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Failure to Call Key Witness Held Ineffective Assistance of Counsel

Posted on Thursday, May 17, 2018

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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