Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  March 7, 2014                                                                     Robert P. Young, Jr.,
                                                                                               Chief Justice

  147581                                                                             Michael F. Cavanagh
                                                                                     Stephen J. Markman
                                                                                         Mary Beth Kelly
                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                      David F. Viviano,
            Plaintiff-Appellee,                                                                     Justices

  v                                                       SC: 147581
                                                          COA: 306191
                                                          Lapeer CC: 10-010499-FC
  ANDREW AUDIE WILLIAMS,
          Defendant-Appellant.

  ____________________________________/

        On order of the Court, the application for leave to appeal the June 20, 2013
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

         MARKMAN, J. (dissenting).

          I respectfully dissent and would grant leave to appeal in this case in which
  defendant has questioned the effectiveness of his trial counsel in a defense to a charge of
  first-degree criminal sexual conduct (CSC-I). We are presented here with a situation in
  which (a) counsel fully reviewed the report of the prosecutor’s forensic expert regarding
  his medical examination of the alleged victim, (b) counsel consulted with a local
  physician regarding the medical findings set forth in the report, (c) counsel consulted
  with defendant concerning whether to retain their own expert to counter the medical
  findings set forth in the report and defendant agreed with counsel that this was
  unnecessary, and (d) counsel effectively cross-examined the forensic expert to minimize
  any harm done to defendant by the report. What counsel did not do, however, was to
  recognize the extent to which the report may have been of considerable potential benefit
  to defendant by evidencing that he might be innocent of the crimes for which he has now
  been convicted and is serving a 15- to 30-year sentence.

         In 2010, defendant’s granddaughter alleged that between 2001 and 2005 defendant
  sexually abused her on 15 occasions. These allegations led the prosecutor to charge
  defendant with three counts of CSC-I. The charges were based on three separate
  incidents in which it was alleged that defendant engaged in sexual intercourse with his
  granddaughter, who was between five and nine years old. The granddaughter was
  examined by a forensic expert, Dr. Mischa Pollard, whose report stated, inter alia, that
  her examination revealed no visible tears or transections of the victim’s hymenal ring.

         In preparing for trial, defense counsel read Dr. Pollard’s report and consulted a
  local general practitioner for the purpose of determining whether anything in the report
  was damaging to defendant. Learning from the practitioner that “there was nothing really
                                                                                          2

damaging in [the] report by itself,” defense counsel focused on other aspects of the case
without further investigating or apparently recognizing that the lack of any visible tearing
or transection of the hymenal ring was not simply not “really damaging” to defendant,
but potentially highly exculpatory.

       Defendant was eventually convicted on all three CSC-I counts. On appeal, he now
argues that counsel was ineffective for failing to recognize that Dr. Pollard’s report
significantly supported defendant’s claim of innocence, in part as a result of counsel’s
failure to consult with and retain his own forensic expert. To further develop this
argument, a Ginther 1 hearing was held, and Dr. Stephen Guertin 2 testified that there is a
94% to 96% chance that a single incident of sexual intercourse with a prepubertal child
would result in a tear or transection of the hymenal ring, leaving a lasting visible
abnormality. 3 Given the likelihood that any single incident would leave such an
abnormality, it follows statistically that there may have been as high as a 99.978% chance
that an abnormality would result from at least one of three charged incidents of sexual
intercourse. 4

        Following the Ginther hearing, the trial court denied defendant’s motion for a new
trial, and the Court of Appeals affirmed because it concluded that counsel’s decision not




