Spaulding v. Larson
Filing
11
OPINION and ORDER Granting the 1 Petition for the Writ of Habeas Corpus. Signed by District Judge Judith E. Levy. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Scott Spaulding,
Petitioner,
v.
Case No. 13-cv-10131
Judith E. Levy
United States District Judge
Jeffrey Larson,
Respondent.
________________________________/
OPINION AND ORDER GRANTING THE PETITION FOR THE
WRIT OF HABEAS CORPUS [1]
Petitioner Scott A. Spaulding is a state prisoner, currently
confined at the Central Michigan Correctional Facility in St. Louis,
Michigan. On April 8, 2010, following a jury trial in Wexford County
Circuit Court, he was convicted of one count of first-degree criminal
sexual conduct, Mich. Comp. Laws § 750.520b(1)(b), and three counts of
second-degree
criminal
sexual
conduct,
Mich.
Comp.
Laws
§ 750.520c(1)(b), for sexually abusing his stepdaughter. On May 24,
2010, he was sentenced to concurrent terms of six to thirty years of
imprisonment for the first-degree criminal sexual conduct conviction
and three to fifteen years of imprisonment for the second-degree
criminal sexual conduct convictions.
After exhausting his state remedies, Petitioner filed this petition
for the writ of habeas corpus, arguing in relevant part that the
Michigan Court of Appeals unreasonably denied his claim of ineffective
assistance of counsel under the Sixth Amendment. For the reasons set
forth below, the Court agrees that Petitioner’s Sixth Amendment right
was violated.
The petition is granted, and the State is required to
release Petitioner or begin a new trial within ninety days.
I.
Background
At trial, Petitioner’s stepdaughter (“P.S.”), who was then sixteen
years old, testified that Petitioner sexually assaulted her on numerous
occasions in 2007 and 2008, when she was fourteen and fifteen years
old.
P.S.’s biological parents are divorced, and she was living with
Petitioner (her stepfather) and mother when the alleged abuse began.
The investigation that led to Petitioner’s prosecution began in August
2009, when P.S. first told others that she had been sexually abused.
2
a. Preliminary examination
A preliminary examination was held on October 27, 2009,
approximately one year after P.S. first reported that Petitioner had
sexually abused her. (See Dkt. 9-2.) At the preliminary examination,
the attorney for the State asked P.S. when the sexual abuse first began,
and she responded: “In December or January – December of 2007,
January 2008.” (Id. at 6.) When asked if anything happened “prior to
that,” P.S. responded no.
(Id.)
P.S. testified as to several specific
incidents of unlawful sexual conduct between May and June of 2008,
which formed the basis of the criminal charges. (Id. at 6-8.) On crossexamination, P.S. was asked to affirm that her “testimony [wa]s that
the first event of any type was December of ’07,” to which she responded
unequivocally yes. (Id. at 27.)
P.S. also testified about the first time she spoke out about the
alleged abuse. (Id. at 19.) According to P.S., she was babysitting at the
home of Nicole and James Humphreys in August 2009. (Id.) She was
“watching a TV show called Degrassi,” in which a similar situation of
abuse was portrayed, and she “got [] all worked up, and [she] told [Ms.
Humphreys] that [they] had to talk.”
3
(Id.)
P.S. testified that Ms.
Humphreys “ended up telling [Ms. Humphreys’ husband], [’]cause he
was at work.” (Id.)
P.S. testified that she had been interviewed over the course of the
investigation by officers at the Wexford County Sherriff’s office, Child
Protective Services, and Barbara Cross of the Maple Clinic, who has an
M.A. in social work and later testified as an expert witness for the
prosecution. (See id. at 21-23.)
b. Trial
At the start of trial, before any witnesses had testified and while
the jury was not present, the trial judge noted that he was “somewhat
concerned because the information alleges [sic] and [he] read it to the
jury, that [the relevant timeframe was] between May of ’08 and June 26
of ’08.”
(Id. at 140-41.)
P.S. had testified during her preliminary
examination that no unlawful sexual acts had occurred prior to
December 2007, but she later raised allegations that the unlawful
sexual conduct began as early as August of 2007, and the prosecution
intended to introduce testimony as to those acts under Mich. R. Evid.
404(b).
(See id.)
The prosecutor noted that he “didn’t do the
4
preliminary examination,” and “the information probably should be
amended to a much larger range.”
The prosecution first called Wexford County Deputy Sheriff Jason
Nehmer to testify. Nehmer testified that on August 15, 2009, he took
an incident report from P.S. and her father at the Wexford County
Sheriff’s Department. (Dkt. 9-3 at 167.)1 According to Nehmer, P.S.
was “very quiet, [and] seemed very timid.” (Id.) Nehmer testified that
P.S. “was really nervous, um, didn’t really, you know, want to open up
right away,” but “she knew that she had to, you know, say something.”
(Id. at 168.) Nehmer testified that P.S. “advised that [Petitioner] had a
very bad temper, um, and that he had a number of guns, and that she
had feared that if something went bad that he might use his temper
and the guns.” (Id. at 169.)
The prosecution next called Nicole Humphreys to testify.
Humphreys testified that she had known P.S. for seven years and that
P.S. had been a babysitter for her children for approximately three or
four years. (Id. at 175.) According to Humphreys, on or around August
The prosecution referred to August “of this year” (Dkt. 9-3 at 167), but the only
logical time would have been August of the preceding year, 2009, given that the
trial took place in April of 2010.
1
5
10, 2009,2 P.S. was being “snippety,” “grouchy,” and “rude.” (Id. at 176.)
When Humphreys asked P.S. if everything was ok, she said no, began
crying, and “her whole body was shaking.” (Id. at 177.) Humphreys
testified that P.S. told her that Petitioner had “done things to [her].”
(Id. at 178.) Humphreys telephoned her husband, who came home, and
the two advised P.S. that she needed to tell her mother and father or
they would talk to her parents. (Id. at 178-81.)
The prosecution next called Ericka Szegda, P.S.’s stepmother, to
testify. The prosecution asked Szegda whether Petitioner had a temper,
to which she responded yes, (id. at 189), and then asked Szegda to
describe several specific incidents in which Petitioner had lost his
temper. (Id. at 189-93.) The prosecution also asked Szegda whether
P.S. came “home with a bathing suit one day” and whether there was
“[a]nything unusual about” it. (Id. 193.) Szegda answered that “it was
way too small.” (Id.) On cross-examination, defense counsel elicited
testimony that Szegda thought of P.S. “as a happy and outgoing child”;
that even though they were close, P.S. did not disclose the alleged abuse
to Szegda until after she first made the allegations in 2009; that
2
See supra note 1.
