Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr., Chief Justice

Michael F. Cavanagh

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano, Justices

Order 

March 7, 2014

147581

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v SC: 147581

COA: 306191

Lapeer CC: 10-010499-FC

ANDREW AUDIE WILLIAMS,

Defendant-Appellant.

____________________________________/

On order of the Court, the application for leave to appeal the June 20, 2013 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the question presented should be reviewed by this Court.

MARKMAN, J. (dissenting).

I respectfully dissent and would grant leave to appeal in this case in which 

defendant has questioned the effectiveness of his trial counsel in a defense to a charge of 

first-degree criminal sexual conduct (CSC-I). We are presented here with a situation in 

which (a) counsel fully reviewed the report of the prosecutor’s forensic expert regarding 

his medical examination of the alleged victim, (b) counsel consulted with a local 

physician regarding the medical findings set forth in the report, (c) counsel consulted 

with defendant concerning whether to retain their own expert to counter the medical 

findings set forth in the report and defendant agreed with counsel that this was 

unnecessary, and (d) counsel effectively cross-examined the forensic expert to minimize 

any harm done to defendant by the report. What counsel did not do, however, was to 

recognize the extent to which the report may have been of considerable potential benefit 

to defendant by evidencing that he might be innocent of the crimes for which he has now 

been convicted and is serving a 15- to 30-year sentence.

In 2010, defendant’s granddaughter alleged that between 2001 and 2005 defendant 

sexually abused her on 15 occasions. These allegations led the prosecutor to charge 

defendant with three counts of CSC-I. The charges were based on three separate 

incidents in which it was alleged that defendant engaged in sexual intercourse with his 

granddaughter, who was between five and nine years old. The granddaughter was 

examined by a forensic expert, Dr. Mischa Pollard, whose report stated, inter alia, that 

her examination revealed no visible tears or transections of the victim’s hymenal ring. 

In preparing for trial, defense counsel read Dr. Pollard’s report and consulted a 

local general practitioner for the purpose of determining whether anything in the report 

was damaging to defendant. Learning from the practitioner that “there was nothing really 
2

damaging in [the] report by itself,” defense counsel focused on other aspects of the case 

without further investigating or apparently recognizing that the lack of any visible tearing 

or transection of the hymenal ring was not simply not “really damaging” to defendant, 

but potentially highly exculpatory. 

Defendant was eventually convicted on all three CSC-I counts. On appeal, he now 

argues that counsel was ineffective for failing to recognize that Dr. Pollard’s report 

significantly supported defendant’s claim of innocence, in part as a result of counsel’s 

failure to consult with and retain his own forensic expert. To further develop this 

argument, a Ginther1 hearing was held, and Dr. Stephen Guertin2 testified that there is a 

94% to 96% chance that a single incident of sexual intercourse with a prepubertal child 

would result in a tear or transection of the hymenal ring, leaving a lasting visible 

abnormality.3

 Given the likelihood that any single incident would leave such an 

abnormality, it follows statistically that there may have been as high as a 99.978% chance 

that an abnormality would result from at least one of three charged incidents of sexual 

intercourse.4

Following the Ginther hearing, the trial court denied defendant’s motion for a new 

trial, and the Court of Appeals affirmed because it concluded that counsel’s decision not 

 

1 People v Ginther, 390 Mich 436 (1973).

2 Dr. Guertin is the medical director of the Sparrow Children’s Center and the director of 

the Pediatric Intensive Care Unit at Sparrow Hospital. He is also an associate professor 

of pediatrics at Michigan State University. As part of his practice, Dr. Guertin “sees 

between 100 and 200 children per year who have been referred . . . for suspected child 

abuse,” which often results in Dr. Guertin assisting the police and the prosecution in 

cases brought against individuals who have abused children. 

