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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 27, 2017 

v No. 329448 

Wayne Circuit Court 

CLIFFORD DANIEL THOMAS, LC No. 15-001020-01-FC 

 Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 329449 

Wayne Circuit Court 

JASMINE GORDON, LC No. 15-001020-02-FC 

 Defendant-Appellant. 

Before: O’CONNELL, P.J., and GLEICHER and BOONSTRA, JJ. 

PER CURIAM. 

 Defendants Jasmine Gordon and Clifford Daniel Thomas jointly stood trial for the death 

of three-year-old Jamila Smith. The prosecution attributed Jamila’s death to child abuse. 

Separate juries convicted Gordon of first-degree child abuse and involuntary manslaughter, and 

Thomas of involuntary manslaughter and assaulting, resisting or obstructing a police officer. In 

these consolidated appeals defendants raise several challenges to their convictions, and Thomas 

additionally challenges his involuntary manslaughter sentence. Thomas’s claims lack merit, and 

in Docket No. 329448, we affirm Thomas’s convictions and sentences. 

 Gordon, on the other hand, raises a valid constitutional challenge to the performance of 

her trial counsel. Counsel abandoned a viable defense strategy supported by expert testimony. 

Thomas’s jury heard this evidence and acquitted him of the child abuse charge. Gordon’s 

attorney fabricated a causation theory and presented no evidence to support his personal 

hypothesis. As a result, Gordon had no defense at all. In Docket No. 329449, we vacate 

Gordon’s convictions and sentences and remand for a new trial. 
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I. BACKGROUND 

A. JAMILA’S MEDICAL HISTORY 

 Jamila’s cause of death formed the central contested issue in the joint trials. The 

prosecution asserted that the immediate cause was bilateral bronchial pneumonia, and that the 

pneumonia resulted from an infection (sepsis) triggered by a laceration of her pancreas. Thomas 

inflicted the pancreatic laceration, the prosecution argued, and Gordon aided and abetted Thomas 

by turning a blind eye to indications that he was physically abusing the child. The defense 

contended that Jamila died a natural death due to pneumonia and that the incidental pancreatic 

laceration did not contribute to her demise. 

 Jamila’s unusual medical history supplied the backdrop for these competing claims. 

Jamila weighed just over eight pounds at birth and appeared to be a normal newborn. But at 22 

months of age she could not talk, walk, or stand without support. Her height, weight and head 

circumference were well below normal limits. Physicians at Children’s Hospital of Michigan 

(CHM) labeled her as “failure to thrive.” Further evaluation revealed that she had a brain 

malformation of the frontal lobes resulting in a 30% loss of brain matter. Children with this 

disorder have delayed motor and language development and are intellectually disabled. Gordon 

and Smith were provided with nutritional counseling and encouraged to enroll Jamila in the 

Early On program, which offers special education programming for very young children. 

 Jamila’s medical history included two additional diagnoses that became significant 

during the trial. At five months of age, Jamila had been treated for nummular eczema, which 

manifests with coin-shaped lesions on the skin that can itch and crust over. Two months before 

her death, Jamila contracted hand, foot and mouth disease, a viral illness featuring a rash. 

Whether the lesions on Jamila’s body were bruises or a rash was a subject of disagreement after 

her death. 

 Gordon and Smith separated in March 2014. Jamila and her older brother remained with 

Gordon. Several months later, Gordon and Thomas began living together. Gordon was the 

breadwinner of this new family unit. While Gordon worked, her sister and father sometimes 

cared for her children. At other times, Thomas was in charge. Over time, Thomas became 

Jamila’s regular caregiver. 

 In August 2014, Gordon took Jamila to CHM after Smith expressed concern about a 

bruise on Jamila’s left inner thigh. A doctor measured the bruise at four by five centimeters, and 

noted the presence of a rash in the same area. A report of suspected child abuse was made to 

Child Protective Services (CPS). When CPS came to Gordon’s home to investigate, Gordon 

neglected to mention that Thomas provided care for her children. CPS did not substantiate the 

child abuse report. One month later, Jamila was dead. And after calling Gordon about the 

bruise, Smith never saw his daughter again. 

B. THE DAY OF JAMILA’S DEATH 

 During the afternoon of September 18, 2014, Thomas drove Gordon to work. Gordon 

testified that she called home several times that afternoon and evening to check on the children, 

and Thomas reassured her that all was well. At approximately 9:00 p.m., Thomas called Gordon 
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and told her to “come outside” as he had arrived with her car and the children, and something 

was wrong with Jamila. Gordon quickly ascertained that Jamila was not breathing. She 

“hopped” into the back seat and started CPR. 

 Thomas claimed that Jamila had been well throughout that day. He recounted that after 

taking Gordon to work, he and the children went to a park. Jamila fell while they were there, but 

he believed nothing was wrong with her. Later, Thomas fed Jamila and she vomited. Thomas 

described that when he and the children set out to retrieve Gordon from work, Jamila walked to 

the car under her own power. As they were driving on the freeway, Jamila’s older brother told 

Thomas that Jamila had stopped breathing or was “playing sleeping.” Thomas claimed that he 

began driving with one hand and administering CPR with the other, reaching into the backseat to 

do so. 

 When they arrived at Henry Ford Hospital, Thomas pulled into a back parking lot instead 

of the emergency room entrance. Jessica Vollstaedt, an emergency medical technician, was 

making her way to the back of the hospital when she heard yelling and screaming that a child 

was not breathing. She responded, determined that Jamila had no pulse, and started CPR. 

Neither Vollsteadt nor the code team could revive Jamila. Vollsteadt recalled that Jamila had 

“an abrasion to her forehead and several bruises throughout her body.” She wore only a diaper. 

 The police were summoned after hospital personnel observed bruising on Jamila’s body 

and a wound on her forehead.1

 When asked where they lived, Thomas offered an incorrect 

address on Webb in Detroit. The police found only an abandoned house. Thomas eventually 

admitted that he lived on Rockdale; when the police went to the home they found a bucket 

containing water and vomit near the bedrooms. 

C. THE WEEKS BEFORE JAMILA’S DEATH 

 Thomas and Gordon were separately interrogated within hours of Jamila’s death. Gordon 

submitted to a second interview several months later while in custody. All three lengthy 

interrogations were played for the jury. 

 Thomas reported that during the last two weeks of Jamila’s life, he cared for her “every 

other day.” He claimed that about a week and a half earlier, Jamila had hit her head on a 

doorknob, door edge, or some other part of a door; the exact mechanism changed several times 

during the interrogation. He put ice and witch hazel on the head bump and administered 

Benadryl and Pedialyte for her subsequent vomiting. The head injury swelled to the size of a 

golf ball. “Ever since she hit her head she’s been going down,” Thomas admitted. Jamila did 

not want to eat and vomited. Thomas further conceded that he made a “bad judgment call” in 

not taking Jamila to the hospital. He agreed that it was his “responsibility to see that they were 

cared for during the times” that he had the children. 

 

1

 A large, open head wound is readily visible in the autopsy photographs. Two smaller head 

wounds are also visible. 
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 Gordon claimed that that she did not take Jamila to the hospital after first seeing the head 

wound because she was “impaired” when she came home from work that evening due to her 

ingestion of wine and marijuana. Thomas told her that Jamila ran into the wall or the door while 

being chased by her brother. Gordon had no explanation for why she did not take Jamila to a 

doctor the next day, when she was no longer impaired. Instead, Gordon treated Jamila’s head 

bump with cocoa butter and witch hazel and believed that the witch hazel caused the bump to 

scab and bleed. 

 Two days after hitting her head, Jamila’s stomach bloated. Two or three days before her 

death, the child started vomiting. Gordon volunteered that she planned to take Jamila to the 

doctor “on my day off,” as she thought the child had only a stomach virus. She described that 

Jamila “would lay down. She wouldn’t sleep and she had a fever and her bowel movements was 

a little irregular as well.” Gordon insisted during her interviews that Jamila had rashes, not 

bruises. She stressed that Jamila suffered from eczema and had recently been treated for hand, 

foot and mouth disease. At the trial, however, she expressed that she had changed her mind, and 

believed the marks to be bruises. She blamed Thomas for what happened, asserting that she 

went to work every day, regularly called to check on her children, and did not know about the 

pancreatic injury until after the autopsy. 

