MSC 149479 PEOPLE OF MI V LEO DUWAYNE ACKLEY Opinion on Application - Other 06/29/2015

PEOPLE v ACKLEY
Docket No. 149479. Argued March 10, 2015. Decided June 29, 2015.
Leo D. Ackley was convicted by a jury in the Calhoun Circuit Court of first-degree
felony murder, MCL 750.316(1)(b), and first-degree child abuse, MCL 750.136(b)(2), after his
live-in girlfriend’s three-year-old daughter died while in his care. At trial, the prosecution called
five medical experts who testified that the child had died as the result of a head injury that was
caused intentionally, while defense counsel called no experts, despite having been provided court
funding for expert assistance and the name of a well-known forensic pathologist who could
support the defense theory that the injuries had resulted from an accidental fall. Defendant
appealed his convictions as of right, arguing that his lawyer’s failure to meaningfully challenge
the prosecution’s expert testimony violated his Sixth Amendment right to the effective assistance
of counsel. The Court of Appeals, BOONSTRA, P.J., and S AWYER and S HAPIRO, JJ., remanded the
matter for an evidentiary hearing under People v Ginther, 390 Mich 436 (1973), after which the
trial court, James C. Kingsley, J., granted defendant’s motion for a new trial. The prosecution
appealed. The Court of Appeals, O WENS , P.J., and M URRAY and R IORDAN , JJ., reversed in an
unpublished opinion per curiam issued April 22, 2014 (Docket No. 318303), holding that the
trial court had abused its discretion by granting a new trial because defense counsel’s decisions
regarding experts were trial strategy and no prejudice had resulted. Defendant appealed. The
Supreme Court ordered and heard oral argument on whether to grant the application for leave to
appeal or take other peremptory action, limited to the issue whether defendant was denied the
effective assistance of counsel based on trial counsel’s failure to adequately investigate the
possibility of obtaining expert testimony in support of the defense. 497 Mich 910 (2014).
In a unanimous opinion by Justice M C C ORMACK, the Supreme Court, in lieu of granting
leave to appeal, held:
Defendant was denied the effective assistance of counsel by his trial counsel’s failure to
investigate adequately and to attempt to secure suitable expert assistance in the preparation and
presentation of his defense. Expert testimony was critical in this case to explain whether the
cause of the child’s death was intentional or accidental. Defense counsel’s failure to attempt to
engage a single expert witness to rebut the prosecution’s expert testimony, or to attempt to
consult an expert with the scientific training to support the defense theory of the case, fell below
an objective standard of reasonableness, and there was a reasonable probability that this error
affected the outcome of the trial. Accordingly, defendant was entitled to a new trial.
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Robert P. Young, Jr.
Justices:
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Corbin R. Davis

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1. The Court of Appeals erred by concluding that defense counsel’s decision to consult
only Dr. Brian Hunter in preparation for trial was objectively reasonable. There was no
objectively reasonable explanation in the record for counsel’s decision to confine his pursuit of
expert assistance to Hunter, a self-proclaimed opponent of the very defense theory counsel was
to employ at trial, despite Hunter’s having referred counsel to at least one other expert who could
provide qualified and suitable assistance. Counsel’s failure to engage expert testimony rebutting
the state’s expert testimony and failure to become versed in the technical subject matter
constituted a constitutional flaw in the representation, not reasonable strategy. Given the
centrality of expert testimony to the prosecution’s proofs and the highly contested nature of the
underlying medical issue, counsel’s single error of failing to consult an expert who could
meaningfully assist him constituted ineffective assistance.
2. But for counsel’s deficient performance, there was a reasonable probability that the
outcome of defendant’s trial would have been different. Defendant’s conviction turned on the
jury’s assessment of the prosecution’s theory that the child’s fatal injuries were the result of
intentional abuse, which was advanced through the testimony of five experts. Because
defendant’s own testimony and that of his lay character witnesses were extremely unlikely to
counter this formidable expert testimony, expert assistance in defendant’s favor was critical to
provide the jury with another viable and impartial perspective on the facts of the case while
contradicting the prosecution’s theory of how the child died. The prosecution’s voluminous
expert testimony made the need for an effective response by defense counsel particularly
apparent and strong, and it rendered counsel’s failure to offer expert testimony particularly
glaring and harmful to the defendant. This consequence militated in favor of defendant’s claim
of relief. Further, the prosecution’s nonexpert evidence was highly circumstantial, heavily
contested, and far from dispositive of the issue of defendant’s guilt. While a battle of the experts
might not have ensured defendant’s acquittal, counsel’s failure to prepare or show up for the
battle sufficiently undermined confidence in the outcome of this case to entitle defendant to
relief.
Court of Appeals judgment reversed; conviction vacated; case remanded to the trial court
for further proceedings.
©2015 State of Michigan

