                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 29, 2017
               Plaintiff-Appellee,

v                                                                    No. 328157
                                                                     Kalamazoo Circuit Court
MICHAEL DWAYNE CARVER,                                               LC No. 2014-000448-FC

               Defendant-Appellant.


Before: GADOLA, P.J., TALBOT, C.J., and GLEICHER, J.

GLEICHER, J. (concurring)

        In cases involving allegations of child sexual abuse, the prosecution often presents the
testimony of experts who can explain why children may provide inconsistent or even
contradictory recollections. When no physical evidence corroborates the prosecution’s case,
these expert witnesses play a central role. Such testimony, particularly when supplied by an
expert with law enforcement credentials, carries an “aura of special reliability and
trustworthiness.” People v Hubbard, 209 Mich App 234, 241; 530 NW2d 130 (1995) (citation
omitted). Our Supreme Court has specifically recognized the compelling influence of an expert
in a child sexual abuse prosecution: “To a jury recognizing the awesome dilemma of whom to
believe, an expert will often represent the only seemingly objective source, offering it a much
sought-after hook on which to hang its hat.” People v Beckley, 434 Mich 691, 722; 456 NW2d
391 (1990).

         Without consulting an expert regarding a trial strategy in a case he knew would rise or
fall on a five-year-old’s credibility, defense counsel focused his efforts on discrediting the child
in the same manner as he would have challenged the inconsistent testimony of an adult. As the
lead opinion carefully elucidates, this decision forced counsel to argue that the complainant was
a liar, despite that she had no motive to lie and that her young age rendered her confusion about
details understandable. Counsel compounded his error by calling two witnesses he knew or
should have known would undermine his case, and whose presence opened the door to the
prosecutor’s introduction of expert testimony harmful to the defense. Despite defense counsel’s
awareness that Dr. Swerdlow-Freed could provide an analysis consistent with defendant’s
innocence, counsel did not seek assistance from him or any other expert. The lead opinion
properly concludes that defense counsel performed ineffectively in this regard, and I join the lead
opinion in full.


                                                -1-
        As its first witness, the prosecution presented the testimony of an expert in child sexual
abuse, Dr. Colleen Gushurst. Dr. Gushurst did not examine the complainant. She testified that
the type of sexual abuse alleged in this case is usually undetectable in a physical examination,
and described in detail the limits of a young child’s memories and ability to communicate. Dr.
Gushurst also explained why a child might initially identify the offender as someone other than
the actual perpetrator. By educating the jury about the complainant’s intellectual abilities in an
age-centered context, the prosecution proactively muted an attack on the child’s credibility.

       The defense had no expert to counter the impact of Gushurt’s testimony. Instead, the
defense called two experts aligned with the prosecution: Ruth Westfall, a clinical social worker
and therapist at the Children’s Advocacy Clinic, and Detective Jennifer Higby, who investigates
sexual assaults for the Kalamazoo Department of Public Safety. Both enhanced the
prosecution’s case by testifying (on direct and cross-examination) to the reliability of the
complainant’s claim that defendant sexually assaulted her. Undoubtedly, the prosecution
understood that expert testimony would necessarily strengthen its case and was delighted when
defense counsel blundered by calling these witnesses.

         I respectfully disagree with the dissent’s position that even had counsel had the benefit of
Swerdlow-Freed’s guidance, the outcome in the case would have been unchanged. The dissent
rests its “no prejudice” conclusion on two strands of argument. First, the dissent maintains that
this was not as “mismatched” a contest as the lead opinion implies, in that the defense succeeded
in exposing several weaknesses in the complainant’s story: that she implicated defendant only
after being threatened with punishment, that she was repeatedly questioned by people untrained
in forensic interviewing techniques, and that her account of the assault was riddled with
inconsistencies. Second, the dissent contends that expert testimony was unnecessary because
“the average juror is equipped with sufficient knowledge to recognize that young children are
susceptible to outside influences and are not always accurate informants.” Therefore, the dissent
postulates, defense counsel reasonably could have decided to forego calling Swerdlow-Freed,
“particularly when doing so would invite the prosecution to elicit potentially damaging testimony
on cross-examination or call its own expert to rebut any opinion that was favorable to the
defense.” The record, and the trial court’s factual findings, refute these propositions.

       The fact that the prosecution called an expert as its first witness, standing alone,
disproves the dissent’s thesis. Defense counsel’s management of the rest of the trial illustrates
why expert guidance would have been helpful.

