Trial Lawyer’s ‘Deficient’ Performance Requires Reversal Of Child-Abuse Conviction

A defendant’s first-degree child abuse conviction must be vacated because defense counsel’s performance at trial was “deficient,” the Michigan Supreme Court has ruled.

The Supreme Court issued an order in People v Ceasor (Docket No. 159948) in lieu of granting leave to appeal. After hearing oral arguments in the case, the justices said that defense counsel was deficient in his legal representation because he failed to request public funds for an expert witness.

The high court ruled this way even though defense counsel’s decision to not request funds was based on a mistaken belief the defendant did not qualify for funds because counsel had been retained and not appointed.

The Supreme Court further concluded that, based on the 6th U.S. Circuit Court of Appeals decision in Ceasor v Ocwieja, the defendant could establish prejudice.

Background

The defendant, Terry Lee Ceasor, was charged with child abuse in 2006. The charges arose out of head injuries sustained by his girlfriend’s 16-month-old son. Although the defendant claimed the injuries were the result of the child falling, prosecutors alleged the injuries were the result of “shaken baby syndrome.” The defendant retained attorney Kenneth Lord as his trial counsel. A St. Clair County jury convicted the defendant of first-degree child abuse.

The defendant appealed. In 2007, the Court of Appeals affirmed the defendant’s conviction. The Supreme Court denied leave to appeal that decision.

In 2008, the defendant sought a writ of habeas corpus in U.S. District Court. The District Court denied the motion. On appeal, the 6th U.S. Circuit Court of Appeals reversed and remanded, ordering the District Court to hold an evidentiary hearing. The District Court, on remand, directed the Michigan Court of Appeals to grant the defendant another appeal.

Pursuant to the U.S. District Court’s order, the Court of Appeals opened a claim of appeal in May 2017. The defendant filed a motion for a new trial, citing MCR 7.208(B)(1). The trial court held an evidentiary hearing and denied the motion, concluding that defense counsel’s representation was not deficient.

The defendant again appealed.

‘Deficient’ Representation

In his second appeal, the defendant argued that defense counsel provided ineffective assistance by failing to seek public funds to hire an expert witness pursuant to MCL 775.15 or, alternatively, by not seeking the assistance of an expert who would have provided services pro bono.

The Court of Appeals issued its decision in People v Ceasor (Docket No. 338431) on May 23, 2019. The appellate panel affirmed the defendant’s conviction and sentence, finding he was not denied effective assistance of counsel. In its opinion, the Court of Appeals pointed out the defendant’s case was distinguishable from People v Ackley, 497 Mich 381 (2015), where defense counsel did nothing to investigate the availability of a suitable expert and failed to inform himself of the critical issues to enable putting forth a defense.

“In Ackley, the defendant’s counsel’s ineptitude deprived the defendant of a defense,” the Court of Appeals said. “[S]uch deficiencies are not present in this case. The record reflects that Lord acted prudently under the circumstances, developed a sound trial strategy, and presented a strong defense for defendant. Accordingly, Lord’s conduct did not fall below an objective standard of reasonableness.”

The defendant appealed to the Michigan Supreme Court, which heard oral arguments on January 7, 2021.

In lieu of granting leave to appeal, on March 5, 2021 the Supreme Court issued an order reversing the Court of Appeals ruling and vacating the defendant’s conviction and sentence. The justices remanded the case to the St. Clair County Circuit Court for further proceedings.

“By failing to request public funds for an expert based on a mistaken belief that the defendant did not qualify for those funds because he had retained counsel, counsel performed deficiently,” the Supreme Court stated in its order. “Moreover, for the reasons set forth by the United States Court of Appeals for the Sixth Circuit in Ceasor v Ocwieja, … we conclude that the defendant can show prejudice,” the justices said, citing Ackley.

Justice Elizabeth T. Clement concurred, agreeing that defense counsel’s performance was ineffective. Clement said that it would not have been a “novel argument” for counsel to assert the defendant qualified for public funds under MCL 775.15 because the statutory language “clearly” applied to the defendant. “I recognize that counsel in the instant case took considerable steps to help defendant, even forgoing his own fee to help defendant raise the needed funds for an expert,” Clement wrote. “However, I cannot conclude that holding a mistaken belief regarding the application of a statute - a belief wholly unsupported by the statutory text - is anything but deficient performance.”

Justice Elizabeth M. Welch dissented, joined by Justice Brian K. Zahra. Although Welch agreed that prejudice was undisputed in the case, she emphasized that, at the defendant’s trial, “the law was not clear that defense counsel could, let alone was obligated to, request expert-witness funds for clients who were not appointed counsel by the state.”

According to Welch, the record at the time of trial showed that defense attorneys in the county “generally understood that public funding for expert-witness fees was not available to clients who had not been declared indigent and who were represented by a retained attorney,” Welch said. “Thus, I do not believe counsel’s performance in failing to request public funds from a St. Clair County trial court for an expert witness in 2005 fell below the then-applicable ‘objective standard of reasonableness.’”

Chief Justice Bridget M. McCormack did not participate in the decision because of her prior involvement in the case as counsel for a party.