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A Better Partnership
July 06, 2015

MSC: Defense counsel ineffective for failing to engage expert to testify regarding victim’s cause of death

In People v Ackley, No. 149479, the Michigan Supreme Court held that the defense counsel’s failure to engage an expert witness to testify on behalf of the defendant as to the cause of the victim’s death, fell below the objective standard of reasonableness where expert testimony was a cornerstone of the prosecution’s case. Defendant was convicted of first-degree child abuse and a first-degree felony murder after his girlfriend’s three-year-old daughter died of a head injury while in his care. The prosecution called five experts to testify at trial regarding the cause of the child’s death.
 
Defense counsel initially contacted Dr. Hunter to review the victim’s medical records and testify at trial regarding his opinion as to the cause of death.  Hunter, however, explained that defendant was better off contacting a different expert because Hunter disagreed with defense counsel’s theory on how the child died. After refusing to participate as an expert witness, Hunter recommended a different doctor; one who he believed would best support defense counsel’s theory during trial and would be willing to testify at trial. Despite Hunter’s recommendation, defense counsel did not engage a second expert, nor was any defense expert called to testify at trial regarding the victim’s cause of death. Defense counsel testified that he never contacted a second expert because it was inconsistent with his trial strategy. The defendant was convicted and sentenced to life in prison without parole, and he appealed.
 
The Court of Appeals initially remanded to the trial court, where the defendant was granted a new trial. The prosecution appealed the grant of a new trial, and the Court of Appeals reversed. The Michigan Supreme Court reversed the judgment of the Court of Appeals. The Sixth Amendment grants a defendant the right to effective assistance to counsel, and under the rule in People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012), counsel’s performance must meet an “objective standard of reasonableness” in order to be constitutionally effective. While defense counsel testified that the decision to consult one expert was based on strategic choice, the defendant argued that there were other experts willing to support defendant’s theory. The Michigan Supreme Court held that defense counsel did not educate itself enough to have sufficient information to justify its choice. The court reasoned that in order to decide if an expert’s testimony is worth presenting, defense counsel must consult with the expert. This does not mean that counsel must interview every expert, but here, counsel stopped after consulting with just one expert even though Hunter expressly suggested that counsel interview another expert. The Michigan Supreme Court explained that defense counsel did not satisfy the objective standard of reasonableness when it failed to adequately investigate and call forth expert testimony because expert testimony was the cornerstone of the prosecution’s case. As such, defense counsel did not provide effective assistance of counsel, and defendant was entitled to a new trial. 

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