Ineffective Assistance of Counsel

Michigan Court of Appeals Finds Ineffective Asisstance of Counsel In CSC CAse

Imagine facing criminal sexual conduct charges and then having the trial court fail to demand new jury deliberations when an alternate juror takes the place of a holdout, deadlocking juror who, by the way, waited to the last minute to tell others he once was the alleged perpetrator in a sexual misconduct investigation. Atta boy to attorney Mitch Foster, who, while representing David Paul Morikawa, legally persuaded a conservative Michigan Court of Appeals panel to reverse and remand the defendant-appellant’s jury conviction of two second—degree CSC counts. Mr. Morikawa will get a new trial thanks to this exceedingly rare finding of ineffective trial counsel assistance.
In an unpublished Aug. 27, 2013, opinion, the conservative court led by presiding Judge Michael Talbot, branded the original Iron Circuit Court's failure to demand new deliberations as “plain error.” The appellate court, in its non-binding opinion, cites MCR 6.411: “[i]f an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.” Errors in jury instructions, the appellate court emphasizes, are of a constitutional magnitude. People v. Tate, 244 Mich App 553, 567; 624 NW2d 524 (2001). There actually were two deadlocked jurors in this case. Juror K was the one who, upon questioning, revealed that he was at a Christmas party several years before when he touched a young girl during a group picture. He further revealed that he was cleared of any wrongdoing and said he did not mention the incident during voir dire for two reasons: He didn’t think the past would affect his judgment and he did not want to bring attention to himself. The court removed him from the case after further learning that “he had received a lot of peer pressure in the jury room.” Once an alternate was chosen, the court ordered the jury resume deliberations instead of starting anew, and the defense counsel politely declined the judge’s invitation for comments. “Given the existence of the original two ‘holdouts,’ this was obviously a close case,” the court wrote in its opinion, “and, when viewed in light of the error discussed infra, we find that it could indeed have had an effect in the outcome of the trial if the jury had begun deliberations anew with a new member and the fresh perspective that member would bring.”
The infra error was when the court gave sway to the prosecution in its line of questioning. The appellate court cited MRE 404(a), which says the only way prosecutors can introduce evidence of a non-testifying defendant’s character is if the defendant “first opens the door” by offering evidence of that character trait. The prosecutor was questioning a female witness about Mr. Morikawa and how she came to know him. After some routine questions, the prosecutor then asked the following: “And based upon your familiarity with him and with other troopers can you come to a conclusion or an opinion as to his credibility and veracity being truthfulness? Do you have an opinion?”
A: Yes, I do.
Q: What is it?
A: He is not credible.
The prosecutor had the witness clarify that she meant “truthful” when she said “credible.” There was no objection from defense counsel.
People v Morikawa, Court of Appeals No. 308016.

Aggression for Aggression's Sake Does Not Make Someone a Good Lawyer

One of the most frequent calls I get is from family members who think they are sounding reasonable and saying “all I want is a time cut.” I understand that one of the things the family is trying to say is that they not contesting guilt. The problem is that Michigan has limited options for sentencing reductions. I wish it was that easy. The full blog article is my long response.
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Chaidez Rescheduled for Oral Arguments on Thursday - Updated

After a two delay because of Hurricane Sandy, the U.S. Supreme Court heard oral arguments in Chaidez v United States, No. 11-820. In Chaidez, the Court will decide whether its 2010 ruling in Padilla v Kentucky, __ U.S. ___, 130 S.Ct. 1473 (2010) is retroactive. Padilla stated that counsel has a duty to inform a non-citizen client about deportation consequences of the plea. SCOTUS blog has a nice summary of the case.Update: Here is a link to the oral argument transcript. Here is a link to the audio transcript. I’ve read the transcript on this one and it is going to be close.

Michigan Defense Counsel Reform Moves Forward

There is an old lawyer’s joke that the “two things you never want to see how they are made are law and sausages.” The joke applies mostly to legislation (rather than litigation) where there is horse trading to get legislation through and get opponents to back down. HB5804 is the prime example. Most parties (prosecutors, defense counsel, and courts) agree that our current system is “broke,” but can’t agree on the fix or who is going to pay for the fix.