6
Szegda’s home was closer to P.S.’s school than Petitioner’s; and that
P.S. was allowed to play more sports when living in Szegda’s home than
when living in Petitioner’s. (Id. at 195-99.)
The prosecution next called P.S., who testified that Petitioner
committed the following sexual acts. When she was fourteen, around
August of 2007, Petitioner manually stimulated her for approximately
ten minutes while they were lying on the couch watching a movie. (See
id. at 212-15.) “[A]bout a month later,” Petitioner took her right hand
and made her manually stimulate him for approximately five minutes
while they were lying on the couch watching a movie. (See id. at 21518.)
On another occasion, Petitioner manually stimulated her for
approximately five to ten minutes while her mother slept in the same
bed. (See id. at 221-25.) Petitioner orally stimulated and penetrated
her, and she was unsuccessful in her attempts to push him away. (See
id. at 226-30.)
When she was visiting during December 2007 to
January 2008, after she had moved in with her father, Petitioner
7
manually stimulated her and told her that he missed “his partner in
crime” and that “he love[d] [her] so much.” (See id. at 230-34.)3
The State asked P.S. whether she “kind of get[s] confused about
these dates,” to which the she replied yes. (Dkt. 9-3 at 226.) Asked
why, P.S. replied “[b]ecause it’s happened so many times that it’s -- I
don’t like to keep track of the dates that he’s done this. I try to put it
behind me. And so the dates, they’re not clear.” (Id.) Asked whether
she “tr[ies] to block it out,” P.S. responded yes. (Id.)
On cross-examination, P.S. was asked why her testimony
regarding the first incident of sexual assault was a different time and
incident than the one she reported to the police during the
investigation, and she replied that she “was really scattered that day,”
when she “said something, [she] remembered something else,” and
“when [she] was talking to [the officer], [she] was really, really scattered
on where the stories were.” (Id. at 272-73.) When asked whether she
would admit that her “stories have changed each time [she] talked
P.S. also testified about incidents in which Petitioner made inappropriate
comments or gestures, such as exposing his genitals to her (see id. at 210), telling
her she needed to shave her genitals (see id. at 234), and asking to view her in a
revealing bathing suit. (See id. at 241-42.)
3
8
about this,” P.S. responded that only “[t]he dates, not the actual stories”
changed. (Id. at 273.)
P.S. also testified that after moving in with her father, and despite
Petitioner’s conduct, she called Petitioner and asked him to drop off
items for her at school (id. at 258-59), took him cookies at work (id. at
259-62), and on occasion voluntarily stayed alone with Petitioner at his
home when her mother was not there.
(Id. at 264-66.)
She also
testified that she wanted to live with her father because Petitioner and
her mother had rules at their house that she did not like, for example,
that she could only play one sport and that she could not have certain
friends over to visit. (Id. at 256.) P.S. also testified that she did not like
how she was treated, in part because Petitioner and her mother told her
that she was lazy.
(Id.)
P.S. confirmed that she had reported the
sexual abuse more than one year after the final alleged incident had
occurred. (Id. at 268-69.)
At the start of the second day of trial, the prosecution moved to
amend the criminal information to expand the timeframe from that
alleged in P.S.’s initial statement to “the more extensive statement[,]
which would have been October ’07 through December of ’08.” (Dkt. 9-4
9
at 4.) The prosecution argued that “this should not come as a surprise
to the defense,” because “there was grave confusion about dates and we
are dealing with a younger victim and also a sexual assault case that
most people would have a difficult time pinning down dates and times.”
(Id. at 5.)
Defense counsel responded that his client would be
prejudiced because during the preliminary examination, P.S. was asked
“[d]id anything happen prior to” December 2007 to January 2008, and
P.S. responded unequivocally no. (Id. at 10.) The prosecution replied
that P.S. “has not been able to pinpoint dates and times,” and was
“confused about a lot of things.” (Id. at 18.)
The trial court judge ultimately granted the prosecution’s motion,
noting that “we have the classic case of a young child who is, by her
testimony if to be believed, was subjected to serious trauma,” and “her
coping mechanism in dealing with this was to attempt to suppress the
memories of these events, and I’m certain that she ha[d] done so until
such time as she revealed them [and was] required to now to [sic] recite
the incidents.”
(Id. at 28-29.)
The trial court judge found that the
defense was not prejudiced because “the prosecution has provided
pursuant to statute and rule of evidence 404(B) [sic], a recitation of a
10
broader range of dates and events than were testified to at the
preliminary examination, and I believe that the defense is properly on
notice for those.” (Id. at 29.)
The prosecution then called Dezirae Hesselink, a friend of P.S.
from school. The prosecution elicited testimony from Hesselink that
P.S. had sent her an “Instant Messag[e]” that P.S.’s “step dad abused
her.” (Id. at 46.) Hesselink testified that she told P.S. to tell her father,
but P.S. responded that “her dad might get mad at her because he
asked her if [Petitioner had] ever done anything to her.” (Id. at 47.)
The prosecution then called Detective Lieutenant Trent Taylor of
the Wexford County Sheriff’s office, who testified that, after receiving
the sexual assault complaint from Deputy Sheriff Nehmer, he
interviewed Petitioner on August 17, 2009. (Id. at 52-53.) According to
Taylor, he had asked Petitioner if P.S. had touched his genitals, and
Petitioner had responded that he did not know. (Id. at 63.) Taylor
testified that he had asked Petitioner if P.S. was “well developed now,”
and Petitioner had responded “oh, yes,” and that she was a “beautiful
young lady.” (Id. at 67, 70.) Taylor also testified that Petitioner had
said that P.S. had seen his penis while he had been in the bathroom and
11
possibly when he had urinated off of a deck. (Id. at 75.) When Taylor
asked Petitioner if P.S. had “ever physically manipulated his penis,”
Taylor testified that Petitioner had “indicated that he’s a hard sleeper.”
(Id. at 76-77.)
Finally, the prosecution called Barbara Cross to testify as an
expert witness.
Cross had previously interviewed P.S. during the
investigation. Cross testified that she had a Master’s Degree in social
work and was the director of and a therapist for the Maple Clinic (a
private outpatient mental health clinic). (Id. at 129-34.) Cross testified
that delayed disclosure of traumatic events is “very common” in both
adults and children, and the delay could be “a week, or a month, or a
year, or even a decade.” (Id. at 135-36; see also id. at 150 (“It depends
on the child, but there’s always a delayed disclosure.”).)