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FILED June 29, 2015
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 149479
LEO DUWAYNE ACKLEY, a/k/a LEO
DUANE ACKLEY, JR., and LEO
DUWAYNE ACKLEY II,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
MC CORMACK, J.
The question before us is whether the defendant was denied the effective
assistance of counsel by his trial counsel’s failure to investigate adequately and to attempt
to secure suitable expert assistance in the preparation and presentation of his defense. In
this case involving the unexplained and unwitnessed death of a child, expert testimony
was critical to explain whether the cause of death was intentional or accidental. Contrary
to the determination of the Court of Appeals, we conclude that defense counsel’s failure
Michigan Supreme Court
Lansing, Michigan
OPINION Chief Justice:
Robert P. Young, Jr.
Justices:
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein

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to attempt to engage a single expert witness to rebut the prosecution’s expert testimony,
or to attempt to consult an expert with the scientific training to support the defendant’s
theory of the case, fell below an objective standard of reasonableness, and created a
reasonable probability that this error affected the outcome of the defendant’s trial. See
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Accordingly, we reverse the judgment of the Court of Appeals, vacate the defendant’s
convictions, and remand for proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The defendant was convicted by a jury of first-degree felony murder,
MCL 750.316(1)(b), and first-degree child abuse, MCL 750.136b(2), after his live-in
girlfriend’s three-year-old daughter died while in his care. According to the defendant,
the child had been napping alone in her room before he discovered her lying
unresponsive on the floor next to the bed. The prosecution alleged that the defendant
killed the child, either by blunt force trauma or shaking. The defendant denied hurting
the child, and said that she must have died as the result of an accidental fall.
Given the lack of eyewitness testimony and any other form of direct evidence,
expert testimony was the cornerstone of the prosecution’s case. The prosecution called
five medical experts to testify at trial about the cause of the child’s death: two general
pediatricians, a pediatric critical care doctor, a trauma surgeon, and a forensic
pathologist.1 Each testified that the child died as a result of abusive head injury caused
1 The prosecution also called an expert in emergency medicine, who testified regarding
the child’s initial triage and treatment in the Battle Creek Health Systems Emergency
Department.

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either by nonaccidental shaking, blunt force trauma, or a combination of both. The
defense, in contrast, called no expert in support of its theory that the child’s injuries
resulted from an accidental fall, although the court had provided funding for expert
assistance.
The defendant appealed his convictions as of right, arguing that he was entitled to
a new trial because his lawyer’s failure to meaningfully challenge the prosecution’s
expert testimony regarding the cause of the child’s death violated his Sixth Amendment
right to the effective assistance of counsel. The Court of Appeals remanded for an
evidentiary hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
People v Ackley, unpublished order of the Court of Appeals, entered May 24, 2013
(Docket No 310350).
At the Ginther hearing, the defendant’s trial counsel testified that he contacted
only one expert to prepare for trial: forensic pathologist Brian Hunter. Dr. Hunter
testified that, after reviewing some of the case materials, he advised counsel “right off the
bat” that he was “not the best person” for the defense. He also explained to counsel that
there was a marked difference of opinion within the medical community about
diagnosing injuries that result from falling short distances, on the one hand, and shaken
baby syndrome (SBS) or, as it is sometimes termed, abusive head trauma (AHT), on the
other hand. Hunter asserted that this divide is “like a religion” because each expert has
deeply held beliefs about when each diagnosis is supported, and the defendant should
have the benefit of an expert who, “[i]n his or her religion, believes this could be a short-
fall death.” Hunter emphasized to counsel that he was on the wrong side of this debate to
be able to assist the defendant.

