The Michigan Supreme Court has reinstated the first-degree CSC conviction of a man who molested his 6-year-old niece.
The Court of Appeals had granted Robert K. Brannon a new trial after determining defense counsel didn’t adequately investigate the possibility that expert testimony may have produced a “not guilty” verdict.
But the MSC vindicated defense counsel’s choice to not use an expert witness who could have helped the prosecution’s case.
Brannon was tried and convicted in 2008 for the 1995 sexual assault of his then-6-year-old-niece. Witness credibility was a key issue: many years had passed and family members had discussed with the niece “other sexual assault allegations” against Brannon before she accused him.
Brannon’s defense attorney decided not to call any experts to challenge the reliability of a delayed sexual assault report that was possibly prompted by family members’ urgings. He did so after determining that using the experts might also produce testimony that could help convict his client.
COA Judges Karen Fort Hood and Deborah Servitto said counsel made a bad choice and granted Brannon a new trial.
After reviewing testimony at Brannon’s Ginther hearing, Hood and Servitto said had counsel probed further, he would have learned that the experts had other ways to challenge the niece’s credibility besides pointing out the long delay between the assault and the accusation.
In his dissent, Judge Alton Davis said the majority’s decision was based on 20-20 hindsight.
See, The Michigan Lawyer, “In their opinions.”
Last week, the MSC, in a 6-1 ruling, said defense counsel made the right move:
The record clearly established that defense counsel discussed issues of delayed reporting of sexual assault by a child witness with a potential expert witness, and made a reasonable strategic decision to forego expert testimony in light of the possibility that the witness might also provide testimony favorable to the prosecution.
We REMAND this case to the trial court for reinstatement of the defendant’s conviction and for further proceedings not inconsistent with this order.
Justice Michael Cavanagh would have denied leave to appeal.
The Michigan Lawyer 