Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 28, 2008 

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellant, 

v No. 132042 

KATHERINE SUE DENDEL, 

Defendant-Appellee. 

BEFORE THE ENTIRE BENCH 

CORRIGAN, J. 

Defendant, an insulin-dependent diabetic, was convicted of second-degree 

murder for injecting the victim, her live-in partner, with a lethal dose of insulin. 

The Court of Appeals reversed her conviction and remanded for a new trial after 

concluding that defense counsel was ineffective for failing to produce an expert to 

refute the testimony of the prosecution’s experts that the victim died from an 

insulin overdose. We reverse the judgment of the Court of Appeals and reinstate 

defendant’s conviction. Defense counsel was not ineffective under the test of 

Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), 

because defendant did not prove that she was prejudiced by her counsel’s failure 
to produce an expert witness. The Court of Appeals erred in holding that defense 

counsel could have presented an expert witness who would have refuted the 

testimony of the prosecution’s experts to the extent that defendant’s acquittal 

would have been reasonably probable. Further, the trial court correctly held that, 

in light of the strong circumstantial evidence of defendant’s guilt, it was not 

reasonably probable that the outcome would have been different had a defense 

expert testified. 

I. FACTUAL BACKGROUND 

Defendant and the victim, Paul Michael Burley, were in a long-term 

relationship and had lived together for years. Burley had been taking numerous 

medications for several serious illnesses, including an infection with human 

immunodeficiency virus (HIV), herpes, hepatitis B and C, epilepsy, ataxia, 

neuropathy, chronic obstructive pulmonary disease, severely impaired vision, 

dementia, lymphoma, and throat cancer. Burley was not, however, diabetic. By 

defendant’s own account, Burley was a difficult person to care for. Defendant 

was solely responsible for making sure that Burley took his medications and for 

tending to his everyday needs. 

Defendant’s relationship with Burley’s family was strained, partly by what 

she perceived as the family’s failure to help with Burley’s care. Before Burley’s 

death, defendant had told his sister that “if something happens to your brother, 

your family won’t know what hit you.” About one week before Burley’s death, 

defendant, frustrated with Burley’s demands, also told Burley’s sister, “I can’t 

2
 
 

take this” and “I feel like giving him a shot of insulin.” As an insulin-dependent 

diabetic, defendant had access to insulin and knew how to inject it. Defendant 

also knew how insulin metabolizes and that no trace of insulin would remain in 

Burley’s blood after an insulin injection. 

Defendant had expressed her frustration with caring for Burley to a Family 

Independence Agency (FIA) employee. Less than a week before Burley’s death, 

defendant e-mailed the FIA employee to seek help with caring for Burley. 

Defendant told the employee that she could not manage all of Burley’s demands 

on her own. During a subsequent telephone conversation, defendant again stated 

that she was frustrated and concerned that the situation was deteriorating and that 

she no longer knew how to manage Burley. The FIA employee suggested that 

defendant have Burley evaluated at a mental-health facility or have him placed in 

respite or hospice care.1

 The FIA employee testified that defendant had never 

before expressed any problems with caring for Burley. 

During the week leading up to Burley’s death, defendant sought help from 

the Department on Aging. The department representative told defendant that she 

did not qualify for help because both she and Burley were not 60 years old. The 

representative suggested that defendant instead contact hospice services. 

1

 The FIA employee testified that as long as Burley was competent, the FIA 

could not compel defendant to put Burley in a nursing home. 

3
 
Defendant replied that hospice services would not help because Burley was not 

yet near death. 

Defendant’s caregiving situation took another turn for the worse the day 

before he died. On March 14, 2002, a visiting nurse had been assigned to assist 

defendant and educate her in the proper methods of care. She visited five times, 

but, on the day before Burley’s death, the nurse terminated her services because 

Burley had been uncooperative. When the nurse told defendant that she was 

terminating her services, defendant became “quite tearful and upset.” Defendant 

told the nurse that she did not know how long she could continue caring for 

Burley. 

At 3:00 a.m. on the day of Burley’s death, defendant called 911, reporting 

that Burley had been hallucinating and running around with a butter knife. 

Defendant asked the police to come take Burley to a mental institution. When the 

police arrived, Burley was sitting calmly in a chair. He told the officers that he 

was fine and that there was no problem. The police decided to leave Burley at 

home because he was not a threat to himself or others. One officer testified that 

defendant was visibly upset with Burley and the police. Defendant also later 

admitted that she was frustrated with the officers’ decision and that she was 

hoping for relief because she was at her “wit’s end.” 

Defendant contended that later that day she discovered Burley slumped 

over on the couch and unresponsive. She testified that, because Burley was cold 

and covered with purple blotches, she thought he might be dead. Rather than 

4
 
calling 911, however, she instead called a friend, who arrived and contacted 911. 

While the police and emergency personnel were removing Burley’s body from 

the house, one of Burley’s sisters telephoned. Defendant answered the phone, but 

quickly ended the conversation without telling her that Burley had died. 

During the next several days, defendant spoke with several of Burley’s 

siblings. She never informed them of his death, but instead falsely told them that 

he had been hospitalized. One of the victim’s sisters described a 74-minute 

conversation with defendant two days after Burley’s death. She testified that 

defendant was “very upbeat” and “nonchalant” in her discussion of topics ranging 

from Burley’s health to antique jewelry. During this conversation, defendant 

laughed while describing an alleged incident when Burley had wandered away 

from the apartment complex and become lost. Yet defendant never mentioned 

Burley’s death. 

Defendant wanted Burley’s body cremated without an autopsy being 

performed. Although an autopsy was performed despite defendant’s wishes, 

defendant had Burley’s body cremated before his family learned about his death. 

When a police detective incorrectly told defendant that the medical examiner had 

detected insulin in Burley’s body, defendant called him a liar and explained that 

insulin could not be detected in the human body after death because it breaks 

down and depletes naturally. 

After defendant’s arrest, she told police detectives that Burley had injected 

himself with insulin. During a later interview with a police detective, defendant 

5
 
 

said, “That poor dear, he killed himself for me.” She told the detective that 

despite Burley’s severely impaired vision and problems with holding things, he 

could inject himself with insulin.2

 Defendant also told defense counsel that 

Burley had killed himself by an insulin injection and that she wanted him to 

pursue this theory of defense at trial. Defendant also testified that Burley had 

mental problems and that he had “talked suicide for 10, 15 years.” She had 

informed two of Burley’s doctors of his suicidal intentions. 

Defendant was charged with first-degree murder. The prosecution 

theorized at the bench trial that defendant injected the victim with a lethal dose of 

insulin on April 2, 2002. The prosecution presented two expert witnesses, Dr. 

Bernardino Pacris3

 and Dr. Michael Evans,4 who testified that the evidence 

supported the theory that Burley had died from an insulin injection rather than 

from natural causes or an overdose of one of his medications.5 Defense counsel 

Joseph Filip argued that Burley had died either by injecting himself with insulin 

2

 Defendant also suggested the unlikely scenario that if Burley had not 

injected the insulin himself, perhaps someone had broken into her apartment, 

found her insulin and syringe, and given Burley the shot. 

3

 Dr. Pacris is an Oakland County medical examiner and a former Jackson 

County forensic pathologist who has been qualified as an expert witness in more 

than 100 trials. 

4

 Dr. Evans is the president and chief executive officer of AIT Laboratories, 

the former state toxicologist for Indiana, and a professor of toxicology who has 

testified as an expert in 35 states. 