D. THE MEDICAL TESTIMONY 

 Dr. Kilak Kesha, a forensic pathologist employed by the Wayne County Medical 

Examiner’s Office, performed an autopsy on Jamila. He found 18 to 23 abrasions (“scrapes”) on 

her face, back, left thigh and right arm. Dr. Kesha attributed all of the abrasions to blunt force 

trauma. He also observed 10 to 15 contusions (bruises) on the child’s chest and abdomen, and 

12 contusions on her thighs and forearms. The abrasions, too, were caused by “a blunt object.” 

The bruises were of “varying ages,” Dr. Kesha explained, “from weeks before death until death.” 

 Most notably, Dr. Kesha discovered a one-half inch tear or laceration of Jamila’s 

pancreas and fresh blood in her abdominal cavity. The pancreatic laceration had occurred about 

one week prior to death, he opined. Dr. Kesha described the mechanics of this injury as follows: 

 A laceration of the pancreas is extremely rare. It usually occurs when a 

blunt object or force is applied to the front of the abdomen and the back is 

supported by either [sic] like a throw to the wall. The reason for this is the 

pancreas is a long organ that crosses the midline of the back. When there’s 

pressure from the front the pancreas rubs up against the spine. The spine is a 

bone, it’s hard and this causes the pancreas to split into two.

A child cannot tear her pancreas by playing or falling; this injury requires “significant” force, Dr. 

Kesha insisted. “It’s rarely seen,” he indicated, other than in car accidents where “a child is 

unrestrained and the vehicle is travelling at a high rate of speed.” A child with a pancreatic 

injury would appear ill, have abnormal bowel movements or urination, pain, drowsiness, 

lethargy, vomiting or a desire to be held all the time. The child’s illness would have been 

obvious to a caretaker, he concluded. 
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 Evidence of bleeding was also discovered in Jamila’s mesentery, which is the “fat in the 

abdomen.” According to Dr. Kesha, “blunt trauma to the abdomen” caused this bleeding, as the 

mesentery is “very close” to the pancreas. One blow could have caused both areas to bleed, but 

there was also a second, fresh area of hemorrhage in the mesentery, which means that there were 

“[m]ultiple blows.” Dr. Kesha conceded that the newer bleeding alternatively could have 

occurred during “play,” as the pancreas was already injured; he admitted that he did not know 

how much pressure would be required to reinjure a lacerated pancreas. The first injury to 

Jamila’s pancreas initiated the infection that led to her death, in his view. 

 Dr. Kesha found additional bleeding between Jamila’s scalp and skull bones caused by 

blunt trauma to the head. The magnitude of the hemorrhage was inconsistent with a fall. A 

knee, foot, fist, piece of wood or bat could have caused her head injuries, which appeared to be 

about a week old. He conceded that the head injuries did not cause Jamila’s death, nor did the 

bruising or the abrasions. The bruising on her abdomen may have been related to the pancreatic 

laceration, however. 

 The pancreatic laceration “was [the] initiating factor” that triggered “the cascade that led 

to . . . death.” Dr. Kesha posited that after Jamila’s pancreas was lacerated, she developed sepsis 

(“an infection in her blood”), and “[t]here was also necrosis or death of her bowel or large colon 

and she had pneumonia. So the lacerated pancreas caused the sepsis, which caused the 

pneumonia, which killed the decedent.” Jamila could have developed pneumonia absent the 

pancreatic laceration, but Dr. Kesha had no reason to think that she would have. Jamila’s 

multiple injuries demonstrated that she was the victim of child abuse, in Dr. Kesha’s estimation. 

He ruled her death a homicide. 

 Dr. Kesha denied that the abrasions or bruises he delineated were rashes, and he saw no 

evidence of eczema. He admitted that when he first examined Jamila’s brain, he did not 

appreciate that it was malformed. Only after reading Jamila’s medical record and examining the 

autopsy photographs did Dr. Kesha realize that there were “developmental issues.” Those issues 

did not impact Jamila’s pancreatic function or the cause of her death, he stated. 

 Dr. Ljuvisa Dragovic, the chief forensic pathologist and chief medical examiner for 

Oakland County, testified only on Thomas’s behalf. He stated that Gordon’s attorney, John 

McWilliams, had retained him to review Jamila’s medical records and Dr. Kesha’s autopsy 

report. Like Dr. Kesha, Dr. Dragovic concluded that bronchial pneumonia caused Jamila’s 

death. His opinion departed from Dr. Kesha’s in several important ways, however. In Dr. 

Dragovic’s view, Jamila did not have sepsis. Rather, she “had bronchial pneumonia and that’s it, 

so there is no sense to conclude that the child died of sepsis.” Dragovic conceded that Jamila 

“might have sustained blunt force trauma in some point in time to her belly,” but she died of 

pneumonia, and not from the pancreatic laceration. Dr. Dragovic expressed strong disagreement 

with Dr. Kesha’s opinion that the pancreatic laceration led to the pneumonia, terming it “a 

quantum leap.” If Jamila truly had sepsis, Dragovic opined, she would not have been able to 

walk or run around, and may have been unconscious. 

 Further, Dr. Dragovic disagreed that the pancreatic injury was inflicted by a blunt object 

such as a fist. In his view, the source had to have been a smaller, “very focused” object such as a 

stick, a broomstick, or a tricycle handlebar. Had it been a fist, neighboring anatomical structures, 
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such as the liver, also would have sustained injury. Jamila could “have been pushed against 

something by someone or ran into something . . . that is being held or some exposing type of 

profile or structure, it’s hard enough to render this type of injury.” While Jamila could not have 

injured her own pancreas, another child could have done it during play or a confrontation. 

Alternatively, she may have run into something while being chased by someone. He emphasized 

that had he performed the autopsy, he would not have called Jamila a victim of child abuse. 

 Dr. Dragovic also took issue with Dr. Kesha’s determination that all of the marks on 

Jamila’s body represented bruising or trauma. If a pathologist wants “to be sure about the nature 

of the lesion you have to take a microscopic section, that’s the main tool in any pathologist’s 

evaluation, tissue sample.” Dr. Kesha did not create any microscopic slides of the bruises. 

Although Dr. Dragovic’s testimony on this point is somewhat unclear, he suggested that Jamila’s 

skin conditions could account for some of the marks found at autopsy: 

Q. What is your opinion as to the scars or discolorations throughout her 

abdomen or chest area? 

A. The discolorations that we refer to in medicine is a hyperpigmentation 

in heavily pigmented areas of the skin are actually healed drier diseases or 

conditions of the skin or injuries of the skin. So the scar is something that occurs 

up for healing. . . . So those are the categories that are attributable to the 

appearance of the body of the deceased daughter. 

 Dr. Dragovic conceded that one of the “lesions” on Jamila’s abdomen “overlies” the 

general area where the head of the pancreas meets the body of the pancreas. He explained that 

he could not call it a “bruise:” “This particular lesion, and I have to call it lesion because that’s 

what it is, it’s a change in the skin. I cannot know exactly how it was generated because clearly 

there was some pressure, something that allowed the blood vessels to break down and create this 

bruise appearance.” Although the lesion was consistent with someone doing CPR compressions 

in that area, the pancreatic laceration beneath it was not “fresh.” A small amount of bleeding 

near the pancreas may have been the result of the resuscitative efforts. 

 The prosecutor cross-examined Dr. Dragovic extensively regarding other cases in which 

he had testified against the Wayne County medical examiner’s office, and brought out that he 

had been turned down for the position of Wayne County Medical Examiner many years earlier. 

Dr. Dragovic was combative, as was the prosecutor. 