HB5804 is designed to increase the quality of representation, but has had to yield to various needs. Just as the bill was on the verging of passing, the Michigan Attorney General’s Office attempted to derail the bill. They argued that because most ineffective assistance of counsel challenges fail, there is no problem. The Sixth Amendment Center has a
nice piece on the bill, the Attorney General’s 11th hour efforts to derail this bipartisan effort and what is wrong with their position.

Michigan Supreme Court to Hear Ineffective Asssistance of Counsel Challenge

Today, the Michigan Supreme Court will hear oral arguments in People v Trakhtenberg, Supreme Court No. 143386. While this in many ways in a garden variety ineffective assistance of counsel challenge -- Ms. Frankel alleges that the defense counsel was ineffective in variety of ways. She is arguing that Mr. Trakhtenberg’s attorney failed to properly investigate the case or impeach a witness a witness (Liliya Tetarly) with evidence of bias.
The interesting question in this appeal is whether losing the civil suit somehow precludes Mr. Trakhtenberg from pursuing his criminal ineffective assistance of counsel claim. Ms. Frankel is trying to overturn fairly established law in this regard. Here is link to
her brief. Here is a link to the prosecutor’s brief.

Four Days!: Supreme Court Denies Leave in Armijo in Record Time!

In late August, our office won a 6.500 appeal that we had been working on for years. In People v Armijo, the Court of Appeals found that the Defendant was denied his right to effective assistance of trial and appellate counsel when neither attorney investigated his defense. We believe that our client is innocent and are delighted with the ruling. It is a must read for anyone working a 6.500 motion because it shows that the deference afforded to trial counsel or appellate counsel’s strategic decision does not require blindness. The Court took a hard look at the proffered strategic decision.The prosecutor was upset with the ruling and appealed the ruling to the Michigan Supreme Court. It took them only four days to turn down the prosecutor’s request. I’ve never seen anything like it. The Court didn’t even give us time to file an answer before turning it down.

Indigent Defense Bill Introduced

In this year of partisan bickering, it is rare to see both party’s agree to anything. A rarely-seen majority of Michigan House Representatives from both sides of the aisle introduced sweeping reform legislation on August 15, 2012, to transform the state’s broken and underfunded indigent defense system. This bill focuses on trial level representation. (Juvenileand appellate representation are not part of it). HB 5804 was co-sponsored by 38 Republicans and 37 Democrats. State Representative Tom McMillin (R – District 45) which tracks the Governor’s recommendation. For more information, click here.

Huge SADO Win in the US Supreme Court

Congratulations to colleague and friends at the State Appellate Defender’s Office for the wonderful victory in Lafler v Cooper. Lafler reaffirmed that counsel has a duty to convey a plea bargain to a criminal defendant and that failure to do so is not negated by giving the client a fair trial. To quote from SADO’s own blog:

On Wednesday March 21, 2012, the United States Supreme Court released the decision in Lafler v Cooper, finding that habeas relief was warranted due to ineffective assistance of counsel during the plea bargaining stage of the proceedings.  Lafler was argued by SADO Assistant Defender Valerie Newman on October 31, 2011, with Assistant Defender Jacqueline McCann serving as second chair.  The decisions in Lafler, and the related case of Missouri v Frye, are being hailed as "the single greatest revolution in the criminal justice process since provided indigents the right to counsel" - a quote from coverage in the New York Times.  Additional materials and full coverage of events can be found on Scotusblog's website.    



While SADO rightly turns to the New York Times for their praise, I think a better source of the importance of the ruling is to read what our enemies have to say. The Criminal Justice Legal Foundation’s whose mission statement says that their goal is provide reduced rights for criminal defendants. Their blog utterly blasts the ruling and it is authored by no less than their lead counsel
Kent Scheidegger.

Sixth Circuit Affirms Grant of Habeas Based on Failure to Hire Expert

Congratulations goes out to Plymouth Attorney Carole M. Stanyar for her win in the Sixth Circuit in Couch v Booker, Sixth Circuit No. 09-2230 which upheld Judge Arthur Tarnow’s grant of a habeas corpus below. Couch v Booker, 650 F Supp 683 (ED Mich, 2009).

Defense counsel failed to fully explore a causation defense. The defense attorney consulted with a noted pathologist, but failed to give him the full file. Because of this, a vital causation defense was missed. The Michigan Court of Appeals denied the Defendant an evidentiary hearing and affirmed the conviction. The federal court held an evidentiary hearing, and found that counsel was ineffective. The Sixth Circuit upheld the conviction finding that the Michigan Court’s decision was objectively unreasonable. The Court found that the ruling of was an unreasonable application of clearly established federal law. Critically, the Sixth Circuit found that the presumption of strategy afforded to an attorney’s decision could only take place after counsel did the required investigation.