She also
testified that if a victim has an emotional investment with the
perpetrator, such as a family member might have, then “there’s far
more investment in keeping the secret; quite frankly to keep the peace
is one reason.” (Id. at 136.) According to Cross, other reasons children
do not report abuse include embarrassment, shame, guilt, and “fear of
what other people are going to say.” (Id. at 137-38.) Cross testified that
12
it does not take much for a child to become fearful, and children are
often kept silent regarding the abuse through bribery. (Id. at 147-48.)
Cross also testified that it is “very common” for victims to be
inconsistent about times, dates, who is present in the home, and where
they lived at the time of the abuse because “most kids don’t document
dates and times of when they’re being abused.”
(Id. at 142-43.)
According to Cross, children do not necessarily want to get away from a
perpetrator who is a family member because they “covet and protect
that person” and “don’t want the whole world to find out.” (Id. at 14849.) Cross testified that it would not be “that so far off the grid” for a
victim to make her abuser his favorite cookies because she would not
want other people to know of the abuse and would try to lead a normal
life. (Id. at 149-50.) And Cross testified that victims who have been
removed from abusive environments may want to return for the same
reasons. (Id. at 150-51.)
On cross-examination, and in front of the jury, Petitioner’s counsel
did not challenge Cross’ credentials to testify as an expert. In fact, he
even stated that he was “sure [her résumé was] long and very
distinguished,” noted that Cross had “been admitted as an expert
13
witness a number of times in a number of cases,” and noted that
“obviously [she was] well verse [sic] in this in terms of what may be
seen in these types of situations where a child claims she has been
sexually abused.”
COUNSEL]:
(Id. at 157, 159; see also id. at 161 (“[TRIAL
Well Judge, I think the Court has already ruled that
[Cross is] an expert. I have no objection to her qualifications.”).) Cross
testified that she agreed that “some reports of sexual abuse by alleged
victims turn out to be not truthful,” and “there can be reasons why an
alleged victim may report that . . . he or she had been abused and
ultimately it turns out to be not true.” (Id. at 157.) Cross also testified
that she had never been asked to testify for a criminal defendant. (Id.
at 158-59.) Finally, Cross acknowledged that her testimony was generic
and “[n]ot about any specific case at all.” (Id. at 160.)
The defense called three witnesses, but no rebuttal expert witness:
Meghan Nagel (P.S.’s aunt, the sister of P.S.’s mother), Michelle
Spaulding (P.S.’s mother and Petitioner’s wife), and Petitioner.
The
trial court limited the witnesses the defense could call and the
testimony defense counsel could elicit because counsel had failed to
timely file a witness list. (See Dkt. 9-3 at 138-40.)
14
Spaulding testified that during the relevant period, “there was
always somebody in the home besides [Petitioner] and [P.S.]” in the
evenings, specifically, Spaulding or Petitioner’s son from his previous
marriage, Payne Spaulding.
(Dkt. 9-4 at 208-09.)
Spaulding also
testified that the reason P.S. had gone to live with her father was that
he “lived right up the road from the school that allowed her more
opportunities in sports,” and P.S. “didn’t like the rules at the house.”
(Id. at 212-15.) When asked whether she had ever seen “any improper
touching of [P.S.] by [Petitioner],” Spaulding responded “[n]ever.” (Id.
at 215.) Spaulding also testified that P.S. never “t[old] [her] that she
had been improperly touched or abused by [Petitioner].” (Id.)
On direct examination, defense counsel asked Petitioner about
each of P.S.’s allegations of unlawful sexual conduct, and Petitioner
denied each one.
(See id. at 236-40.)
On cross-examination, the
prosecution asked Petitioner whether he “went with [P.S.] to get a
bikini,” and Petitioner responded that he had.
(Id. at 240.)
The
prosecution also asked whether Petitioner had “referred to [P.S.] as a
snuggle ball,” and he responded that he had.
(Id. at 242.)
The
prosecution asked Petitioner: “you don’t think that it’s inappropriate for
15
a grown man to spoon with a [fourteen] year old girl?” to which
Petitioner responded “I wasn’t spooning with her. She was laying [sic]
next to me.” (Id. at 246.) Pressed whether “that [would] go for any
female . . . , any [fourteen] year old,” Petitioner responded no, but that
he thought of P.S. as his daughter. (Id. 246-47.)
At one point, the prosecution addressed Petitioner by saying: “Sir,
stop the manipulation if you can, please. Please. Answer my question,
stay with the question. Understand?” (Id. at 248.) At another, the
prosecution addressed Petitioner by saying: “Sir, we don’t need the
unasked answers and the actor looking over at the jury and pointing to
them.
I asked you a simple question.”
(Id.)
The question was in
reference to whether Petitioner had expressed during the investigation
that he wanted to kill himself. Defense counsel did not object to any of
these assertions.
The jury convicted Petitioner on all counts (Dkt. 9-5 at 106-07),
and Petitioner was sentenced to concurrent terms of six to thirty years’
and three to fifteen years’ imprisonment. (Dkt. 9-6 at 22.)
16
c. Direct appeal
Following sentencing, Petitioner filed a motion to remand for an
evidentiary hearing to develop the factual record regarding his
ineffective assistance of counsel claim.
(See Dkt. 9-7 at 19-28.)
In
relevant part, Petitioner attached an offer of proof regarding testimony
that would be presented by Dr. Katherine Keefer Okla, M.A. and Ph.D.,
Clinical Psychology (child and adolescent specialty), and testimony that
would establish that Petitioner’s trial lawyer did not consult with any
psychologists or psychiatrists in preparation for the case, among other
failures. (See id. at 25, 242-44.)
Petitioner’s appellate counsel consulted with Dr. Okla, who
reviewed the following: the investigative report by Detective Taylor,
including the summary of the interview by Deputy Nehmer; the
transcript of the interview of Petitioner by Taylor (8/17/09); the
transcript of the interview of Michelle Spaulding by Taylor (8/17/09);
the Child Protective Services investigative report, including the
summary of the interview of P.S. by CPS employee Jamie LeMay
(8/19/09); the “Sexual Abuse Evaluation” report summarizing the
interview of P.S. by Barbara Cross (10/05/09); the transcript of P.S.’s
17
preliminary examination testimony (10/2709); the transcript of P.S.’s
trial testimony; the transcript of Petitioner’s trial testimony; the
transcript of Michelle Spaulding’s trial testimony; the transcript of
Cross’s trial testimony; and Cross’s résumé. (Dkt. 9-7 at 85.)
