Counsel, Ineffective Assistance, Failure to Produce Witness

Criminal Law Update

People v Russell III, __ Mich App __; __ NW2d __ (2012 WL _______, No. 304159, decided September 4, 2012)(sep’12). Defendant was jury convicted of Assault with Intent to do Great Bodily Harm Less than Murder and Reckless Driving after he crashed his vehicle into one of two people who had accosted him while seeking to take a computer from his vehicle. After a Ginther hearing the trial court granted a new trial due to defense counsel’s failure to produce a witness who observed the events at issue and contradicted the prosecution’s proofs. The court of appeals majority reversed the grant of a new trial on this basis, stating that the witness in question, who was never contacted by defense counsel (counsel did review her police statement), gave testimony at the hearing conflicting with the defense theory, and therefore it was permissibly strategic to fail to call her. Judge Krause, in dissent, would have upheld the trial court’s determination as the facts suggested to her that, while not likely, the witness’s account could have been seen as consistent with the theory of defense and the physical evidence. Judge Krause, using the appropriate deferential standard, determined that in her view the trial court did not commit clear error.