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MSC: Not presenting expert testimony equals ineffective assistance of counsel

Posted on Wednesday, May 16, 2018

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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