            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 25, 2019
               Plaintiff-Appellee / Cross-
               Appellant,

v                                                                  No. 337860
                                                                   Calhoun Circuit Court
SHAWN DELANO BROWN,                                                LC No. 2010-001368-FC

               Defendant-Appellant / Cross-
               Appellee.


Before: GLEICHER, P.J., and STEPHENS and O’BRIEN, JJ.

GLEICHER, J. (concurring).

        The prosecution charged Shawn Delano Brown with first-degree felony murder, alleging
that he shook his five-month-old son so violently that the child sustained a fatal brain injury.
The infant had no bruises or fractures. No one saw Brown assault his child, and Brown had no
history of mistreating the boy. The medical examiner noted a few superficial scalp scratches but
conceded that they “could be treatment injuries.” The prosecution’s case rested on expert
testimony supplied by five physicians: an emergency medicine specialist, a forensic pathologist,
an ophthalmologist, a neurosurgeon, and a specialist in pediatric critical care.

        The defense did not have an expert witness. Defense counsel moved for funds for an
expert, but the motion was denied. The jury convicted Brown of voluntary manslaughter and
second-degree child abuse.

        The lead opinion holds that Brown was deprived of his right to the effective assistance of
counsel arising from counsel’s failure to justify adequately his request for expert witness
funding, and I concur. The court’s improper exclusion of an audiotape of Brown’s police
interview also constitutes ineffective assistance and merits a new trial. Yet another ground
supports a new trial—the trial court abused its discretion by denying counsel’s motion for expert
witness funds, despite the motion’s deficiencies.




                                               -1-
                                                 I

        To his credit, defense counsel moved for funds to retain an expert witness. But he filed
the motion only three weeks before the trial date and failed to cite any caselaw or to raise any
legal arguments. Counsel advised the court that he had been retained by Brown’s friends and
family, that they had stopped paying him, and that they could not afford to pay an expert. He
asserted that he had traveled to Kentucky at his own expense to consult with a “close friend,” a
vascular surgeon, “to gain assistance with cross examination.” Counsel disclosed that he had not
yet obtained all of the child’s medical records and admitted that his “preparation is less than
adequate to defend against the People’s experts.”

         At the motion hearing, counsel explained that his vascular surgeon friend was “not the
type of expert . . . we’re seeking,” and that he had met with “a couple of other forensic
pathologists but no one has looked at the case.” One of the physicians he consulted, Dr.
Laurence Simson, had agreed to review it. Counsel requested $3,000 to pay Dr. Simson’s fee.
Remarkably (and to his credit), the prosecuting attorney pointed out to the judge, “[I]f there is a
conviction and no expert is appointed there is a guaranteed appellate issue involved.” Even so,
the prosecutor urged the judge to deny the motion, arguing that because the medical examiner
determined that “the trauma . . . occurred solely while Mr. Brown had possession of the
child . . . . I don’t know what, if anything, Doctor [Simson] would add[.]” Defense counsel
proposed that “the child may have had pneumonia which in fact would cause brain swelling and
if that’s the cause of death that may . . . present some issues and . . . for that reason we need
Doctor [Simson] emphatically to examine this and testify in the case.”

        The lead opinion maintains that the trial court denied defense counsel’s motion for two
reasons: its untimeliness and counsel’s failure to show that Simson’s testimony would be helpful.
I agree that the trial court invoked those grounds for its decision. But the court wove another
reason into its ruling—that Brown had retained counsel. Here is the entirety of the court’s
ruling:

       I’ve been doing this for nearly 18 years on the Circuit bench and 28 as a judge
       and I don’t think I’ve ever had a situation where a retained attorney has come in
       requesting the People of Calhoun County to incur expense involved for the
       investigation on the defendant’s behalf. You’re right. I’ve never had that that I’m
       aware of, it’s never happened and it strikes me in reviewing these – in reviewing
       your motion but in reviewing the court file and looking at the initial complaint
       that was filed in this case that clearly the defendant knew – everyone knew –
       going in that this case was going to involve experts and a number of experts as it
       relates to the cause of death of this young child, so no one walked in here
       knowing – I don’t – there’s no one – and the defense isn’t coming in here today
       saying I’m surprised, I never anticipated this, I couldn’t have possibly known that
       the case would turn the way it did and it would require experts and what-have-
       you. Everyone knew, including the defendant quite frankly, going in that that was
       a possibility that – the need for expert testimony and that causes me some
       concern, quite frankly, right from the get go.



