In this ineffective assistance of counsel claim, the trial court correctly refused to allow the testimony of the defendant’s proposed expert on criminal defense practice, the Michigan Court of Appeals has ruled.

The defendant in People v Frinkle (Docket No. 359649) was convicted of second-degree murder (MCL 750.317) and sentenced to 22 to 60 years in prison. She filed a motion for a new trial and an evidentiary hearing according to People v Ginther 390 Mich 436 (1973) (known as a “Ginther hearing”). The defendant claimed her trial counsel was ineffective “for promising the jury that it would be instructed on self-defense and then abandoning that defense in front of the jury despite a factual basis existing for the jury instruction” and for letting the jury hear “an inaccurate jury instruction on voluntary manslaughter.”

Jackson County Circuit Court Judge John G. McBain refused to let the defendant’s proposed criminal defense expert testify. The defendant filed an interlocutory appeal and the Court of Appeals denied leave. The defendant then took her claim to the Michigan Supreme Court, which ordered that the denial of leave be reversed and remanded the case to the Court of Appeals for consideration on leave granted (People v Frinkle, 510 Mich 1117 (2022)).  

The Court of Appeals ruled the trial court did not abuse its discretion by rejecting the defendant’s proposed criminal defense expert under Michigan Rule of Evidence 702 (MRE 702). “Applying MRE 702, the trial court appears to have relied on its own experience with criminal trials to conclude that an expert on criminal defense would not be helpful. While other judges may have reached a different conclusion, under the abuse-of-discretion standard, the trial court’s conclusion was not necessarily wrong.”

However, the Court of Appeals agreed with the defendant that the trial judge should be disqualified from presiding over future proceedings. According to the appeals court, the trial judge’s statements about the defendant’s criminal case during another proceeding, as well as his “negative comments” about the frequency of post-conviction motions, created a “serious risk” of judicial bias.

Judge Noah P. Hood and Judge Allie Greenleaf Maldonado joined the 13-page unpublished opinion.

Judge James Robert Redford concurred in part and dissented in part. “I concur in the judgment of the majority to affirm the trial court’s decision to exclude the expert witness testimony,” he said. “I respectfully dissent from the majority’s decision to remand to a different judge …. The record does not support a finding of bias or circumstances suggesting the appearance of impropriety. I would decline defendant’s request for remand before a different judge.”

Additional Background

According to the Court of Appeals opinion, the defendant’s trial counsel “engaged in a series of confusing actions, most notably, telling the jury the case was about self-defense and that they would be instructed on that defense, then abandoning the defense without explanation or an immediately discernable strategy. … Notably, the prosecutor agreed that an evidentiary hearing would be necessary to clarify some of the mercurial decisions trial counsel made during the case. Critical to this appeal, at the Ginther hearing, the trial court made a series of statements about [the defendant’s] trial counsel and her proposed criminal defense expert.”

After rejecting the testimony of the defendant’s proposed criminal defense expert, the trial court stayed further proceedings pending an interlocutory appeal. While acknowledging the possibility of an interlocutory appeal and a stay of proceedings, Judge McBain reportedly said to the proposed expert, “‘Court of Appeals tells me that they need me to hear from you and all your experience to second guess another lawyer, then I’ll let your testimony in, but until that happens, continue to have a good professional life up in the U.P.’”

After the Court of Appeals denied the defendant’s interlocutory application for leave to appeal, she filed a motion for reconsideration because she “obtain[ed] transcripts that appear[ed] to document the trial judge referencing [the defendant’s] evidentiary hearing and proposed expert during another case.” The hearing at issue was an evidentiary hearing for an ineffective assistance of counsel claim. At that hearing, the trial judge “seemed to deride” ineffective assistance of counsel claims and Ginther hearings “in general.” Further, “the trial court also ostensibly referenced the facts of [the defendant’s] case and her proposed expert, and appeared to express aversion to legal expert testimony.”

Expert Testimony Properly Excluded

On appeal, the defendant argued the trial court abused its discretion when it refused to allow her proposed criminal defense expert to testify at the evidentiary hearing.

“We disagree,” the Court of Appeals said.

“The trial court’s statement that allowing a criminal defense expert to testify would set ‘a dangerous precedent,’ is contrary to our rules and precedent allowing such testimony,” the Court of Appeals wrote, citing MRE 702 and People v Trakhtenberg, 493 Mich 38 (2012). “Its focus on the proposed expert being from the Upper Peninsula may suggest that the trial court decided to exclude the expert out of a sense of localism rather than the witness’s credentials or qualifications. And its statement, ‘Not in my courtroom,’ may tend to suggest an inability or unwillingness to apply MRE 702 to this case. But the trial court ultimately made findings that such testimony would not be helpful to him as a fact-finder for the Ginther hearing. These findings were just enough to satisfy MRE 702, and the other statements were insufficient to unravel or undermine those findings.”

