State high court: Legal representation fell short, new trial in murder case required

Justices determine expert testimony was ‘critical’

By Traci R. Gentilozzi
The Daily Record Newswire
A criminal defense attorney did not provide his client effective assistance when he did not investigate or secure suitable experts to help prepare and present his client’s defense, the Michigan Supreme Court has unanimously ruled.

In People v. Ackley (MiLW No. 06-89067, 18 pages), the Supreme Court held that the defendant, who was charged with first-degree felony murder and child abuse, gets a new trial.

The high court’s ruling overturns the April 2014 Michigan Court of Appeals decision in the case. The Court of Appeals had ruled, in an unpublished opinion, that a new trial should not have been granted because defense counsel’s decisions were “trial strategy” and no prejudice resulted.

Writing for the Supreme Court, Justice Bridget M. McCormack said expert testimony was “critical” to explain whether the child’s cause of death was intentional.

“Contrary to the determination of the Court of Appeals, we conclude that defense counsel’s failure to attempt to engage a single expert witness to rebut the prosecution’s expert testimony, or to attempt to consult an expert with the scientific training to support the defendant’s theory of the case, fell below an objective standard of reasonableness, and created a reasonable probability that this error affected the outcome of the defendant’s trial,” McCormack wrote.

“As defense counsel was well aware before trial, the prosecution’s theory of the case was that the defendant intentionally caused the child’s unwitnessed injuries, a premise that it intended to prove with expert testimony,” she said. “This testimony would require a response, and indeed, the court granted counsel funding to seek expert assistance of his own. Yet counsel contacted only [one expert], who repeatedly made clear that he credited the prosecution’s ... theory and disagreed with the defense’s theory.”

According to McCormack, although a lawyer’s choice of an expert witness may be a “paradigmatic example” of trial strategy, this is true only when it is made “’after thorough investigation of [the] law and facts’ in a case.”

In its ruling, the Court of Appeals had emphasized that attorneys are not required to “shop for experts until finding one who will offer favorable testimony,” McCormack noted. “We do not dispute that general proposition, but we fail to see its relevance here.” In this case, counsel did no consultation at all beyond settling on the very first expert he encountered, despite the importance of expert medical testimony in the case and despite that expert’s specific recommendation to contact a different and more suitable expert.”

McCormack also said the lack of expert testimony prejudiced the defendant. “The Court of Appeals … found the prejudice from counsel’s deficient performance insufficient to warrant relief, given both the strength of the other, nonexpert evidence of the defendant’s guilt, and the sheer multitude of expert testimony the prosecution had marshaled in support of its position,” she said. “We disagree times two.”
First, there was no “particular strength” in the prosecution’s nonexpert evidence, which was “highly circumstantial, heavily contested, and far from dispositive of the issue of defendant’s guilt,” McCormack noted. Second, she said the court disagreed that “the sheer volume of the prosecution’s expert testimony rendered any such efforts by defense counsel futile.”

The Court of Appeals analysis “vastly underestimated the value of expert assistance to the defense and the impact of its absence, ignoring the fact that in a … case such as this, where there is ‘no victim who can provide an account, no eyewitness, no corroborative physical evidence and no apparent motive to kill,’ the expert ‘is the case …,” McCormack concluded.