                                                -2-
               Secondly, even from what’s presented to me here today what I’m hearing
       is I need some funds because I think, maybe, Doctor [Simson] might be able to
       help me in my defense and even in a court appointed setting I don’t think that that
       would necessarily be sufficient to justify the appointment of – or the funds being
       expended to find out essentially whether that’s going to be needed or not. I’m – I
       mean there’s case law to the effect that a defendant must demonstrate something
       more than a mere possibility of assistance from requested expert. Due process
       does not require the government automatically to provide indigent defendants
       with expert assistance upon demand. The – and I’m reading from [People v
       Leonard, 224 Mich App 569; 569 NW2d 663 (1997)].

              The bottom line here is the defendant retained counsel several months
       back, the defendant and everyone knew just based on the pleadings that’s been
       presented that in doing so that that counsel may very well need assistance of
       expert witnesses along the way in order to present a defense, may or may not, but
       may need that. He knew that going in and nonetheless chose to have – retain a
       counsel and to proceed with retaining counsel and to this point and that being the
       case I’m not convinced that it’s required of the Court to enter an order obligating
       the County of Calhoun to expend funds for this purpose and prosecution, prepare
       an order to that effect. I’m going to deny the motion. [Emphasis added.]

       The lead opinion rejects that counsel’s retained status played any role in the court’s
ruling. I interpret the words differently. “The bottom line,” the court emphasized, was that
Brown “chose to . . . retain counsel and to proceed with retaining counsel.” The trial court closed
by declaring that it would not “obligat[e] the County of Calhoun to expend funds for this
purpose[.]” In my view, the court denied Brown’s motion both because Brown had retained
counsel and because counsel failed to provide a good reason for the expenditure of county funds.
Judge Lincoln, who conducted the Ginther hearing, reached a similar conclusion: “Judge
Garbrecht denied Defendant’s request both because [counsel] had been retained knowing that the
case would involve experts and because Defendant failed to demonstrate anything more than a
mere possibility of assistance from an expert.”

       None of the grounds cited by the trial court supported its denial of expert funds, because
Brown’s indigence entitled him to a court-funded expert witness and, without an expert, he could
not defend against the prosecution’s case. Although his family and friends had raised enough
money to hire a lawyer, Brown was indigent. Indeed, the family and friends had also run out of
money for Brown’s defense. Brown’s counsel repeatedly stressed these unchallenged facts to the
court. Brown’s request for funds should have been considered in that context.

        It was obvious to defense counsel, the prosecutor, and the court that the jury’s verdict
would hinge on the testimony of experts. The prosecution’s case hinged on two interrelated
claims: (1) that the only reasonable medical explanation for the child’s severe injuries was
trauma deliberately inflicted by Brown, and (2) that the timing of the injury limited the possible
perpetrators to Brown. Other than denying that he hurt his child, Brown had no defense. For the
reasons detailed in People v Kennedy, 502 Mich 206, 213-228; 917 NW2d 355 (2018), the
Fourteenth Amendment’s due process clause obligated the trial court to consider whether there
existed “ ‘a reasonable probability both that an expert would be of assistance to the defense and

                                                -3-
that denial of expert assistance would result in a fundamentally unfair trial.’ ” Id. at 228, quoting
Moore v Kemp, 809 F2d 702, 712 (CA 11, 1987). These considerations did not enter into the
trial court’s thinking, despite the prosecutor’s explicit warning that denial of the motion
“guaranteed” an “appellate issue.”

        Kennedy was decided in 2018, and these events occurred in 2010. The timing is legally
irrelevant, contrary to the lead opinion’s intimation. Kennedy overruled People v Tanner, 469
Mich 437, 442-443; 671 NW2d 728 (2003), in which the Supreme Court had held that a court
did not have to provide funds for the appointment of an expert unless the defendant demonstrated
a “nexus” between the case facts and the need for expert assistance. Kennedy held that the
correct approach to expert funding issues derives from Ake v Oklahoma, 470 US 68; 105 S Ct
1087; 84 L Ed 2d 53 (1985). In Ake, 470 US at 76, the United States Supreme Court began its
analysis by restating a proposition deeply embedded in our constitutional jurisprudence:

               This Court has long recognized that when a State brings its judicial power
       to bear on an indigent defendant in a criminal proceeding, it must take steps to
       assure that the defendant has a fair opportunity to present his defense. This
       elementary principle, grounded in significant part on the Fourteenth
       Amendment’s due process guarantee of fundamental fairness, derives from the
       belief that justice cannot be equal where, simply as a result of his poverty, a
       defendant is denied the opportunity to participate meaningfully in a judicial
       proceeding in which his liberty is at stake.

