Circuit Court Opinion of the Month: Failure to Retain Y-STR DNA Expert - November, 2014

On November 24, 2014, Emmet County Circuit Judge Charles W. Johnson ordered a new trial for a defendant on the grounds of ineffective assistance of trial counsel.  The defendant was convicted by a jury of one count of second-degree criminal sexual conduct, and two counts of third-degree criminal sexual conduct, following allegations by one of his teenaged daughters.  The allegations arose several months after the defendant’s wife filed for a divorce.

At trial, the prosecution presented three witnesses – forensic scientists from the State Police – testifying about DNA evidence.  The witnesses testified that DNA taken from some of the complainant’s clothing showed “at least” two donors, one of whom was the complainant, and there was evidence of a male donor.  The samples were sent for further testing utilizing Y-STR DNA testing, which focuses upon the male chromosome and which yields a haplotype which is examined in eleven areas.  A prosecution witness testified that the tested-samples matched the defendant at all eleven areas.   The testimony led the prosecutor to subsequently argue that the DNA was the defendant’s, and the evidence corroborated the complainant’s testimony.

Judge Johnson noted that a recent Court of Appeals’ case, People v. Wood, __ Mich. App. __ (Court of Appeals No. 315379, decided October 28, 2014), upheld the use of Y-STR DNA testing as being based upon reliable science.  Judge Johnson found that trial counsel, who knew that DNA evidence would be presented at trial, failed to consult with a DNA expert and did not seek or obtain the underlying data used by the prosecution experts, even though his client had the funds to hire and expert and asked counsel several times before trial to retain an expert.  The attorney testified at a post-conviction hearing that he had some experience with Y-STR DNA evidence, had a prior case involving that type of evidence, had done a great deal of research, and he did not think the Y-STR DNA evidence would be the “kind of compelling evidence that was going to be the lynch-pin of the prosecution’s case.”

A defense expert testifying at the post-conviction hearing explained that while it could not be conclusively determined that only two donors contributed to the sample, the expert held the opinion that the data supported only two donors [i.e., the complainant and another].  Further, if there were only two donors, the defendant would be excluded due to the presence of four additional markers [which had not been addressed by either the prosecution or the defense at trial], foreign to both the complainant and the defendant.  A prosecution expert, also testifying at the hearing, agreed that if there were only two donors, then the defendant would be excluded; however, the prosecution expert disagreed that there were only two donors.  The experts also disagreed about the possibility and details of possible secondary or tertiary transfers of DNA, as well as the period of time such transfers of evidence may be detectible.

Judge Johnson concluded that the attorney “inexplicably failed to retain a DNA expert,” and found that the attorney’s performance was “objectively unreasonable because the client was requesting, indeed insisting, that an expert be retained, the science involved was “relatively new” and [the attorney] chose to not consult or retain an expert without conducting any reasonable investigation.”  Additionally, the attorney failed to object at trial to improper “civic duty” argument by the prosecutor.

The defendant was represented by attorneys F. Martin Tieber and Kristoffer W. Tieber of the The Tieber law firm,  A copy of the opinion in People v. Melvin Lee Kiogima,  Emmet County Circuit Court No. 13-3819-FH, is available from the CDRC or online at

by Neil Leithauser
Associate Editor