        During her direct testimony, the complainant initially agreed with the prosecutor that
defendant had done something to her that she did not like, but proceeded to give generally
unresponsive answers to the prosecutor’s efforts to extract any details. She eventually testified
that defendant had penetrated her vagina with his finger. On cross-examination, defense counsel
closely questioned the complainant about the time and place-related circumstances surrounding
the alleged assault, eliciting multiple contradictions and drawing an objection that counsel was
“[t]rying to twist up a little kid here, Judge.”

       After the complainant and other family members testified, defense counsel called Ruth
Westfall, who described the forensic protocol she and other experts in the field use when
questioning children, and the results of the forensic interview that she had conducted in this case.

                                                -2-
Westfall told the jury that the protocols governing forensic interviews are designed to avoid
falsely positive responses, and that she had operated under the protocols when interviewing the
complainant. She recounted for the jury that that complainant described the assault and had
unequivocally implicated defendant during the forensic interview.

        Jennifer Higby continued this theme. Called by the defense, Higby described her
background and expertise in the investigation of sexual assault crimes. She advised that she had
watched the forensic interview and interviewed the various family members. Higby then told the
jury that “[d]uring my investigation and according to my training, I was comfortable that a
sexual assault had taken place. I was not going to limit it to a certain day or a certain time as I
knew I was dealing with a five-year-old child who did not have a good concept of time.” She
agreed with the prosecutor that the complainant’s description of defendant’s “wiggling of a
finger” was “very reliable.”1

        There should be no doubt or confusion about these three points: Dr. Gushurst testified as
an expert witness, the prosecution presented her testimony to fortify the complainant’s veracity,
and her testimony considerably bolstered the prosecution’s proofs. Further, the prosecution
derived nothing but benefit from defense counsel’s thoroughly ill-advised decision to call
Westfall and Higby. Westfall told the jury that the forensic interview techniques she employed
are recognized as effective tools and minimize the risks of false allegations. She acknowledged
that children can be vulnerable to suggestions and coaching, but claimed that the methods she
used overcame those problems. As an expert in the specialized forensic interviewing techniques
used by similarly-trained experts everywhere, Westfall expounded, she could secure accuracy.

       Westfall’s testimony provided the jury with an expert’s conclusion that the complainant
had told the truth. The force of this testimony cannot be overstated. Defense counsel had
highlighted the weaknesses and inconsistencies in the complainant’s direct testimony. The
prosecution likely recognized that reinforcement was required; an additional opportunity opened
when defendant called Westfall. Westfall rehabilitated the complainant’s testimony by again
educating the jury about characteristics of children that fall outside the realm of common
knowledge and experience. Defense counsel compounded the potency of her presentation by
asking whether “false positives do, in fact, happen,” only to be met with the devastating answer:
“Yes, but they’re very rare.” Defense counsel lacked an ability to challenge this opinion,
heightening the likelihood that it carried weight with the jury.

        Given the testimonies of Gushurst, Westfall and Higby, I must respectfully disagree with
my dissenting colleague’s opinions that defense counsel leveled the evidentiary playing field, or
that expert testimony was unnecessary in this case. The prosecution knew that expert opinion
would be critical. The prosecution understood that it needed to supply the jury with plausible
explanations for discrepancies in the testimony that otherwise pointed toward reasonable doubt.
Indeed, Gushurst, Westfall and Higby proved the most potent weapons in the prosecution’s trial
arsenal. They convincingly promoted their expert abilities to ferret out the truth, and their


1
 The court sustained an objection to the “very reliable” aspect of Higby’s testimony, but the jury
heard it nonetheless.


                                                -3-
opinions were essentially unchallenged. Due to poor preparation, the defense never understood
the prosecution’s case and immeasurably aided it by calling two witnesses who wound up being
prosecution experts.

       If this were my view alone, it would not count for much. But the trial court shares it, and
we must defer to the trial court’s findings unless they demonstrate clear error. The trial court
wrote:

              In the present case, the key evidence that the prosecution asserted against
       Defendant was the Complainant’s accusations supported by the implication that
       Complainant had no reason to lie; therefore, the credibility of Complainant in
       favor of the Defendant was undermined by trial counsel’s failure to introduce
       evidence of false memories and the risk factors associated with the creation of
       them.

                                               * * *

              The jury heard testimony from Detective Higby and Ruth Westfell [sic].
       Detective Higby testified that she could determine whether an assault had
       occurred based solely on Complainant’s report. Ruth Westfell [sic] testified that
       misreporting among children alleging sexual abuse is very rare. Had defense had
       an expert in child memory, the jury would have heard a contradictory point of
       view on this testimony.

                                               * * *

              The jury was given the impression that children misreporting sexual abuse
       is very rare and that Complainant had no reason to lie. Had an expert been
       present to testify similarly to Dr. Swerdlow-Freed’s testimony, the jury would
       have understood that it was possible that if Complainant reported events that did
       not actually happen, it was not because she was intentionally lying but because
       she had developed a false memory through taint and suggestibility.