The Supreme Court then reviewed cases in which it had compelled the states to fund certain legal
tools required by indigent defendants, including appellate filing fees and transcripts.
“Meaningful access to justice has been the consistent theme of these cases,” the Court explained.
Id. at 77. Although the state need not duplicate the resources available to wealthy defendants, “a
criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without
making certain that he has access to the raw materials integral to the building of an effective
defense.” Id.

       Ake, decided in 1985, governed Brown’s 2010 request for expert funding. Basic legal
research would have disclosed that Ake provided a formidable legal argument in favor of
funding.1 But even if Brown’s counsel should not have been expected to formulate such an
argument given Tanner, Kennedy controls the outcome here. In Griffith v Kentucky, 479 US
314, 328; 107 S Ct 708; 93 L Ed 2d 649 (1987), the United States Supreme Court held that “a
new rule for the conduct of criminal prosecutions . . . applie[s] retroactively to all cases, state or


1
 Although Ake involved funding for a psychiatric expert, before 2010, a number of courts had
applied Ake’s reasoning to a defendant’s requests for expert assistance in areas other than
psychiatry. For a list and summary of the cases, see Giannelli, Ake v. Oklahoma: The Right to
Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L Rev 1305, 1367-1368
(2004), and Moore v State, 390 Md 343, 364; 889 A2d 325 (2005) (“The majority of courts have
concluded that Ake extends beyond psychiatric experts.”).


                                                 -4-
federal, pending on direct review or not yet final, with no exception for cases in which the new
rule constitutes a ‘clear break’ with the past.” See also People v Sexton, 458 Mich 43, 55; 580
NW2d 404 (1998). This case was pending on direct appeal in 2018, when Kennedy was issued.

        All of the trial court’s reasons for denying Brown’s request for funding lacked legal
merit. And an expert in a relevant medical specialty would have been able to provide critical
assistance to the defense. Without that help, Brown’s counsel had no effective means of cross-
examining the prosecution’s experts or of developing his own defensive strategy.

        In cases involving the complicated and evolving science underlying a diagnosis of
pediatric abusive head trauma, expert testimony “[is] not only integral to the prosecution’s ability
to supply a narrative of the defendant’s guilt, it [is] likewise integral to the defendant’s ability to
counter that narrative and supply his own.” People v Ackley, 497 Mich 381, 397; 870 NW2d 858
(2015). The prosecution’s reliance on expert testimony should have signaled to the trial court
that expert testimony was a prerequisite to conviction. It should have signaled the converse as
well: that the only way Brown could level the playing field in a case dependent on expert
testimony was to have one of his own. Denying Brown the ability to retain an expert deprived
him of any opportunity for a fair trial.

                                                  II

        The lead opinion details the half-hearted effort made by defense counsel to engage or
consult with a relevant expert, summarizing that his “failure to identify and consult with an
expert to support the defendant’s theory of the case made him unprepared to seek medical expert
funds from the court.” I agree. I would add that counsel waited until the last possible moment to
begin any meaningful preparation in this case. His motion for expert funding should have been
made as soon he undertook representation, because he knew that “there was controversy brewing
in the medical field about shaken baby at that time.” A lawyer performing reasonably would
have presented information concerning that scientific dispute at the earliest possible opportunity.

        The dissent, on the other hand, posits that counsel was not ineffective because he
consulted with “two local experts . . . who both told him that they agreed with the prosecution’s
expert,” was “versed in the technical subject matter critical to the case,” and elicited testimony
from one of the prosecution’s witnesses, Dr. Beck, that “was helpful to his client’s case.”
Respectfully, I find no support for any of these propositions in the record.

       Defense counsel consulted with one potential expert witness other than his friend in
Kentucky: Dr. Simson. Counsel’s decision to consult with Dr. Simson was itself evidence of
counsel’s ineffectiveness, in my view. In his affidavit, counsel admitted that when he received
an invoice from Dr. Simson for expert fees, “Dr. Simson informed me . . . that he had previously
worked with the prosecution’s lead expert witness, Dr. Joyce DeJong, and thus was inclined to
agree with her. I realized at that point that Dr. Simson would not be useful as a defense witness
even if Mr. Brown could afford to pay his fee due to his personal connection to Dr. DeJong.
This knowledge came only three days before the trial was set to begin.”




