for an evidentiary hearing under People v Ginther, 390 Mich 436 (1973). After the defendant was granted a new trial, the prosecution appealed. The Courtof Appeals then held the defendant was not entitled to a new trial because defense counsel’s decision not to use an expert was part of the trial strategy.
On appeal to the Supreme Court, the justices reversed in a unanimous opinion written by Justice Bridget M. McCormack.
Under the Sixth Amendment, a defendant’s right to an attorney implicitly includes the notion that the lawyer’s performance will meet an “objective standard of reasonableness,” the Supreme Court explained. In Ackley, defense counsel did not have sufficient information to justify his decision to not use an expert witness, the high court said.
In order to determine whether an expert’s testimony is worthwhile, defense counsel must consult with experts, the Supreme Court noted. While this does not mean that every expert must be consulted, the high court said that, in Ackley, it was not reasonable for defense counsel to stop looking for expert witnesses after only one potential candidate was interviewed.
The Supreme Court emphasized that the prosecution’s case centered on the testimony of five expert witnesses. Therefore, by failing to adequately investigate and present expert testimony to rebut the prosecution’s five experts, defense counsel did not meet the “objective standard of reasonableness,” the high court ruled.
Accordingly, the Supreme Court vacated the defendant’s conviction and remanded the case 
for a new trial.

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Questions at oral argument enlighten

Posted on Tuesday, October 23, 2012
When I attended oral argument the other day in People v Trakhtenberg (SCt Docket 143386), it was interesting to listen to the court's questions. The first issue upon which the Court granted leave was: "whether the 'attorney judgment rule,' as applied in a related case involving a claim of legal malpractice made by the defendant against his trial counsel in this criminal case, can be applied under a collateral estoppel theory to bar substantive review of evidence adduced at a hearing ordered by this Court to determine whether the defendant was denied his constitutional right to effective assistance of counsel." However, the Court quickly made it clear that it no longer thought that it was a viable issue, and wanted to focus instead on the other two questions in its leave grant order (regarding the evidence to support the trial court's decision to grant a new trial based on ineffective assistance of counsel and newly discovered evidence). In a colloquy with the prosecutor, the Court not only backed away from the collateral estoppel question, but also seemed to open the door for some future case to a possibly attack to the decisions in Knoblauch v Kenyon, 163 Mich App 712 (1987), and Barrow v Pritchard, 235 Mich App 478 (1999), which held that a criminal defendant's legal malpractice suit against his criminal attorney could be collaterally estopped if he raised ineffective assistance of counsel in the direct criminal appeal. So although nothing is certain until the Supreme Court issues its decision, the questions at oral argument were certainly enlightening about how the court might treat collateral estoppel issues in this case and in future challenges.

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