E. THE REMAINING EVIDENCE, AND THE VERDICTS 

 Gordon’s sister, Lakisha Thaxton, testified that she and Gordon’s father frequently 

babysat for Jamila before Gordon became involved with Thomas. Thaxton recalled that Jamila 

had rashes on her body at various times. She last saw Jamila a week or two before the child’s 

death, and recounted that the child had “rashes or bumps” on her legs and arms that did not 

concern her. At that time, Jamila, had no bruises or “open marks on her face.” Although the 

prosecution contended that Gordon had deliberately isolated Jamila during the last weeks of 

Jamila’s life, Thaxton testified that Gordon had asked her to babysit on the day Jamila died. 
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 Gordon and Thomas both testified before their respective juries. Thomas vehemently 

denied ever harming Jamila, and Gordon insisted that she was unaware of any abuse. The juries 

were also provided with extensive medical records and records generated by personnel with the 

Early On program. None of the Early On evaluators testified at the trial. Their records 

established that Jamila was severely developmentally delayed. When she died at the age of 3 

years and 4 months, Jamila was nonverbal, could not feed herself, could not follow directions or 

make her needs known, was not toilet trained, and functioned at the intellectual level of an 11 

month old. Nevertheless, the evidence supported that Jamila was able to walk and run. 

 Ultimately, the two juries rendered somewhat inconsistent verdicts. Thomas’s jury 

convicted him of involuntary manslaughter, MCL 750.321 (negligent failure to perform a legal 

duty), and assaulting, resisting or obstructing a police officer (arising from his attempt to flee 

from arrest at the hospital), but acquitted him of felony murder, MCL 750.316(1)(b), and firstdegree child abuse, MCL 750.136b(2). The trial court sentenced Thomas to 57 months to 15 

years’ imprisonment for involuntary manslaughter. 

 Gordon’s jury convicted her first-degree child abuse as an aider and abettor, MCL 

750.136b(2), and involuntary manslaughter, MCL 750.321 (negligent failure to perform a legal 

duty). She was acquitted of felony murder. The trial court sentenced Gordon to 14 to 25 years’ 

imprisonment on the first-degree child abuse conviction and seven to 15 years’ imprisonment on 

the involuntary manslaughter conviction. 

 Both defendants now appeal. 

II. DEFENDANT THOMAS 

A. SUFFICIENCY OF THE EVIDENCE 

 Thomas challenges the sufficiency of the evidence underlying his involuntary 

manslaughter conviction. We review challenges to the sufficiency of the evidence de novo. 

People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). “Even though unpreserved, a 

question of sufficiency of evidence may be reviewed de novo by this Court in a criminal case.” 

People v Osby, 291 Mich App 412, 415; 804 NW2d 903 (2011). 

 The crime of involuntary manslaughter is not defined by statute.2

 Under the common 

law: 

[I]nvoluntary manslaughter is the unintentional killing of another, without malice, 

during the commission of an unlawful act not amounting to a felony and not 

naturally tending to cause great bodily harm; or during the commission of some 

 

2

 MCL 750.321 provides: “Any person who shall commit the crime of manslaughter shall be 

guilty of a felony punishable by imprisonment in the state prison, not more than 15 years or by 

fine of not more than 7,500 dollars, or both, at the discretion of the court.” 
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lawful act, negligently performed; or in the negligent omission to perform a legal 

duty. [People v Mendoza, 468 Mich 527, 536; 664 NW2d 685 (2003).] 

1. LEGAL DUTY 

 Thomas first challenges the sufficiency of the evidence supporting that he negligently 

omitted to perform a legal duty. Thomas claims that he merely served as Jamila’s occasional 

babysitter, and therefore did not have a duty, or even the right, to seek medical assistance for her. 

 “The law recognizes that under some circumstances the omission of a duty owed by one 

individual to another, where such omission results in the death of the one to whom the duty is 

owing, will make the other chargeable with manslaughter.” People v Beardsley, 150 Mich 206, 

209; 113 NW 1128 (1907). This rule “is always based on the proposition that the duty neglected 

must be a legal duty, and not a mere moral obligation.” Id. The Supreme Court catalogued the 

legal relationships giving rise to a legal duty as follows: 

 If a person who sustains to another the legal relation of protector, as 

husband to wife, parent to child, master to seaman, etc., knowing such person to 

be in peril, willfully and negligently fails to make such reasonable and proper 

efforts to rescue him as he might have done, without jeopardizing his own life, or 

the lives of others, he is guilty of manslaughter at least, if by reason of his 

omission of duty the dependent person dies. 

So one who from domestic relationship, public duty, voluntary choice, or 

otherwise, has the custody and care of a human being, helpless either from 

imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or 

body is bound to execute the charge with proper diligence, and will be held guilty 

of manslaughter, if by culpable negligence he lets the helpless creature die. [Id. 

at 209-210 (quotation marks and citation omitted, emphasis added).] 

 As examples of omissions that could support liability for involuntary manslaughter, 

Beardsley invoked cases involving a husband who allowed his intoxicated wife to die in the 

snow, a husband who neglected to provide clothing and shelter for his “insane wife,” and a 

mother who exposed “her infant child without protection.” Id. at 210. In contrast, the Court 

agreed with the holding in a Vermont case that the employers of “a maid servant” who lived in 

their home had no duty to supply the maid servant’s child with “proper care.” Id. at 210-211. 

 Applying these principles, the Beardsley Court reversed the defendant’s manslaughter 

conviction. The victim in that case was an adult woman who spent a night or two drinking with 

the defendant while the defendant’s wife was “temporarily absent from the city.” Id. at 207. She 

paid a third person to purchase some morphine tablets for her use. Id. The victim unsuccessfully 

attempted to conceal her ingestion of the morphine from the defendant, and he unsuccessfully 

tried to prevent her from taking it. Id. at 208. When she passed into a stupor, the defendant “was 

too intoxicated to be of any assistance.” A third person took her to someone else’s room, where 

she died. Id. In setting aside the defendant’s manslaughter conviction the Supreme Court held 

that the defendant had no duty to prevent the victim’s death. The Court explained: 
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[T]he deceased was a woman past 30 years of age. She had been twice married. 

She was accustomed to visiting saloons and to the use of intoxicants. She 

previously had made assignations with this man in Detroit at least twice. There is 

no evidence or claim from this record that any duress, fraud, or deceit had been 

practiced upon her. On the contrary it appears that she went upon this carouse 

with respondent voluntarily and so continued to remain with him . . . . 

. . . Respondent had assumed either in fact or by implication no care or control 

over his companion. Had this been a case where two men under like 

circumstances had voluntarily gone on a debauch together, and one had attempted 

suicide, no one would claim that this doctrine of legal duty could be invoked to 

hold the other criminally responsible for omitting to make effort to rescue his 

companion. How can the fact that in this case one of the parties was a woman 

change the principle of law applicable to it? Deriving and applying the law in this 

case from the principle of decided cases, we do not find that such legal duty as is 

contended for existed in fact or by implication on the part of respondent towards 

the deceased, the omission of which involved criminal liability. [Id. at 214-215 

(emphasis added).] 

The defendant may have had a moral duty to intervene, the Court opined, but he did not have a 

legal one. Id. at 215. 

 Thomas asserts that as Jamila’s “occasional babysitter” he had no legal duty to obtain 

medical care for her “absent express consent from her parent.” Beardsley supports that 

Thomas’s “domestic relationship” with Jamila, coupled with her “helpless[ness],” could give rise 

to a duty. More specifically, the in loco parentis doctrine imposes the legal duty that applies in 

this case and is fully consistent with the duty principles set forth in Beardsley. Recall that in 

Beardsley, the Supreme Court opined that a person who “has the custody and care” of a human 

being unable to care for herself due to “infancy [or] age . . . is bound to execute the charge with 

proper diligence[.]” The in loco parentis doctrine stands for the same proposition. 

 “The intimate relationship between parent and child can surely arise outside genetic 

bonds.” Hush v Devilbiss Co, 77 Mich App 639, 647; 259 NW2d 170 (1977). This Court 

explained in Hush that whether an adult stands in loco parentis to a child depends, in part, on the 

adult’s intent: 

 Legally, the assumption of in loco parentis status1 is a question of intent. 

