August 01, 2015

Defense Counsel’s Failure to Call Expert Created Probability the Error Affected Trial Outcome

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

People v. Ackley, 2015 WL 3949236 (Mich.).

Defendant was entitled to a new trial because his counsel failed to investigate adequately or attempt to secure appropriate expert assistance in preparing and presenting his defense, resulting in constitutionally ineffective assistance of counsel.

Defendant was convicted of first-degree felony murder and first-degree child abuse after his live-in girlfriend’s three-year-old daughter died while in his care. The defendant stated the child was napping alone in her room before he found her lying unresponsive on the floor next to her bed. The prosecution alleged the defendant killed the child, either by blunt force trauma or nonaccidental shaking. The defendant denied hurting the child, and said she must have died from an accidental fall.

Defendant appealed, claiming he was denied effective assistance of counsel and the trial court granted him a new trial. The Supreme Court of Michigan found that defense counsel’s failure 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 defendant’s theory of the case, fell below an objective standard of reasonableness and created a reasonable probability that this error affected the outcome of defendant’s trial.

No eyewitness testimony or any other direct evidence was presented, and expert testimony was critical to determining whether the cause of death was intentional or accidental. The prosecution called five medical experts to testify at trial based on a Shaken Baby Syndrome/Abusive Head Trauma theory of the cause of death. 

The defense, however, called no expert in support of its theory that the child’s injuries resulted from an accidental short fall, although funding for expert assistance was available. Defense counsel did not attempt to consult an expert on short falls even though one had been recommended to him, and this failure could not be merely attributed to case strategy. There was no explanation for the child’s injuries beyond the theories presented by the experts, and the prosecution produced no witnesses that the defendant was ever abusive.

The defendant’s own testimony and that of his lay character witnesses was extremely unlikely to counter the formidable expert testimony. The absence of expert assistance for the defendant prevented counsel from testing the soundness of the prosecution’s experts’ conclusions with his own expert testimony and with effective cross-examination.