Home Daily News Dissenter slams defense lawyer's 'dilatory…

Criminal Justice

Dissenter slams defense lawyer's 'dilatory and seemingly impassive preparation' in criminal case

The Michigan Supreme Court has refused to allow an appeal by an armed robbery defendant whose lawyer didn’t discuss strategy with him until they met for 15 minutes on the eve of the trial.

In a 4-3 order (PDF), the state supreme court turned down the appeal by Ashly Drake Smith, who is serving a 15-year sentence after his conviction, report the Associated Press and MLive.com. Three alibi witnesses, never called to testify, had claimed they were with Smith for most of the evening in question because they had stomach flu and were sharing a pot of chicken soup.

In a dissent joined by two other justices, Justice Mary Beth Kelly said she would have granted a new trial because Smith’s trial lawyer didn’t conduct a reasonable investigation into Smith’s alibi defense, and didn’t use the witnesses at trial.

“Given counsel’s dilatory and seemingly impassive preparation,” Kelly wrote, “I conclude that counsel’s performance was constitutionally deficient.”

Smith had testified the trial lawyer had only met with him in court proceedings and in the bullpen of the jail before their meeting on the eve of trial, the defendant said. During the earlier encounters, Smith said he informed his lawyer of the alibi defense and provided contact information for the witnesses, an assertion that the lawyer didn’t dispute.

The only evidence against Smith was testimony by the crime victim. The trial lawyer had testified she believed the case was so weak she didn’t want to put a potential acquittal at risk by putting on alibi witnesses who could be attacked by prosecutors.

Though there were inconsistencies among the accounts of the three alibi witnesses, the lawyer could have called the two females whose testimony was consistent, Kelly said. “Defendant had nothing to lose and everything to gain” by calling the witnesses, Kelly said.

The lawyer had testified she typically handled 17 court-appointed cases at any one time, according to the MLive.com story.

Sixth paragraph modified at 7:30 a.m. for clarity.