MSC grants mini-oral argument on whether failure to investigate use of expert testimony constitutes ineffective assistance of counsel

The Michigan Supreme Court granted mini-oral argument on the defendant’s application for leave to appeal in People v. Ackley, No. 149479. The court directed the parties to file supplemental briefs on whether the defendant was denied the effective assistance of counsel because his trial counsel failed to investigate the possibility of using expert testimony on behalf of the defendant.

After a jury trial, the defendant was convicted of first-degree felony murder, MCL 750.316(b), and first-degree child abuse, MCL 750.136b(2), stemming from the death of his girlfriend’s three-year-old daughter because of a brain injury suffered while under his care. At trial, the defense argued that the girl fell out of bed. Defendant’s counsel consulted with one expert doctor, who told him that he did not believe the child’s injury could have been caused by falling out of bed and that he should consult another expert for testimony, although he still advised defense counsel on ways to attack the prosecution’s case. The first expert provided the names of two other possible experts, but defense counsel did not consult with either of them.

After a Ginther hearing, the trial court determined that defense counsel’s failure to contact the other two experts was objectively unreasonable. The prosecution appealed the order for a new trial, and the Court of Appeals reversed, finding that defense counsel’s assistance was not constitutionally ineffective.