5

 We discuss Dr. Pacris’s and Dr. Evans’s trial testimony in detail in part 

III(A) of this opinion. 

6
 
 

or from the side effects of numerous medications prescribed for him. Defense 

counsel did not present any expert testimony to rebut the testimony of the 

prosecution’s experts. 

The trial court found defendant guilty of the lesser-included offense of 

second-degree murder. Defendant moved for a new trial, arguing that Filip had 

deprived her of a fair trial by failing to conduct a reasonable investigation into the 

cause of Burley’s death. The trial court denied the motion. The Court of Appeals 

remanded for a Ginther6

 hearing to determine whether Filip had provided 

ineffective assistance. 

At the Ginther hearing, appellate defense counsel called Dr. Laurence 

Simson,7

 who testified that the evidence did not support the view that defendant 

had died from an insulin overdose. Dr. Pacris defended his trial testimony that 

Burley had died of hypoglycemic shock caused by insulin.8 The trial court 

rejected defendant’s claim of ineffective assistance of counsel. Instead, it found 

that defense counsel’s performance had been objectively reasonable. The court 

concluded that defendant had not been prejudiced by Filip’s failure to call an 

expert forensic pathologist to rebut the opinions of the prosecution’s experts. The 

6 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 

7

 Dr. Simson is a forensic pathology consultant and a former professor of 

pathology, an Ingham County pathologist, and a national consultant in forensic 

pathology to the Surgeon General of the United States Air Force. 

8

 We discuss Dr. Simson’s and Dr. Pacris’s Ginther hearing testimony in 

detail in part III(A) of this opinion. 

7
 
court explained why the outcome of the trial would not have been different if the 

defense had offered Dr. Simson’s testimony: 

And if the case was just, . . . the police had a dead body and 

you have Dr. Pacris and Dr. Simson, that would be one thing. It 

wasn’t that. If there was a lot of other testimony, of statements and 

other witnesses and other things that pointed in that direction, it 

would have made the testimony of Dr. Evans and Dr. Pacris not as . . 

. clear. But I don’t know that I can say that there’s a reasonable 

probability that the outcome would have been different. There was 

still—there was other evidence, . . . admittedly all circumstantial, but 

there was a lot of other evidence. I am not convinced that that has 

been established, that it’s reasonably probable that the outcome 

would have been different . . . . 

A divided Court of Appeals reversed and remanded for a new trial. The 

majority summarized its holding as follows: 

Defense counsel’s failure to consult with and present the 

testimony of appropriate medical experts to address the central issue 

in this case, the cause of Burley’s death, was clearly deficient in 

light of prevailing professional norms and, but for that deficiency, 

there is a reasonable probability that the outcome of defendant’s trial 

would have been different. [People v Dendel, unpublished opinion 

per curiam, issued July 18, 2006 (Docket No. 247391), p 3.] 

The Court of Appeals majority explained that, despite Dr. Pacris’s testimony that 

Burley had died from insulin shock, Filip failed to consult a forensic pathologist 

or Burley’s doctors regarding the cause of Burley’s death. The majority held that 

Filip’s failure to consult an informed expert who could have refuted Dr. Pacris’s 

conclusions essentially amounted to a concession that Burley had died from 

insulin shock. Because it was unlikely that Burley administered the insulin 

himself, in light of his physical limitations, the trial court was left to conclude 

that defendant administered the insulin that caused Burley’s death. The majority 

8
 
noted that the Ginther hearing had demonstrated that a qualified pathologist (Dr. 

Simson) would have (1) refuted Dr. Pacris’s conclusion that Burley died from 

insulin shock and (2) provided an alternative, noncriminal explanation for 

Burley’s death. The majority concluded: “Trial counsel’s failure deprived 

defendant of a substantial defense, and there is a reasonable probability that this 

would have made a difference in the outcome of the trial.” Dendel, supra at 4. 

Judge Wilder dissented, rejecting the conclusion that defendant had been 

prejudiced by counsel’s performance. He relied on the trial court’s conclusion 

that even if Filip had introduced Dr. Simson’s testimony, the court would 

nonetheless have found defendant guilty in light of the weight of the evidence. 

This evidence supporting defendant’s guilt included the following: defendant had 

the opportunity to inject the insulin, defendant admitted being aware that no trace 

of insulin would be found in Burley’s blood after his death, defendant was under 

considerable stress in trying to care for Burley by herself, and defendant not only 

failed to inform Burley’s family of his death, but she apparently hid it from the 

family. Judge Wilder also noted that nothing established that Dr. Simson was 

more credible than Dr. Pacris. Moreover, Dr. Simson concededly could not rule 

out insulin shock as the cause of death. Judge Wilder stated that the effect of 

expert testimony depends on the fact-finder’s evaluation of credibility, and the 

fact-finder in this case had expressly determined that Dr. Simson’s testimony 

would not have changed the result of the trial. 

9
 
The prosecution appealed, arguing that the Court of Appeals had erred in 

holding that defendant was entitled to a new trial on the basis of ineffective 

assistance of counsel. This Court heard oral argument on whether to grant the 

application or take other peremptory action. 

II. STANDARD OF REVIEW 

“Whether a person has been denied effective assistance of counsel is a 

mixed question of fact and constitutional law. A judge first must find the facts, 

and then must decide whether those facts constitute a violation of the defendant’s 

constitutional right to effective assistance of counsel.” People v LeBlanc, 465 

Mich 575, 579; 640 NW2d 246 (2002). This Court reviews a trial court’s factual 

findings for clear error and reviews de novo questions of constitutional law. Id. 

III. ANALYSIS 

In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), this 

Court explained the test for determining whether a defendant has been denied the 

effective assistance of counsel: 

A defendant seeking a new trial on the ground that trial 

counsel was ineffective bears a heavy burden. To justify reversal 

under either the federal or state constitutions, a convicted defendant 

must satisfy the two-part test articulated by the United States 

Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 

2052; 80 L Ed 2d 674 (1984). See People v Pickens, 446 Mich 298, 

302-303; 521 NW2d 797 (1994). “First, the defendant must show 

that counsel’s performance was deficient. This requires showing 

that counsel made errors so serious that counsel was not performing 

as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland, 

supra at 687. In so doing, the defendant must overcome a strong 

presumption that counsel’s performance constituted sound trial 

10
 
 

strategy. Id. at 690. “Second, the defendant must show that the 

deficient performance prejudiced the defense.” Id. at 687. To 

demonstrate prejudice, the defendant must show the existence of a 

reasonable probability that, but for counsel’s error, the result of the 

proceeding would have been different. Id. at 694. “A reasonable 

probability is a probability sufficient to undermine confidence in the 

outcome.” Id. Because the defendant bears the burden of 

demonstrating both deficient performance and prejudice, the 

defendant necessarily bears the burden of establishing the factual 

predicate for his claim. See People v Hoag, 460 Mich 1, 6; 594 

NW2d 57 (1999).[9] 

We conclude that defendant has failed to demonstrate that she was prejudiced by 

Filip’s performance.10 

9

 The dissent accuses us of misunderstanding defendant’s burden under the 

prejudice prong of Strickland. Yet, ironically, it is the dissent, not us, that applies 

the wrong standard. The dissent states: “Because defendant has shown that her 

trial counsel’s performance deprived her of a substantial defense, she has met her 

burden of showing prejudice, unless other evidence rendered this defense 

unbelievable.” Post at 9. The dissent fails to recognize that to demonstrate 

prejudice, a defendant “must show the existence of a reasonable probability that, 

but for counsel’s error, the result of the proceeding would have been different.” 