                                                 -5-
        Counsel’s negligent delay in obtaining this information from Dr. Simson, coupled with
his lackadaisical approach to preparing for trial, exemplify ineffective practice. Had counsel
shared with Dr. Simson that Dr. DeJong had performed the autopsy and concluded that the
child’s death was due to abusive head trauma, he would have gleaned that any consultation with
Dr. Simson would be worthless. He also would have learned (as he revealed at the Ginther
hearing) that Dr. Simson “was the mentor of Dr. DeJong[.]” Counsel wasted his time and his
money. Nothing about this consultation with Dr. Simson supports that counsel performed
effectively by engaging in it.2

        The dissent’s claim that counsel was “versed” in the technical aspects of the case also
lacks support in the record. Counsel was able to read the words in the medical records, but his
knowledge beyond that is indiscernible. That harsh conclusion is not mine; it comes from
counsel himself, who stated in his affidavit, “I tried to do my own research on Shaken Baby
Syndrome, and use that to cross-examine the prosecution’s experts. However, as a non-scientist
and without an expert at my side, I was simply baffled by the medical testimony. I believe my
lack of understanding greatly hampered my cross-examinations.” Yet according to the dissent,
counsel managed to elicit “helpful” testimony from Dr. Beck. I read the cross-examination
differently.

       During the prosecutor’s direct examination, Dr. Beck solidified his position that this was
a case of abusive head trauma. After outlining the results of Dr. DeJong’s autopsy, the
prosecutor asked Dr. Beck if he was “comfortable” opining whether the child “was abused in
some form or fashion.” Dr. Beck responded in relevant part, “The pathological findings you
describe are consistent with my clinical exam and I would have documented this as abusive head
trauma or non-accidental trauma.” One transcript page later, the prosecutor asked essentially the
same question and got the same answer:

              Q.      Once again, is your opinion that this was some type of abusive
       trauma brain injury consistent with what you saw and what you know, Doctor?

               A.     It is.

The prosecutor then asked whether Brown’s version of his actions (that the child developed
problems breathing and choking when he “patted” the child’s back) could have caused the
injuries, and Dr. Beck answered succinctly, “No, they would not.”

       On cross-examination, defense counsel questioned Dr. Beck about the child’s pneumonia,
implying that it explained the child’s injuries. Dr. Beck made clear that the pneumonia was a
consequence, rather than a cause, of the brain injury. He summarized, “I can be firm in my


2
  Contrary to the dissent’s statement that the experts with whom counsel consulted “told him that
they agreed with the prosecution’s expert,” counsel testified regarding Dr. Simson: “But it turned
out Doctor Simson told me that he couldn’t testify against Dr. DeJong. Or wouldn’t want to or
feel comfortable about it. And supported her.” Given that Dr. Simson was Dr. DeJong’s
“mentor,” his support for her was a foregone conclusion.


                                               -6-
belief that the sequence of events, that cascade, was brain injury, pulmonary edema, secondary to
the brain injury, respiratory arrest, cardiac arrest, resuscitation.” Once again, Dr. Beck
vigorously rejected any suggestion that the child’s injuries had a cause other than head trauma.
Counsel made a limited attempt to question Dr. Beck about the controversy in the medical
community regarding abusive head trauma. Dr. Beck characterized the questions as “an
argument . . . put out” by a “community.” He did not bestow that “argument” with any credence.

        Perhaps the dissent can identify an isolated point or two scored by counsel during his
long cross-examination of Dr. Beck. I did not find any. Counsel asked a handful of good
questions, but he got no good answers. And as the jury was instructed at the end of the trial,
counsel’s questions were not evidence they could use in deciding the case. Cross-examination,
no matter how skilled or effective, is not a substitute for the testimony of an expert witness.
While counsel’s trip to the medical library was a good idea, “it is simply unrealistic to expect
that such concerted study will yield the experience necessary . . . to effectively cross-examine an
adversary expert witness steeped in years of medical training, knowledge, and experience. In re
Yarbrough Minors, 314 Mich App 111, 132; 885 NW2d 878 (2016).

        Counsel’s efforts to find and fund expert testimony were too little, and too late. Despite
realizing that cases involving abusive head trauma presented issues on the cutting-edge of
science and law, counsel failed to contact other lawyers who actually were “versed” in this
special area of defense. Counsel conducted a first-degree murder trial without the basic tools he
needed to perform adequately. I concur with the lead opinion’s conclusion that defense counsel
performed ineffectively, and that his ineffectiveness prejudiced Brown.




                                                            /s/ Elizabeth L. Gleicher




                                                -7-