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Hunter then referred counsel to at least one well-known forensic pathologist,2 Dr.
Mark Shuman, who had conducted substantial research on short falls. Hunter
characterized Dr. Shuman as the “best person” to assess the “complex” short-fall
mechanism involved in the defendant’s theory. Hunter could not promise that Dr.
Shuman would “buy into every story the defendant is selling,” but he informed counsel
that Dr. Shuman was a “man of science . . . he’s the guy that’s going to give you your
best shot.”
Counsel testified that he never contacted Shuman, or any other expert in short
falls. Nor did he read any medical treatises or other articles about the medical diagnoses
at issue. Though recognizing that expert testimony can carry great weight with a jury, he
nevertheless stated that while it may have been “prudent” for him to have consulted “the
over 400 treatises available” in preparing his cross-examinations of the prosecution’s
experts “that wasn’t the strategy.”3 Instead, he requested a second consultation with
Hunter, offering the simple (albeit inexplicable) justification that Dr. Shuman “was not
going to work out.” Hunter reiterated his concerns with defense counsel’s choice to use
him, unambiguously warning counsel again that “you don’t want me as your defense
expert.”
2 There was conflicting testimony between Hunter and defense counsel about Hunter’s
referral(s). According to counsel, Hunter referred him to two experts: Dr. Shuman and
Dr. Werner Spitz. According to Hunter, he referred counsel to Dr. Shuman only. In any
event, counsel admitted that he never contacted either expert.
3 Defense counsel explained that he preferred to attack the experts exclusively through
the “gray area” that Hunter supplied—namely, that there had been no studies as to the
actual force necessary to achieve fatal blunt-force head injuries in children.

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Counsel testified that he nevertheless continued to rely on only Hunter in his trial
preparation, consulting him at least two more times before trial. Specifically, counsel
provided Hunter with additional—but incomplete4—portions of the case materials so that
Hunter could give counsel advice on how to approach the prosecution’s experts. Counsel
admitted that Hunter’s advice was his only method of preparing to cross-examine the
prosecution’s experts on the viability of their SBS/AHT theory of the child’s cause of
death.5
Finally, the parties stipulated to the admission of an affidavit from Dr. Werner
Spitz, another well-known expert in forensic pathology. After reviewing the autopsy
report, postmortem photographs, and the trial transcripts, Dr. Spitz opined that the bruises
on the child’s body were consistent with the intubation and CPR she received on the day
of her death. He then averred that he would have testified that the child’s head injuries
could not be attributed to SBS/AHT but were caused by a likely accidental “mild
impact.”
Based on this evidence, the trial court granted the defendant a new trial. It found
that counsel’s original failure even to attempt to contact either Dr. Shuman or Dr. Spitz
4 Most notably, counsel failed to provide Hunter with certain critical case materials
regarding injuries the child had suffered not long before her death, including: (1) a
witness statement that the child had fallen off a trampoline, had struck her head, had
briefly gone unconscious, and had been complaining of headaches in the days leading up
to her death, and (2) the police report of the accident, which indicated that the child had
been lethargic, had been vomiting, and had lost control of her bowels the day before she
died.
5 Counsel explained at the Ginther hearing that he was not paid for pretrial preparation.