Carbin, supra at 600. Instead, the dissent erroneously suggests that prejudice is 

presumed if defendant was deprived of one of several theories of defense. 

Contrary to the dissent’s assertion, that a defense attorney performed deficiently in 

presenting a viable defense does not automatically require the conclusion that 

there is a reasonable probability that the result of the proceeding would have been 

different absent counsel’s deficient performance. The dissent does not explain 

why there is a reasonable probability that she would have been acquitted had 

defense counsel presented expert testimony to support the theory that Burley died 

of a morphine or multiple-drug overdose. Justice Kelly also mentions repeatedly 

that she thinks that defendant might be innocent. But the guilt or innocence of the 

accused is a matter to be decided by the fact-finder, not the appellate courts. 

Defendant is not entitled to relief unless she satisfies Strickland’s test for 

prejudice. 

10 The dissent argues that Filip’s performance was deficient because he 

failed to present an expert to challenge the prosecution’s theory regarding the 

cause of death. The dissent’s argument is misplaced. The majority does not 

conclude that defendant failed to show that counsel’s performance was deficient. 

(continued...) 

11
 
 

A. THE EXPERT TESTIMONY 

Dr. Pacris testified at trial that he performed an autopsy on Burley on 

April 3, 2002. Dr. Pacris initially concluded that Burley had died from natural 

causes. But because a police officer told Dr. Pacris that he suspected that Burley 

might have been injected with insulin, which can be fatal to a nondiabetic, Dr. 

Pacris sent Burley’s fluids to AIT Laboratories to be tested for insulin, glucose, 

and C-peptide levels. The tests revealed that Burley’s glucose level was zero and 

that his insulin and C-peptide levels were normal. Dr. Pacris explained that, 

although the glucose levels in a person’s bodily fluids drop immediately after the 

person dies, the complete lack of glucose in Burley’s vitreous fluids was 

consistent with a finding that Burley had been injected with insulin.11 He found 

acute tubular necrosis in the kidneys and dead cells in the proximal tubules of the 

brain, which are usually seen in people who have suffered hypoglycemic shock. 

Dr. Pacris ultimately concluded that the cause of death was complications from 

(...continued) 

Rather, the majority concludes only that defendant was not denied the effective 

assistance of counsel, because she failed to show that she was prejudiced by 

counsel’s performance. This aspect of the dissent’s argument appears directed at 

the concurrence, not the majority opinion. 

11 An insulin injection causes a nondiabetic’s glucose level to drop to a 

dangerous level, depriving the brain of necessary glucose. The person’s brain will 

then shut down, and the person will become comatose. 

12
 
 

hypoglycemia, which can be caused by an insulin injection.12 In reaching this 

conclusion, he relied more on his anatomical findings and the circumstances 

surrounding the death rather than on the toxicological findings. Specifically, he 

relied on microscopic hypoxic13 changes in Burley’s brain in concluding that 

Burley must have been comatose for at least 12 hours before he died at 4:00 p.m. 

on April 2, 2002. He testified that hypoxic changes to the brain, including red 

neurons on the hippocampus, are only manifested if the person has been 

comatose for about 12 hours. Because this conclusion was inconsistent with 

defendant’s story that Burley had been alive and conscious at noon on that day, 

Dr. Pacris concluded that defendant’s story “doesn’t jive.” 

Dr. Evans also testified at trial for the prosecution. He testified that if 

glucose had been present in Burley’s system, it would have disproved death by 

insulin injection. The lack of any glucose in Burley’s vitreous fluids supported 

the theory that Burley had been injected with insulin. Further, although the level 

of morphine in Burley’s blood was very high, it might not be lethal to someone 

who had built up a tolerance for it. 

12 Although Dr. Pacris did not find a needle mark on Burley’s body, he 

explained that insulin is injected by means of a hypodermic needle, which 

normally does not leave a visible mark on the body. 

13 “Hypoxic” is defined as “[d]enoting or characterized by hypoxia.” 

Stedman’s Medical Dictionary (26th ed). “Hypoxia” refers to a “[d]ecrease below 

normal levels of oxygen in inspired gases, arterial blood, or tissue . . . .” Id. 

13
 
At the Ginther hearing, Dr. Simson disagreed with the conclusions of Dr. 

Pacris and Dr. Evans. He testified that Burley’s vitreous and blood glucose levels 

had been confused in the reports and in the testimony introduced at trial. Dr. 

Simson opined that the pathological and toxicological findings did not support 

the view that Burley had died of hypoglycemic shock caused by an insulin 

overdose. He opined that because a person’s vitreous glucose level can drop to 

zero after he dies, the lack of glucose in Burley’s vitreous fluids did not prove 

that he died of hypoglycemic shock. Dr. Simson further opined that the necrosis 

of the proximal tubules in Burley’s brain and the acute tubular necrosis in the 

kidneys could be attributed to postmortem changes rather than hypoglycemic 

shock. That is, Dr. Simson responded to Dr. Pacris by arguing that the 

anatomical changes observed in Burley’s body may have been attributable to 

decomposition, rather than an insulin overdose. Dr. Simson also testified that the 

normal reddish-brown color of the kidneys was inconsistent with kidneys that had 

undergone hypoglycemic shock. Dr. Simson opined that he would have 

concluded that Burley had died of a multiple-drug overdose, primarily caused by 

a high level of morphine. He explained that Burley’s morphine level at the 

autopsy was approximately three times the therapeutic limit, meaning that his 

morphine level would have been even higher if, as Dr. Pacris testified, Burley 

had been comatose for 12 hours before his death. Dr. Simson conceded, 

14
 
 

 

however, that he had seen cases of much higher levels of morphine in the blood.14 

Dr. Simson also acknowledged that the evidence was “not inconsistent with 

hypoglycemic shock” and that he could not rule out the possibility that insulin 

overdose was the cause of death. 

Dr. Pacris defended his trial testimony that Burley had died of 

hypoglycemic shock caused by insulin. In response to Dr. Simson’s Ginther 

hearing testimony, Dr. Pacris first testified that, in reaching the conclusion that 

Burley died from an insulin injection, he had principally relied on the changes 

observed in the brain and kidneys, rather than Burley’s low glucose level. Dr. 

Pacris then testified that the necrosis of the proximal tubules in Burley’s brain 

and the acute tubular necrosis in the kidneys could not be attributed to 

postmortem changes because there was no evidence that the body was 

decomposing.15 Dr. Pacris noted that the necrosis in Burley’s brain had occurred 

solely in the third and fourth layers of the cortex and that the remainder of the 

cortex had not yet decomposed. This difference indicated that the changes in the 

third and fourth layers of the cortex were not caused by general decomposition, 

14 The therapeutic level for morphine is 30 to 100 nanograms per milliliter 

of blood. The laboratory report stated that Burley had a morphine level of 328 

nanograms per milliliter. Dr. Simson testified that he had seen cases as high as 

800 to 900 nanograms of morphine per milliliter. The laboratory report listed the 

lethal level of morphine at 200 to 2,300 nanograms per milliliter, indicating that 

there have been cases of morphine levels up to 2,300 nanograms per milliliter. 

15 Dr. Pacris referred to the decomposition of the body tissues as 

“autolysis.” 

