Rust Allegedly Sleeps

The Michigan Grievance Administrator filed charges against an attorney who had handled a criminal appeal but apparently failed to notice that a full day of the trial had not been transcribed.

According to the complaint, the client’s conviction for manslaughter and second- degree child abuse was affirmed.

Eighteen months later

On or about November 19, 2013, Tuesday Watson, an acquaintance of Mr. Brown, contacted the Calhoun County Circuit Court stating that she had reviewed the trial transcripts but could not find certain testimony. This led to the court’s discovery that the August 13, 2010 trial transcript had not been transcribed…

The trial transcript that was not transcribed contained, among other testimony, an argument of Mr. Brown’s trial counsel that the court should pay for a medical expert witness, which was denied by the trial court.

As a consequence of not having the August 13, 2010 trial transcript, Respondent did not present the above-stated preserved issue on appeal.

The Michigan Innocence Clinic got the appeal reinstated

On or about February 23, 2017, Calhoun Circuit Court Judge Sarah Lincoln issued an opinion finding that Respondent’s appellate representation was ineffective assistance of counsel in accordance with United States v Cronic, 466 US 648 (1984). Specifically, the court stated in its opinion, “Based upon the content of the missing transcript as well as the numerous references to the testimony during closing argument; it is inconceivable that Defendant’s appellate attorney could have given this instant case even a cursory review without noticing that there were significant gaps in the record.”

The complaint alleges lack of competence, failure to seek the client’s lawful objectives and conduct prejudicial to the administration of justice. (Mike Frisch)