Background
Brett Lee Cooley was convicted by a jury on four counts of third-degree criminal sexual conduct for assaulting the 14-year-old daughter of his then-girlfriend. The assaults took place on four separate occasions in late 2020 at various locations, including the family’s apartment, behind a shed, and in a van. The victim testified at trial, detailing the assaults and stating that Cooley had threatened her to ensure her silence.
The victim’s mother, father, and stepmother also testified, corroborating that they had observed the victim become quieter, more distant, and struggle in school around the time the assaults occurred. Cooley, acting on his attorney’s advice, waived his constitutional right to testify in his own defense. After the jury found him guilty, Cooley moved for a new trial. He argued his trial was unfair due to prosecutorial error and, more significantly, that he had received ineffective assistance from his defense counsel. The trial court denied the motion without holding a requested evidentiary hearing, leading to this appeal.
The Court’s Holding
The Michigan Court of Appeals affirmed Cooley’s convictions but remanded the case for an evidentiary hearing on one specific issue: whether his trial attorney provided ineffective assistance by advising him not to testify. The court found no merit in Cooley’s other arguments. It held that the prosecutor did not improperly vouch for the victim’s credibility during closing arguments, reasoning that commenting on the victim’s emotional state and testimony was a permissible argument based on evidence presented at trial, not an assertion of special knowledge.
Similarly, the court rejected the claim that defense counsel was ineffective for failing to object to testimony from the victim’s family members who said her behavioral changes “made sense” after they learned of the abuse. The court classified this as proper lay witness testimony based on their own perceptions, not an improper opinion on the victim’s truthfulness. However, the court concluded that the record was not developed enough to resolve Cooley’s claim that his lawyer’s advice not to testify—allegedly based on his “background”—was constitutionally deficient. The court sent the case back to the trial court to hold a Ginther hearing to determine the facts surrounding the attorney’s advice and whether it constituted ineffective assistance.
Key Takeaways
- A prosecutor in Michigan can argue a witness is credible by pointing to their emotional demeanor in court and the consistency of their testimony, so long as the prosecutor does not imply they have some special, private knowledge of the witness’s truthfulness.
- Family members may testify that a victim’s previously unexplained behavioral changes “made sense” after learning about allegations of abuse; this is considered permissible lay opinion testimony based on personal perception, not improper expert testimony or witness vouching.
- A defendant claiming their lawyer provided deficient advice to waive the right to testify may be entitled to a post-trial evidentiary hearing if they present a plausible claim that depends on facts outside the original trial record.
- To get such a hearing, the defendant must show that the advice may have been objectively unreasonable and that there is a reasonable probability the trial’s outcome would have been different if they had testified.
Why It Matters
This opinion provides a practical illustration of the boundaries of legal argument and testimony in sensitive criminal cases. It reaffirms that while prosecutors have wide latitude to argue the evidence, they cannot use the authority of their office to personally guarantee a witness’s credibility. The ruling also clarifies that family members’ observations about a victim’s behavior can be powerful, admissible evidence to provide context for the jury.
Most importantly, the decision underscores the critical nature of a defendant’s right to testify. By remanding for a hearing on the attorney’s advice, the court signaled that strategic decisions to keep a defendant off the stand, especially in a case that hinges on witness credibility, will face scrutiny. The court will not simply defer to a lawyer’s “trial strategy” without a sufficient factual basis, ensuring that a waiver of such a fundamental right is knowing, intelligent, and based on sound legal counsel.