Credit goes to my friend Patrick Rose at michapp.com for spotting this ruling. He has a much more extensive discussion of the ruling
here.

New York Test Case Highlights Deplorable Nature of Appointed Counsel System

Today’s New York Times contains an interesting article concerning the deplorable state of court-appointed counsel in New York State and the lawsuit brought by people challenging the court appointed counsel system. Kimberly Hurell-Harring was represented by court appointed counsel in Washington County, New York.

She was charged with smuggling a small amount of marijuana into a prison for her husband (an inmate at the facility). The court appointed counsel was a local favorite and the low ball bidder on the public defender contract. Counsel had multiple reprimands, suffered from depression, and was in trouble with the bar on other matters of neglect. He pled his client guilty to a non-existent felony. Tipped off about the case, the New York Civil Liberties Union sent an observer into the courthouse and watched. They reported that the attorney had virtually no contact with his client who rushed the case through. Ms. Hurell-Harring is the lead plaintiff in a civil suit challenging whether New York is providing adequate counsel to its indigent defendants and challenging the decision to leave the appointed counsel system in the hands of various counties. Except for the name of the suit, this could be Michigan. A similar suit is pending in the Michigan Courts and is currently on appeal to the Michigan Court of Appeals. Except for the names of the parties, the facts are virtually the same. The ruling in this case could have a dramatic effect on Michigan law.

SCOTUS Reverses Sixth Circuit Ruling on Ineffective Assistance Based on AEDPA Deference

On January 12, the Court issued its decision in Smith v. Spisak, No. 08-724. Justice Breyer wrote the opinion, which seven other Justices joined in full; Justice Stevens concurred in part and concurred in the judgment. Reversing the Sixth Circuit, the Court held that Ohio’s denial of Spisak’s underlying criminal appeal was reasonable. In the habeas corpus action, Spisak argued that (1) the jury instructions used at his trial unconstitutionally required the jury to consider mitigating factors only if the existence of each factor was unanimously found; and (2) his attorney was constitutionally ineffective, particularly during his closing argument – was not contrary to, or an unreasonable application of, clearly established federal law. As previously noted on this blog, the Supreme Court has taken a number of Michigan habeas corpus cases involving AEDPA deference including Berghuis v Smith (to be argued in two days). Many have wondered whether the Supreme Court has taken these cases to sending a warning to the Sixth Circuit Court about the probing level of its rulings. Justice Breyer’s authorship of the Court’s opinion is a tad disconcerting. Stay Tuned.

More on Reconciling Porter and VanHook

Linda Greenhouse of the New York Times had an interesting article called “Selective Empathy” on the Porter ruling previously reported here. We are in agreement that there is a tension between the Porter ruling and the Court’s other recent per curiam ruling in Bobby v. Van Hook discussed here and here. As the title of Ms. Greenhouse’s piece states, her premises is that the Court genuinely felt sorry for Korean War Veteran George Porter, Jr. For reasons stated below, I suspect that the difference was the quality of the underlying state opinions Read More...

SCOTUS Finds Death Penalty Counsel Ineffective for Failing to Put on Post Traumatic Stress Evidence in Mitigation Hearing

The Supreme Court found that a criminal defense attorney was ineffective in failing to use evidence of “post-traumatic stress disorder.” In a summary order the Court  overturned the death sentence of a Florida veteran whose “combat service unfortunately left him a traumatized, changed man,” as the Court put it in Porter v. McCollum, Supreme Court No. 08-10537, involving Korean war veteran George Porter, Jr. Read More...

Sixth Circuit Remands Michigan Habeas for Determination of Whether Counsel Improperly Denied the Defendant Right to Public Trial

The Sixth Circuit reversed a district court's denial of a writ of habeas corpus and ordered the district court to hold an evidentiary proceeding to determine whether the defendant was denied his right to a public trial and effective counsel. Johnson v Sherry, — F3d —, 2009 WL 3789995 (6th Cir Nov 13, 2009). Read More...