I can think of no reason to disagree with this analysis, and suggest that it invalidates the dissent’s
arguments that foregoing an expert was reasonable trial strategy and that the absence of a
defense expert made no difference. An expert would have given the jury a scientific basis on
which to vote “not guilty” by dispelling the perception created by Gushurst, Higby and Westfall
that children almost always tell the truth.

        The law, too, refutes the dissent’s position. To demonstrate prejudice, a defendant must
convince an appellate court of a reasonable probability that, but for his lawyer’s errors, the result
of the proceeding would have been different. A defendant “need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case,” only that there exists “a
probability sufficient to undermine confidence in the verdict.” Strickland v Washington, 466 US
668, 693-694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). And “[a] verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than one with
overwhelming record support.” Id. at 696.


                                                 -4-
        Here, the salient question is whether a reasonably competent attorney, aware of the likely
testimony of Gushurst, Westfall and Higby, would have introduced evidence to counter it.
Indisputably, it was strategically appropriate for counsel to strenuously cross-examine the
complainant and her family, thereby exposing weaknesses in the prosecution’s case. But this
approach did not preclude calling an expert. Indeed, given the strength of the prosecution’s
expert’s presentation, and the strength of the evidence presented by the de facto prosecution
witnesses called by the defense, a reasonable attorney may well have elected to highlight the
science: the shortcomings of a child’s memory, the ease with which false memories can be
created, the suggestibility of a child, and the research reflecting the ability of a professional to
ascertain when a child has misrepresented. Without thoroughly educating himself regarding
these concepts, counsel was not in a position to make a reasonable strategic choice about how to
construct a defense. Given that the prosecution presented an expert and was permitted to bolster
its case by asking expert questions of two more, I cannot accept the dissent’s contention that
defense counsel would have reasonably decided against calling Swerdlow-Freed or someone
with similar opinions.

        Defendant’s conviction turned on whether the jury believed the complainant. The jury
heard from three experts that the complainant was believable and likely the assault had occurred
as she described it. Dr. Swerdlow-Freed would have cast considerable doubt on these experts’
testimonies. His credentials and qualifications far surpassed those of Westfall and Higby. His
offered explanations for the complainant’s behavior were sympathetic rather than harsh or
judgmental. This evidence “would have provided the jury with another viable and impartial
perspective on the facts of the case while contradicting the prosecution’s theory[.]” People v
Ackley, 497 Mich 381, 394; 870 NW2d 858 (2015). As in Ackley, “expert testimony was not
only integral to the prosecution’s ability to supply a narrative of the defendant’s guilt, it was
likewise integral to the defendant’s ability to counter that narrative and supply his own.” Id.

        Defendant’s jury heard only one side of the story regarding children and their memories.
Had counsel been prepared with an expert able to counter that narrative, there is at least a
reasonable probability that counsel would have presented the evidence, and that the jury would
have been persuaded by it. And expert testimony on this issue would have immeasurably
assisted the trier of fact. Perhaps the dissent is correct in asserting that jurors know from
everyday experience that children do not always tell the truth. Expert testimony, however, can
elucidate just how fallible children’s memories really are, and the factors that impair or alter
memory. “That jurors have beliefs about this does not make expert evidence irrelevant; to the
contrary, it may make such evidence vital, for if jurors’ beliefs are mistaken then they may reach
incorrect conclusions.” United States v Bartlett, 567 F3d 901, 906 (CA 7, 2009). As the Seventh
Circuit explained in Bartlett, a case involving eyewitness identification rather than false
memories, “[e]xpert evidence can help jurors evaluate whether their beliefs about the reliability”
of memory “are correct.” Id. (emphasis in original). Or, as the trial court put it here:

       The jury was given the impression that children misreporting sexual abuse is very
       rare and that Complainant had no reason to lie. Had an expert been present to
       testify similarly to Dr. Swerdlow-Freed’s testimony, the jury would have
       understood that it was possible that if Complainant reported events that did not
       happen, it was not because she was intentionally lying but because she had
       developed a false memory through taint and suggestibility.

                                                -5-
Contrary to the dissent’s view, the trial court neither abused its discretion nor clearly erred in
concluding that “but for trial counsel’s deficient investigation which led to not consulting an
expert for his own knowledge or for the jury, there is a reasonable probability that the result of
the trial would have been different.” I concur with the lead opinion’s conclusion that a new trial
is required.



                                                            /s/ Elizabeth L. Gleicher




                                               -6-