Intent to assume parental status can be inferred from the acts and declarations of 

the parties. Some factors to consider are the age of the child; the degree to which 

the child is dependent on the person claiming to be standing in loco parentis; the 

amount of support, if any, provided; the extent to which duties commonly 

associated with parenthood are exercised. Providing financial support may be an 

unimportant consideration in light of the relative situations of the person standing 

in loco parentis and the real parents. In some cases, while providing financial 

support may be unnecessary, the benefits flowing to the child by reason of 

someone’s assumption of the other infinitely various parental duties may be most 

essential. 
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_______________________________________________________________

1 The various definitions of the term “in loco parentis” were compiled in 67 CJS 

Parent and Child, § 71, pp 803-804: 

The term ‘in loco parentis’ has been defined as in the place of a parent; 

instead of a parent; charged, factitiously, with a parent’s rights, duties, and 

responsibilities; more specifically, the relationship which a person assumes 

toward a child not his own, holding the child out to the world as a member 

of his family toward whom he owes the discharge of parental duties. It has 

been said that the accepted definition of a person in loco parentis is one who 

means to put himself in the situation of a lawful parent to the child with 

respect to the office and duty of making provision for it; one assuming the 

parental character and discharging parental duties; a person standing in loco 

parentis to a child is one who has put himself in the situation of a lawful 

parent by assuming the obligations incident to the parental relation, without 

going through the formalities necessary to a legal adoption. 

Distinctions. One standing in loco parentis has been distinguished from a 

brother or sister, cousin, or natural parent. Loco parentis differs from 

adoption in that the one is temporary and the other permanent in nature. 

(Footnotes omitted.) [Id. at 649 (citations omitted).] 

________________________________________________________________ 

 In People v Thomas, 85 Mich App 618, 624; 272 NW2d 157 (1978), this Court applied

the in loco parentis doctrine in a criminal case, holding that a person who has “voluntarily 

assumed a parental function” bears a legal duty to obtain necessary medical attention for one not 

otherwise able to obtain it on his or her own. The defendant in Thomas was “the work 

coordinator” at a “religious practical training school” who had obtained permission from the 

victim’s parents to discipline their mentally ill son “if necessary.” Id. at 621. After a severe 

beating administered in the guise of discipline, the victim could not walk and gradually became 

ill with flu-like symptoms. The defendant failed to arrange for any medical intervention, and the 

young man died. Id. at 622. Medical evidence linked the beating to the death. Id. at 623. This 

Court upheld the defendant’s conviction for involuntary manslaughter premised on his failure to 

perform a legal duty, explaining: 

Defendant was a supervisor of Oak Haven, stood in a position of authority over 

the victim and, by talking with the victim’s parents and obtaining their permission 

to discipline the decedent, he directly and voluntarily assumed a parental function, 

and stood in a position of loco parentis to the decedent. Under such 

circumstances, defendant’s beating of the victim coupled with his failure to 

provide medical attention, when decedent was unable to obtain same himself, 

violated defendant’s legal duty to care for the victim. The elements of involuntary 

manslaughter were adequately established. [Id. at 624.] 
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 In Beardsley’s parlance, Thomas’s legal duty arose “by implication . . . from the facts and 

circumstances of the case.” He voluntarily undertook a parental function to care for Jamila in 

her mother’s absence, acting as her sole caretaker during portions of the day. Despite his 

protestations that he had not caused Jamila’s head injury, he acknowledged that Jamila’s 

condition began to deteriorate after the head injury occurred and that her mother had decided 

against medical consultation. Thomas actively participated in “treating” Jamila with ice, cocoa 

butter and Pedialyte, acting as a parent toward an ill and injured child. 

 This evidence substantiated that Thomas intentionally and voluntarily undertook a duty 

of care, and had more than a moral obligation to seek medical care for the child. That Gordon 

failed to provide necessary care does not excuse Thomas from his independent obligation, as one 

standing in loco parentis, to react appropriately to the child’s symptoms of serious illness. 

Further, Thomas was not a mere “babysitter” for Jamila. He cohabitated with her mother, cared 

for her on a regular basis, and voluntarily addressed her medical needs. These facts suffice to 

give rise to a legal duty of care for an obviously ill child. 

 Nor did the prosecutor neglect to introduce sufficient evidence regarding Thomas’s legal 

duty. The evidence substantiated that Thomas voluntarily assumed the obligations of a parent; 

he admitted that when Gordon was at work, it was his “responsibility to see that [the children] 

were cared for[.]” He “cooked and . . . cleaned” for them, changed Jamila’s clothes when she 

vomited on them, and treated Jamila’s head wound by icing it when it occurred under his watch. 

Thomas admitted during his interrogation that he “should have” taken Jamila to the hospital. In 

the fourth hour of questioning he stated: “I shoulda just took her to the hospital” when she did 

not get better after she had hit her head. He continued: “I made a bad judgment call . . . on not 

taking her to the hospital.” He explained that ever since she hit her head, “she’s been going 

down.” Accordingly, we reject Thomas’s arguments that he had no legal duty, or that the 

prosecution failed to present evidence substantiating it. 

2. CAUSATION 

 Thomas further contends that insufficient evidence supported that his omission caused 

Jamila’s death. This claim also lacks merit. 

 Dr. Kesha testified that Jamila’s pancreatic injury would have caused symptoms of illness 

obvious to a caretaker. He explained that “depending on the age of the child and the 

development of the child,” she would exhibit “fever, can have abnormal bowel movement, 

abnormal urination, pain, be drowsy, lethargic, wants to sleep all the time, wants to be held all 

the time, can have many different symptoms.” In response to the prosecutor’s questioning, Dr. 

Kesha stated that a child with a pancreatic injury “might vomit or she might not.” If Jamila had 

received treatment after the first pancreatic injury, Dr. Kesha opined, she would have survived. 

 The trial evidence substantiated that Jamila had been vomiting since sustaining her head 

injury, and did not appear to be as energetic as she normally was. Thomas admitted that the 

child had been sick “that last couple of weeks.” In combination with Dr. Kesha’s testimony, this 

evidence sufficed to demonstrate a causal relationship between Thomas’s omission and Jamila’s 

death. 
-12- 

B. OV 10 

 Thomas further contends that the trial court improperly assessed 10 points for offense 

variable 10. 

Under the sentencing guidelines, the circuit court’s factual determinations are 

reviewed for clear error and must be supported by a preponderance of the 

evidence. Whether the facts, as found, are adequate to satisfy the scoring 

conditions prescribed by statute, i.e., the application of the facts to the law, is a 

question of statutory interpretation, which an appellate court reviews de novo. 

[People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).] 

 MCL 777.40 provides for the scoring of OV 10 as follows: 

 (1) [OV] 10 is exploitation of a vulnerable victim. Score [OV] 10 by 

determining which of the following apply and by assigning the number of points 

attributable to the one that has the highest number of points: 

 (a) Predatory conduct was involved.... 15 points 

 (b) The offender exploited a victim’s physical disability, mental disability, 

youth or agedness, or a domestic relationship, or the offender abused his or her 

authority status........ 10 points 

 (c) The offender exploited a victim by his or her difference in size or strength, 

or both, or exploited a victim who was intoxicated, under the influence of drugs, 

asleep, or unconscious...... 5 points 

 (d) The offender did not exploit a victim’s vulnerability.......... 0 points 

 (2) The mere existence of 1 or more factors described in subsection (1) 

does not automatically equate with victim vulnerability. 

 (3) As used in this section: 

* * * 

 (b) “Exploit” means to manipulate a victim for selfish or unethical purposes. 

 (c) “Vulnerability” means the readily apparent susceptibility of a victim to 

injury, physical restraint, persuasion, or temptation. 