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was objectively unreasonable, and that there was a reasonable probability of a different
result at trial had counsel engaged his own medical expert.
The Court of Appeals reversed, concluding that while there was no clear error in
the trial court’s findings of fact, the trial court had abused its discretion in finding a
constitutional violation because counsel’s “decision not to consult a second expert
constituted trial strategy.” People v Ackley, unpublished opinion per curiam of the Court
of Appeals, issued April 22, 2014 (Docket No. 318303), p 4. The court also held that
even if counsel should have contacted an expert other than Hunter, no prejudice resulted
in light of all the evidence against the defendant.
The defendant sought leave to appeal in this Court. We heard oral argument on
the application, limited to the issue of “whether the defendant was denied the effective
assistance of counsel based on trial counsel’s failure to adequately investigate the
possibility of obtaining expert testimony in support of the defense.”6
II. STANDARD OF REVIEW
Whether the defendant received the effective assistance of counsel guaranteed him
under the United States and Michigan Constitutions is a mixed question of fact and law.
People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012), citing People v
Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). This Court reviews for clear
error the trial court’s findings of fact in this regard, and reviews de novo questions of
constitutional law. Trakhtenberg, 493 Mich at 47.
6 People v Ackley, 497 Mich 910 (2014).

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III. ANALYSIS
Both the Michigan and United States Constitutions require that a criminal
defendant be afforded the assistance of counsel in his or her defense. US Const, Am VI;
Const 1963, art 1, § 20. To be constitutionally effective, counsel’s performance must
meet an “objective standard of reasonableness.” Trakhtenberg, 493 Mich at 52. To show
that this standard has not been met, a defendant must “overcome the strong presumption
that counsel’s performance was born from a sound trial strategy.” Id., citing Strickland v
Washington, 466 US at 689. But “a court cannot insulate the review of counsel’s
performance by calling it trial strategy”; counsel’s strategy must be sound, and the
decisions as to it objectively reasonable. Trakhtenberg, 493 Mich at 52. Courts must
determine whether the “strategic choices [were] made after less than complete
investigation,” or if a “reasonable decision [made] particular investigations unnecessary.”
Strickland, 466 US at 690-691.
To obtain relief for the denial of the effective assistance of counsel, the defendant
must show that counsel’s performance fell short of this “objective standard of
reasonableness” and that, but for counsel’s deficient performance, “there is a reasonable
probability that the outcome of [the defendant’s trial] would have been different.”
Trakhtenberg, 493 Mich at 51. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 US at 694.
A. COUNSEL’S PERFORMANCE
Turning first to the performance prong of the Strickland analysis, we disagree with
the Court of Appeals that counsel’s decision to consult only Dr. Hunter in preparation for
trial was objectively reasonable. Rather, like the trial court, we conclude that counsel

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performed deficiently by failing to investigate and attempt to secure an expert witness
who could both testify in support of the defendant’s theory that the child’s injuries were
caused by an accidental fall and prepare counsel to counter the prosecution’s expert
medical testimony.
As defense counsel was well aware before trial, the prosecution’s theory of the
case was that the defendant intentionally caused the child’s unwitnessed injuries, a
premise that it intended to prove with expert testimony. This testimony would require a
response, and indeed, the court granted counsel funding to seek expert assistance of his
own. Yet counsel contacted only Hunter, who repeatedly made clear that he credited the
prosecution’s SBS/AHT theory and disagreed with the defense’s theory. While
conceding that the SBS/AHT diagnosis was not universally accepted within the medical
community, Hunter explained to counsel that he “really d[id]n’t think [he] could help”
the defendant because he was on the wrong side of this debate in his field.
As a solution, he advised counsel to consult Dr. Shuman, who not only was on the
defendant’s side of the SBS/AHT debate generally, but was significantly more likely to
agree with the defendant’s claim that the child’s death in this case must have been
accidental. Hunter even suggested that Dr. Shuman was more qualified because he had
studied short falls extensively. Whereas Hunter was part of the group of experts who
“don’t have a good model” to support the accidental fall theory, Dr. Shuman was
“someone who has dug into the physics” and the “proposed models” of a short-fall injury.
Hunter also characterized Dr. Shuman as a “man of science” and as “the best expert in
these types of situations.” Yet counsel ignored this advice. He did not contact Dr.