Dr. Okla found that P.S.’s “statements were unreliable for many
reasons,” including that the “investigative process was sufficiently
flawed from the beginning” such that “it is highly likely the ‘evidence’ as
embodied in statements made by [P.S. were] rendered permanently
unreliable.” (Id. at 86-87.) According to Dr. Okla, “there are indications
of unreliability and memory problems in [P.S.’s] reports, including
inconsistencies within and between reports, lack of specificity, and
multiple sources of post-event contamination.” (Id.)
Specifically, Dr. Okla found that P.S.’s statements were unreliable
in part because the investigatory process was contaminated as follows:
In this case, the first formal interview by the Deputy
completely violated the Michigan Forensic Interview
Protocol, which is mandatory; first, by failing to record the
interview; questioning her in her father’s presence, a nonneutral environment which is not distraction free (it is
unknown whether Deputy Nehmer was in uniform or armed
with a weapon during the interview); failing to present
guidelines for telling the truth, not guessing, etc.; failing to
elicit a practice or free narrative, failing to obtain specific
18
details regarding alleged acts or surroundings; and failing to
present, explore or rule out alternative hypotheses, which is
the best way to elicit unbiased, complete and accurate
information regarding abuse allegations from a child or
adolescent.
The second formal interview was conducted a few days later
by Child Protective Services worker Jamie LeMay, who also
failed to comply with the forensic protocol, or at the very
least, failed to provide documentation that she complied with
one
of
the
most
basic
elements:
proper
recording/memorializing. . . . Given the unambiguous and
unambivalent protocols that clearly state multiple
interviews are to be avoided at all costs, there is no valid
justification for CPS to send [P.S.] for a 3rd formal
interview—which occurred weeks later.
(Id. at 91.) According to Dr. Okla, an “expert could have alerted defense
counsel and provided testimony regarding the significance of this type
of bias and the need to obtain complete records regarding the content of
the referral information and questions, whether written or verbally.”
(Id.)
Relatedly, Dr. Okla noted that “several decades of empirical
research . . . has sometimes yielded significant counter-intuitive
results,” and that the conclusions drawn from that data are contrary to
“what would generally be expected to be true by the average layperson
or uninformed mental health professional.” (Id. at 87.) It would thus
19
“be important to present expert testimony to assist the fact finder in
weighing the evidence (consisting solely of various statements
purporting to be recall of past events) by placing it in the context of
reliable empirical research.” (Id.) “An expert witness could provide
testimony on the identifying characteristics of children’s disclosures of
sexual abuse, and certain factors which have a high correlation with
inaccurate and even demonstrably false statements,” a “phenomenon []
recognized both in the scientific world, and increasingly, by courts
throughout the country.” (Id.)
But here, Dr. Okla concluded, Cross’s “expert witness testimony
. . . was improper and misleading, in that her involvement and methods
clearly violated ethics guidelines and professional practice standards,
was misleading to the finder of fact because it was not based on current,
valid scientific knowledge, and included factual inaccuracies.” (Id. at
86-87.)
For example, citing current literature in the field, Dr. Okla
noted that Cross’s testimony that “children often delay, deny, and
recant their disclosures of sexual abuse (direct or implied variations of
Child Sexual Abuse Accommodation Syndrome) . . . relied on outdated
20
and unreliable information, incorrectly presented as scientifically valid
and reliable.” (Id. at 94-95.)
According to Dr. Okla, “[g]iven the indications that [P.S.’s]
statements to various interviewers were unreliable, the flawed nature
of the investigation, and the improper and misleading trial testimony
offered by the Prosecutor’s ‘expert,’” a “Forensic Psychologist . . . could
have provided extremely useful assistance to defense counsel both in
trial preparation and by offering rebuttal testimony to address
inaccurate testimony presented by the State.” (Id. at 87.) Specifically,
Dr. Okla proffered that “[h]ad defense counsel consulted with [her] prior
to trial, [she] could have provided the . . . information regarding
preparing a thorough defense strategy,” including “developing a line of
questioning for the witnesses, countering the inappropriate methods
and inaccurate testimony by the government’s witness, and providing
expert witness testimony for rebuttal.” (Id.)
The Michigan Court of Appeals denied the motion to remand “for
failure to persuade the Court of the necessity of a remand at this time.”
(Id. at 155.)
21
Petitioner filed a motion for reconsideration, reiterating the offer
of proof regarding Dr. Okla’s proffered testimony and the testimony
that would establish his trial lawyer’s failure to file a timely witness list
or comply with the prosecution’s discovery demands, failure to review
the court rule on jury selection before one was empaneled, failure to
adequately understand the sequestration rule, failure to consult with an
independent expert, and failure to object to the scope of Cross’s
testimony. (See id. at 158-67.) The Michigan Court of Appeals denied
the motion for reconsideration without explanation. (Id. at 211.)
Petitioner then filed an appeal in which he raised several claims of
error, including the claim of ineffective assistance of trial counsel
relevant to the Court’s opinion here, and in which Petitioner again
renewed his request to remand the matter to develop the factual record.
(See Dkt. 9-7.) The Michigan Court of Appeals addressed the renewed
request to remand as follows:
Defendant [] faults trial counsel for not retaining an expert
to rebut the testimony of Barbara Cross, the prosecution’s
proffered expert on child sexual abuse. In support of his
claim in this regard, defendant has provided a report
prepared by Katherine Keefer Okla, Ph.D., a psychologist,
which largely attacks the conduct and testimony of Cross in
this case.
22
Much of Dr. Okla’s report criticizes the manner in which
Cross and others interviewed the victim. The report also
discusses how improper victim interviews might lead to false
reports of sexual abuse or improperly suggest false memories
by the victim concerning the events that actually transpired.
However, we note that this is not a case involving a very
young child who might be susceptible to being convinced that
she was molested by an adult who did not actually molest
her. Rather, this is a case in which a 16-year-old girl clearly
and particularly accused her stepfather of sexual abuse that
included oral sex. As a practical matter, there was no
reasonable concern in this case that the victim might have
been misled by her interviewers into falsely remembering
the facts or falsely accusing defendant of molesting her.[4]
Consequently, we cannot conclude that a defense expert’s
attempt to rebut Cross’s testimony would have been a
significant factor in the jury’s determination of guilt or
innocence.