1
    People v Ginther, 390 Mich 436 (1973).
2
  Dr. Guertin is the medical director of the Sparrow Children’s Center and the director of
the Pediatric Intensive Care Unit at Sparrow Hospital. He is also an associate professor
of pediatrics at Michigan State University. As part of his practice, Dr. Guertin “sees
between 100 and 200 children per year who have been referred . . . for suspected child
abuse,” which often results in Dr. Guertin assisting the police and the prosecution in
cases brought against individuals who have abused children.
3
  Dr. Guertin testified that the reason sexual intercourse with a prepubertal child is so
likely to leave such an abnormality is because the hymen during the prepubertal stage
typically has a “maximum opening” of 10 millimeters while “[t]he average penis is 35
millimeters . . . .”
4
  This latter percentage was not set forth by Dr. Guertin, but is a statistical inference
drawn from his testimony. That is, if each episode of intercourse independently of the
others gave rise to a 94% to 96% chance of a tear, the 99.978% percentage would seem to
be an accurate figure in identifying the likelihood of a tear from at least one of these
episodes.     If, however, potential anatomical factors, rather than happenstance,
predominately explain the absence of a tear, then the likelihood of a lasting visible
abnormality might remain at 94% to 96%.
                                                                                          3

to retain and call an expert witness was “sound trial strategy” on the grounds that Dr.
Pollard’s testimony “did not favor the prosecution.” 5

        To make out a claim of ineffective assistance of counsel, a defendant must show
that (1) “his attorney’s representation fell below an objective standard of reasonableness”
and (2) there is “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different . . . .’” People v Toma, 462 Mich
281, 302-303 (2000), citing Strickland v Washington, 466 US 668, 687 (1984), and
quoting People v Mitchell, 454 Mich 145, 167 (1997). To provide effective assistance of
counsel, defense counsel not only must consult with experts when doing so “would have
revealed [the] weaknesses of the prosecution’s case,” People v Trakhtenberg, 493 Mich
38, 53 (2012), but also must consult with experts when an expert analysis, as part of the
investigatory process, is likely to develop evidence favorable to the defendant, Strickland,
466 US at 690-691. Sound trial strategy can only be “developed in concert with an
investigation that is adequately supported by reasonable professional judgments.” People
v Grant, 470 Mich 477, 486 (2004). This, in part, requires counsel to make “‘an
independent examination of the facts, circumstances, pleadings and laws involved . . . .’”
Id. at 486-487, quoting Von Moltke v Gillies, 332 US 708, 721 (1948).

        Under these standards, a court reviewing ineffective-assistance claims must
evaluate those claims on a case-by-case basis. In so doing, an appellate court should look
at the specific steps counsel took in light of the facts, evidence, and circumstances of the
case. There is no particular “checklist” of actions that may be undertaken by counsel that
will automatically immunize him from being found ineffective, but his actions as a whole
and in context must be assessed. There is no “one-size fits all” investigation.

       Defendant here was arguably prejudiced, and considerably so, by counsel’s
decision not to consult and retain an expert. Had counsel been apprised of the data set
forth by Dr. Guertin, he likely would have developed a trial strategy that encompassed
expert forensic testimony. Indeed, he admitted as much at the Ginther hearing, stating
that he “obviously . . . would have used” the testimony offered by Dr. Guertin because “it
certainly would [have] help[ed] [defendant’s] case.”




5
 People v Williams, unpublished opinion per curiam of the Court of Appeals, issued June
20, 2013 (Docket No. 306191), p 2.
                                                                                                                 4


        For these reasons, I would grant leave to appeal to assess whether counsel here
employed reasonable professional judgment. In particular, I would address the
following: (1) whether counsel here satisfied his professional duty when he consulted a
general practitioner rather than a forensic expert, (2) whether counsel here could
effectively delegate his responsibility for identifying arguments in support of his client to
a general practitioner or to any other expert, (3) whether the forensic report contained
findings that an ordinary attorney would reasonably recognize as helpful to his client
independently of any expert analysis, (4) whether counsel here can be deemed ineffective
despite having consulted with his client and secured his agreement to the trial strategy
pursued, and (5) whether counsel’s performance in this case was properly reviewed by
the trial court and the Court of Appeals on the basis of the specific “facts, circumstances,
pleadings and laws involved.” 6




6
    Grant, 470 Mich at 486-487 (quotation marks and citation omitted).



                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           March 7, 2014
         h0304
                                                                               Clerk
