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A Better Partnership
October 04, 2013

MSC reverses credibility finding affirmed by Court of Appeals, remands ineffective assistance claim

In a rare reversal, the Michigan Supreme Court remanded an ineffective assistance of counsel claim back to the Court of Appeals. The trial court found, and the Court of Appeals affirmed its decision, that a criminal defense attorney's testimony at a Ginther hearing as to his reason not to call an expert at trial was credible.  The Supreme Court reversed in a summary order.  The Court of Appeals' decision can be found here. People v. Terrell was tried in Wayne County.  Mr. Terrell is serving 20 to 50 years in prison for various convictions arising out of the shooting of Deshawn Evans, while Mr. Terrell's two co-defendants were acquitted.  Mr. Terrell argued that it was ineffective assistance of counsel for his lawyer not to call a medical expert to testify regarding an issue relating to the number of times that Mr. Evans was shot, which could have supported an argument that Mr. Terrell was not the shooter. On remand, the Court of Appeals will need to decide whether not calling an expert was a valid strategic choice (and presumably it was not if the Supreme Court finds the defense lawyer not credible on this point), and if, but for the error, a different outcome was reasonably probable.

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