Appeals court orders new trial, citing poor defense

KALAMAZOO (AP) -- A man convicted of sexually assaulting a young girl won a new trial Wednesday after the Michigan appeals court said his lawyer did a poor job, including a failure to cross-examine the girl. The review of Jeffrey Gioglio's convictions began in an unusual way: The prosecutor who won the case raised concerns about defense attorney Susan Prentice-Sao's performance. Prentice-Sao didn't give an opening statement and declined to cross-examine the girl who said she was sexually assaulted by Gioglio. He was convicted of second-degree criminal sexual conduct in 2009 and sentenced to at least 80 months in prison. After the sentence, Prentice-Sao smiled and said, 'He's toast!'" according to assistant prosecutor Christine Bourgeois. In a 2-1 decision, the appeals court threw out Gioglio's convictions, saying his constitutional rights were violated because his attorney was ineffective. Prentice-Sao failed to "meaningfully test the prosecution's case," judges Michael Kelly and Stephen Borrello said. "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. ... 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 declined to comment, referring calls to another attorney, Bob Champion. He said the girl was not cross-examined because Prentice-Sao feared any testimony could lead to even more charges against Gioglio. "This is bizarre," Champion said. "If the trial judge thought she was ineffective, the verdicts would have been set aside. Susan did a good job." Indeed, in a vigorous dissent, appeals Judge Kirsten Frank Kelly said the trial judge was in a better position to decide a lawyer's effectiveness. "Attorneys representing criminal defendants can face daunting challenges in devising ethically appropriate trial strategies, not the least of which is what to do when a defendant's guilt is often clear," she wrote. Kirsten Frank Kelly noted that Prentice-Sao consulted with other attorneys, talked to Gioglio's family, had his mental competency checked and negotiated a favorable plea deal with no prison that was rejected by her client. "Effective assistance of counsel is not the equivalent of successful assistance," the judge said. Published: Fri, Apr 8, 2011