 The text of OV 10 permits a score of 10 points when “[t]he offender exploited a 

victim’s . . . youth or agedness[.]” MCL 777.40(1)(b). MCL 777.40(3)(b) defines “exploit” as 

“to manipulate a victim for selfish or unethical purposes.” “Accordingly, to merit a score of 10 

points for OV 10, a defendant must have manipulated a young victim for a selfish or unethical 

purpose and the victim’s vulnerability must have been readily apparent.” People v Needham, 

299 Mich App 251, 255; 829 NW2d 329 (2013). 
-13- 

 Thomas admitted that Jamila had been vomiting during the last week of her life and 

“[s]he just wasn’t running around busy like she usually be.” During his interview, Thomas had 

no excuse for failing to obtain medical care for the child, other than that doing so was her 

mother’s responsibility. Even if Thomas did not inflict any of Jamila’s injuries, he selfishly 

neglected to meaningfully attend to Jamila’s obvious medical needs. The trial court did not err 

in scoring OV 10 at 10 points. Accordingly, we affirm both his convictions and his sentences. 

III. DEFENDANT GORDON 

 Gordon contends that her trial counsel’s performance was constitutionally deficient, 

leading to her convictions. Gordon preserved this issue by successfully moving in this Court for 

remand to conduct a hearing on this issue. People v Armisted, 295 Mich App 32, 46; 811 NW2d 

47 (2011), citing People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 

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

of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). 

Findings of fact are reviewed for clear error, while determinations of constitutional law are 

reviewed de novo. Id. “ ‘[I]t has long been recognized that the right to counsel is the right to the 

effective assistance of counsel.’ ” United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L 

Ed 2d 657 (1984), quoting McMann v Richardson, 397 US 759, 771 n 14; 90 S Ct 1441; 25 L Ed 

2d 763 (1970). In Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 

(1984), the United States Supreme Court set forth the now familiar formula for an ineffective 

assistance claim: “First, the defendant must show that counsel’s performance was deficient. . . . 

Second, the defendant must show that the deficient performance prejudiced the defense.” To 

establish the first component, a defendant must show that counsel’s performance fell below “an 

objective standard of reasonableness” under “prevailing professional norms.” People v 

Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). With respect to the prejudice 

aspect, the defendant must demonstrate “a reasonable probability that but for counsel’s . . . 

errors,” the result of the proceedings would have differed. Id. at 663-664. “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 

US at 694. The defendant must overcome the strong presumptions that his “counsel’s conduct 

falls within the wide range of reasonable professional assistance,” and that counsel’s actions 

represented sound trial strategy. Id. at 689. 

 A defense counsel possesses “wide discretion in matters of trial strategy.” People v 

Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). And decisions regarding what witnesses 

to present are generally considered strategic, supporting relief only when the defendant is denied 

a substantial defense based on a witness’s absence. People v Payne, 285 Mich App 181, 190; 

774 NW2d 714 (2009). This Court may not “substitute our judgment for that of counsel on 

matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel’s 

competence.” Id. (quotation marks and citation omitted). However, “even deliberate trial tactics 

may constitute ineffective assistance of counsel if they fall outside of the wide range of 

professionally competent assistance.” Martin v Rose, 744 F2d 1245, 1249 (CA 6, 1984) 

(quotation marks and citation omitted). 
-14- 

A. GINTHER HEARING 

 Pursuant to this Court’s order, the trial court conducted a Ginther hearing. Gordon’s trial 

attorney, John McWilliams, testified that his theory of the defense was that Jamila died due to 

“natural causes from a congenital birth defect.” The “congenital birth defect” was the child’s 

underlying brain malformation. McWilliams constructed his causation hypothesis from two 

facts: Jamila’s brain abnormality and her “failure to thrive” diagnosis at the time the brain 

abnormality was diagnosed. He postulated “that with the missing 30 percent of a person’s brain 

that that could, in fact, cause a downward cascading condition of the various systems of a human 

body, which would and possibly [did] account for the fact that there was a diagnosis by 

Children’s Hospital that the child was failing to thrive.” 

 When Jamila was admitted to CHM and the “failure to thrive” diagnosis rendered, 

McWilliams continued, the treatment was to “pack[] that child with calories.” Yet she lost 

weight, he observed, “because [she] was failing to thrive.” He concluded from these facts that 

Jamila’s failure to thrive “was the cause and effect of the 30 percent [loss of brain matter] and 

the downward cascade of a child who was born with a congenital birth defect, unfortunately.” 

He elaborated: 

These downward cascading symptoms that eventually led to, in my estimation, 

the breakdown of various not only body functions, but system functions within 

the child’s body, which included nutrition, failure to thrive, and I thought better 

explained why the child, when seen in the emergency [room] on the night in 

question, the child is there deceased, and that had all of these bruises on the 

interior and back side of the child, and why the child had pneumonia, that all of 

that was in conjunction with what had previously happened. 

 No expert witness testified in support of McWilliams’ theory that Jamila’s 2014 

pancreatic laceration was related to the 2013 “failure to thrive” diagnosis or to her brain 

malformation. More importantly, McWilliams knew his theory was scientifically bankrupt 

before he decided to employ it, but he rested Gordon’s defense on it nonetheless. 

 McWilliams conceded at the Ginther hearing that he unsuccessfully consulted several 

medical experts in his search for validation of his idea that Jamila’s brain disorder and failure to 

thrive caused her death. In addition to Dr. Dragovic, he contacted Dr. Werner Spitz3

 and at least 

one medical malpractice lawyer at the Charfoos & Christensen law firm, which specializes in 

plaintiffs’ medical malpractice work: 

 I also showed the morgue pictures and the Autopsy Report of [to?] Dr. 

Spitz. 

 

3

 McWilliams saw Dr. Spitz and another well-known forensic pathologist, Dr. Michael Baden, at 

a conference. He showed them the autopsy report and the photographs and they told him: “this 

child was abused.” 
-15- 

 I also submitted the file to the Charfoos & Christensen law firm, wellknown for childbirth defects as litigators in these kinds of cases. 

 And none of them would agree with me that other than - - and also the fact 

that there was a lacerated pancreas on this particular child, which everybody, 

including all of the literature that I researched all over the place, could - - no 

lacerated pancreas could not happen in any child, except for blunt force trauma, 

improper blunt force trauma, except what I believed was the proper theory that the 

pancreas received this laceration because of the medical condition, the breakdown 

cascading of being one of the functions of nutrition, that that caused the 

laceration, which I thought Dr. Dragovic was going to back me up on.[4]

 McWilliams testified that his own research led him to conclude that the pancreas cannot 

be injured except through trauma. Nevertheless, he believed that “because of a birth defect” and 

his personal experience with acid reflux, he could explain Jamila’s injury as nontraumatic: 

 And [I] did a great deal of research, and especially through Dr. Werner 

Spitz’ Medicolegal book, his textbook, and also looking through many journals, 

and journal articles with regard to specifically trying to determine how it was 

otherwise that a pancreas, which is placed uniquely in a human body between - - 

I’m not exactly sure between what and what - - but it is so deeply embedded in 

the human body that unless there is some type of either intentional or major 

accidental injury, trauma, force, that usually a pancreas is not otherwise damaged, 

except possibly - - it’s my belief - - because of a birth defect, which has a 

cascading effect not only upon the lungs and not only upon the whatever, blood 

flow and things like that, but also upon the nutritional value of the child. 

 And nutrition has to do with the pancreas. The pancreas has to do with 

breaking down the intake material from the mouth from eating. And it contains 

many acid enzymes which break down food, which is very volatile because I, you 

know, from time to time I get this thing called “acid reflux”. 

 I think that stuff is battery acid in my throat or stomach. Where the heck 

did it come from? I find out it comes partially from your pancreas. That stuff is 

really - - and I thought to be truthful and fully disclosing that that, in fact, could 

have been part of what caused the lacerated pancreas, as opposed to blunt force 

trauma.[5]

 

4

 The Charfoos attorneys also concluded that the child had been abused, McWilliams 

volunteered. 

5

 McWilliams’ flawed understanding of medical facts permeated both Gordon’s trial and the 

Ginther hearing. McWilliams auditioned his idea that the pancreas “has to do with breaking 

down the intake material from the mouth when eating” when he cross-examined Dr. Kesha. Dr. 

