In a Macomb County case, People v. DiMambro, the defendant was convicted of first-degree felony murder and first-degree child abuse, Judge Jennifer M. Faunce presiding. Mr. DiMambro appealed by right to the Court of Appeals and sought remand for an evidentiary hearing on an issue of ineffective assistance of trial counsel for failure to investigate the prosecution’s causation theory.

The defense arguments on ineffective assistance of trial counsel were supplemented on remand by an allegation of a Brady-violation [Brady v. Maryland, 373 U.S. 83 (1963)], after 32 additional photographs taken during the brain autopsy by the Macomb County Medical Examiner, Dr. Daniel Spitz, were given to the defense only a short time before the evidentiary hearing.  Neither trial counsel nor the defense expert at trial had, or were aware of, the photographs at the time of trial.

Judge Faunce found trial counsel was ineffective for not investigating alternate theories of causation.  Trial counsel proceeded on an involuntary manslaughter theory based on an understanding that the fatal injuries occurred hours before hospitalization.  The trial defense expert, Dr. Bader Cassin, similarly thought the injuries were within hours of hospitalization, and the severity of the injuries would have rendered the child symptomatic immediately after they occurred—testimony that actually undercut a portion of the defense. During the evidentiary hearing, the defense presented as witnesses Oakland County Medical Examiner Dr. Ljubisa J. Dragovic, and Dr. Chris A. Van Ee, a biomechanics engineer specializing in pediatric head injuries.  The evidence from the photos, Dr. Dragovic testified, supported a determination that the areas of bruising in the brain could have resulted from a single event, i.e., a fall, the day before the child was hospitalized and that the child could have appeared asymptomatic for a time after the fall.  Dr. Dragovic also testified that Dr. Spitz did not take steps during the autopsy to determine the age of the bruises found on the brain.

Judge Faunce concluded that Dr. Dragovic’s testimony was information relevant to determining cause of death “from both a pathological and biomechanical standpoint,” and trial counsel rendered ineffective assistance by failing to seek out the alternate opinions of causation.

Judge Faunce also found that there was a Brady-violation, and that it was not harmless error, because the autopsy photographs were material to Dr. Spitz’s conclusion that the death of the child was intentionally caused some hours before the child’s hospitalization, and the testimony from experts at the evidentiary hearing undermined that conclusion.

The prosecutor has appealed this ruling; the appeal is pending in the Court of Appeals.

Mr. DiMambro was represented on appeal by SADO Assistant Defender Erin Van Campen. A copy of the January 5, 2016, opinion in People v. DiMambro, Macomb County Circuit Court No. 2013-004215-FC, is available here:  http://www.sado.org/ cdn/articles/10677_People-v-DiMambro.pdf.

by Neil Leithauser
Associate Editor

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