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Dendel v. Washington
United States District Court, E.D. Michigan, Southern Division
July 22, 2015
KATHERINE DENDEL, Petitioner,
HEIDI E. WASHINGTON and STEPHEN ROBINSON, Respondents.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
DAVID M. LAWSON UNITED STATES DISTRICT JUDGE
Petitioner Katherine Dendel, currently on parole, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging her conviction of second-degree murder. The decedent was an infirm person under the petitioner’s care. The state’s theory was that the petitioner injected the decedent with insulin, which caused his death. The cause of death was contested at trial, with the petitioner arguing that the decedent either died of natural causes, or he committed suicide by injecting himself with insulin. The petitioner was found guilty after a bench trial in the Jackson County, Michigan circuit court, and the case has received considerable attention from the state appellate courts over two issues: (1) whether the petitioner’s rights under the Confrontation Clause were violated by the admission of a laboratory report when the reporting technician who performed the tests did not testify (and therefore the petitioner could not cross-examine him); and (2) whether the petitioner’s right to the effective assistance of counsel was abridged when her trial lawyer did not hire an expert witness to offer an alternate explanation for the victim’s death. The petitioner also argues that there was insufficient evidence offered at trial to support her conviction. The state courts denied relief on both the ineffective assistance of counsel and Confrontation Clause claims because they determined that the constitutional violations did not prejudice the petitioner. Other jurists might disagree with those conclusions, and some have expressed that disagreement. But under the hyper-deferential review standard that federal courts must apply, this Court cannot say that the state courts unreasonably applied Supreme Court precedent. Therefore, the petitioner is not entitled to relief, and the Court will deny the petition.
This Michigan Supreme Court summarized the facts of the case in the first appeal to that court, as follows:
Defendant and the victim, Paul Michael Burley, were in a long-term relationship and had lived together for years. Burley had been taking numerous medications for several serious illnesses, including an infection with human immunodeficiency virus (HIV), herpes, hepatitis B and C, epilepsy, ataxia, neuropathy, chronic obstructive pulmonary disease, severely impaired vision, dementia, lymphoma, and throat cancer. Burley was not, however, diabetic. By defendant’s own account, Burley was a difficult person to care for. Defendant was solely responsible for making sure that Burley took his medications and for tending to his everyday needs.
Defendant’s relationship with Burley’s family was strained, apparently by what she perceived as the family’s failure to help with Burley’s care. Before Burley’s death, defendant had told his sister that “if something happens to your brother, your family won’t know what hit you.” About one week before Burley’s death, defendant, frustrated with Burley’s demands, also told Burley’s sister, “I can’t take this” and “I feel like giving him a shot of insulin.” As an insulin-dependent diabetic, defendant had access to insulin and knew how to inject it. Defendant also knew how insulin metabolizes and that no trace of insulin would remain in Burley’s blood after an insulin injection.
Defendant had expressed her frustration with caring for Burley to a Family Independence Agency (FIA) employee. Less than a week before Burley’s death, defendant e-mailed the FIA employee to seek help with caring for Burley. Defendant told the employee that she could not manage all of Burley’s demands on her own. During a subsequent telephone conversation, defendant again stated that she was frustrated and concerned that the situation was deteriorating and that she no longer knew how to manage Burley. The FIA employee suggested that defendant have Burley evaluated at a mental-health facility or have him placed in respite or hospice care.
The FIA employee testified that defendant had never before expressed any problems with caring for Burley. During the week leading up to Burley’s death, defendant sought help from the Department on Aging. The department representative told defendant that she did not qualify for help because both she and Burley were not 60 years old. The representative suggested that defendant instead contact hospice services. Defendant replied that hospice services would not help because Burley was not yet near death.
Defendant’s care giving situation took another turn for the worse the day before he died. On March 14, 2002, a visiting nurse had been assigned to assist defendant and educate her in the proper methods of care. She visited five times, but, on the day before Burley’s death, the nurse terminated her services because Burley had been uncooperative. When the nurse told defendant she was terminating her services, defendant became “quite tearful and upset.” Defendant told the nurse that she did not know how long she could continue caring for Burley.
