Argued March 10, 2015.
For PEOPLE OF MI, Plaintiff - Appellant: MARC CROTTEAU, Prosecutor, BATTLE CREEK, MI.
For LEO DUWAYNE ACKLEY, Defendant - Appellee: ANDREW J RODENHOUSE, GRAND RAPIDS, MI.
Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein.
[497 Mich. 383] BEFORE THE ENTIRE BENCH
Bridget M. McCormack,
The question before us is whether the defendant was denied the effective assistance
of counsel bye his trial counsel's failure to investigate adequately and to attempt to secure suitable expert assistance in the preparation and presentation of his defense. In this case involving the unexplained and unwitnessed death of a child, expert testimony was critical to explain whether the cause of death was intentional or accidental. Contrary to the determination of the Court of Appeals, we conclude that defense counsel's failure to attempt 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 the defendant's trial. See Strickland v Washington, 466 U.S. 668, 694; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). Accordingly, [497 Mich. 384] we reverse the judgment of the Court of Appeals, vacate the defendant's convictions, and remand for proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The defendant was convicted by a jury of first-degree felony murder, MCL 750.316(1)(b), and first-degree child abuse, MCL 750.136b(2), after his live-in girlfriend's three-year-old daughter died while in his care. According to the defendant, the child had been napping alone in her room before he discovered her lying unresponsive on the floor next to the bed. The prosecution alleged that the defendant killed the child, either by blunt force trauma or shaking. The defendant denied hurting the child, and said that she must have died as the result of an accidental fall.
Given the lack of eyewitness testimony and any other form of direct evidence, expert testimony was the cornerstone of the prosecution's case. The prosecution called five medical experts to testify at trial about the cause of the child's death: two general pediatricians, a pediatric critical care doctor, a trauma surgeon, and a forensic pathologist. Each testified that the child died as a result of abusive head injury caused either by nonaccidental shaking, blunt force trauma, or a combination of both. The defense, in contrast, called no expert in support of its theory that the child's injuries resulted from an accidental fall, although the court had provided funding for expert assistance.
The defendant appealed his convictions as of right, arguing that he was entitled to a new trial because his [497 Mich. 385] lawyer's failure to meaningfully challenge the prosecution's expert testimony regarding the cause of the child's death violated his Sixth Amendment right to the effective assistance of counsel. The Court of Appeals remanded for an evidentiary hearing pursuant to People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973). People v Ackley,
unpublished order of the Court of Appeals, entered May 24, 2013 (Docket No
At the Ginther hearing, the defendant's trial counsel testified that he contacted only one expert to prepare for trial: forensic pathologist Brian Hunter. Dr. Hunter testified that, after reviewing some of the case materials, he advised counsel " right off the bat" that he was " not the best person" for the defense. He also explained to counsel that there was a marked difference of opinion within the medical community about diagnosing injuries that
result from falling short distances, on the one hand, and shaken baby syndrome (SBS) or, as it is sometimes termed, abusive head trauma (AHT), on the other hand. Hunter asserted that this divide is " like a religion" because each expert has deeply held beliefs about when each diagnosis is supported, and the defendant should have the benefit of an expert who, " [i]n his or her religion, believes this could be a short-fall death." Hunter ...