There is an extraordinary ruling in Michigan where the Michigan Court of Appeals has found the defense attorney Susan Prentice-Sao rendered ineffective counsel to Jeffrey Gioglio, who was convicted of second-degree criminal sexual conduct. To her credit, prosecutor Christine Bourgeois raised concerns over the case after Pretice-Sao allegedly told her that she considered Gioglio guilty, held back on her defense, and expressed happiness with the verdict (stating “He’s toast” to the prosecutor).
Gioglio was accused of sexual contact with a six-year-old relative. He received a sentence of up to 80 months.
Prentice-Sao did not deliver any opening statement and did not present a single piece of evidence. She also declined to cross examine the victim and did not object on hearsay when a gym teacher testified about out of court statements from students on the alleged victim’s claims of rape. She also did not ask about Gioglio’s mental limitations.
The Court noted:
In October 2009, Bourgeois wrote to the court administrator and expressed concerns about Prentice-Sao’s handling of defendant’s trial. She alleged that Prentice-Sao had confided in her that defendant had admitted guilt and wanted to testify. Bourgeois said that Prentice-Sao said she was going to call defendant to the stand and ask him whether he engaged in the conduct at issue, which she expected he would deny. Bourgeois stated that she told Prentice-Sao that she could not ask him that question under the rules of ethics. Prentice-Sao also told her that she could not bring herself to question a child sexual assault victim. Finally, Bourgeois stated that, after sentencing, Prentice-Sao “greeted me with a big smile, a thumb’s-up, and the statement ‘He’s toast!'”
Besides arguing that she had good reason for the various omissions identified by the court and added:
Prentice-Sao also did not deny that she smiled and gave Bourgeois a thumbs-up after defendant’s sentencing; rather, she admitted that this was “possible,” but that she “did not remember.” However, if she did that, she imagined [*19] that it was because she “was just happy that the case was over.” Likewise, if she said he was toast, which she did not remember, then she imagined that she said that because it was “Accurate” considering his sentence.
It is a credit to the prosecutor that her concern for due process overcame any desire to win at any cost.
The case is People of the State of Michigan v. Gioglio, 2011 Mich. App. LEXIS 610
Source: Chicago Tribune — first seen on ABA Journal
Jonathan Turley
Some people posting here should perhaps actually READ the opinions before immediately sounding off into the internet ether… We’re actually going to be discussing this case on Thursday in my Professional Responsibility class (Wayne Law – 2L here) – and my guess is that the Michigan Supreme Court will likely end up reversing and either: reinstate the trial court’s ruling applying the Strickland standard (finding it fails IAC requirements), or remand to the C.O.A. for Strickland analysis. Although this defense counsel was largely incompetent, I think the Cronic standard was not met here… I’m reminded of the majority opinion in the final iteration of Darden v. Wainwright – ‘Defendant was entitled to a fair trial, not a perfect one.’ When all is said and done, this conviction will be reinstated.
frank,
What AY said.
frank,
I answer this….You even have to take it to your grave….