At 3:00 a.m. on the day of Burley’s death, defendant called 911, reporting that Burley had been hallucinating and running around with a butter knife. Defendant asked the police to come take Burley to a mental institution. When the police arrived, Burley was sitting calmly in a chair. He told the officers that he was fine and that there was no problem. The police decided to leave Burley at home because he was not a threat to himself or others. One officer testified that defendant was visibly upset with Burley and the police. Defendant also later admitted that she was frustrated with the officers’ decision and that she was hoping for relief because she was at her “wit’s end.”
Defendant contended that later that day she discovered Burley slumped over on the couch and unresponsive. She testified that, because Burley was cold and covered with purple blotches, she thought he might be dead. Rather than calling 911, however, she instead called a friend, who arrived and contacted 911. When the police and emergency personnel were removing Burley’s body from the house, one of Burley’s sisters telephoned. Defendant answered the phone, but quickly ended the conversation without telling her that Burley had died.
During the next several days, defendant spoke with several of Burley’s siblings. She never informed them of his death, but instead falsely told them that he had been hospitalized. One of the victim’s sisters described a 74-minute conversation with defendant two days after Burley’s death. She testified that defendant was very “upbeat” and “nonchalant” in her discussion of topics ranging from Burley’s health to antique jewelry. During this conversation, defendant laughed while describing an alleged incident when Burley had wandered away from the apartment complex and become lost. Yet defendant never announced Burley’s death.
Defendant wanted Burley’s body cremated without an autopsy being performed. Although an autopsy was performed despite defendant’s wishes, defendant had Burley’s body cremated before his family learned about his death. When a police detective incorrectly told defendant that the medical examiner had detected insulin in Burley’s body, defendant called him a liar and explained that insulin could not be detected in the human body after death because it breaks down and depletes naturally.
After defendant’s arrest, she told police detectives that Burley had injected himself with insulin. During a later interview with a police detective, defendant said, “That poor dear, he killed himself for me.” She told the detective that despite Burley’s severely impaired vision and problems with holding things, he could inject himself with insulin.
Defendant also told defense counsel that Burley had killed himself by an insulin injection and that she wanted him to pursue this theory of defense at trial. Defendant also testified that Burley had mental problems and that he had “talked suicide for 10, 15 years.” She had informed two of Burley’s doctors of his suicidal intentions.
Defendant was charged with first-degree murder. The prosecution theorized at the bench trial that defendant injected the victim with a lethal dose of insulin on April 2, 2002. The prosecution presented two expert witnesses, Dr. Bernardino Pacris and Dr. Michael Evans,  who testified that the evidence supported the theory that Burley had died from an insulin injection rather than from natural causes or an overdose of one of his medications. Defense counsel Joseph Filip argued that Burley had died either by injecting himself with insulin or from the side effects of numerous medications prescribed for him. Defense counsel did not present any expert testimony to rebut the testimony of the prosecution’s experts.
The trial court found defendant guilty of the lesser-included offense of second-degree murder. Defendant moved for a new trial, arguing that Filip had deprived her of a fair trial by failing to conduct a reasonable investigation into the cause of Burley’s death. The trial court denied the motion. The Court of Appeals remanded for a[n evidentiary] hearing to determine whether Filip had provided ineffective assistance.
At the [evidentiary] hearing, appellate defense counsel called Dr. Laurence Simson, 7who testified that the evidence did not support the view that Burley had died from an insulin overdose. Dr. Pacris defended his trial testimony that Burley had died of hypoglycemic shock caused by insulin.8 The trial court rejected defendant’s claim of ineffective assistance of counsel. Instead, it found that defense counsel’s performance had been objectively reasonable. The court concluded that defendant had not been prejudiced by Filip’s failure to call an expert forensic pathologist to rebut the opinions of the prosecution’s experts. The court explained why the outcome of the trial would not have been different if the defense had offered Dr. Simson’s testimony:
And if the case was just, . . . the police had a dead body and you have Dr. Pacris and Dr. Simson, that would be one thing. It wasn’t that. If there was a lot of other testimony, of statements and other witnesses and other things that pointed in that direction, it would have made the testimony of Dr. Evans and Dr. Pacris not as . . . clear. But I don’t know that I can say that there’s a reasonable probability that the outcome would have been different. There was still - there was other evidence, . . . admittedly all circumstantial, but there was a lot of other ...
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