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Shuman or any other forensic pathologist with expertise in short falls, rendering Hunter
his expert by default.
Counsel did not have sufficient information to legitimate this “choice.” While an
attorney’s selection of an expert witness may be a “paradigmatic example” of trial
strategy, that is so only when it is made “after thorough investigation of [the] law and
facts” in a case. Hinton v Alabama, ___ US ___; 134 S Ct 1081, 1088; 188 L Ed 2d 1
(2014) (emphasis added). In this case, the record betrays no objectively reasonable
explanation for counsel’s decision to confine his pursuit of expert assistance to Hunter, a
self-proclaimed opponent of the very defense theory counsel was to employ at trial,
despite Hunter’s referral to at least one other expert who could provide qualified and
suitable assistance to the defendant. Nor is there any indication that counsel had the
requisite familiarity with SBS/AHT or short-fall death theories to justify his settling on
consulting only Hunter. To the contrary, counsel admittedly failed to consult any of the
readily available journal articles on SBS/AHT and short-fall deaths, and did not
otherwise educate himself or conduct any independent investigation of the medical issues
at the center of the case, beyond his limited consultations with Hunter. See
Trakhtenberg, 493 Mich at 54 n 9 (noting that “a defense attorney may be deemed
ineffective, in part, for failing to consult an expert when counsel had neither the
education nor the experience necessary to evaluate the evidence and make for himself a
reasonable, informed determination as to whether an expert should be consulted or called
to the stand . . . .”) (quotation marks and citation omitted); Lindstadt v Keane, 239 F3d
191, 202 (CA 2, 2001) (noting that counsel’s lack of familiarity with pertinent sexual
abuse studies and failure to conduct any relevant research “hamstrung” his effort to

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effectively cross-examine the prosecution’s expert witness); Holsomback v White, 133
F3d 1382, 1387-1389 (CA 11, 1998) (holding that counsel’s failure to conduct an
adequate investigation into medical evidence of sexual abuse was ineffective).
We fail to see how counsel’s sparse efforts satisfied his “duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary,” Hinton, 134 S Ct at 1088, quoting Strickland, 466 US at 690-691,
especially in light of the prominent controversy within the medical community regarding
the reliability of SBS/AHT diagnoses. See State v Edmunds, 308 Wis 2d 374, 391-392;
746 NW2d 590 (2008) (holding that the “significant dispute” and “shift in the
mainstream medical community” regarding SBS/AHT diagnoses since the defendant’s
trial established a reasonable probability that a different result would be reached in a new
trial, entitling the defendant to relief); Findley et al., Shaken Baby Syndrome, Abusive
Head Trauma, and Actual Innocence: Getting It Right, 12 Hous J Health L & Policy 209,
212 (2012) (explaining that, in SBS/AHT cases, “it is critical to assess the reliability of
the diagnoses under the standards of evidence-based medicine”). In this case involving
such “substantial contradiction in a given area of expertise,” counsel’s failure to engage
“expert testimony rebutting the state’s expert testimony” and to become “versed in [the]
technical subject matter” most critical to the case resulted in two things: a defense theory
without objective, expert testimonial support, and a defense counsel insufficiently
equipped to challenge the prosecution’s experts because he possessed only Dr. Hunter’s
reluctant and admittedly ill-suited input as his guide. Knott v Mabry, 671 F2d 1208,
1212-1213 (CA 8, 1982). This “constitute[d] a constitutional flaw in the representation”
of the defendant, not reasonable strategy. Id. at 1213.

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In concluding otherwise, the Court of Appeals stressed that counsel is not required
to shop for experts until finding one who will offer favorable testimony. We do not
dispute that general proposition, but we fail to see its relevance here. In this case,
counsel did no consultation at all beyond settling on the very first expert he encountered,
despite the importance of expert medical testimony in the case and despite that expert’s
specific recommendation to contact a different and more suitable expert.
Nor can we agree with the Court of Appeals that Dr. Hunter’s comments regarding
Dr. Shuman’s impartiality rendered it “reasonable for [counsel] to conclude that
consulting a second expert would not be useful.” Ackley, unpub op at 4. Hunter’s
warning that Dr. Shuman “would not buy into every story” or blindly accept the
defendant’s theory is consistent with scientific integrity, is desirable, and is, indeed,
advantageous in the context of expert testimony. But more importantly, Hunter’s core
message on this very point was that counsel should engage Dr. Shuman, a qualified
expert better suited to support the defendant’s theory. And without having done any
research on SBS/AHT or short-fall injuries, or having made any contact with Dr.
Shuman, counsel “ ‘was ill equipped to assess his credibility or persuasiveness as a
witness’, or to evaluate and weigh the risks of putting him on the stand.” Towns v Smith,
395 F3d 251, 260 (CA 6, 2005) (citation omitted). “To make a reasoned judgment about
whether evidence is worth presenting, one must know what it says.” Couch v Booker,
632 F3d 241, 246 (CA 6, 2011). Finally, as Dr. Spitz’s affidavit plainly demonstrates,
Dr. Hunter’s advice to consult another expert was well founded.
Accordingly, we conclude that counsel’s efforts to investigate and attempt to
secure suitable expert assistance in preparing and presenting defendant’s case fell below

