Objectively Unreasonable Errors Do Not Equate to Ineffective Assistance of Counsel

On November 3, 2009, the Court of Appeals issued one of two published opinions in People v. Davenport, Docket No. 271366. Gary Davenport was convicted of six counts of 1st Degree Criminal Sexual Conduct following a bench trial. The primary issue on appeal pertained to his trial counsel’s failure to challenge the potential conflict of interest when his first attorney joined the Presque Isle County Prosecutor’s Office.

Before trial, but after the preliminary exam, the defendant’s attorney “switched sides” and went to work as one of two attorneys at the county prosecutor’s office (same office pursuing the CSC charges). The successor trial counsel did not raise the potential conflict issue, nor was it addressed by either the trial judge or the prosecutor. In the first appeal, People v. Davenport, 280 Mich App 464 (2008), the defendant made an ineffective assistance of counsel claim based, in part, on defendant’s trial counsel failure to move for disqualification of the prosecutor’s office or otherwise raise the potential conflict. In response, the Court of Appeals made numerous initial findings:

1) The trial lawyer’s failure to raise the possibility of conflict constituted “an objectively unreasonable error."
2) It was “plain error” for the trial court not to explore the issue and make findings on the appropriateness of the safeguards, if any, put in place by the prosecutor’s office to protect privileged matters on the defendant’s behalf.
3) If a defendant shows a member of the prosecutor’s office represented or counseled him in the same or a related matter, a rebuttable presumption is created that members of the prosecutor’s office conferred about the case.
4) The burden of overcoming the presumption requires the prosecution to prove that “effective screening procedures have been used to isolate the defendant’s former counsel from the prosecution of the substantially related criminal charges”
Since the record was insufficient on the issue, the Court of Appeals remanded the case in 2008 to the trial court for an evidentiary hearing. The focus of the hearing was to determine if the prosecutor’s office had created sufficient pre-trial safeguards to prevent the trial prosecutor from receiving any communications about the case from the defendant’s former attorney, now turned assistant prosecutor.

Following the lengthy post remand evidentiary hearing, the Court of Appeals found in this opinion that the prosecutor’s office had met the requisite burden by showing appropriate steps were both implemented and followed, thereby preventing improper communications or involvement by the defendant’s past counsel. As a result, the court found that the record failed to establish defendant was prejudiced by his previous lawyer’s move to the local prosecutor’s office prior to defendant’s trial. In short, even though his trial counsel committed an “objectively unreasonable error,” defendant was not entitled to relief for ineffective assistance of counsel because he was unable to establish prejudice, i.e., that the outcome would have been different had the defendant’s attorney moved to recuse the county prosecutor’s office.

J. Randall Secontine contributed to this post