Whenever there is a unjust conviction in State of Michigan Courts, one of the questions that the Defendant and his or her family members raise is concerning the performance of defense counsel. Establishing that the defense lawyer made a mistake is not dispositive that an injustice occurred. Every trial may contain some amount of error. The court system recognizes that lawyers are human, and do not always try the perfect case. The issue to address is the degree of error that occurred.
The question of the existence of “ineffective assistance of counsel” can be a complex question. In People v. Armstrong, 490 Mich 281 (2011), the burden in Michigan is placed on the Defendant to show that defense counsel’s performance fell below an objective standard of reasonableness. Part of the consideration is to show that but for the deficient legal representation, a different result would have been reasonably probable. The mere possibility of a potential different verdict or outcome is insufficient. According to Harrington v. Richter, 562 US 86 (2011), the probability of a different outcome need only be “sufficient to undermine confidence in the outcome”.
What is an objective standard of reasonableness? No two cases are alike. When it comes to appellate proceedings or motions for relief from judgment, of course the transcripts of the previous court proceedings are paramount to the discussion. However, sometimes all of the answers to the lawyer’s performance are not part of the court record. For example, what if the Defendant provided his or her lawyer with an alibi witness who was never interviewed, listed on an alibi witness list, referenced during the trial, and/or called to testify at trial? How will a Court know if the record is silent to the error committed?
In some instances where ineffective assistance of counsel is a viable issue, the appellate lawyer will request a Ginther hearing in front of the trial Judge (see People v Ginther, 390 Mich 436 (1973)). Testimony is taken from the defense lawyer who previously represented the Defendant by the Defendant’s current lawyer and the prosecution. Was the decision to ask certain questions, or to not call certain witnesses, or to not introduce evidence part of a trial strategy or something else?
Just because the Defendant wants his or her lawyer to ask a certain question or to call a certain witness, it is not ineffective for the lawyer to exercise his or her discretion in the manner in which the trial is conducted (with some limitations. For example, a Defendant has a Constitutional right to testify at trial, or to elect to remain silent). Naturally, the reason why a lawyer is used in the first place is based upon his or her education, legal training, legal acumen, courtroom experience, ability to examine and cross examine witnesses, knowledge of the rules of evidence and criminal procedure, etc. In some cases if the lawyer did exactly what his or her client wanted, this would form the basis for ineffective assistance of counsel. It isn’t unheard of for a Defendant to shoot him or herself in the foot by going against the advice and/or strategy of the defense lawyer.
Generally, decisions made based upon trial strategy do not form the basis for reversal. Sometimes it takes the testimony of an expert witness at a Ginther hearing (such as an experienced criminal defense lawyer), to establish a record as to why the alleged deficiency of the trial lawyer cannot be part of a reasonable trial strategy. Experts are not needed for every appeal or request for relief from judgment, and it is the role of the current lawyer to determine what is needed for the client to best attempt to persuade the Court. However, under every circumstance, the current attorney will need to convince the Court that the proffered evidence is materially favorable.
Just because error may have occurred, it does not mean that a reversal occurs. The Court will consider if the Defendant was prejudiced by the error. However, the issue of whether or not a deficient legal performance affected the outcome of a trial often calls for speculation – because, after all, the jury is given vast latitude to determine what evidence to believe and what evidence to not believe (see People v Howard, 50 Mich 239 (1883)). The leading case when it comes to ineffective assistance of lawyer claims is Strickland v Washington, 466 US 668 (1984). In Strickland the Supreme Court determined that the errors committed by defense counsel must be shown by a preponderance of the evidence to have determined the outcome. When it comes to prejudice, the Court must determine the existence of a reasonable probability that, absent the errors, the Judge or Jury deciding the case would have had reasonable doubt respecting guilt (see People v. Pickens, 446 Mich 298 (1994)). Considerations of the Court when determining the existence of prejudice are fairness and reliability, and not merely the outcome of the case (see Lockhard v Fretwell, 506 US 364 (1993). A Court may determine that even through error occurred, it may conclude that there is overwhelming evidence of guilt, and a new trial would not lead to a different outcome. In Some instance when you win as it relates to establishing error, you still lose.
If a Michigan Judge or a Michigan Appellate Court affirms a conviction or does not grant a request for relief, there still may be remedies available at the Federal level. When it comes to trying to undo a mistake that occurred in a courtroom, an individual should always have legal representation. Discuss what options you may have with an experienced criminal law attorney.
When it comes to any criminal case, a person accused should always consider the quality of their legal representation. The best advice is to hire a capable and experienced lawyer from the beginning of the case to minimize the possibility of prejudicial error. When it comes to error in a courtroom, in most cases the Court will not undo a conviction in order to give certainty to decisions, and to not undermine the public’s confidence in the judicial system. Even when a reversal granted, often it is many years later. Courts typically do not stay sentences to await the decision of the appellate court; there is a very negative personal toll when it comes to any conviction – even a reversed conviction.