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an objective standard of reasonableness. While the Court of Appeals may be correct that
counsel’s deficiencies in this regard did not infect all of his conduct throughout the trial,
see Ackley, unpub op at 6, the rest of his advocacy could not cure this crucial error. As
the Supreme Court has said, “a single, serious error may support a claim of ineffective
assistance of counsel.” Kimmelman v Morrison, 477 US 365, 383; 106 S Ct 2574; 91 L
Ed 2d 305 (1986). Given the centrality of expert testimony to the prosecution’s proofs
and the highly contested nature of the underlying medical issue, counsel committed
exactly that kind of error by failing to consult an expert who could meaningfully assist
him in advancing his theory of defense and in countering the prosecution’s theory of
guilt.
B. PREJUDICE
We further conclude that, but for counsel’s deficient performance, “there is a
reasonable probability that the outcome of [the defendant’s trial] would have been
different.” Trakhtenberg, 493 Mich at 51; Strickland, 466 US at 694. As set forth above,
the defendant’s conviction turned on the jury’s assessment of the prosecution’s cause-of-
death theory, which was advanced through the testimony of five experts, each of whom
concluded that the child’s injuries were the result of some form of intentional abuse. The
defendant’s own testimony and that of his lay character witnesses were extremely
unlikely to counter this formidable expert testimony. Therefore, the absence of expert
assistance in the defendant’s favor was critical. It prevented counsel from testing the
soundness of the prosecution’s experts’ conclusions with his own expert testimony and
with effective cross-examination. And again, as Dr. Spitz’s affidavit shows, such expert

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assistance was available and would have provided the jury with another viable and
impartial perspective on the facts of the case while contradicting the prosecution’s theory
of how the child died.
The Court of Appeals nonetheless found the prejudice from counsel’s deficient
performance insufficient to warrant relief, given both the strength of the other, nonexpert
evidence of the defendant’s guilt, and the sheer multitude of expert testimony the
prosecution had marshaled in support of its position. We disagree times two.
First, we fail to see particular strength in the prosecution’s nonexpert evidence,
which was highly circumstantial, heavily contested, and far from dispositive of the issue
of defendant’s guilt. There was no explanation for the child’s injuries beyond the
theories presented by the experts, and the prosecution produced no witnesses who
testified that the defendant was ever abusive. In fact, some testimony supported the
opposite conclusion; according to the child’s mother, the defendant’s disciplinary tactics
were no different from her own, there was no indication that either of her daughters
feared the defendant, there were alternative explanations for some of the child’s bruises
and physical symptoms,7 and the child willingly spent time with the defendant and called
him “daddy.”8 And while the prosecution claimed that the child began to exhibit health
7 The child’s mother attributed these bruises to the child’s diet and physical activity, and
the prosecution’s forensic pathologist stated that the child was mildly anemic and that her
bruising had no pattern indicating an object or a hand.
8 The Court of Appeals also cited the “peculiar” nature of the defendant’s actions on the
day of the incident as an indication of his guilt. Specifically, the panel found significant
the defendant’s failure to seek help from his neighbors after discovering the child on the
floor, his attempt to revive her by pouring cold water over her, his decision to retrieve the
family dog before fleeing the family’s home, and his decision to first go to his mother’s