Kesha told him that the pancreas secretes enzymes but the enzymes are not used in digestion: 
-16- 

 On cross-examination, the prosecuting attorney summarized these theories with 

McWilliams: 

Q. Now, let me just recap the theories. Your theory was the child died 

based on the congenital birth defect, which deteriorated from the point of birth 

until the child eventually succumbed to it partially due to the breakdown of the 

pancreas and that this was all based on a congenital birth defect? 

A. Correct, sir. 

McWilliams expressed confidence that the hundreds of pages of medical records introduced into 

evidence proved him right. 

 Despite having told Gordon’s jury in his opening statement that the medical examiner for 

an “adjoining county” would testify as a defense expert witness, McWilliams elected against 

calling Dr. Dragovic.6

 McWilliams justified this decision in several ways. First, he claimed that 

his causation theory was more likely to lead to a defense verdict than would Dr. Dragovic’s 

testimony. Second, McWilliams was aware of Dr. Dragovic’s “personal animosity” toward the 

Wayne County Medical Examiner’s Office and believed that this would negatively impact his 

Q. . . . Probably a common thing that happens to people is this thing 

called acid reflux? 

A. That’s correct. 

Q. I call it battery acid because that’s how bad it burns my throat when I 

get it. And I have the feeling that something like that has to do with the 

emanation of that material that emanates from the pancreas, is that true or not? 

A. No, the acid is produced by the stomach. 

Q. Okay. But some of the enzymes which produce that has come from 

the pancreas originally, would you agree with me? 

A. No. 

In fact, the pancreas secretes insulin into the duodenum, not the mouth. Enzymes produced in 

the mouth and stomach create the “stuff” McWilliams called “acid reflux.” Basic research 

would have readily revealed to McWilliams that his pancreas/acid reflux theory had no merit 

whatsoever. See Acid Reflux, available at <http://patients.gi.org/topics/acid-reflux/> (accessed 

March 29, 2017). 

6

 McWilliams’ opening included his explanation of his natural-cause of death theory. He 

advised the jury that they would learn that Jamila had “congenital” birth defects “which caused a 

vital internal organ to self-destruct, became infected, injecting and collapsing the health of other 

organs resulting in the child’s death. In other words, natural cause of death.” Her “pancreas was 

part and parcel and caused by . . . 36 months of congenital birth condition, not blunt force 

trauma,” he asserted. None of these contentions were validated during the trial. 
-17- 

cross-examination. Third, Dr. Dragovic “had no explanation as to why and how all of these 

horrible bruises were on this child.” And fourth, McWilliams believed that he had scored points 

with the jury that would lead him to victory: Gordon had provided “very fine testimony” and Dr. 

Kesha had agreed that the child’s brain anomaly “would, in fact, have some effect upon the 

various aspects of the human development and the system of a human being, which included the 

pancreas[.]” McWilliams reasoned: 

 I gained knowledge and information from [Dr. Dragovic], which was 

extremely helpful, which was the key to other cases, which was the key in my 

belief to the defense of Ms. Gordon, okay, which I then went on and developed as 

a strategy and a theory of the defense of Ms. Gordon and I believe also the 

vindication of not only Ms. Gordon, but the vindication of Mr. Thomas, her 

codefendant, her boyfriend. 

* * * 

. . . I did not call him because three days before the trial I received a letter from 

Dr. Dragovic. I had anticipated that he would agree with me and reinforce the 

theory of the defense which I had had. And when I read his letter, I looked at it 

and thought to myself, as the trial lawyer working the strategy and in conjunction 

with many conversations with Ms. Gordon, that I had the better strategy. 

McWilliams claimed that he discussed this approach with Gordon, and predicted that Dr. 

Dragovic would get into a “rout” with the prosecutor on the witness stand. The actual events 

proved him right, McWilliams asserted. 

 Appellate counsel also questioned McWilliams regarding his decision not to call Rose 

Bonaci, who worked in the Early On program, despite that she was present in the courthouse and 

prepared to testify on Gordon’s behalf. Bonaci’s report, prepared for the Detroit Public Schools 

10 days before Jamila’s death, did not reference abuse or any signs of abuse. McWilliams 

testified that he decided against calling Bonaci because had he done so, he believed that the 

prosecutor would have introduced photos of Gordon and Thomas’s home that were “very 

unflattering.” McWilliams understood that Jamila had been fully clothed when Bonaci evaluated 

her, eliminating any chance that Bonaci would have seen the child’s bruises. 

 Gordon was the only other witness who testified at the Ginther hearing. She claimed that 

McWilliams did not tell her that he had decided against calling Bonaci and Dr. Dragovic until 

after Gordon had testified, when he “whispered” it to her at counsel table. Further, Bonaci had 

never visited the home in which Gordon lived at the time of Jamila’s death; any home visits 

occurred at a previous apartment. The last evaluation occurred at the school. 

 The trial court concluded that given McWilliams’ concerns about Dr. Dragovic’s 

demeanor, Dr. Dragovic’s failure to explain the bruises, and the positive things about Gordon 

that appeared in the medical and school records introduced in evidence, “I can’t find that it was 

not sound trial strategy” to forego calling him as a witness. The trial court continued, “It may be 

that in hindsight maybe calling them might have possibly made a difference, but it might not 
-18- 

have either.” Gordon’s own statement that “she didn’t want to take her daughter to the doctor 

because she didn’t want CPS called in” likely had an impact on the jury, the court observed. 

B. COUNSEL’S PERFORMANCE WAS DEFICIENT 

People v Ackley, 497 Mich 381, 383; 870 NW2d 858 (2015), also involved a child’s 

death due to alleged abuse. In that case, as here, “expert testimony was critical to explain 

whether the cause of death was intentional[.]” Counsel in Ackley consulted an expert witness, 

Dr. Hunter, who advised that he could not help the defense, but suggested another physician who 

would “ ‘give you your best shot.’ ” Id. at 386. Counsel never consulted that expert, or any 

other. Instead, he determined to present an accident defense through cross-examination of the 

prosecution experts. Id. at 386-387. After the defendant was convicted of felony murder and 

first-degree child abuse, appellate counsel consulted an expert witness (Dr. Werner Spitz) whose 

affidavit supported that the child’s injury was accidental. Id. The trial court granted the 

defendant a new trial, finding counsel’s failure to consult with a different medical expert 

objectively unreasonable. Id. at 387. This Court reversed, holding that counsel’s “decision not 

to consult a second expert constituted trial strategy[,]” and that no prejudice had resulted. People 

v Ackley, unpublished opinion per curiam of the Court of Appeals, issued April 22, 2014 (Docket 

No 318303), unpub op at 4. 

 The Supreme Court reversed, explaining that “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.” Id. at 388-389 (quotation marks and citation omitted). 

Although the selection of an expert is a “paradigmatic example” of trial strategy, the Court 

determined that the record in Ackley “betray[ed] 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.” Id. 

at 390-391 (emphasis in original, citation omitted). The Supreme Court unanimously determined 

that Ackley’s counsel had performed ineffectively, summarizing:

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. [Ackley, 497 Mich at 392.] 

 Arguably, McWilliams’ decision not to present expert testimony represents more 

egregious ineffectiveness than that of Ackley’s counsel, as McWilliams had actually retained 

expert support for an exculpatory theory and the expert appeared at the trial ready to testify. 

Against that backdrop, McWilliams’ strategic decision to forego the expert and instead present 

an unsupportable medical theory through his argument and cross-examination constituted 
-19- 

ineffective performance. As discussed in greater detail below, McWilliams deprived Gordon of 

a substantial defense because his “strategy” actually amounted to no defense at all. 

 In defending his strategy at the Ginther hearing, McWilliams asserted that he capably 

advanced an exculpatory defense despite having no witness support for it, and the trial court 

apparently agreed. But our review of McWilliams’ cross-examination of Dr. Kesha reveals that 

the trial court clearly erred in this regard, as McWilliams made no evidentiary headway 

whatsoever in advancing his personal hypothesis that Jamila’s death and her pancreatic 

laceration evolved naturally from her “congenital brain anomaly.” 

