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143386 - People v Trakhtenberg

The People of the State of Michigan,   
Matthew A. Fillmore
(Appeal from Ct of Appeals)
(Oakland  – O’Brien, D)
Jacob Trakhtenberg,
Robyn B. Frankel


Jacob Trakhtenberg was convicted of three counts of second-degree criminal sexual conduct for the sexual abuse of his daughter. On appeal, Trakhtenberg contended that his trial counsel was ineffective for failing to impeach the victim’s mother, Liliya Tetarly, with evidence showing that she was biased against him. The Court of Appeals affirmed defendant’s convictions.


Tetarly, acting on behalf of her daughter, then filed a civil lawsuit against Trakhtenberg, alleging assault and battery and intentional infliction of emotional distress. A jury returned a verdict in Trakhtenberg’s favor of no cause of action.


Trakhtenberg also filed a civil lawsuit against his criminal defense attorney, claiming that the lawyer had committed legal malpractice. The trial court granted summary disposition in the attorney’s favor and the Court of Appeals affirmed, holding that defense counsel “acted as would an attorney of ordinary learning, judgment or skill under the same or similar circumstances, and her alleged acts and omissions were matters of trial tactics based on reasonable professional judgment.” Trakhtenberg then sought leave to appeal to the Michigan Supreme Court; his application remains pending in that court.


Attempting to vacate his criminal convictions, Trakhtenberg filed a motion for relief from judgment. He argued that he was entitled to a new trial based on newly discovered evidence and due to the ineffective assistance of his trial counsel. He contended that more witnesses testified in the civil trial than in his criminal trial; if his attorney had called these additional witnesses, Trakhtenberg maintained, he would likely have been acquitted. But the trial court denied his motion, holding that the additional civil trial testimony would not have changed the outcome of the criminal trial.


Trakhtenberg appealed to the Court of Appeals. That court initially denied leave to appeal, but the Michigan Supreme Court directed the Court of Appeals to remand the case to the trial court for a hearing to assess whether trial counsel provided ineffective assistance (known as a Ginther hearing) and then to consider Trakhtenberg’s motion. At the Ginther hearing, multiple witnesses testified, including Trakhtenberg and his criminal defense counsel. In the end, the trial court ruled that Trakhtenberg was entitled to a new trial due to the ineffective assistance of counsel. In this regard, the trial court held that defense counsel presented a reasonable defense to the criminal sexual conduct charges, but that Trakhtenberg’s defense attorney wrongly ignored his request that she also pursue an alternate theory of defense; it would have been reasonable for counsel to pursue both defenses, the trial court held. The trial court was not persuaded that Trakhtenberg was entitled to relief due to the additional evidence that he claimed was newly discovered.


The Court of Appeals reversed in part and affirmed in part in an unpublished per curiam opinion. The panel held that the trial court erred in concluding that defense counsel provided ineffective assistance of counsel, noting that defense counsel has provided a reasonable defense, and that defense counsel is not constitutionally required to pursue every claim or defense. The Court of Appeals then considered whether Trakhtenberg was entitled to relief on any other basis, and concluded that he was not. In reaching this conclusion, the panel looked to the analysis of the earlier Court of Appeals panel that reviewed Trakhtenberg’s appeal in his unsuccessful legal malpractice lawsuit. That earlier panel’s determination that defense counsel did not commit legal malpractice prevented Trakhtenberg from prevailing on his ineffective assistance claim, the Court of Appeals said: “[T]he legal standards for ineffective assistance of counsel in criminal proceedings and for legal malpractice in civil proceedings are equivalent for purposes of application of the doctrine of collateral estoppel.” The Court of Appeals did review Trakhtenberg’s new claims and concluded that they lacked merit; much of the alleged newly discovered evidence was not, in fact, newly discovered, and the other evidence would not have made a different result likely on retrial, the panel said. Accordingly, the trial court properly denied Trakhtenberg’s motion for relief from judgment based on newly discovered evidence, the Court of Appeals concluded.


Trakhtenberg appeals.