People v. Dendel

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
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

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v 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

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v 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 self-
administer 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 self-
administered 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

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Strickland, 466 US at 694.

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