 Dr. Kesha firmly rejected that Jamila had “a congenital birth defect.” Nor did Dr. Kesha 

concede that the “failure to thrive” diagnosis made at CHM had anything to do with the cause of 

the child’s death: 

Q. Okay. Did you see that the child was suffering from some type of 

generalized congenital birth defect? 

A. No. 

Q. No, you didn’t see that? 

A. I didn’t see any congenital birth defect, no. 

Q. Well, you saw a description of a condition severally [sic] 

developmentally disabled; didn’t you see that? 

A. Yes. 

Q. Okay. And would that be any - - within the realm of being a

congenital birth defect? 

A. It’s not considered a birth defect. 

Q. Okay. 

A. A cleft palate, a cleft lip is a birth defect. 

Q. Okay, I understand that. But you did see that there was some problem 

with regard to this child’s brain functioning or brain makeup; isn’t that true? 

A. That’s correct. 

* * * 

Q. . . . [T]he parents of this child came to Children’s Hospital in April 

2013, something was not functioning right with regard to this child’s digestive 

process? 

A. I don’t know that. 
-20- 

Q. Okay. It could have though; isn’t that true? 

A. It could have. 

Q. Right. And that may be one of the reasons why the child was failing to 

thrive; isn’t that true? 

A. That’s true. 

Q. Especially if the child was demonstrating flu-like symptoms, vomiting, 

diarrhea, temperature, fever, throwing up? 

A. Yeah, but it would have to be over a long period of time, not sporadic. 

Q. Not sporadic? 

A. Not sporadic. 

* * * 

Q. . . . [I] just need your frank opinion, should you have gone back and 

taken a look at the Children’s Hospital records at the time that you did this 

autopsy? 

A. It wouldn’t have changed the cause and manner of death. 

Q. Okay. I understand that. Because you at the time of making the 

opinion as to cause and manner of death are only looking at that child as she 

presented on the day and at the time you made that autopsy; isn’t that true? 

A. No. 

Q. It’s not? 

A. No. 

Q. Why not? 

A. We have to look at medical records to see any progression or any 

reason that can account - - anything that can change or make a cause and manner 

of death. 

 These excerpts are representative of McWilliams’ unsuccessful efforts to elicit 

admissions from Dr. Kesha consistent with this theory that Jamila’s brain abnormality was a 

“congenital defect,” that somehow damaged her pancreas. Viewed indulgently, his questions 

may have laid the groundwork for his theory. But the answers offered no support for it. His 
-21- 

cross-examination yielded no concessions or actual evidence that Jamila’s death was natural 

rather than the result of abuse.7

 Furthermore, the jury was twice instructed that counsel’s statements and questions are not 

evidence, and that only the testimony of witnesses and exhibits admitted in evidence could be 

considered as such. See M Crim JI 2.5 (“Evidence includes only the sworn testimony of the 

witnesses, the exhibits admitted into evidence, and anything else I tell you to consider as 

evidence.”); M Crim JI 2.7 (“The questions the lawyers ask the witnesses are not evidence. Only 

the answers are evidence. You should not think that something is true just because one of the 

lawyers asks questions that assume or suggest that it is.”), and M Crim JI 3.5(5) (“The lawyers’ 

statements and arguments [and any commentary] are not evidence. They are only meant to help 

you understand the evidence and each side’s legal theories. You should only accept things the 

lawyers say that are supported by the evidence or by your own common sense and general 

knowledge. The lawyers’ questions to the witnesses [your questions to the witnesses,] and my 

questions to the witnesses are also not evidence. You should consider these questions only as 

they give meaning to the witnesses’ answers.”). The jurors are presumed to have followed their 

instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Lacking a witness to 

corroborate his theory of the case, McWilliams had no actual evidence to support his selected 

defense, as Dr. Kesha never testified in conformity with McWilliams’ medical theory. Thus, the 

uncorroborated “defense” McWilliams offered the jury was no defense at all. 

 McWilliams accurately predicted Dr. Dragovic and the prosecuting attorney’s quarrel 

during cross-examination regarding Dragovic’s history with the Wayne County Medical 

Examiner’s Office. McWilliams claimed he had seen this mutual hostility unfold in other trials. 

The prosecutor argues that McWilliams’ knowledge that Dragovic would be a “problematic” 

witness justifies his decision not to call him. But this reasoning begs the questions: why did 

McWilliams consult Dragovic in the first place if he knew that Dragovic’s cross-examination 

would be treacherous, and why did he promise the jury that Dragovic would testify? 

 Despite Dr. Dragovic’s scrappiness, as an experienced pathologist he would have 

provided Gordon with an actual defense to the charge that she had aided and abetted Thomas’s 

first-degree child abuse and to the charge of felony murder, with child abuse in the first degree 

serving as the underlying felony. In his report and his testimony, Dr. Dragovic offered that 

Jamila had not been the victim of child abuse, and that the pancreatic injury did not cause her 

 

7

 In his closing argument, McWilliams admitted that his cross-examination had been less than 

convincing: 

I wish I could have done a better job of cross examining the medical physician 

from the medical examiner’s office to demonstrate to you the link between the 

child losing 30 percent or missing some 30 percent of its brainwave [sic] and a 

pancreas that was defective, did not mature, was not creating the necessary things 

to do the digestive system. 
-22- 

death. His expert testimony was truly exculpatory, in contrast to McWilliams’ unsupported 

theory.8

 Dr. Dragovic’s report put McWilliams on notice that Dragovic could be helpful to the 

defense in multiple respects. The prosecution relied on an alleged link—sepsis—between the 

pancreatic injury and the pneumonia to prove that Thomas had fatally abused the child. 

Dragovic opined that Jamila had not died of sepsis caused by her pancreatic laceration: “The 

professed dubious patho-physiology of alleged ‘sepsis’ as a plausible cause of bilateral 

bronchopneumonia of this severely mentally retarded child is without scientific basis and is 

devoid of common sense.” In his report (and at the trial) he termed Dr. Kesha’s opinion 

connecting the fatal pneumonia with the pancreatic injury “a quantum leap.” Although he 

conceded that the child had sustained trauma to her abdomen resulting in the pancreatic 

laceration, Dr. Dragovic’s report and his testimony supported that this injury could have 

occurred in an innocent manner, such as a “toddler running into” or being pushed into an object. 

Further, at the trial, he forcefully contradicted Dr. Kesha’s testimony that the injury could have 

been inflicted with a fist, explaining that a punch necessarily would have damaged nearby 

organs. He raised the possibility that Jamila’s head wounds were self-inflicted, stating in his 

report: “Children with severe mental retardation are known for their propensity to have bouts of 

head-banging.” (Emphasis in original.) Dr. Dragovic also opined that had he done the autopsy, 

he would not have called Jamila a victim of child abuse, and that Dr. Kesha had not properly 

documented that the lesions Dr. Kesha called bruises were actually bruises. 

 Perhaps equally helpful to the defense, Dr. Dragovic also called into question the 

competency of Dr. Kesha’s autopsy report. Dr. Dragovic pointed out that when he performed the 

autopsy, Dr. Kesha did not realize that Jamila’s brain was malformed; Dr. Kesha admitted this 

rather striking oversight at the trial.9

 Further, Dr. Dragovic is a far more experienced pathologist 

than is Dr. Kesha. Despite his antagonism toward Wayne County, he has served as the Oakland 

County Medical Examiner for many years, and has a much broader range of experience than did 

Dr. Kesha, who finished his residency training in 2012. 

 By rejecting Dr. Dragovic’s testimony and proceeding to defend Gordon with his madeup, evidence-free theory, McWilliams fought a duel with an unloaded gun, and with the bullets 

in his pocket. McWilliams’ ineffectiveness is particularly glaring in light of the fact that he had 

promised the jury in his opening statement that it would hear from an expert witness who 

disagreed with Dr. Kesha. 