Macomb Circuit Court Grants 6.500 Motion in a Shaken Baby Syndrome Child Abuse Case. Court Finds Child Might Have Died from a Stroke

On November 20, 2009, the Macomb Circuit Court (Judge Biernat) granted post-conviction relief in People v Julie Baumer, Macomb Circuit No. 2004-2096-FH based on the ineffective assistance of her trial and appellate counsel in failing to seek to have a defense radiologist appointed to counter the State’s expert radiologist in first degree child abuse prosecution involving allegations of non-accidental trauma (“shaken baby syndrome”) inflicted within 12-24 hours of the images. The State’s experts testified that the injuries were the result of an intentional and very significant blunt force trauma. Defense counsel was aware of the need of a radiologist testimony to counter the state’s evidence, but couldn’t afford to call one. The Court found that defense counsel should have petitioned the Court to appoint an expert under MCL 775.15. The Court also stated that Ms. Baumer may be actually innocent, but that the Court did not need to reach this issue. To read the Macomb County Daily’s coverage of the evidentiary hearing, click here.

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Attorney General Holder Supports Greater Funding of Indigent Counsel: Cites Michigan as an Example of a State in Need

Michigan appointed counsel have been fighting for greater funding of indigent cases. They have both filed a suit challenging the lack of funding and started a lobbying initiative for increased funding. On Tuesday, they received the support of U.S. Attorney General Eric Holder. In a speech to Brennan Center for Justice at New York University, Attorney General Holder supported the Brennan Center's work to increase funding and access to counsel in several states including Michigan. The Attorney General then spoke of the delay in appointing counsel in many jurisdiction, and that when counsel was appointed, that counsel was often not meaningful. The Attorney General blasted county funded systems as creating radically different systems of justice based on which side of a county line a crime was committed, he was particularly critical of flat fee funding systems that paid counsel the same regardless of the amount of work that was done, and, lastly he called underfunded systems penny wise and pound foolish. A bill is currently pending in the Michigan Legislature to create a state wide trial defender network modeled after SADO. Hopefully the Legislature listens to the Attorney General's advice. You can read the entire speech here.

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ABA Says That the Van Hook Didn't Diminish the Importance of its Standards

American Bar Association President Carolyn B. Lamm Nov. 16 said the U.S. Supreme Court's recent opinion in Bobby v. Van Hook, Supreme Court No. 09-144 (U.S. 2009)(previously covered on this blog here), should not be read as minimizing the significance courts, attorneys, and legislators should attach to the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. See also this ABA summary of Van Hook.
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SCOTUS Peremptorily Reverses a Habeas IAC Holding

In Wong v. Belemontes, Supreme Court No. 08-1263, the Court summarily reversed the grant of a habeas corpus to a death penalty prisoner based on ineffective assistance of counsel in the sentencing phase. The issue in the case was whether capital trial counsel failed to present sufficient mitigation evidence at the capital sentencing phase. The ruling appears very limited. Reading the Court's opinion, the Court seems to say that a jury would probably have given the prisoner the death penalty even if all the evidence had been presented.

SCOTUS Blasts Overreliance on ABA Standards For Assessing Prevailing Professional Norms

The U.S. Supreme Court made clear in a Nov. 9 per curiam opinion that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases may not be treated as setting the standard of prevailing professional norms when a court is assessing a Sixth Amendment claim of ineffective assistance of counsel. The court reversed a grant of habeas corpus relief to an Ohio death-row inmate that was predicated on the circuit court's determination that counsel for the petitioner at his trial more than two decades ago failed to satisfy the 2003 ABA standards for uncovering and presenting mitigating evidence. Bobby v. Van Hook, U.S., No. 09-144, 11/9/09. The Legal Times Blog has a nice discussion on this ruling.

SCOTUS Hears Oral Arguments in Death Penalty IAC

This week, the Court will hear oral arguments in Wood v. Allen, Supreme Court No. 08-9156. At issue in Wood is whether counsel was ineffective by failing to investigate evidence of the Defendant’s mental impairments. The district court granted relief, concluding that a “finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record.” The court found that Wood’s less experienced lawyer was left unsupervised to investigate mitigating evidence; moreover, the failure to introduce evidence of Wood’s mental impairments stemmed from his counsel’s inexperience rather than a strategic decision. The major issue in Wood is whether, the AEDPA (the law governing modern federal habeas corpuses) required the federal court to provide greater deference to the Alabama state court.