Expert testimony is admissible under MRE 702 “if the trial court determines that specialized knowledge will assist the fact-finder,” the Court of Appeals explained. “At [the] Ginther hearing, a fact in issue was whether her trial counsel was deficient, which is to say, whether his performance fell below the objective standard of reasonable practice. … To that end, and contrary to the trial court’s statement about setting ‘a bad precedent,’ this Court and our Supreme Court have recognized that attorney experts may testify regarding the issue of ineffective criminal defense. … While such testimony is allowed, a trial court does not have to admit it if it does not satisfy MRE 702, including the requirement that the testimony ‘will assist’ the fact-finder.”

Here, the trial court ruled the expert testimony was inadmissible under MRE 702 because, as the trier of fact, it did not need an expert to help it understand the issue, the Court of Appeals observed. “The trial court explained that the expert may or may not be an experienced trial attorney; however, almost every Ginther hearing involves questioning the trial counsel and looking through the transcripts. The trial court further explained that trials are fluid events and that the expert was not present during the trial. The trial court’s reasoning for rejecting [the defendant’s] expert witness under MRE 702 was not an abuse of discretion. … As [the defendant] acknowledges, this judge has spent most of his 35-year career as a prosecutor or a judge. This means this judge has spent years observing defense strategy across the aisle or as a sitting judge. This fact does not support defendant’s argument that the trial court would not understand the prevailing norms for an ineffective-assistance-of-counsel claim.”

In addition, the defendant challenged the trial court’s negative comments on the proposed expert witness residing in the Upper Peninsula. The trial court’s comments “were unnecessary, and even in potential conflict with analysis under MRE 702 of whether the expert’s testimony would assist the fact-finder,” the Court of Appeals said. “We nonetheless conclude that the trial court’s unnecessary commentary was not substantial enough to undermine the otherwise valid decision to exclude evidence premised on the trial court’s own knowledge of ineffective assistance claims involving self-defense.”

Different Judge Is Necessary

The defendant also argued the trial judge should be disqualified from presiding over future proceedings in her case.

The Court of Appeals agreed. “We conclude that the combination of statements from the trial judge about trial counsel, [the defendant’s] proposed expert, ineffective-assistance-of-counsel claims, and Ginther hearings was sufficient to create an unacceptable appearance of impropriety. … When a reviewing court determines that a judge has pierced the veil of judicial impartiality, a structural error has been established that requires reversal. … We conclude that such an error has occurred here.”

The Court of Appeals explained that the Michigan Court Rules – specifically MCR 2.003(C)(1)(b) (Disqualification of Judge) – incorporates Canon 2 of the Michigan Code of Judicial Conduct, which obligates a judge to avoid all impropriety and the appearance of impropriety. On appeal, the defendant specifically invoked both Canon 2(A) and 2(B), which say, respectively:

“Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”

“A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.”

Considering the totality of the circumstances, the Court of Appeals found “the trial court’s effusive statements about trial counsel’s skill and practice, its disparaging statements about the specific proposed criminal defense expert, disparaging and dismissive statements about ineffective-assistance-of-counsel claims and Ginther hearings in general, all combine to create a serious risk of actual bias implicating [the defendant’s] due-process rights.”

The Court of Appeals continued, “[M]ost concerning, we have the trial court’s more general statements about ineffective-assistance-of-counsel claims and Ginther hearings, including those that the trial court made during another case in which it referenced [the defendant’s] case. … The fact that the trial judge also referenced her case is extremely troubling. Not only did the trial court take the opportunity to disparage [the defendant’s] expert by describing him as marginally qualified. It also indicated its predisposition toward allowing criminal defense expert testimony, by warning counsel in that case that ‘the voir dire from me is gonna be … excruciating.’ … When viewed in totality, these comments all point in the same direction. They indicate disdain and predisposition against the sort of claim [the defendant] was bringing and the sort of evidence she was offering in support of that claim.”

According to the Court of Appeals, the facts on the record “combine to indicate a serious risk of actual bias warranting disqualification. … The failure to disqualify resulted in a structural error. … We, therefore, remand for continued proceedings before a different judge.”

In conclusion, the Court of Appeals instructed the chief judge of the Jackson County Circuit Court to reassign the case. “The Ginther hearing and motion for a new trial shall continue before a different judge. Our findings regarding the trial judge’s findings under MRE 702 in no way restrict the newly-assigned judge from considering whether criminal defense expert testimony will assist the court under MRE 702.”