15
 
as suggested by Dr. Simson, because some necrosis would have been found in the 

remainder of the cortex if the changes observed were due to general 

decomposition. Moreover, Dr. Pacris noted that there are microscopic 

differences between cells that are simply decomposing and cells that have been 

altered before death by changes due to lack of glucose in the body. According to 

Dr. Pacris, the microscopic changes observed in Burley’s kidneys reflected a lack 

of glucose in the blood before death, rather than general decay after death. In 

short, Dr. Pacris responded to Dr. Simson by arguing that the specific changes 

observed in Burley’s body were incompatible with Dr. Simson’s theory that the 

changes were caused simply by decomposition. Moreover, Dr. Pacris explained 

that the normal reddish-brown color of the kidneys, which Dr. Simson had found 

important, was not inconsistent with Dr, Pacris’s microscopic finding that the 

kidneys had acute tubular necrosis caused by hypoglycemic shock. Furthermore, 

Dr. Pacris testified that although Burley had a high level of morphine in his 

system, he could not have died from a morphine overdose. He explained that 

death from a morphine overdose is instantaneous. The person does not initially 

become comatose. A morphine overdose was inconsistent with the hypoxic 

changes in Burley’s brain that indicated he had been comatose for 12 hours 

before death. Although Burley’s morphine level was three times the therapeutic 

limit, this amount of morphine might not be fatal to a person who had developed 

a tolerance to the drug, as Burley had. 

16
 
After hearing the testimony of Dr. Simson and Dr. Pacris, the trial court 

concluded that Dr. Simson’s testimony would not have changed the outcome of 

the trial. By declining to conclude that Dr. Simson’s testimony had effectively 

refuted the testimony of Dr. Pacris, the trial court implicitly held that Dr. Simson 

was not more credible than the prosecution’s experts. “[R]egard shall be given to 

the special opportunity of the trial court to judge the credibility of the witnesses 

who appeared before it.” MCR 2.613(C). We review a trial court’s 

determination of credibility for clear error. People v Knight, 473 Mich 324, 344; 

701 NW2d 715 (2005). “A finding is clearly erroneous when, although there is 

evidence to support it, the reviewing court, on the whole record, is left with the 

definite and firm conviction that a mistake has been made.” Bynum v EASB 

Group, Inc, 467 Mich 280, 285; 651 NW2d 383 (2002). 

The Court of Appeals stated that Dr. Simson’s testimony would have 

“refuted [Dr. Pacris’s] conclusions that Burley died as a result of an insulin 

overdose . . . .” Dendel, supra at 4. Hence, the Court of Appeals implicitly 

concluded that the trial court had committed clear error by failing to find Dr. 

Simson more credible than Dr. Pacris and Dr. Evans. However, unlike the Court 

of Appeals panel, we see no reason to disturb the trial court’s implicit finding on 

the credibility of the expert witnesses; the testimony does not clearly demonstrate 

that one expert witness was more credible than another. Although Dr. Simson 

opined that the pathological and toxicological findings did not support the view 

that Burley had died of hypoglycemic shock, Dr. Pacris defended his position at 

17
 
 

the Ginther hearing by offering legitimate reasons for his findings and for 

discounting Dr. Simson’s theory that the relevant changes in Burley’s body were 

due simply to general decomposition. Dr. Simson did not respond to Dr. Pacris’s 

rebuttal of his testimony. It is also significant that Dr. Simson conceded the 

possibility that Burley had died from insulin overdose. Thus, Dr. Simson did not 

conclusively refute Dr. Pacris’s testimony that Burley had died of an insulin 

overdose. We are not “left with the definite and firm conviction” that the trial 

court erred in finding that Dr. Simson was not more credible than Dr. Pacris and 

Dr. Evans. 

Further, defendant’s own statements supported the theory of the 

prosecution’s experts regarding the cause of Burley’s death. After defendant’s 

arrest, she told both police detectives and defense counsel that Burley had 

injected himself with insulin. These statements were inconsistent with Dr. 

Simson’s theory of death, but were consistent with the testimony of the 

prosecution’s experts that Burley had died of an insulin overdose.16 

For all these reasons, we have no cause to believe that if Dr. Simson had 

testified at trial, the trial court would have given more weight to his testimony 

16 The dissent argues that the defense theory that Burley killed himself by 

an insulin injection is “a highly unlikely occurrence given his debilitated physical 

condition . . . .” Post at 7. Although this may or may not be true, defendant 

herself, who presumably knew Burley’s physical capabilities better than anyone 

else, told the police detectives that Burley was physically able to inject himself 

with insulin and had in her opinion done so. Thus, it was reasonable for defense 

counsel to argue that Burley had injected himself with insulin. 

18
 
 

than that of the prosecution’s experts. We conclude that defendant did not 

establish a “reasonable probability” that the outcome of the trial would have been 

different had Dr. Simson testified. Strickland, supra at 694 (emphasis added).17 

B. OTHER CIRCUMSTANTIAL EVIDENCE 

We also conclude that the trial court did not err when it held at the Ginther 

hearing that, even if Filip had called an expert to rebut the testimony of Dr. Pacris 

and Dr. Evans, “there was a lot of other evidence” supporting defendant’s 

conviction and that the outcome of the trial would have been the same. Even if 

Dr. Simson had testified, the strong circumstantial evidence supported the theory 

that defendant had given Burley an insulin injection. 

Burley was difficult to care for because of his multiple health problems, 

which included dementia. Defendant was under a great deal of stress as Burley’s 

sole caregiver.18 Frustrated by Burley’s demands, defendant had considered 

17 As discussed, the trial court, which was the finder of fact at the bench 

trial, stated at the Ginther hearing that the outcome of the trial would not have 

changed if Dr. Simson had testified. Because we review de novo the trial court’s 

determination of prejudice, however, the fact-finder’s determination on that issue 

at the Ginther hearing is not binding on the appellate courts. We underscore that 

the test for prejudice is an objective test and that appellate courts should not 

simply defer to the trial court’s judgment regarding prejudice, even if the trial 

court was the fact-finder at the original trial, as in this case. 

18 The dissent supports its assertion that defendant does not have “the 

behavioral profile of a cold-blooded killer,” post at 10, by stating that defendant 

financially supported Burley while he was ill. The dissent mischaracterizes the 

couple’s financial situation. In fact, defendant received $730 monthly from the 

FIA to care for Burley and Burley’s social security disability benefits of $530 

monthly. As Burley’s caregiver, she was entitled to live in government-subsidized 

(continued...) 

19
 
 

giving him a shot of insulin, which she knew could be lethal and would be 

difficult to detect in a deceased person. When her caregiving situation became 

worse, defendant unsuccessfully attempted to obtain assistance in caring for 

Burley from several sources. Less than 24 hours before Burley’s death, 

defendant became “quite tearful and upset” when the nurse assisting defendant 

terminated her services because Burley had been uncooperative. Defendant 

admitted that she was at her “wit’s end” in the middle of that night when the 

police declined to take Burley away after he caused a disturbance. In light of the 

facts leading up to Burley’s death, the trier of fact could reasonably conclude that 

this nighttime incident caused defendant to finally snap and follow through with 

her idea to inject Burley with insulin. This finding would be consistent with Dr. 

Pacris’s testimony that hypoxic changes in Burley’s brain indicated that he had 

fallen into a coma from insulin-induced hypoglycemic shock at about 4:00 a.m., 

shortly after the police left. 