Padilla v Kentucky: It is Looking Good!

With the execution of Troy Davis looming in Georgia, he found a strange ally in former Republican Representative Robert Barr. In an Op-Ed piece in today’s New York Times, Mr. Barr stated that federal courts have abdicated too much of their sovereignty in refusing to consider this claim.

There is compelling evidence that death row inmate Troy Davis may be innocent, but federal and state courts have consistently refused to hear the evidence. Mr. Davis has exhausted all conventionlal challenges to his conviction, Mr. Davis has resorted to an original writ of habeas corpus in the United States Supreme Court. If that petition fails, Mr. Davis will be executed. In refusing to hear Mr. Davis’s appeals, courts have relied on provisions contained in the 1996 Anti-Terrorism Act (“AEDPA”) and held that they are barred from hearing the petition. Mr. Barr argues that the courts have misread the law. For more information on Mr. Davis’s case, please see his website which contains many of the opinions and a nice time line of the case.

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7th Circuit Says Vienna Convention Argument is Still Valid

Article 36 of the Vienna Convention on Consular Relations requires the United States to inform a foreign national of his/her right to consular access (to talk to his home country’s embassy or consulate) upon arrest. Vienna Convention on Consular Relations, art. 36, April 24, 1962, 21 U.S.T. 77, 596 U.N.T.S. 261. In Sanchez-Lllamas v. Oregon, 548 U.S. 331, 336 (2006), the United States Supreme Court ruled that a violation of Article 36 did not require suppression of evidence. See also Medellin v. Texas, 552 U.S. __, 128 S. Ct. 1346, 1355, 170 L.Ed.2d (2008). Despite repeated orders from the International Court of Justice, Texas executed two suspects earlier this year where the evidence was clear that the convictions were based on confessions obtained in violation of the suspects rights to diplomatic access. Based on Sanchez-Llamas and these developments, many member of the bar (including this one) believed that this issue was not going to prevail in any domestic court.

On September 8, 2008, a Seventh Circuit panel ruled to the contrary in a published decision. In Osagadie v United States, Seventh Circuit No. 07-113, the Court recognized the continuing viability of the Article 36 issue. The Court first recognized the importance of Article 36:

The adoption of the Vienna Convention by the international community was “the single most important event in the entire history of the consular institution.” LUKE T. LEE, CONSULAR LAW AND PRACTICE 26 (2d ed. 1991). When the United States ratified the treaty in 1969, it became the “supreme Law of the Land.” U.S. CONST. art. VI, cl. 2.



The Court then went onto stress the importance of the treaty:

Foreign nationals who are detained within the United States find themselves in a very vulnerable position. Separated from their families and far from their homelands, they suddenly find themselves swept into a foreign legal system. Language barriers, cultural barriers, lack of resources, isolation and unfamiliarity with local law create “an aura of chaos” around the foreign detainees, which can lead them to make serious legal missteps. Linda A. Malone, From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty, 13 WM. & MARY BILL RTS. J. 363, 392-93 (2004). In these situations, the consulate can serve as a “cultural bridge” between the foreign detainee and the legal machinery of the receiving state. William J. Aceves, Murphy v. Netherland, 92 AM. J. INT’L L. 87, 89-90 (1998).


The Court went onto note while there is some overlap with the function of a lawyer, the overlap is not complete. There are somethings that an embassy or a consulate are uniquely qualified to do:

Of course, we assume that lawyers here are equipped to deal with language barriers; we also assume they are familiar with the law. Sometimes, however, the assistance of an attorney cannot entirely replace the unique assistance that can be provided by the consulate. The consulate can provide not only an explanation of the receiving state’s legal system but an explanation of how that system differs from the sending state’s system. See Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 GEO. IMMIGR. L. J. 185, 195 (1999). This assistance can be invaluable because cultural misunderstandings can lead a detainee to make serious legal mistakes, particularly where a detainee’s cultural background informs the way he interacts with law enforcement officials and judges.



The Court noted that Sanchez-Llamas was a good example of the help that a consulate can provide:

Sanchez-Llamas 2 provides a striking example. In Sanchez-Llamas, Bustillo’s defense was that another man, “Sirena,” had committed the crime. Sirena, however, had fled back to Honduras; he was nowhere to be found. “Bustillo did not learn of his right to contact the Honduran consulate until after conviction, at which time the consulate located additional evidence supporting this theory, including a critical taped confession by Sirena.”



