In 2005, 68-year-old Jacob Trakhtenberg, a chief engineer for Chrysler, was accused by his ex-wife of sexually molesting their 8-year-old daughter in 2004 on occasions when the girl spent the night at his Oakland County, Michigan home pursuant to a custody agreement.
Trakhtenberg had emigrated from Russia more than 30 years earlier with $15 in his pocket. He managed to become a successful engineer with a home worth more than $1 million, but was not so successful in his marriages.
After Trakhtenberg’s first marriage ended in divorce, he married Lilya Tetarly. They had been divorced for about four years when Tetarly filed a complaint alleging that he had touched their daughter’s genitals on three occasions and that he had forced the girl to touch his genitals on two occasions.
Trakhtenberg went on trial in Oakland County Circuit Court before a judge who heard the case without a jury. The child testified that Trakhtenberg had touched her and that he forced her to touch his pubic area. Tetarly testified that the girl had told her about the incidents and—anticipating Trakhtenberg’s defense—denied ever asking Trakhtenberg to apply ointment to the girl’s vaginal area because the girl had a yeast infection.
Trakhtenberg’s court-appointed attorney did not cross-examine Tetarly about the yeast infection or present evidence about the history of couple’s relationship, which included an attempt by Tetarly to strike Trakhtenberg with her car and another assault. Both incidents led to police reports and charges of domestic assault against Tetarly.
Trakhtenberg testified and denied that he improperly touched his daughter. He said that he had applied ointment at the direction of Tetarly, although he also said he told Tetarly he didn’t want to do it. He also denied that he placed his daughter’s hand on his genital area.
The trial lasted less than an hour. On February 3, 2006, then-Circuit Judge Debra Tyner (who resigned later that year after television journalists recorded her shopping and at the gym during court hours) convicted Trakhtenberg of three counts of second-degree criminal sexual conduct and sentenced him to 15 years in prison.
Almost immediately, Tetarly filed a civil lawsuit against Trakhtenberg seeking $5 million in damages.
On appeal in the criminal case, Trakhtenberg argued that he was denied effective legal assistance because his court-appointed attorney conducted no pre-trial investigation and no cross-examination. The Michigan Court of Appeals upheld the conviction in March 2007 and the Michigan Supreme Court denied leave to appeal in September 2007.
In the meantime, Tetarly’s civil lawsuit went to trial. Trakhtenberg’s attorney in the civil case had discovered evidence of the couple’s smoldering differences over custody and other issues in the years after the divorce, as well as evidence that the child had been coached and subjected to suggestive interview techniques. Trakhtenberg had also taken and passed a polygraph examination.
After six days of testimony, a jury deliberated for less than 30 minutes before finding that no abuse of the child had occurred and returning a verdict for Trakhtenberg.
Trakhtenberg then filed a legal malpractice lawsuit against Debra McKelvy, who defended him in his criminal trial. That lawsuit was dismissed by the trial court and in 2009 the Michigan Court of Appeals upheld the dismissal, ruling that McKelvy had pursued a reasonable legal strategy when she defended the case on the ground that there was no crime because Trakhtenberg had no criminal intent.
In the meantime, Trakhtenberg filed a motion for a new trial based on the newly discovered evidence uncovered in his defense of Tetarly’s civil lawsuit. He claimed that he had received ineffective legal assistance.
The trial court denied the motion and the Court of Appeals agreed, but in 2010 the Michigan Supreme Court remanded the case to the trial court for a hearing on Trakhtenberg’s claim that he had received an inadequate legal defense.
At the August 2010 hearing, McKelvy explained her defense at trial by saying she relied on showing that Trakhtenberg had no criminal intent and that the child had made inconsistent statements.
Trakhtenberg’s attorneys presented several witnesses who testified to evidence about the alleged victim’s statements that McKelvy failed to obtain. They showed that the girl had talked to her youth pastor about the allegations, that police had called Tetarly and asked her to ask the child questions about the abuse and that the child had been interviewed by a counselor – at the direction of police – after the allegations were made. McKelvy had failed to investigate any of this.
Testimony showed that while Tetarly and Trakhtenberg were living together but before they were married, Tetarly filed a complaint against Trakhtenberg’s first wife, alleging she had sexually molested Trakhtenberg’s son from that first marriage.
In September 2010, Trakhtenberg’s motion for a new trial was granted on the ground that McKelvy failed to provide an adequate legal defense.
In May 2011, the Michigan Court of Appeals reversed the ruling and reinstated Trakhtenberg’s conviction. The appeals court held that McKelvy’s defense had been reasonable and that the evidence that was discovered in preparing to defend against Tetarly’s civil complaint would not have resulted in Trakhtenberg’s acquittal.
In November 2012, Trakhtenberg was released on parole after serving seven years of his 15-year sentence. He would have been released years earlier, but he refused to admit that he was guilty.
In December 2012, the Michigan Supreme Court reversed the Court of Appeals and ordered a new trial. The Supreme Court found that McKelvy “failed to exercise reasonable professional judgment when deciding to forgo particular investigations relevant to the defense.” Specifically, she failed to question whether the elements of the charges were appropriate and failed to investigate and interview key witnesses including the counselors who interviewed the alleged victim, the court held.
On May 30, 2013, the Oakland County District Attorney’s Office dismissed the charges.
Trakhtenberg filed a lawsuit against his trial attorney, claiming that she had violated his constitutional rights by providing an inadequate legal defense. The lawsuit was pending as of January 2014.
– Maurice Possley