(...continued) 

housing. Although Burley’s family and the FIA urged defendant to place Burley 

into a nursing home, hospice care, or some other program that would furnish 

Burley with better medical care, defendant declined to do so, explaining to 

Burley’s sister that if she were to put Burley into a nursing home, she would lose 

her housing, the FIA benefits, and Burley’s income. On the other hand, if Burley 

were to die, defendant would gain some financial security: defendant was the sole 

beneficiary of six life insurance policies that she had taken out on Burley, worth 

approximately $25,000 at the time of Burley’s death. Thus, the evidence suggests 

that defendant may have had financial motivations for rendering care to Burley. 

20
 
 

The trier of fact could also infer that defendant’s actions after Burley’s 

death demonstrated her guilty state of mind and her attempt to cover up the 

crime. Defendant testified that when she suspected that Burley might be dead, 

she did not contact 911, but instead called a friend to come over. Defendant lied 

to Burley’s family about his condition and hid his death from the only persons 

who might have questioned the cause of death and recalled her threat to inject 

him with insulin.19 Moreover, defendant managed to have Burley’s body 

cremated before Burley’s family could question the cause of death. She had also 

wanted Burley’s body cremated without an autopsy being performed,20 but was 

unable to prevent the autopsy. This circumstantial evidence regarding 

defendant’s state of mind further supports the prosecution’s theory that defendant 

murdered Burley. 

Considering all this strong circumstantial evidence of defendant’s guilt, 

we hold that the trial court did not err in concluding that defendant would have 

19 The dissent suggests that defendant did not tell Burley’s family about his 

death because she, not Burley’s family members, had cared for Burley toward the 

end of his life. Although we cannot know with certainty defendant’s motives, 

defendant’s failure to inform Burley’s family of his death was sufficiently unusual 

to support an inference that defendant acted with a guilty state of mind. 

20 We do not disagree with the dissent’s assertion that a decision to cremate 

a loved one, by itself, is not unusual. But the decision to have a loved one 

cremated before the victim’s family knows about the death and before an autopsy 

can be performed supports an inference of a guilty state of mind. 

21
 
 

been convicted of second-degree murder even if Dr. Simson had challenged the 

conclusions of the expert witnesses for the prosecution.21 

IV. CONCLUSION 

Defense counsel was not ineffective for failing to produce an expert at trial 

who would rebut the testimony of the prosecution’s experts that Burley died from 

an insulin overdose. Defendant was not prejudiced by Filip’s failure to produce 

an expert witness because there is no indication that the trial court would have 

accepted the testimony of defendant’s expert over that of the prosecution’s 

experts and there was other strong circumstantial evidence to support defendant’s 

guilt. Therefore, we reverse the judgment of the Court of Appeals and reinstate 

the trial court’s verdict. 

 Maura D. Corrigan 

Clifford W. Taylor 

 Elizabeth A. Weaver 

Robert P. Young, Jr. 

Stephen J. Markman 

21 The dissent states: 

[H]ad defense counsel challenged the cause of death, the 

finder of fact would have been left with two reasonable alternatives: 

(1) to decide that the evidence showed that defendant killed Burley 

or (2) to conclude that Burley killed himself, intentionally or 

accidentally, possibly to spare his loving companion of nearly 30 

years the burden of his continuing care. [Post at 11.] 

Yet Filip’s decision not to present an expert witness challenging the conclusions of 

the prosecution’s expert witnesses regarding the cause of death left the fact-finder 

with the same reasonable alternatives. The only difference is that Filip chose to 

argue that Burley killed himself with insulin, not morphine or some other drug. 

This was a viable defense that Filip energetically pursued. 

22
 
v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellant, 

No. 132042 

KATHERINE SUE DENDEL, 

Defendant-Appellee. 

BEFORE THE ENTIRE BENCH 

CORRIGAN, J. (concurring). 

I concur with the majority’s conclusion that defendant was not denied the 

effective assistance of counsel because she failed to show that she was prejudiced 

by counsel’s performance. I write separately because, in my opinion, defendant 

also failed to satisfy the other requirement of an ineffective-assistance claim: to 

show that counsel’s performance was constitutionally deficient. Strickland v 

Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Defense 

counsel Joseph Filip reasonably decided to advance the theory that the victim, 

Paul Michael Burley, died from injecting himself with insulin. Filip’s decision to 

pursue a suicide defense was not deficient because it logically flowed from 

defendant’s statements to the detectives and to counsel. In light of this defense, 

defense counsel did not need to challenge the testimony of the prosecution’s 

experts that Burley died of hypoglycemic shock caused by insulin. 
“‘[T]he reasonableness of counsel’s actions may be determined or 

substantially influenced by the defendant’s own statements or actions.’” 

Johnston v Singletary, 162 F3d 630, 642 (CA 11, 1998) (citation omitted). A 

defense counsel’s decision regarding trial strategy is not demonstrably deficient if 

the defendant directed that strategy. Keith v Mitchell, 455 F3d 662, 672 (CA 6, 

2006). “[The Sixth Amendment] speaks of the ‘assistance’ of counsel, and an 

assistant, however expert, is still an assistant.” Faretta v California, 422 US 806, 

820; 95 S Ct 2525; 45 L Ed 2d 562 (1975). In United States v Wellington, 417 

F3d 284, 289 (CA 2, 2005), the Court of Appeals for the Second Circuit 

explained that the lawyer’s role is to advocate for his client and follow his 

client’s wishes if possible: 

It is the “role of the lawyer [to be] a professional advisor and 

advocate,” Lefcourt v. United States, 125 F.3d 79, 86 (2d Cir.1997) 

(quoting In re Shargel, 742 F.2d 61, 62-63 (2d Cir.1984)), not to 

usurp his “‘client’s decisions concerning the objectives of 

representation,’” see Jones v. Barnes, 463 U.S. 745, 753 n. 6, 103 

S.Ct. 3308, 77 L Ed.2d 987 (1983) (recognizing that, where ethically 

and legally possible, “‘[a] lawyer shall abide by a client’s decisions 

concerning the objectives of representation’”) (quoting ABA Model 

Rules of Prof’l Conduct R. 1.2(a)); Wallace [v Davis, 362 F3d 914, 

920 (CA 7, 2004)] (“By respecting [his client’s] wishes, counsel not 

only abided by ethical requirements (lawyers are agents, after all) 

but also furnished the quality of assistance that the Constitution 

demands.”) (emphasis in original); cf. Faretta v. California, 422 

U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“The language 

and spirit of the Sixth Amendment contemplate that counsel, like the 

other defense tools guaranteed by the Amendment, shall be an aid to 

a willing defendant—not an organ of the State interposed between 

an unwilling defendant and his right to defend himself personally.”). 

2
 
 

In Wellington, the Second Circuit rejected the defendant’s argument that his trial 

counsel was ineffective because, as a result of counsel’s following the 

defendant’s instructions, counsel pursued a strategy that, in the absence of the 

defendant’s instructions, might have constituted professional error. The Court 

explained: 

[T]o the extent that defendant instructed his counsel to pursue 

a course of action that defendant now complains of, there was no 

abridgement—constructive or otherwise—of defendant’s Sixth 

Amendment right to effective assistance of counsel. See Roe v. 

Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 

(2000) (“[A] defendant who explicitly tells his attorney not to file an 

appeal plainly cannot later complain that, by following his 

instructions, his counsel performed deficiently.”) (citations omitted) 

(emphasis in the original); see also Coleman v. Mitchell, 268 F.3d 

417, 448 n. 16 (6th Cir.2001) (“[C]ounsel was not ineffective for 

following the defendant’s clear and informed instruction.”)[1]

; Frye 

v. Lee, 235 F.3d 897, 906-07 (4th Cir. 2000) (observing that if the 

Court were to hold that defense counsel “rendered ineffective 

assistance [by acceding to the defendant’s instructions not to 

present] . . . mitigation evidence, [the Court] would be forcing 

defense lawyers in future cases to choose between Scylla and 

Charybdis”); Autry v. McKaskle, 727 F.2d 358, 360-61 (5th Cir. 

1984) (rejecting claim of ineffective assistance of counsel for failure 

to investigate and present evidence at sentencing phase where 

1 In Coleman v Mitchell, 268 F3d 417, 448 (CA 6, 2001), the Court of 

Appeals for the Sixth Circuit held: 

If the record indicated a clear, informed assertion by 

Petitioner that he did not wish his counsel to present any mitigation 

evidence in Petitioner’s behalf, case law may have supported the 

district court’s conclusion that counsel, merely respecting the 

informed wishes of a client, need not have investigated or presented 

any evidence in connection with Petitioner’s background at the 

penalty phase of the trial. [Emphasis added.] 

3
 
 

defendant had instructed his attorney not to fight the death penalty) . 

. . . [Wellington, supra at 289.] 

By arguing that Burley had injected himself with insulin, Filip reasonably 

pursued a theory of defense that was consistent with defendant’s wishes and her 

previous statements to the police regarding Burley’s death. Specifically, 

defendant told the police detectives that Burley had injected himself with insulin. 

She also stated at a later interview: “That poor dear, he killed himself for me.” 

Defendant, the person who knew Burley’s physical capabilities the best, told a 

detective that despite Burley’s severely impaired vision and problems with 

holding things, he could inject himself with insulin. Before trial, defendant told 

Filip that Burley had killed himself by an insulin injection and that she wanted 

him to pursue this defense theory at trial. Defendant also testified that Burley had 

mental problems and that he had “talked suicide for 10, 15 years.” She testified 

that she had informed two of Burley’s doctors of his suicidal intentions. In light 

of defendant’s statements and wishes, it was reasonable for Filip to argue at trial 

that Burley had died by a self-administered insulin injection, rather than by a 

morphine overdose. This is especially so when Filip knew that the prosecution 

had two well-qualified expert witnesses, Dr. Bernardino Pacris and Dr. Michael 

Evans, whose anticipated testimony supported the theory that Burley died from 

an insulin overdose. As Filip testified at the Ginther2

 hearing, his primary theory 

2 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 

4
 
 

of defense, that Burley took his own life by taking insulin, did not require him to 

dispute the opinions of the prosecution’s experts. Thus, Filip’s decision not to 

present an expert was reasonable in light of his theory of defense. 

Second, even though defendant wanted Filip to pursue a defense theory 

that avoided challenging the conclusions of the prosecution’s experts, Filip 

nonetheless had consulted two doctors regarding the cause of Burley’s death. He 

first talked to a local general practitioner, who referred him to an 

endocrinologist,3

 Dr. Halsey.4 Dr. Halsey’s views did not refute Dr. Pacris’s 

opinion that Burley died from an insulin overdose. Because consultation with 

two doctors revealed nothing that would cause Filip to question the conclusions 

of the prosecution’s experts, he reasonably ended the investigation at that point. 

He had no reason to believe that further investigation would lead to the discovery 

of an expert who might question Burley’s cause of death. 

[S]trategic choices made after less than complete 

investigation are reasonable precisely to the extent that reasonable 

professional judgments support the limitations on investigation. . . . 

In any ineffectiveness case, a particular decision not to investigate 

must be directly assessed for reasonableness in all the circumstances, 

applying a heavy measure of deference to counsel’s judgments. 

[Strickland, supra at 690-691.] 

3

 Endocrinology is the study of the glands and hormones of the body and 

their related disorders. Thus, an endocrinologist would be familiar with insulin 

shock as a cause of death. 

4

 Dr. Halsey’s first name is not mentioned in the transcript of the Ginther 

hearing. 

5
 
 

Defendant, in appellate hindsight, essentially faults Filip for failing to find the 

“right” expert. A defense attorney is not required to repeatedly consult experts 

until he finds one who will support a certain theory. “Although attorneys can 

always do more in preparation for a trial,” the failure to do so does not mean that 

they are ineffective. Mason v Mitchell, 320 F3d 604, 618 (CA 6, 2003). 

“Judicial scrutiny of counsel’s performance must be highly deferential” 

and should refrain from second-guessing counsel’s chosen trial strategy. 

Strickland, supra at 689 (emphasis added). “[A] court deciding an actual 

ineffectiveness claim must judge the reasonableness of counsel’s challenged 

conduct on the facts of the particular case, viewed as of the time of counsel’s 

conduct.” Id. at 690 (emphasis added). “A reviewing court must not evaluate 

counsel’s decisions with the benefit of hindsight.” People v Grant, 470 Mich 

477, 485; 684 NW2d 686 (2004), citing Strickland, supra at 689. Defense 

counsel’s strategic choices were constrained by defendant’s actions. Defendant 

has failed to show that, given what Filip knew at the time, Filip’s decision not to 

challenge the testimony of the prosecution’s experts that Burley had died from an 

insulin overdose was not a matter of sound trial strategy. See People v Mitchell, 

454 Mich 145, 156; 560 NW2d 600 (1997), quoting Strickland, supra at 689 

(stating that a defendant must “‘overcome the presumption that, under the 

circumstances, the challenged action “might be considered sound trial 

strategy”’”). Because Filip’s representation was adequate at the time and under 

the circumstances known to him, it was sufficient to pass constitutional muster. 

6
 
In sum, I conclude in the majority opinion that defense counsel was not 

ineffective because his performance did not prejudice defendant, and four other 

justices support that conclusion. I separately conclude that counsel was not 

ineffective because his performance was not constitutionally deficient for failing 

to produce an expert to refute the prosecution’s experts. Filip had no reason to 

challenge the testimony of the prosecution’s experts, given defendant’s theory of 

defense and her own prior statements to the police regarding the cause of death. 

Moreover, Filip sufficiently investigated other theories. 

Accordingly, I conclude that defendant has not established a Sixth 

Amendment ineffective-assistance claim. 

 Maura D. Corrigan 

7
 
v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellant, 

No. 132042 

KATHERINE SUE DENDEL, 

Defendant-Appellee. 

KELLY, J. (dissenting). 

The majority reverses the Court of Appeals decision and reinstates 

defendant’s conviction after concluding that defendant failed to demonstrate that 

her trial counsel’s performance prejudiced her. Because there is a reasonable 

possibility that defendant is innocent and her counsel’s performance deprived her 

of her only viable defense, I believe she is entitled to a new trial. Accordingly, I 

dissent from the majority’s reinstatement of the guilty verdict. 

THE FACTS 

This case involves the death of a gravely ill man. At the time of his death, 

Paul Burley had been involved in a relationship with defendant, Katherine Dendel, 

since 1975. Burley had suffered from many illnesses including hepatitis B, 

hepatitis C, herpes, chronic obstructive pulmonary disease, throat cancer, an 

infection with human immunodeficiency virus (HIV), neuropathy, and epilepsy. 
Due to his poor health, Burley was frequently hospitalized and required constant 

care while at home, care that defendant provided. 

