MSC Opinion: New trial for CSC defendant where ineffective assistance (but not malpractice) prejudiced case
In People v Trakhtenberg, the Michigan Supreme Court considered whether collateral estoppel may be applied to prevent a court from reviewing a criminal defendant’s ineffective assistance of counsel claim where, in a prior civil judgment, a court found that defense counsel’s performance did not rise to the level of malpractice. Voting 4-2, with Justice Hathaway not participating, the Supreme Court held that under such circumstances, collateral estoppel may not be applied, as the defendant did not have a full and fair opportunity to litigate his claim of ineffective assistance of counsel. The court then found that defense counsel’s performance was constitutionally deficient and the defendant was entitled to a new trial.
The defendant was convicted of three counts of second-degree criminal sexual conduct for touching the genitals of his eight-year-old daughter. The defendant appealed, arguing that defense counsel was ineffective for failing to cross-examine his ex-wife and impeach her with evidence of bias. After the court of appeals concluded that defense counsel had not been ineffective, the defendant brought a claim of legal malpractice against defense counsel. The trial court dismissed the claim, and the court of appeals affirmed, finding that defense counsel’s performance fell within the “attorney judgment” rule.
Meanwhile, the defendant filed a motion for relief from judgment in his criminal case, claiming that he was entitled to a new trial due to ineffective assistance of counsel. After conducting a Ginther hearing to assess the defendant’s claims, the trial court found that defense counsel was ineffective. The court of appeals reversed, finding that collateral estoppel prevented the court from reviewing the defendant’s ineffective assistance of counsel claim because in the defendant’s malpractice action against his attorney, the court had found that the attorney’s performance fell within the “attorney judgment” rule. The Michigan Supreme Court then granted leave to appeal.
The Supreme Court noted that cases involving “cross-over estoppel”—where an issue litigated in a civil proceeding is precluded in a later criminal proceeding, or vice versa—are very rare. In cases where courts have allowed “cross-over estoppel,” the defendant was the proponent of its application; in the present case, however, the prosecution was attempting to use the doctrine to prevent review of the defendant’s ineffective assistance of counsel claim. According to the court, in an opinion by Justice Cavanagh and joined by both Justices Kelly and Justice Markman, collateral estoppel should be applied in a manner that strikes a balance between the need to prevent repetitious litigation and a party’s interest in full and fair adjudication of issues. The court found that the defendant did not have a full and fair opportunity to litigate his ineffective assistance of counsel claim in the malpractice action. In the malpractice claim, the defendant sought monetary gain, while in the ineffective assistance of counsel action, he sought “protection of his constitutional right and his liberty.” Because the defendant had stronger incentives to litigate the ineffective assistance of counsel claim, the civil malpractice action did not provide a full and fair opportunity to litigate the ineffective assistance claim. Thus, the court concluded that the court of appeals erred in applying collateral estoppel.
The court then went on to find that defense counsel failed to exercise “reasonable professional judgment” by declining to investigate matters relevant to the defense. According to the court, counsel has a duty to make reasonable investigations, and defense counsel’s decision not to conduct any investigations at the beginning of the case did not meet an objective standard of reasonableness. Defense counsel had failed to: (1) identify the facts giving rise to each of the five counts of criminal sexual conduct; (2) consult with key witnesses when doing so would have revealed weaknesses in the prosecution’s case; and (3) sufficiently develop the trial defense that was presented at trial. Therefore, the court found that defense counsel’s performance was constitutionally deficient. Moreover, the defendant had shown that he was unfairly prejudiced as a result of his attorney’s deficient performance, and as a result, the defendant was entitled to a new trial.