3 Dr. Guertin testified that the reason sexual intercourse with a prepubertal child is so 

likely to leave such an abnormality is because the hymen during the prepubertal stage 

typically has a “maximum opening” of 10 millimeters while “[t]he average penis is 35 

millimeters . . . .”

4 This latter percentage was not set forth by Dr. Guertin, but is a statistical inference 

drawn from his testimony. That is, if each episode of intercourse independently of the 

others gave rise to a 94% to 96% chance of a tear, the 99.978% percentage would seem to 

be an accurate figure in identifying the likelihood of a tear from at least one of these 

episodes. If, however, potential anatomical factors, rather than happenstance, 

predominately explain the absence of a tear, then the likelihood of a lasting visible 

abnormality might remain at 94% to 96%.
3

to retain and call an expert witness was “sound trial strategy” on the grounds that Dr. 

Pollard’s testimony “did not favor the prosecution.”5

 To make out a claim of ineffective assistance of counsel, a defendant must show 

that (1) “his attorney’s representation fell below an objective standard of reasonableness” 

and (2) there is “‘a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different . . . .’” People v Toma, 462 Mich 

281, 302-303 (2000), citing Strickland v Washington, 466 US 668, 687 (1984), and 

quoting People v Mitchell, 454 Mich 145, 167 (1997). To provide effective assistance of 

counsel, defense counsel not only must consult with experts when doing so “would have 

revealed [the] weaknesses of the prosecution’s case,” People v Trakhtenberg, 493 Mich 

38, 53 (2012), but also must consult with experts when an expert analysis, as part of the 

investigatory process, is likely to develop evidence favorable to the defendant, Strickland, 

466 US at 690-691. Sound trial strategy can only be “developed in concert with an 

investigation that is adequately supported by reasonable professional judgments.” People 

v Grant, 470 Mich 477, 486 (2004). This, in part, requires counsel to make “‘an 

independent examination of the facts, circumstances, pleadings and laws involved . . . .’” 

Id. at 486-487, quoting Von Moltke v Gillies, 332 US 708, 721 (1948). 

Under these standards, a court reviewing ineffective-assistance claims must 

evaluate those claims on a case-by-case basis. In so doing, an appellate court should look 

at the specific steps counsel took in light of the facts, evidence, and circumstances of the 

case. There is no particular “checklist” of actions that may be undertaken by counsel that 

will automatically immunize him from being found ineffective, but his actions as a whole 

and in context must be assessed. There is no “one-size fits all” investigation.

 

Defendant here was arguably prejudiced, and considerably so, by counsel’s 

decision not to consult and retain an expert. Had counsel been apprised of the data set 

forth by Dr. Guertin, he likely would have developed a trial strategy that encompassed 

expert forensic testimony. Indeed, he admitted as much at the Ginther hearing, stating 

that he “obviously . . . would have used” the testimony offered by Dr. Guertin because “it 

certainly would [have] help[ed] [defendant’s] case.”

 

5 People v Williams, unpublished opinion per curiam of the Court of Appeals, issued June 

20, 2013 (Docket No. 306191), p 2.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 March 7, 2014

h0304

4

Clerk

For these reasons, I would grant leave to appeal to assess whether counsel here 

employed reasonable professional judgment. In particular, I would address the 

following: (1) whether counsel here satisfied his professional duty when he consulted a 

general practitioner rather than a forensic expert, (2) whether counsel here could 

effectively delegate his responsibility for identifying arguments in support of his client to 

a general practitioner or to any other expert, (3) whether the forensic report contained 

findings that an ordinary attorney would reasonably recognize as helpful to his client 

independently of any expert analysis, (4) whether counsel here can be deemed ineffective 

despite having consulted with his client and secured his agreement to the trial strategy 

pursued, and (5) whether counsel’s performance in this case was properly reviewed by 

the trial court and the Court of Appeals on the basis of the specific “facts, circumstances, 

pleadings and laws involved.”6

 

6 Grant, 470 Mich at 486-487 (quotation marks and citation omitted).