The day of Burley’s death began with a phone call to the police. At 

approximately 3:00 a.m., defendant called to report that Burley was running back 

and forth in the house with a knife. But by the time the police arrived, all was 

calm. Defendant told the police that she was not concerned that Burley would 

injure her, but was concerned that, given his impaired mental state, he might injure 

himself. Concluding that Burley was not a threat to himself or to anyone else at 

that time, the police took no action. 

Later in the morning, defendant left the house to perform errands. She also 

made inquiries about placing Burley in a nursing home. She had made numerous 

similar inquiries before. Defendant returned home, fed Burley his lunch, and 

performed other errands, including inquiring further about placing Burley in a 

nursing home. At approximately 5:00 p.m., she checked on Burley and found him 

in a comatose state. She telephoned Aida Winters, her friend, for assistance and 

moments later, having ascertained that Burley was dead, summoned the police. 

Defendant was hysterical and continued in that state while the police and 

ambulance workers took away Burley’s body. 

Initially, the Oakland County medical examiner, Dr. Bernardino Pacris, 

concluded that Burley died of natural causes. However, after he spoke with the 

police officers who were investigating the death, Dr. Pacris revisited his findings. 

He then concluded that the cause of death was an insulin injection, although he 

2
 
 

found no needle mark. Burley did not have a prescription for insulin. It should be 

noted, however, that defendant was a diabetic. The process by which Dr. Pacris 

determined the cause of death was founded on an anatomical basis and the 

circumstances surrounding the death rather than on toxicological findings. 

Defendant was charged with first-degree murder. At trial, Dr. Pacris and 

Dr. Michael Evans1

 testified for the prosecution. Both Drs. Pacris and Evans 

concluded that the evidence supported a theory that Burley died of an insulin 

overdose. In closing argument, the prosecutor argued that, given Burley’s 

numerous physical ailments, he was unable to prepare insulin for administration 

and inject himself with it. The prosecution also attempted to show that the 

circumstances surrounding the death gave rise to a suspicion of murder. 

Defense counsel argued, on the other hand, that Burley either took his own 

life or died from natural causes. However, counsel did not present evidence to 

counter the prosecution’s medical experts, who concluded that Burley died of an 

insulin overdose. This was despite the fact that counsel had successfully 

petitioned for the appointment of an expert for the defense. 

Ultimately, the court convicted defendant of second-degree murder. 

Relying on the prosecution’s medical testimony, the court found that Burley died 

of an insulin overdose. The court credited the prosecution’s argument and found it 

1

 Dr. Evans was a professor of toxicology and is the president and chief 

executive officer of AIT Laboratories. 

3
 
 

not believable that the gravely ill Burley was physically capable of injecting 

himself with a lethal dose of insulin. 

Defendant appealed her conviction in the Court of Appeals. On its own 

motion, the Court appointed new counsel for her and remanded the case for a 

Ginther2 hearing to determine whether defendant had received effective assistance 

of counsel at trial. Among the witnesses at the hearing were defendant’s former 

counsel and a forensic pathologist, Dr. Laurence Simson,3

 who was an expert 

witness brought in by defendant’s newly appointed appellant counsel. 

Defendant’s former counsel testified that he (1) never consulted an 

independent forensic pathologist, (2) never had the body tested for the presence of 

insulin, (3) spoke only briefly with his own general practitioner regarding the 

cause of death and was referred to an endocrinologist, Dr. Halsey, (4) spoke with 

Dr. Halsey but took no notes of the conversation, (5) did no research into Dr. 

Halsey’s expertise, (6) did not give either the general practitioner or the 

endocrinologist Burley’s medical records to review, and (7) did not speak to the 

physician who treated Burley during his last hospitalization. 

The forensic pathologist, Dr. Simson, testified that there was a lack of 

significant evidence that Burley died of an insulin overdose. Instead, he 

2 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 

3

 Dr. Simson is a forensic pathology consultant, a former professor of 

pathology, an Ingham County pathologist, and a national consultant in forensic 

pathology to the Surgeon General of the United States Air Force. 

4
 
 

concluded that Burley died of a multiple-drug overdose. He based his conclusion 

on the fact that Burley had a lethal level of morphine in his system along with 

therapeutic levels of several other drugs. 

 At the Ginther hearing, Dr. Pacris was questioned about his trial testimony 

that Burley died of an insulin overdose. He was asked if he had considered that a 

lethal dose of morphine was found in Burley’s body. He testified that he had 

based his conclusion that Burley did not die of a morphine overdose on his 

assumption that Burley had developed a tolerance to the drug. But he admitted 

that he had not checked to learn how much morphine Burley had been using. 

At the conclusion of the hearing, Judge Chad C. Schmucker, who also 

presided at the bench trial, found that defense counsel had not provided ineffective 

assistance. He found that counsel’s brief consultations with Drs. Burgess and 

Halsey were all that was required of him. He also concluded that, even if 

counsel’s performance had been deficient, defendant could not show prejudice. 

In a split, unpublished decision, the Court of Appeals reversed defendant’s 

conviction.4

 The majority determined that, in light of the pivotal nature of the 

medical evidence, it was unreasonable for defense counsel to have consulted only 

briefly with the two doctors. It was unreasonable for him not to have furnished the 

physicians with documentation regarding Burley’s medical history or the 

4 People v Dendel, unpublished opinion per curiam, issued July 18, 2006 

(Docket No. 247391). 

5
 
 

circumstances surrounding his death. And because defense counsel’s deficient 

performance deprived defendant of a substantial defense, the majority held that 

there was a reasonable probability that it adversely affected the outcome of the 

trial. 

The dissenting judge emphasized the prejudice prong of the test for 

ineffective assistance of counsel. He found no reason to conclude that the trial 

judge had clearly erred in concluding that defendant could not show prejudice. 

The prosecution applied for leave to appeal in this Court. We heard oral 

argument on the application on October 3, 2007.5 

THE SUFFICIENCY OF DEFENSE COUNSEL’S LEGAL REPRESENTATION 

The standard for ineffective assistance of counsel is the same under both 

the Michigan and federal constitutions.6 A defendant must show that defense 

counsel’s performance was objectively unreasonable and that this performance 

prejudiced the defense.7

 In this case, the majority reinstates defendant’s 

conviction after deciding that defendant cannot show prejudice. 

To demonstrate prejudice, one must establish “a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have 

5

 477 Mich 1012 (2007). 

6 People v Pickens, 446 Mich 298, 326; 521 NW2d 797 (1994). 

7 Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 

674 (1984). 

6
 
 

been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.”8 

Here, the prosecution’s case hinged on the cause of death. The prosecution 

contended that defendant died of an insulin overdose, and it presented evidence to 

support this theory. The prosecutor argued that defendant was physically 

incapable of injecting himself with insulin. By failing to counter this theory, 

defense counsel left the finder of fact with two choices: It could find (1) that 

Burley killed himself by insulin overdose, a highly unlikely occurrence given his 

debilitated physical condition, or (2) that defendant killed Burley by administering 

a fatal dose of insulin. Thus, by failing to counter the prosecution’s theory of the 

cause of death, defense counsel left defendant with no viable defense. 

By contrast, defense counsel could have challenged the prosecution’s 

theory of the cause of death, providing the trier of fact with a meaningful choice. 

Evidence could have been presented that Burley died from a different cause, such 

as a multiple-drug overdose, as Dr. Simson concluded. This would have been 

particularly effective in light of the fact that Dr. Pacris did not immediately 

identify the cause of death as an insulin overdose. Dr. Pacris considered the 

possibility of an insulin overdose only after the police informed him that they 

suspected Burley might have died from an insulin injection. Furthermore, Dr. 