It is axiomatic that in order to establish
ineffective assistance of counsel, a defendant must show that
counsel’s performance was deficient and that, but for the
deficient performance, the result of the proceedings would
have been different. People v Carbin, 463 Mich 590, 600; 623
NW2d 884 (2001). Defendant simply cannot establish that
defense counsel’s failure to retain an expert to rebut Cross’s
testimony was outcome determinative in this matter.
The state trial and appellate courts have whipsawed Petitioner. On the one hand,
it granted, over defense counsel’s objection, the prosecution’s motion to amend the
information because “we have the classic case of a young child” whose “coping
mechanism in dealing with this [abuse] was to attempt to suppress the memories of
these events.” On the other, it undercut the import of Dr. Okla’s report on appeal
because “this is not a case involving a very young child . . . . [, and] there was no
reasonable concern in this case that the victim might have been misled by her
interviewers.”
4
23
Defendant argues that, because Cross testified concerning
certain behavioral characteristics of the victim, her
testimony was improper. He also argues that, because Cross
testified that defendants often lie in CSC cases, she
improperly bolstered the victim’s testimony.
We
acknowledge that Cross’s testimony in this regard may have
been improper. See People v Peterson, 450 Mich 349, 374;
537 NW2d 857, amended 450 Mich 1212 (1995). But this
does not present a basis for a remand with regard to
defendant’s claims of ineffective assistance of counsel
because (1) this Court remains able to review the existing
record, and (2) trial counsel cannot be considered deficient
for failing to have anticipated that Cross would offer such
improper testimony and failing to have obtained an expert
for the sole purpose of rebutting it.
***
For the foregoing reasons, we decline defendant’s invitation
to remand this matter to the trial court for a Ginther
hearing.
People v. Spaulding, No. 298743, 2011 Mich. App. LEXIS 1310, at *3-5
(Mich. Ct. App. July 19, 2011).
The Michigan Court of Appeals denied the renewed request for an
evidentiary hearing because it found that, even assuming the proffered
evidence to be true, Petitioner would not have been prejudiced by trial
counsel’s alleged deficiencies.
The following is a recitation of the
relevant portion of the court’s opinion:
24
Nor do we perceive any ineffective assistance of counsel on
the existing record. See People v Jordan, 275 Mich App 659,
667[] (2007) (observing that when no Ginther hearing has
been held, “review is limited to errors apparent on the
record”). It strikes us that even if trial counsel had timely
filed a motion or witness list, retained his own expert to
rebut the testimony of Cross, further impeached Cross’s
testimony, and conducted additional research and
investigation prior to trial, the result of the proceedings
would have been the same. See Carbin, 463 Mich at 600.
The victim testified in detail that defendant had performed
oral sex on her and had fondled her on several occasions.
Defendant then testified in his own defense, denying the
victim’s allegations and claiming that he had never sexually
assaulted her. At the same time, however, defendant
admitted during his testimony that he had referred to the
victim as “a snuggle ball,” that he had laid on the couch and
“spoon[ed]” with her on several occasions, that the victim
was “cuddly,” and that he had “possibly” touched the victim’s
breasts. It is solely for the jury to assess the credibility of
the witnesses and to weigh their testimony. People v
Harrison, 283 Mich App 374, 378; 768 NW2d 98 (2009). It
would be difficult, indeed, to conclude that any additional
actions by defendant’s attorney could have altered the jury’s
view of the evidence in this case. On the record before us, we
simply cannot conclude that the result of the proceedings
would have been different but for the alleged deficiencies of
defense counsel. Carbin, 463 Mich at 600.
People v. Spaulding, 2011 Mich. App. LEXIS 1310, at *5-7.
25
Petitioner filed an application to the Michigan Supreme Court for
leave to appeal, which was denied. People v. Spaulding, 808 N.W.2d
782, 782 (Mich. 2012).
II.
Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court can order habeas relief only if the state’s
adjudication of a claim on the merits (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States, or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. § 2254(d). When
applying these standards, this Court is to examine the holdings of the
Supreme Court as they existed at “the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). The Court can,
however, look to decisions of other courts to determine whether a legal
principle has been clearly established by the Supreme Court. Hall v.
Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009); Smith v. Stegall, 385 F.3d
993, 998 (6th Cir. 2004). “A state court’s determination that a claim
26
lacks merit precludes federal habeas relief so long as ‘fair minded
jurists could disagree’ on the correctness of that decision.” Harrington
v. Richter, 562 U.S. 86, 88 (2011) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
“When a state court relied only on one Strickland prong to
adjudicate an ineffective assistance of counsel claim, AEDPA deference
does not apply to review of the Strickland prong not relied upon by the
state court. The unadjudicated prong is reviewed de novo.” Rayner v.
Mills, 685 F.3d 631, 638 (6th Cir. 2012).
The Michigan Court of
Appeals denied Petitioner’s claim on the basis that he had failed to
show prejudice, but the court did not reach whether counsel’s
performance was deficient. See generally Strickland v. Washington, 466
U.S. 668, 697 (1984) (“[T]here is no reason for a court deciding an
ineffective assistance claim to . . . address both components of the
inquiry if the defendant makes an insufficient showing on one.”). Thus
the Court reviews de novo whether trial counsel’s performance was
deficient and reviews under AEDPA’s “doubly deferential” standard the
Michigan Court of Appeals’ holding that Petitioner was not prejudiced.
27
III.
Analysis
To establish a claim of ineffective assistance of counsel, Petitioner
must show that (a) “counsel’s performance was deficient,” and (b) the
“deficient performance prejudiced the defense.”
See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
a. Whether trial counsel’s performance was deficient
The “deficient performance” prong of the Strickland test “requires
showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”
Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Judicial scrutiny of counsel’s performance must be highly deferential.”
Id. at 689. “[A] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).
Relevant to this Court’s decision, Petitioner argues that the
defense mounted by his trial counsel was constitutionally deficient
28
because his lawyer failed to consult with an expert in forensic
psychology. (See Dkt. 2 at 57-58.)
As set forth above, the State called Barbara Cross as an expert
witness for the prosecution. Among other things, Cross testified that
delayed disclosure of traumatic events is very common in both adults
and children, and it is very common for victims to be inconsistent about
times, dates, who is present in the home, and where they lived at the
time of the abuse.
Defense counsel did not challenge Cross’s
qualification to testify as an expert witness.