 

8

 By casting doubt on whether Jamila had been the victim of child abuse, Dr. Dragovic’s report 

and testimony rebutted the first element of an aiding and abetting charge: that the crime was 

committed by another person. 

9

 Dr. Dragovic’s report states: “Despite the severe mental retardation and the obvious 

microcephaly with the documented brain weight of 843 grams, (i.e. about 30% of the brain tissue 

missing because it never developed), this child’s brain is deemed without abnormality.” 
-23- 

 Several courts of appeal have held that a defense attorney’s decision to break a promise 

made during opening statement may qualify as ineffective assistance of counsel. In United 

States ex rel Hampton v Leibach, 347 F3d 219, 257 (CA 7, 2003), the Court of Appeals for the 

Seventh Circuit found counsel ineffective for having “reneged on his promises” to present 

evidence through certain witnesses “without explaining to the jury why he did so.” “Turnabouts 

of this sort may be justified when ‘unexpected developments . . . warrant . . . changes in 

previously announced trial strategies,’ ” the Seventh Circuit explained, but “when the failure to 

present the promised testimony cannot be chalked up to unforeseeable events, the attorney’s 

broken promise may be unreasonable, for ‘little is more damaging than to fail to produce 

important evidence that had been promised in an opening.’ ” Id. (citations omitted, alterations in 

original). See also Johnson v State, 145 SW3d 97, 119 (Tenn Crim App, 2004) (“In the instant 

case, trial counsel failed to keep their promises to the jury, without a reasonable basis for such 

departure. All potential pitfalls regarding Dr. Schacht’s testimony were known and considered 

by counsel prior to trial.”). 

We are unpersuaded by McWilliams’ claim that Dragovic’s report supported his decision 

against calling Dragovic at trial. McWilliams received Dragovic’s report several days before the 

trial. He knew what Dr. Dragovic had to say, which was that pneumonia caused Jamila’s death 

and was unrelated to the pancreatic laceration, and that Dr. Kesha’s autopsy was incorrect in 

other respects. Nothing changed during the trial, other than McWilliams’ failure to elicit any 

concessions supporting his theory from Dr. Kesha. Nor did McWilliams ever explain what had 

happened to the expert he promised to produce. But McWilliams’ broken promise, standing 

alone, would not require us to reverse Gordon’s conviction. 

 McWilliams’ strategic decision to rest Gordon’s defense on a scientific theory that lacked 

any evidentiary support was fundamentally unsound strategy and constitutionally ineffective, 

given that an expert was prepared to testify that the child’s death was not the result of child 

abuse. The Supreme Court’s holding in Ackley is instructive: 

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. [Ackley, 497 Mich at 393-394.] 

 Here, the jury heard only the prosecution’s evidence that a violently inflicted kick or 

punch to Jamila’s abdomen lacerated her pancreas, which led to pneumonia and her death. Dr. 

Dragovic disagreed that a punch or a kick were ever delivered, given that no other organs were 

injured, and that the laceration led to pneumonia. We conclude that McWilliams’ decision not to 

present Dr. Dragovic’s testimony fell below an objective standard of reasonableness. Strickland, 

466 US at 688. 

C. PREJUDICE 

 But for McWilliams’ deficient performance there is a reasonable probability that the 

outcome of Gordon’s trial would have been different. 
-24- 

 Gordon’s conviction for first-degree child abuse turned on whether the jury believed that 

she had aided and abetted Thomas’s physical abuse of the child. Her jury heard only the 

testimony of Dr. Kesha, which supported that Thomas had intentionally harmed Jamila by 

delivering a blow that lacerated her pancreas.10 Dr. Dragovic cast considerable doubt on whether 

Jamila’s pancreatic injury had been intentionally inflicted. He offered innocent explanations for 

the pancreatic tear, and testified that as an experienced pathologist he would not have deemed 

her a victim of child abuse. This evidence “would have provided the jury with another viable 

and impartial perspective on the facts of the case while contradicting the prosecution’s theory[.]” 

Ackley, 497 Mich at 394. 

 No direct evidence supported that Thomas had abused the child, or that Gordon had aided 

and abetted him. While the circumstantial evidence suggested that Gordon was grossly negligent 

in failing to obtain medical attention for Jamila, that evidence supported only her conviction for 

involuntary manslaughter. To prove that Gordon aided and abetted Thomas in abusing the child, 

the prosecution had to convince the jury that Thomas had, in fact, intentionally or knowingly 

perpetrated the abuse. As McWilliams recognized, creating a reasonable doubt as to whether 

Jamila was abused was the key to Gordon’s defense of this charge. The only evidence 

McWilliams employed was Gordon’s own testimony. And her credibility was seriously 

damaged by her admission that due to her intoxication, she had neglected to take Jamila to the 

doctor for her head injury. 

 “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 [her] own selfinterest.” Id. Gordon testified that she did not perceive the lesions on Jamila’s body as bruises. 

Dragovic supported this perception, suggesting that other conditions could account for the 

changes in the appearance of Jamila’s skin, and that Dr. Kesha had failed to properly document 

that the lesions were actually bruises by studying them microscopically. Gordon also professed 

her disbelief that Thomas had intentionally abused her daughter; again, this testimony would 

have been corroborated and bolstered by Dr. Dragovic. As in Ackley, “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.” Id. In 

other words, without Dr. Dragovic’s support for her defense that she had not aided or abetted 

intentional abuse of the child, Gordon had no defense at all. To satisfy Strickland’s second 

prong she need not show that Dr. Dragovic’s “more likely than not” would have produced an 

acquittal, 466 US at 693, only that there exists “a probability sufficient to undermine confidence” 

in the verdict. Id. at 694. 

 We know that another jury saw the same documentary evidence and heard the same 

testimony—other than Gordon’s but including Dragovic’s—and acquitted Thomas on the charge 

of first-degree child abuse. In a sense, that jury serves as a control for Strickland’s second prong. 

Evaluating whether a reasonable probability of a different outcome exists is always a speculative 

 

10 Under MCL 750.136b(2), “A person is guilty of child abuse in the first degree if the person 

knowingly or intentionally causes serious physical or serious mental harm to a child.” 
-25- 

endeavor, but here, irrefutable evidence exists that a jury exposed to Dr. Dragovic’s views 

rendered a different verdict. 

 In summary, the crux of the prosecution’s case was Dr. Kesha’s testimony that Jamila’s 

pancreatic laceration was deliberately inflicted, a necessary element of first-degree child abuse. 

Dr. Dragovic countered this evidence with his testimony that the laceration could have occurred 

accidentally, and that Dr. Kesha’s theory of how the injury occurred was not scientifically valid. 

A jury that heard both Drs. Kesha and Dragovic apparently rejected Dr. Kesha’s view. In light 

of their verdict, Dragovic’s absence during Gordon’s trial raises a reasonable probability of her 

acquittal and undermines confidence in the jury’s guilty verdict.11

D. ROSE BONACI 

 We need not consider whether McWilliams performed ineffectively by failing to call 

Bonaci as a witness, because her testimony is not reasonably likely to have altered the outcome. 

Bonaci last saw Jamila before the child had sustained her head wound, and likely before the 

serious abuse occurred. 

 We affirm in Docket No. 329448, but vacate defendant Gordon’s convictions and 

sentences and remand for a new trial in Docket No. 329449. We do not retain jurisdiction. 

/s/ Peter D. O'Connell 

/s/ Elizabeth L. Gleicher 

/s/ Mark T. Boonstra 

 

11 Although Dr. Dragovic’s testimony most readily applied to the child abuse charge, counsel’s 

constitutionally deficient performance requires vacation of both convictions. “Unless the 

accused receives the effective assistance of counsel, ‘a serious risk of injustice infects the trial 

itself.’ ” Cronic, 466 US at 656, quoting Cuyler v Sullivan, 446 US 335, 343; 100 S Ct 1708; 64 

L Ed 2d 333 (1980). See also People v Dixon, 263 Mich App 393; 688 NW2d 308 (2004) 

(BANDSTRA, J. concurring and SCHUETTE, J. concurring in part and dissenting in part).