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issues around the time that the defendant entered her life, there was witness testimony to
contradict this assertion, and the source and timing of these issues did not coincide with
the defendant’s move into the family’s home or with his assumption of childcare duties.9
In short, our review of this nonexpert evidence makes plain why the prosecution chose to
build its case primarily through the testimony of five experts, but it does little to weaken
our conclusion that defense counsel’s failure to meaningfully engage and respond to this
expert testimony created a reasonable probability of a different outcome at trial.
Nor do we agree with the Court of Appeals that the sheer volume of the
prosecution’s expert testimony rendered any such efforts by defense counsel futile. This
reasoning presumptively prioritizes quantity over quality, and takes no account of the
comparative persuasiveness of the “child abuse” and “accidental fall” theories at issue in
house rather than the hospital. We do not disagree that the defendant’s behavior was
relevant and, furthermore, that a jury might consider it evidence of guilt. The probability
that the jury would do so, however, might be said to make it even more critical that
counsel counter the expert-endorsed theory of his client’s guilt with an expert-endorsed
theory of his client’s innocence. Had counsel provided a different lens through which to
view his client’s behavior, those same “peculiar” actions by the defendant might have
instead been perceived as the missteps of a panicked, but nonetheless innocent, caretaker.
9 For example, the Court of Appeals cited the child’s hair loss as one physical
manifestation of abuse, but according to her mother, her hair began thinning before the
defendant moved in with the family. In any event, doctors diagnosed it as an infection,
not a stress-related issue. The child’s regression in toilet training was also emphasized as
evidence of abuse. Yet a report from the child’s pediatrician attributed her
developmental progress, including the fact that she had even begun her toilet training, to
the defendant’s care. Unfortunately, defense counsel never called the child’s pediatrician
to testify, though these facts could have refuted the prosecution’s allegations that the
defendant had been physically abusing the child over a sustained period. Counsel’s only
“explanation” for this omission was that this credible counter-evidence was not needed
because it did not fit in with his “trial strategy” of attributing the child’s blunt force
trauma to a fall from the bed.

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the case. It also places the defendant in a near-impossible position, whereby the
prejudice caused by his counsel’s error is effectively used to foreclose his claim of relief
based upon that very error. The prosecution’s voluminous expert testimony made the
need for an effective response by defense counsel particularly apparent and strong, and it
rendered counsel’s failure to offer expert testimony particularly glaring and harmful to
the defendant. Because of counsel’s omissions and the resulting absence of suitable
expert assistance, the prosecution’s expert testimony appeared uncontested and
overwhelming. Contrary to the Court of Appeals, we believe this consequence militates
in favor of, rather than against, the defendant’s claim of relief.
The Court of Appeals’ analysis thus vastly underestimated the value of expert
assistance to the defense and the impact of its absence, ignoring the fact that in a
SBS/AHT case such as this, where there is “no victim who can provide an account, no
eyewitness, no corroborative physical evidence and no apparent motive to kill,” the
expert “is the case . . . .” Tuerkheimer, The Next Innocence Project: Shaken Baby
Syndrome and the Criminal Courts, 87 Wash U L Rev 1, 27 (emphasis added). Here,
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. Had an impartial, scientifically trained expert corroborated
the defendant’s theory, the defendant’s account of the child’s death would not have
existed in a vacuum of his own self-interest. While we cannot say that a battle of the
experts would have ensured the defendant’s acquittal, counsel’s failure to prepare or
show up for the battle sufficiently “undermine[s our] confidence in the outcome” of this
case to entitle the defendant to relief. Strickland, 466 US at 694.

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IV. CONCLUSION
For the reasons set forth above, we conclude that the defendant is entitled to a new
trial because of his counsel’s constitutionally ineffective failure to investigate adequately
and to attempt to secure appropriate expert assistance in the preparation and presentation
of his defense. Accordingly, we reverse the judgment of the Court of Appeals, vacate the
defendant’s convictions, and remand to the Calhoun County Circuit Court for further
proceedings consistent with this opinion.
Bridget M. McCormack
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
David F. Viviano
Richard H. Bernstein

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