Rather, he essentially
conceded the validity of her testimony, stating that “obviously [Cross
was] well verse [sic] in this in terms of what may be seen in these types
of situations where a child claims she has been sexually abused.” On
the record before this Court, defense counsel had not at any time
consulted with any potential expert of his own to test the validity of
Cross’s proffered testimony.
In preparation for the Petitioner’s appeal, his appellate counsel
consulted with Dr. Katherine Keefer Okla, a clinical psychologist with a
child and adolescent specialty, who has provided expert testimony for
both the prosecution and defense in numerous child sexual abuse cases.
29
Dr. Okla extensively reviewed the record and concluded “that there
were multiple factors [that] undermine the reliability of not only the
complainant’s, but the expert witness’[s] testimony,” which “should
have been identified as part of a thorough and effective defense
strategy.” According to Dr. Okla, “there are indications of unreliability
and memory problems in [P.S.]’s reports, including inconsistencies
within and between reports, lack of specificity, and multiple sources of
post-event contamination.”
Specifically, for example, Dr. Okla highlighted that Cross’s failure
to record her interview of P.S. or to take contemporaneous notes
violated proper forensic interviewing protocols and “compromise[d] the
reliability of [P.S.]’s statements to be used as evidence.” And citing
current scientific literature in the field, Dr. Okla noted that Cross’s
testimony that “children often delay, deny, and recant their disclosures
of sexual abuse (direct or implied variations of Child Sexual Abuse
Accommodation Syndrome) . . . relied on outdated and unreliable
information, incorrectly presented as scientifically valid and reliable.”
Dr. Okla also highlighted other aspects of the investigatory
process that likely contaminated the reliability of P.S.’s testimony. For
30
example, Dr. Okla provided that Deputy Nehmer failed to follow the
mandatory Michigan Forensic Interview Protocol by questioning P.S. in
her father’s presence, failing to present guidelines for telling the truth,
failing to elicit a practice or free narrative, failing to obtain specific
details regarding alleged acts or surroundings, and failing to present,
explore, or rule out alternative hypotheses. And according to Dr. Okla,
the “unambiguous and unambivalent protocols [] clearly state multiple
interviews are to be avoided at all costs,” so there was “no valid
justification” for CPS employee Jamie LeMay to send P.S. for a third
formal interview that occurred weeks later. Petitioner’s trial counsel
did not raise any of these issues at trial.
The State argues that “it is clear none of the complained of actions
or omissions by counsel were outside the wide range of professionally
competent assistance.” (Dkt. 7 at 46.) According to the State, “[n]o
precedent establishes that defense counsel must call a non-psychiatric
expert witness or risk falling below the minimum requirements of the
Sixth Amendment,” and “[c]ounsel may have decided to avoid creating a
‘battle of expert witnesses’ and instead focus the jury’s attention on
perceived problems of the prosecution’s expert’s testimony.” (Id. at 45.)
31
But it is not just trial counsel’s failure to call an expert witness that is
at issue. It is his failure even to consult with one in preparation for
trial and resulting failure to adequately impeach the prosecution’s
witnesses, given the circumstances of this case.
“Constitutional competence is not a high bar for an attorney to
reach.” Vasquez v. Bradshaw, 345 F. App’x 104, 115 (6th Cir. 2009).
“[A] healthy amount of deference” is given “to counsel’s tactical and
litigation decisions; they are ‘virtually unchallengeable’ in the ordinary
case.” Id. (quoting Strickland, 466 U.S. at 690). “But this deference to
strategic choices has always been tempered by a requirement that the
choices themselves be informed: ‘strategic choices made after less than
complete investigation are reasonable precisely to the extent that
reasonable
professional
investigation.’”
judgments
support
the
limitations
Id. (quoting Strickland, 466 U.S. at 691).
on
“[A]
particular decision not to investigate must be directly assessed for
reasonableness.”
Id. (quoting Strickland, 466 U.S. at 691).
When
assessing the reasonableness of an attorney’s investigation, the Court
must “consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a reasonable
32
attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527
(2003).
Petitioner’s “claim that his attorney failed to identify key evidence
and failed to locate and interview critical witnesses is within the known
contours of the duty” to conduct a reasonable pre-trial investigation.
See Vasquez, 345 F. App’x at 115 (citing Towns v. Smith, 395 F.3d 251,
258 (6th Cir. 2005) (duty to investigate “includes the obligation to
investigate all witnesses who may have information concerning his or
her client’s guilt or innocence”); Clinkscale v. Carter, 375 F.3d 430, 443
(6th Cir. 2004) (collecting cases noting that failure to investigate or call
potential
defense
witnesses
constitutes
constitutionally
deficient
representation)). The same is true when “the missing evidence alleged
. . . is impeachment evidence and not . . . direct evidence of innocence,”
especially when “there are no direct witnesses to the alleged crime
beyond the perpetrator and the victim.” Id. When the prosecution’s
case rests entirely on the testimony of the victim, “impeachment
evidence is at a premium.” Id.
“The circumstances ordinarily surrounding an accusation of child
sexual abuse underscore this concern for developing impeachment
33
evidence.” Id.; see, e.g., Gersten v. Senkowski, 426 F.3d 588, 608 (2d Cir.
2005) (medical expert consultation or testimony “is particularly critical
to an effective defense in sexual abuse cases where direct evidence is
limited to the victim’s testimony”) (citing Eze v. Senkowski, 321 F.3d
110, 128 (2d Cir. 2003); Pavel v. Hollins, 261 F.3d 210, 224 (2d Cir.
2001); Lindstadt v. Keane, 239 F.3d 191, 197-98 (2d Cir. 2001)).
“[T]hese cases frequently hinge on judgments about credibility in which
jurors must choose between contradictory stories proffered by the
defendants and the complainants,” because “third-party witnesses [are]
often unavailable.” Vasquez, 345 F. App’x at 115 (quoting Eze, 321 F.3d
at 112).
Here, as in Vasquez, trial counsel “must have known that there
was no plausible defense of [Petitioner] other than attacking [P.S.’s]
credibility.” See, e.g., id. at 116. “The only witnesses to the alleged
crime[s] were [P.S.] and [Petitioner], so producing a witness with a
different account was impossible. There was no physical evidence for
him to counter, or to demonstrate that a different person was involved.
There was no possibility of an alibi . . . .” See, e.g., id.
34
And there were “facts [that] were clear and should have pointed
[trial counsel] toward the investigation necessary to put on a stronger
defense.” See, e.g., id. For example, P.S.’s “story was never crystal
clear, suggesting that perhaps a well-informed cross-examination . . .
could have raised a reasonable doubt as to its veracity.” See, e.g., id.
