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
BIL _ guess I kinda knew that but would you tell the client what you knew (assuming you really knew somehow) and saying his best bet was to plead guilty? What if they actually told you “Yeah, I did it” – are you required to keep even that a secret?
It would appear that defense counsel has a website up indicating she is a private attorney.
frank,
You are still required to work zealously in his defense or quit. There are exceptions to this however, but it involves pending bad actions by the client. If you know the client is in the process of committing another crime and/or is an immanent threat to others, you have a duty to violate the confidence of the relationship and report the pending crime and or threat.
For example, California law provides the following language for exceptions to the Attorney-Client privilege:
California Legal Ethics
1.6 Rule 1.6 Confidentiality of Information
1.6:600 Exceptions to Attorney-Client Privilege
The California Evidence Code gives broad protection to the personal and social interests that support confidentiality in the lawyer-client relationship, but contains a number of sound exceptions for situations in which other interests outweigh those of the lawyer or client. See Evid. Code §§ 956-962 (containing these departures from confidentiality). The exceptions include (a) the crime-fraud exception Evid. Code § 956: no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud; (b) the death or bodily injury exception Evid. Code § 956.5: no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or bodily harm; (c) the deceased client exception Evid. Code § 957: no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; (d) exception when client breaches a duty to a lawyer Evid. Code § 958: no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship; and (e) the joint client exception Evid. Code § 962: Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of any of them, may claim a privilege).
I alwyas wondered about this. Suppose you are a lawyer (I know there are a couple here!) with a client you find out is guilty of the crime. WHat do you do, what should you do? Seriously. I assume you can’t go to the DA and say “my client did this hang him”. What are you required by law & by morality to do.
Any one of these actions by the defense lawyer seem innocuous in isolation, but yes, the set as a whole stinks.
After mounting a vigorous defense for a scumball, being relieved and happy that the scumball is going to jail would be a very human response. (Thus it is obviously very strange to most lawyers….) But for our system to work, every scumball needs that vigorous defense.
At some point, it seems that it would be the responsibility of the judge to stop the trial and quit wasting everyone’s time. When the defense is clearly failing to do its job the judge risks a serious failure of justice. The fact that it fell to a prosecutor to raise the issue is a serious problem.
(Has this defense attorney done this before? Was she surprised that a prosecutor expected that she do her job instead of giving them the easy win? How many other attorneys do this on a regular basis and are ignored by the judge and prosecutors?)
raff,
Absolutely…and the lone dissenting judge would have denied the appeal…The girl needs to go….bad…bad…bad…
Buddha,
The point is…if she gave one at all…but the Defense can wait without giving notice to the prosecutor of exactly the details of what they intend to prove…its a tactical decision…and my question is why would you want to put the defense on…when you can ask for a DV or Dismissal….period…
AY,
I understand your response on the per se issue, but when you take her entire “performance” into consideration, it would be malpractice in my opinion. I should know, I am undefeated in bench trials in my lifetime…..3-0! 🙂
AY,
Just because you can do something, doesn’t mean you should. The lack of opening statement might not be malpractice per se in and of itself, but the totality of her actions I think is most certainly malpractice. She torpedoed her client. That’s the number one no-no.
raff,
Yeah. Failing to give an opening statement is so egregious, I can hear most competent judges saying, “Are you sure, counselor?”, right now. That was bad enough. The insult to injury? Her clearly callous running off at the mouth to the prosecution. That makes me think she needs to be drug tested. You’d have to be reaaaaaaally high to think that wasn’t going to get you looked at sideways. Or really stupid. Not that the two are mutually exclusive. Even if her goal was mistrial, there are other ways to accomplish such a goal without throwing herself and her client under the bus. This gal shouldn’t be allowed to practice.
Actually before this train wreck get going to far….The Defense can waive opening statements in a Criminal Trial….it is the Burden of the prosecutor to prove each and every element…after the prosecutor closes its proofs…the Defense should ask for a Dismissal of All charges or a Directed Verdict..if not granted…then the Defense has a better ideal of the case and can proceed with what the Prosecutor has done….in a Jury Trial its bad form…in a Bench trial…hey…the Judges are usually tainted and jaded….so they know what to expect…so its not malpractice per se….
Buddha,
I would agree with you that the lack of an opening statement would be ma;practice. Especially in light of her other deficiencies. This attorney should be disbarred and the defendant should be suing her ass.
“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.”
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In and of themselves most of these decisions (except no opening statement which seems like malpractice per se) are not convincing proof of ineffective assistance but the attitude of the defense counsel certainly raises considerable suspicion. I would likely not question the youthful victim either given the natural sympathy that such a process would evoke with the jury. There are plenty of ways to undermine the testimony of juveniles without a direct confrontation with the accuser. That said, I still think a new trial is in order.
dumb-ass
— n
1. a stupid person
— adj
2. extremely stupid
http://dictionary.reference.com/browse/dumb-ass
Take your pick – either way, it works.
“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).”
Why would Pretice-Sao make such remarks to opposing counsel? If she was purposely holding back on defending her client, why would she then openly flaunt her behavior to the persecutor? Wouldn’t such overt behavior force opposing counsel into taking some sort of action? This is screwy.
The only dissent in this case came from Kirsten Frank Kelly…a GOP hack…. never met an execution she didn’t like…in my opinion she is a BITCH….and she was a family court judge in Wayne County…yeah…
Her Philosophy: In a referendum with the Eastside Republican Club for the November 7, 2006 General Election, Judge Kelly recognized her role as judge. Kelly articulated a philosophy of judicial restraint, saying, “We are bound by legislation and precedents the Supreme Court gives us.” She said the role of a Michigan judge is to apply the law without creating new law. Kelly said, “Policy decisions do not belong to the judicial branch…
Her concluding dissent says…As the trial court properly determined, defendant failed to demonstrate that counsel’s performance was deficient or that he suffered prejudice as a result of her alleged
errors. I would affirm.
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Ah lady have you ever had a one, two three..grab your legs you’re going to get it hard tonight….
Yes..the underlying offense is one that I would never have taken..but still…if the MI CofA reverses a case…it has to stink pretty damn bad….they usually are the rubber stamp of the trial court….I promise…I know…and IEC claim is a hard one to win…and when you have the Prosecutor…whom I know can also be a witch..standing up for the case and not just another notch in her belt says two things to be…1) she stands up for Justice regardless of the cost or 2) she felt bad that the defendant was hosed so badly by the Attorney and she is trying to get the Defense Attorney out of the courtroom and off of the list…..
The Judge was unfortunately bound by the sentencing guidelines…hard and set by the legislature….ah…comes back to the dissenting Judge…enforce the law… regardless of the consequences….Rommel would be happy….I am sure…
kay sieverding:
“There is no mention in the source article of whether or not the defense counsel was a public defender”
Guilty by paid counsel or paid for counsel is guilty.
How do those shoes taste, Susan Prentice-Sao? And that belt? Since you’ve managed to put both feet in your mouth up to your waist.
I hope you get disbarred.
There is no mention in the source article of whether or not the defense counsel was a public defender
“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).”
Not something you want your defense relishing in,especially if you hear them say that.