Michigan Supreme Court Holds Ineffective Assistance For Lack Of Expert Witness

On June 29, 2015, the Michigan Supreme Court held in a criminal case that a defendant was denied the effective assistance of counsel under the 6th Amendment when his lawyer failed to investigate adequately or attempt to secure an expert witness to rebut the prosecution's five expert witnesses at trial in a case involving the death of a child.

In People v Ackley, Docket No. 149479, the Michigan Supreme Court addressed the issue of whether a defendant is entitled to a new trial when the prosecution's case rests squarely on the testimony of expert witnesses and that defendant's attorney does not offer his own expert witness - despite court funding to do so - or even investigate such a witness.

From the opinion's syllabus:

Leo D. Ackley was convicted by a jury in the Calhoun Circuit Court of first-degree felony murder, MCL 750.316(1)(b), and first-degree child abuse, MCL 750.136(b)(2), after his live-in girlfriend’s three-year-old daughter died while in his care. At trial, the prosecution called five medical experts who testified that the child had died as the result of a head injury that was caused intentionally, while defense counsel called no experts, despite having been provided court funding for expert assistance and the name of a well-known forensic pathologist who could support the defense theory that the injuries had resulted from an accidental fall. Defendant appealed his convictions as of right, arguing that his lawyer’s failure to meaningfully challenge the prosecution’s expert testimony violated his Sixth Amendment right to the effective assistance of counsel. The Court of Appeals, BOONSTRA, P.J., and SAWYER and SHAPIRO, JJ., remanded the matter for an evidentiary hearing under People v Ginther, 390 Mich 436 (1973), after which the trial court, James C. Kingsley, J., granted defendant’s motion for a new trial. The prosecution appealed. The Court of Appeals, OWENS, P.J., and MURRAY and RIORDAN, JJ., reversed in an unpublished opinion per curiam issued April 22, 2014 (Docket No. 318303), holding that the trial court had abused its discretion by granting a new trial because defense counsel’s decisions regarding experts were trial strategy and no prejudice had resulted. Defendant appealed. The Supreme Court ordered and heard oral argument on whether to grant the application for leave to appeal or take other peremptory action, limited to the issue whether defendant was denied the effective assistance of counsel based on trial counsel’s failure to adequately investigate the possibility of obtaining expert testimony in support of the defense. 497 Mich 910 (2014) . . .

In a unanimous opinion by Justice MCCORMACK, the Supreme Court, in lieu of granting leave to appeal, held:

Defendant was denied the effective assistance of counsel by his trial counsel’s failure to investigate adequately and to attempt to secure suitable expert assistance in the preparation and presentation of his defense. Expert testimony was critical in this case to explain whether the cause of the child’s death was intentional or accidental. 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 defense theory of the case, fell below an objective standard of reasonableness, and there was a reasonable probability that this error affected the outcome of the trial. Accordingly, defendant was entitled to a new trial.

1. The Court of Appeals erred by concluding that defense counsel’s decision to consult only Dr. Brian Hunter in preparation for trial was objectively reasonable. There was no objectively reasonable explanation in the record for counsel’s decision to confine his pursuit of expert assistance to Hunter, a self-proclaimed opponent of the very defense theory counsel was to employ at trial, despite Hunter’s having referred counsel to at least one other expert who could provide qualified and suitable assistance. Counsel’s failure to engage expert testimony rebutting the state’s expert testimony and failure to become versed in the technical subject matter constituted a constitutional flaw in the representation, not reasonable strategy. Given the centrality of expert testimony to the prosecution’s proofs and the highly contested nature of the underlying medical issue, counsel’s single error of failing to consult an expert who could meaningfully assist him constituted ineffective assistance.

2. But for counsel’s deficient performance, there was a reasonable probability that the outcome of defendant’s trial would have been different. Defendant’s conviction turned on the jury’s assessment of the prosecution’s theory that the child’s fatal injuries were the result of intentional abuse, which was advanced through the testimony of five experts. Because defendant’s own testimony and that of his lay character witnesses were extremely unlikely to counter this formidable expert testimony, expert assistance in defendant’s favor was critical to provide the jury with another viable and impartial perspective on the facts of the case while contradicting the prosecution’s theory of how the child died. The prosecution’s voluminous expert testimony made the need for an effective response by defense counsel particularly apparent and strong, and it rendered counsel’s failure to offer expert testimony particularly glaring and harmful to the defendant. This consequence militated in favor of defendant’s claim of relief. Further, the prosecution’s nonexpert evidence was highly circumstantial, heavily contested, and far from dispositive of the issue of defendant’s guilt. While a battle of the experts might not have ensured defendant’s acquittal, counsel’s failure to prepare or show up for the battle sufficiently undermined confidence in the outcome of this case to entitle defendant to relief.