Moreover, other courts have found that “even a minimal amount of
investigation into the purported ‘Child Sexual Abuse Accommodation
Syndrome’ would have revealed that it lacked any scientific validity for
the purpose for which the prosecution utilized it: as a generalized
explanation of children’s reactions to sexual abuse, including delayed
disclosure and blurred memory.” See, e.g., Gersten, 426 F.3d at 611.
“[H]ad counsel investigated the possibility of challenging the
prosecution’s psychological expert, he would have discovered that
exceptionally qualified experts could be found who would challenge the
scientific validity of the prosecution expert’s” testimony. See, e.g., id.
“Defense counsel’s lack of preparation and failure to challenge the
credibility of the key prosecution witness could not be based on a sound
trial strategy.”
See, e.g., id. (holding that even under the more
35
demanding AEDPA standard, it was an unreasonable application of
Strickland for the state court to hold otherwise).
The Court’s “quarrel is not with trial counsels’ decision to forgo
calling . . . a[n expert] witness per se, but rather with the lack of any
reasonable, timely investigation into what she might have offered the
defense.” See Brown v. Smith, 551 F.3d 424, 432 (6th Cir. 2008). Even
accepting the State’s argument that defense counsel’s decision was the
result of a conscious strategy, such a strategic decision would be
objectively unreasonable. “[N]o facts known to defense counsel at the
time that he adopted a trial strategy that involved conceding the
medical evidence could justify that concession.” See, e.g., Gersten, 426
F.3d at 609.
“It is well known in the literature (and the cases cited above) that
the credibility of the child witness is often central to the success of child
sex abuse prosecutions and that the circumstances surrounding the
initial accusation of the abuse are important indicia of credibility.”
Vasquez, 345 F. App’x at 118. But rather than consult an expert of his
own, defense counsel accepted Cross as an expert in the field and
conceded the validity of her testimony. Moreover, the failure to consult
36
with an expert hampered defense counsel’s ability to impeach the
prosecution’s witnesses, for example, by failing to highlight Deputy
Nehmer’s, CPS employee LeMay’s, and Cross’s violations of the
Michigan Forensic Interview Protocol during the investigatory process,
which may have rendered P.S.’s testimony unreliable.
Defense
counsel’s failure to, at a minimum, consult with an expert as to whether
Cross and P.S. could be effectively impeached fell “below an objective
standard of reasonableness.” See Strickland, 466 U.S. at 688.
b. Whether the Michigan Court of Appeals unreasonably
found that Petitioner was not prejudiced
Defense
counsel’s
deficient
representation
only
violated
Petitioner’s Sixth Amendment right if it resulted in prejudice, although
the two prongs are interrelated. See Draughon v. Dretke, 427 F.3d 286,
293 (5th Cir. 2005) (“In our analysis we do not attempt to place the
events of trial into two separate airtight containers of the first and
second prongs of Strickland. The facts that demonstrate a reasonable
probability of a different outcome but for counsel’s decisions can cast
light on their reasonableness.”). To determine whether Petitioner was
prejudiced, the reviewing court must decide, based on the totality of the
evidence before the factfinder, whether there is “a reasonable
37
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
“This does not require a showing that counsel’s actions ‘more
likely than not altered the outcome,’” but “[t]he likelihood of a different
result must be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 111-12 (2011) (quoting Strickland, 466 U.S. at 693). In
relevant part, § 2254(d) of AEDPA provides that a federal court can
grant habeas relief only if the state’s adjudication of a claim on the
merits resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.
28 U.S.C.
§ 2254(d).
In this case, the Michigan Court of Appeals’ decision on the
prejudice prong was contrary to clearly established law as set forth in
the Supreme Court’s Strickland decision.
The Michigan Court of
Appeals stated that “[i]t is axiomatic that in order to establish
ineffective assistance of counsel, a defendant must show that . . . but for
38
the deficient performance, the result of the proceedings would have been
different.” People v. Spaulding, No. 298743, 2011 Mich. App. LEXIS
1310, at *4 (Mich. Ct. App. July 19, 2011) (emphasis added). When
addressing the merits, the court found that “even if trial counsel had . . .
retained his own expert to rebut the testimony of Cross, further
impeached Cross’s testimony, and conducted additional research and
investigation prior to trial, the result of the proceedings would have
been the same.”
Id. (emphasis added).
According to the court,
Petitioner “c[ould] not establish that defense counsel’s failure to retain
an expert to rebut Cross’s testimony was outcome determinative in this
matter.”
Id. (emphasis added).
Citing only Michigan case law, the
court held that “[o]n the record before us, we simply cannot conclude
that the result of the proceedings would have been different but for the
alleged deficiencies of defense counsel.”
Id. at *6 (citing People v.
Carbin, 463 Mich. 590, 600 (2001)) (emphasis added).
As the Sixth Circuit has held, “[t]his is not a casual error.”
Vasquez v. Bradshaw, 345 F. App’x 104, 111 (6th Cir. 2009).
A “reasonable probability” of difference does not mean
“would have been different.” The latter formulation puts a
greater burden on the petitioner. To prevail on his claim as
it was adjudicated, [Petitioner] was required not only to
39
show that his counsel’s deficiency “undermine[d] confidence
in the outcome,” Strickland[,] 466 U.S. at 694, but to prove
that a trial with competent counsel actually would have
resulted in his acquittal.
Vasquez, 345 F. App’x at 112.
The Michigan Court of Appeals did not cite Strickland or
approximate its “reasonable probability” standard.
Cf. Holland v.
Jackson, 542 U.S. 649, 655 (2004) (“We have held that such use of the
unadorned word ‘probably’ is permissible shorthand when the complete
Strickland standard is elsewhere recited.”); Woodford v. Visciotti, 537
U.S. 19, 23-24 (2002) (holding that the state court’s “opinion
painstakingly describes the Strickland standard,” so its “occasional
shorthand reference to that standard by use of the term ‘probable’
without the modifier may perhaps be imprecise, but [cannot] be
considered a repudiation of the standard”); Vasquez, 345 F. App’x at 112
(“While the appellate court did say ‘reasonable probability’ once, the use
of the incorrect words cannot be regarded as anodyne ‘shorthand[]’
. . . .”) (internal citation omitted).
Instead, the “court of appeals emphasized the inability to meet the
prejudice prong, underscoring whether the trial ‘would have been
40
different.’”