Thus far, the Court’s opinion matches the position articulated by dissents and the International Court of Justice. Now here is where the decision gets interesting. The Court stated that Sanchez-Llamas stated that the Government was required to provide a remedy for a violation and the remedy was to internalize this violation into our domestic law. While violation of a Vienna Convention Claim would not be a self-standing violation of the Constitution or federal law requiring suppression of a confession, it could be a Fifth Amendment or a Sixth Amendment violation.

[

W]e must address the Government’s argument that Sanchez-Llamas forecloses foreign nationals from bringing ineffective assistance of counsel claims based on Article 36 violations. A close reading of Sanchez-Llamas suggests otherwise. While the Court rejected the argument that the treaty itself required suppression as a remedy, the Court stressed that there were other means of “vindicating Vienna Convention rights.” Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct. 2669. Specifically, the Court stated that a defendant could raise an Article 36 violation as a part of a broader constitutional challenge, such as a challenge to the voluntariness of a statement under the Fifth Amendment. Id., 126 S. Ct. 2669; see also United States v. Ortiz, 315 F.3d 873, 886 (8th Cir. 2002). More importantly, the Court suggested that the Sixth Amendment could also serve as a vehicle for vindicating Article 36 rights. In a telling passage, the Court noted that an attorney’s failure to raise an Article 36 violation would not be “cause” for overriding a state’s procedural default rules, unless “the attorney’s overall representation falls below what is required by the Sixth Amendment.” Sanchez-Llamas, 548 U.S. at 357 & n.6, 126 S. Ct. 2669 (emphasis added).


Osagiede is a testament to the value of persistence. Mr. Osagiede prevailed on an argument that most lawyers would have rejected.

South Carolina Imposes Sixth Amendment Duty on Defense Counsel to Investigate

Last week, I reported on the Sixth Circuit decision in VanHook v Anderson recognizing that post-Strickland decisions from the United States Supreme Court have tightened the duty of investigation required by defense counsel. Today the South Carolina Supreme Court reached essentially the same position in Council v State.

Sixth Circuit Reverses Conviction Based on Actual Conflict of Interest

The Sixth Circuit reversed a habeas petitioner’s murder conviction where he was denied his right to effective assistance of counsel was violated at trial and on appeal because of his state attorney’s actual conflict of interest. Boykin v Webb, Sixth Circuit No. 06-5775.

boykin

Sixth Circuit Reaffirms that an Attorney Cannot Exercise "Strategy" if (s)he Never Did Basic Investigation

In VanHook v. Anderson the Sixth Circuit recently granted a habeas corpus in a capital case where the evidence was that counsel did minimal investigation regarding the Defendant’s mental health. Since the Court’s 1984 ruling in Strickland v Washington, the United States Supreme Court has applied a two part test for determining whether counsel was ineffective: (a) whether there was a breach of counsel’s duty to the defendant; and, (b) “but for” that error, the defendant stood a reasonable chance for acquittal. While the analysis has not technically changed, many commentators have pointed out that later high court decisions have placed greater emphasis on Strickland’s language about the need for basic investigation. See, e.g. Wiggins v. Smith, 539 U.S. 510 (2003) (incorporating the American Bar Association Guidelines For the Appointment and Performance of Counsel in Death Penalty Cases as the professional standard of performance), and Rompilla v. Beard, 545 U.S. 374, 387 (2005) (same). Judge Merritt’s opinion in VanHook does a wonderful job at discussing this point and is a must read for any appellate practitioner. Hopefully, the decision survives en banc review. Mr. VanHook has previously won panel decisions on other grounds only to have defeat snatched from the jaws of victory by the en banc court.

Michigan Court of Appeals Holds that Same Disqualification Rules that Apply in Civil Cases Apply to Prosecutor

Gary Davenport's was charged with sexually assaulting a student in his small Presque Isle County School. Mr. Davenport’s attorney accepted a job at the prosecutor's office during the middle of Mr. Davenport's criminal prosecution. His defense attorney never challenged this or took any efforts to make sure that the small prosecutor's office had an effective Chinese Wall in place In a unanimous opinion, the court of Appeals reversed his conviction and sent the matter back to the trial court for an evidentiary hearing where the prosecution was required to prove that there was an adequate Chinese wall in place. Here is our brief in the case:
Brief 011207