It’s a far cry from the life the retired Chrysler engineer once led in a million-dollar home in Oakland Township, where he was enjoying his later years with friends and family.
Trakhtenberg, 76, lost it all after he was convicted of sexually assaulting his young daughter in 2006. During the 53-minute bench trial, his court-appointed attorney didn’t ask for a jury, make an opening statement or call any witnesses other than Trakhtenberg.
Out of prison since 2012 — and with his record cleared after the Michigan Supreme Court tossed his conviction — Trakhtenberg is now suing his defense attorney Deborah McKelvy for malpractice. A trial is expected later this year.
In a rare move, the state Supreme Court issued a strongly worded ruling saying he was entitled to sue McKelvy because she violated his constitutional rights. The high court sometimes determines whether a defendant is entitled to a new trial, but seldom considers legal malpractice cases, which are civil
In its opinion, the court said McKelvy’s “performance in this case was constitutionally inadequate and rendered defendant’s trial unfair and unreliable.”
“You don’t see that language very often, but it’s not surprising if the facts support it,” said John Cote, a Holland-based attorney who specializes in attorney misconduct cases. “It’s fairly rare for the Supreme Court to chastise an attorney to that extent.”
The suit seeks in excess of $50,000 and a jury trial. McKelvy is named as an individual, meaning she would be liable for damages if the jury awarded in Trakhtenberg’s favor.
The case, which has gained local attention, is now listed on the National Registry of Exonerations, a joint project by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.
Trakhtenberg’s civil attorney, James Elliott of Bloomfield Hills, called it “an horrific miscarriage of justice.”
“She took seven years of this man’s life,” he said.
McKelvy declined comment. Her attorney Michael Sullivan predicted the lawsuit against her will fail and has asked the Supreme Court to reconsider allowing it.
Sullivan said McKelvy’s decisions were part of a smart trial strategy, and the evidence against Trakhtenberg was incriminating, including statements he made to police about touching the child.
“Deborah McKelvy is an excellent criminal defense lawyer,” Sullivan said.
In a recent interview in his apartment, Trakhtenberg — surrounded by family pictures on the wall — said he is not angry, but wants answers.
“The system is wrong if this is the way it works,” he said. “They ignored the truth. These are very powerful people who can hurt others.”
Trakhtenberg immigrated from Russia in 1974 with his first wife and two small children.
A trained engineer, he first worked as a janitor in a local engineering shop before eventually joining Chrysler in 1984 as a project manager.
By 2000, he was divorcing for the third time after a brief marriage that produced a daughter. Court records show the divorce was acrimonious, and his third wife objected to receiving only $45,000 from the marital estate and child support for their daughter. In the years that followed, Trakhtenberg called police twice to complain that she had assaulted him and tried to run him over with her car.
In 2005, the ex-wife told police their daughter, then 8, had revealed her father had been touching her inappropriately while staying at his home during court-ordered visitation. Trakhtenberg told police he’d only applied prescribed medication to the child’s genitals due to an infection.
Trakhtenberg was charged with five counts of criminal sexual conduct. He said McKelvy advised him to waive his right to a preliminary exam
— a hearing where prosecutors have to prove they have enough evidence to take him to trial.
On Feb. 3, 2006, then-Oakland County Circuit Judge Deborah Tyner heard his case in less than an hour. McKelvy waived both the right to a jury and the opportunity to present an opening statement.
Prosecutors presented the child and the ex-wife. McKelvy did not cross-examine the ex-wife about the divorce or question her about an allegation she made years earlier that Trakhtenberg’s second wife had molested the son she and Trakhtenberg share, an allegation that proved unfounded.
Following brief closing arguments, Tyner said from the bench, “very little’s clear to me in this case, starting with what the allegations are that go to each count.” Nevertheless, she found Trakhtenberg guilty of three counts of second-degree criminal sexual conduct.
As Trakhtenberg was led from the courtroom, he was served with notice that his ex-wife was suing him for $5 million in damages on behalf of their daughter.
Sullivan said McKelvy used sound trial strategy in not calling witnesses other than Trakhtenberg.
“The only issue to be resolved was whether the touching was intended for sexual gratification,” he said in court filings. “Ms. McKelvy, an experienced criminal defense attorney, reasonably decided that no witness or cross examination would matter if she couldn’t convince the fact finder that there was not sexual gratification involved. Only Trakhtenberg’s own testimony had any hope of doing that.”