See, e.g., Vasquez, 345 F. App’x at 112.
Because the
Michigan court “applied law that was contrary to clearly established
federal law,” this Court is “unconstrained by § 2254(d)(1) . . . [,] and de
novo review is appropriate.”
See id. (quoting Fulcher v. Motley, 444
F.3d 791, 799 (6th Cir. 2006)).
On the merits, the Court finds that Petitioner was prejudiced by
defense counsel’s failures. As noted above, a “reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
To determine whether Petitioner has
carried his burden, the deficiency must be evaluated in light of the
“totality of the evidence before the . . . jury.” Id. at 695. When “the only
evidence of the crime or the defendant’s guilt is the testimony of the
victim,” the Sixth Circuit “has been especially willing to find prejudice
from deficient representation because ‘[t]he lack of physical evidence
confirming sexual activity meant that this was necessarily a close case
at the trial level.’” See Vasquez, 345 F. App’x at 119 (quoting Hodge v.
Hurley, 426 F.3d 368, 386 (6th Cir. 2005)); see also Strickland, 466 U.S.
41
at 696 (“[A] verdict or conclusion only weakly supported by the record is
more likely to have been affected by errors.”).5
The prosecution’s case rested on the credibility of P.S. All other
evidence presented by the prosecution was indirect evidence offered to
corroborate aspects of P.S.’s story. At most, the prosecution elicited
testimony from Petitioner on cross-examination that he “spooned” P.S.,
that P.S. may have seen his penis from a distance and at an angle, and
that Petitioner may have touched P.S.’s breast while sleeping, but that
“[i]f I was sleeping, how do I know what I did?” This is not evidence of
sexual assault or abuse.
Defense counsel’s failure to consult with an expert resulted not
only in a failure to adequately challenge P.S.’s testimony by
highlighting the deficiencies in the investigatory process that may have
rendered her testimony unreliable, but also a failure to adequately
It should be noted that, in many cases, the testimony of the victim is the only
direct evidence that the prosecution has to present. See Robin Charlow, Bad Acts in
Search of a Mens Rea: Anatomy of a Rape, 71 FORDHAM L. REV. 263, 301 n.171
(2002) (“[I]n rape situations . . . there usually are no other witnesses or objective
evidence beyond the conflicting testimony of the two people involved . . . .”). The
case law should not be read to suggest that victims of alleged sexual assault should
not be believed. To the contrary, the deductive and empirical attempts to
demonstrate that the proportion of false rape reports “is either low or high” have
failed. See David P. Bryden & Sonja Lengnick, Criminal Law: Rape in the Criminal
Justice System, 87 J. CRIM. L. & CRIMINOLOGY 1194, 1298 (1997).
5
42
challenge the most significant corroborative evidence—the expert
testimony
of
Cross.
Defense
counsel’s
cross-examination
was
essentially limited to three concessions: “some reports of sexual abuse
by alleged victims turn out to be not truthful,” Cross had never been
asked to testify for a criminal defendant, and Cross’s testimony was
generic and “[n]ot about any specific case at all.”
Defense counsel left unchallenged Cross’s testimony that delayed
disclosure of traumatic events is “very common” in both adults and
children, and that it is “very common” for victims to be inconsistent
about times, dates, who is present in the home, and where they lived at
the time of the abuse. Instead, defense counsel conceded that, as a
general matter, “obviously [Cross was] well verse [sic] in this in terms of
what may be seen in these types of situations where a child claims she
has been sexually abused.”
“The missing evidence is not cumulative on these narrow
admissions,” because the “missing evidence is not a restatement of the
general proposition of [P.S.’s] untrustworthiness or the inconsistencies
already raised.”
See, e.g., Vasquez, 345 F. App’x at 120.
Dr. Okla
proffered that she would have testified that Cross’s expert opinion
43
regarding delayed disclosure and blurred memory is unsupported by
science. See also Gersten v. Senkowski, 426 F.3d 588, 611 (2d Cir. 2005)
(“[E]ven a minimal amount of investigation into the purported ‘Child
Sexual Abuse Accommodation Syndrome’ would have revealed that it
lacked any scientific validity for the purpose for which the prosecution
utilized it: as a generalized explanation of children’s reactions to sexual
abuse, including delayed disclosure and blurred memory.”)
Defense counsel’s “attempts at impeachment all relied on the
testimony of the state’s witnesses and frequently were likely
unconvincing because they relied only on the state’s witnesses.” See
Vasquez, 345 F. App’x at 121. And based solely on Cross’s and Dr.
Okla’s credentials, there is a reasonable probability that a jury would
have found Dr. Okla to be more qualified than Cross to opine on the
science regarding the psychology of child sexual abuse victims.
The prosecution, defense, and trial judge all noted at various
times that P.S.’s interviews with the Wexford County Sherriff’s office,
Child Protective Services, Cross, and P.S.’s pretrial hearing and trial
testimony contained multiple inconsistencies. To be sure, the Michigan
Court of Appeals is correct that it is the province of the jury to decide
44
whether witnesses are credible.
The Court is not finding that
undercutting Cross’s testimony would have led the jury to discredit P.S.
Rather, the Court finds that there is a reasonable probability that the
likelihood of a different result is substantial.
Cross’s testimony regarding delayed disclosure and blurred
memory was likely significant to whether the jury would excuse the
inconsistencies in P.S.’s testimony.
And there is a reasonable
probability that the jury would have discredited Cross’s expert
testimony if they had heard from a defense expert such as Dr. Okla.
Petitioner has demonstrated that but for his trial counsel’s errors, there
is a reasonable probability that his trial would have had a different
outcome.
Petitioner has a constitutional right to be assisted by an attorney
“who plays the role necessary to ensure that the trial is fair.”
Strickland, 466 U.S. at 685. Because defense counsel failed to play that
necessary role here, the State must release or retry Petitioner.
45
IV.
Conclusion
Petitioner was denied the effective assistance of counsel at trial in
violation of the Sixth Amendment.
He is therefore being held in
custody in violation of his constitutional rights. Accordingly,
The petition for writ of habeas corpus (Dkt. 1) is GRANTED.
Respondent is ORDERED to release Petitioner from custody imposed by
the Judgment of Sentence entered in Wexford County Circuit Court in
the underlying case within ninety days. Nothing in this Opinion and
Order should be construed as barring retrial.
IT IS SO ORDERED.
Dated: August 11, 2016
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 11, 2016.
s/Kelly Winslow for
FELICIA M. MOSES
Case Manager
46
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