Pacris did not check into Burley’s use of morphine, despite the fact that Burley 

8 Id. at 694. 

7
 
 

died with a large amount of morphine in his system. Importantly, unlike insulin, 

which is injected, morphine is available in pill form, and there was evidence that 

Burley had access to morphine pills. 

Burley could have self-administered a fatal dose of morphine, either 

accidentally or intentionally.9

 Thus, had defense counsel challenged the cause of 

death, the finder of fact could have concluded that Burley died of a noncriminal 

act. Defendant’s appellate counsel demonstrated that trial counsel easily could 

have found an expert witness to refute the prosecution’s theory regarding the cause 

of death. It follows that the trial attorney’s failure to adequately investigate and 

pursue the viable theory that Burley died of a noncriminal act deprived defendant 

of a substantial defense.10 

9

 At oral argument, I specifically inquired whether it is easier to selfadminister morphine than it is to self-administer insulin. My concern was this: If 

it is unreasonable to conclude that defendant self-administered a fatal dose of 

insulin, why would it be reasonable to conclude that he self-administered a fatal 

dose of morphine? The answer that defendant’s counsel gave was that it is much 

easier to administer morphine because, unlike insulin, Burley’s “morphine was 

pills, and there was testimony that [Burley] had a large number of pills available to 

him and that he had access to those pills.” It is this difference that makes a selfadministered overdose of morphine believable but a self-administered overdose of 

insulin by a man in Burley’s condition unbelievable. 

10 The majority criticizes me for explaining how trial counsel’s 

performance was deficient. It claims that this portion of my argument is 

“misplaced.” Ante at 11 n 10. I disagree. In this case, the two prongs of the test 

for ineffective assistance of counsel are inextricably linked. I cannot explain how 

defendant was prejudiced without explaining how defense counsel’s performance 

was deficient. 

8
 
 

Because defendant has shown that her trial counsel’s performance deprived 

her of a substantial defense, she has met her burden of showing prejudice, unless 

other evidence rendered this defense unbelievable.11 The record reveals that, had 

defendant presented Dr. Simson’s testimony at trial, the evidence would have 

supported either of two competing theories of the cause of death. As the majority 

points out, there was circumstantial evidence that tended to show a guilty mind. 

The majority discusses only this evidence. But it ignores the evidence that tends 

to show that Burley died of a noncriminal act. 

This evidence is that defendant and Burley had a relationship that had 

lasted nearly 30 years. During this period, Burley suffered from many illnesses, 

including an HIV infection. As Burley battled these ailments, defendant stood by 

his side, providing him with needed care. Defendant was not only Burley’s 

companion and caregiver during this period, she was his financial support. He had 

11 The majority claims that I apply the wrong standard by presuming 

prejudice. I do no such thing. In order to meet her burden of showing prejudice, 

defendant had to show that defense counsel’s deficient performance undermined 

confidence in the outcome. Accordingly, if defendant shows that counsel’s 

performance deprived her of a viable defense, she has shown prejudice. This is 

because a viable defense equates to a reasonable chance at acquittal. Thus, I do 

not presume prejudice. Rather, I consider whether her counsel’s performance 

deprived defendant of a viable defense. If so, a new trial is required because there 

is a “reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Strickland, 466 US at 694. On the 

other hand, if the defense defendant was deprived of was unbelievable, she would 

not be entitled to a new trial because she could not show prejudice. 

9
 
 

not been gainfully employed since the mid-1980s.12 Hers is hardly the behavioral 

profile of a cold-blooded killer. 

The evidence also tended to show that Burley’s mental health had 

deteriorated and that he was possibly abusing morphine and other drugs. In fact, 

defendant had to call the police on the day Burley died because he was 

brandishing a knife, arousing her concern that he might hurt himself. And there 

was evidence that defendant had hidden drugs from Burley to prevent him from 

overdosing himself. Also, she had contacted numerous sources in the period 

before Burley’s death in an attempt to get him the 24-hour, 7 day-a-week care he 

required. 

There are also innocent explanations for the acts to which the majority 

attributes sinister motives. Because defendant, not Burley’s family members, 

tended Burley toward the end of his life, it is not surprising that defendant was not 

eager to inform his family of his death. This is especially likely in light of the fact 

that, as defendant testified, she felt the family had turned its back on Burley.13 

12 The majority suggests that I ignore evidence that defendant may have had 

an improper motive in caring for Burley. That is not true. I recognize that the 

circumstantial evidence pointed in different directions. I focus on the evidence 

that tended to show that Burley died of a noncriminal act because the majority 

fails to address this evidence at all. This is error because, when considering 

whether defendant was prejudiced, it is necessary to consider the totality of the 

circumstances surrounding Burley’s death. 

13 There was evidence that Burley’s family intentionally avoided him after 

he contracted an HIV infection. For example, he was no longer invited to family 

gatherings, such as Easter celebrations and Super Bowl parties. 

10
 
Nor does the fact that defendant was exasperated with providing Burley 

constant care render her a murderer. And defendant’s decision to call a friend 

before summoning the police after discovering Burley in a comatose state is 

understandable. Defendant could have been overwhelmed by shock and sadness at 

discovering her longtime companion near death. It is even more reasonable to 

attribute an innocent explanation to this behavior when one considers that 

defendant had prearranged for the friend to assist her if Burley died. Nor was 

defendant’s decision to cremate Burley unusual, since cremation is a common 

alternative to burial in this country, especially for those who have suffered from 

debilitating ailments. Finally, the fact that defendant understood insulin’s effect 

on the body is not surprising in light of the fact that she is a diabetic. 

The nonmedical evidence surrounding the death could support a finding 

that Burley died of a noncriminal act. Accordingly, had defense counsel 

challenged the cause of death, the finder of fact would have been left with two 

reasonable alternatives: (1) to decide that the evidence showed that defendant 

killed Burley or (2) to conclude that Burley killed himself, intentionally or 

accidentally, possibly to spare his loving companion of nearly 30 years the burden 

of his continuing care. The strategy employed by defense counsel left defendant 

with no viable defense, whereas another strategy could have resulted in an 

acquittal. Hence, confidence in the outcome has been undermined sufficiently to 

require a new trial. Accordingly, I would affirm the Court of Appeals decision. 

11
 
 

The majority disagrees with me and reinstates defendant’s conviction. In 

so doing, the majority opinion seems to misapprehend defendant’s burden. It 

would seem to require defendant to prove that she is actually innocent of the crime 

in order to be entitled to relief. Even though defendant might be innocent, this is 

not the standard. The standard is “a probability sufficient to undermine 

confidence in the outcome.”14 Because defense counsel’s performance deprived 

defendant of a viable, reasonable, and believable defense, the standard was met in 

this case. 

CONCLUSION 

The Court of Appeals decision to vacate defendant’s conviction did not 

hang on what some people term “a legal technicality.” Instead, there is a very real 

possibility that defendant is innocent of the crime of which she has been 

convicted. Yet her counsel never gave the finder of fact a realistic option of 

returning a verdict of not guilty. By effectively conceding the cause of death, 

counsel deprived defendant of her only viable defense. The Court of Appeals 

correctly reversed defendant’s conviction and remanded the case for a new trial. I 

would affirm its judgment. 

 Marilyn Kelly 

Michael F. Cavanagh 

14 Strickland, 466 US at 694. 

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