Constitutional Law

Prosecutor Concerns About Defense Spur Reversal; Lawyer Accused of Calling Client ‘Toast'

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A defense lawyer accused of smiling and calling her sexual abuse client “toast” after the verdict did not deliver effective assistance, the Michigan Court of Appeals has ruled.

The court granted a new trial for defendant Jeffrey Gioglio in an appeal spurred by the prosecutor’s concerns, according to the Associated Press.

Gioglio’s lawyer, Susan Prentice-Sao, did not deliver an opening statement, did not present any evidence, and did not cross-examine the alleged victim, a relative of Gioglio’s who accused him of sexual contact when she was 6 years old. Nor did Prentice-Sao raise a hearsay objection when a gym teacher testified about student reports of the alleged victim’s claims of rape.

And while she did cross-examine other witnesses, Prentice-Sao did not ask them about Gioglio’s mental limitations. In her closing statement, she suggested the alleged victim was lying.

Gioglio was convicted of second-degree criminal sexual conduct and sentenced to at least 80 months in prison, according to the AP story.

The prosecutor, Christine Bourgeois, wrote the court administrator after the verdict. Bourgeois said Prentice-Sao had confided in her Gioglio had admitted guilt and that she could not bring herself to question a child sexual abuse victim. After sentencing, Bourgeois said, Prentice-Sao “greeted me with a big smile, a thumbs-up, and the statement, ‘He’s toast!’ “

The appeals court found in a 2-1 decision (PDF) that Prentice-Sao had failed to meaningfully test the prosecutor’s case. “Defendant may very well be guilty and might deserve a lengthy prison term, but our constitutions do not reserve the right to the effective assistance of counsel to only those defendants who are actually innocent,” the court said. “In this case, it is clear that Prentice-Sao’s performance was so inadequate that, in effect, defendant had no assistance of counsel at all,” the judges said.

Prentice-Sao defended her representation in a response to the court administrator and in a hearing on a motion for a new trial made by a new defense attorney. She wrote that she told Bourgeois she did not plan to cross-examine the girl so the prosecutor would not “go overboard preparing her for trial.” She also said she told Bourgeois that Gioglio had made some admissions, but it was in the course of plea negotiations. And she said she did not cross-examine the alleged victim because she did not want to alienate jurors and she feared new details would bring more serious charges. And she said she did not remember the “toast” comment.

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