A complex and serious case is unfolding in Allegan County: today, Cory Nethery, who originally pled guilty to second‑degree murder, admitting to abusing and causing the death of his grandfather, William Fitzhugh, withdrew his plea in the case that sent him to prison for 60-100 years.
See the sentencing video here.
Nethery was sentenced by Judge Margaret Zuzich Bakker. She employed an upward departure from guidelines at his sentencing.
Steve Fitzhugh is a dear friend to clutch, and the son of William Fitzhugh. This decision from Bakker’s court does not sit well, reopening wounds for the family. Especially bothersome is that Nethery’s accomplice, Christopher Fitzhugh, remains free, as he was found “incompetent” to stand trial for his part in abusing William.
Nethery’s legal team is seeking a Ginther hearing, asserting that his original attorney provided ineffective counsel. That attorney is now sitting Judge Christopher Burnett, a familiar name at Clutch. Though his conduct has been questioned in other cases, we will withhold final judgment until the scheduled hearing presents the full record.
Judge Bakker is likely granting the yet-to-be scheduled Ginther hearing only because she ages off of the bench in January, and will not have to deal with fallout or ridicule from rulings connected to Cory Nethery or Christopher Fitzhugh.
The Ginther hearing will challenge the caliber of Burnett’s representation, and reveal what cracks, if any, there were in the case.
What is a Ginther Hearing?
A Ginther hearing stems from the Michigan case People v. Ginther, 390 Mich 436 (1973). Essentially it’s a special hearing determining whether a defendant’s right to effective assistance of counsel was violated.
But to grant it, certain criteria must be met:
Defendant claims ineffective assistance of counsel
The defendant must raise specific claims that their trial attorney’s performance fell below an objective standard of reasonableness and that this affected the outcome of the case (the Strickland standard).
Facts outside the trial record
A Ginther hearing is usually only granted when the issue involves facts that are not part of the trial record, meaning you can’t resolve the claim just by looking at what happened in court. You need more evidence, like testimony from the lawyer, investigators, or experts. Sources tell us Nethery plans to implicate a family member as being involved in the case.
Motion for new trial or evidentiary hearing
The defense typically files a motion for a new trial or an evidentiary hearing, arguing ineffective counsel. The court then decides whether the allegations, if true, could establish deficient performance and prejudice.
Showing of potential prejudice
It’s not enough to say the attorney messed up; you have to show that this mistake mattered, that it likely changed the result of the trial.
Common reasons a Ginther hearing is granted:
- Failure to investigate key evidence or witnesses
- Failure to call expert witnesses or present crucial defenses
- Conflict of interest affecting the defense
- Poor advice on whether to testify or take a plea deal
- Failure to object to critical errors at trial
Also Important to Note:
- Michigan courts often deny Ginther hearings if the claims can be decided on the trial record or if the defendant’s claims are vague or unsupported.
- You must request it properly, usually in post-conviction motions or during appeal, as was done here.
- With Judge Bakker being forced to retire, Judge Burnett will NOT be able to hear this case as he was Nethery’s counsel.
However, considering the coziness of the Allegan legal community, and the egregious nature of the crime, I strongly suspect Nethery will lose, anyway. Additionally, Judge Bakker may have inadvertently tipped the court’s hand.
In the Fox 17 Article, Julie Dunmire captured Judge Bakker’s comments:
The judge explained in court on the 6th that she knows the attorney [Burnett] – who Nethery initially had – to be an advocate for his clients.
Why This Case Matters
- Yes, plea agreements must rest on fair process, not procedural shortcuts. But there are other factors at play in this case, with the Guardian Ad Litem questioning Christopher Fitzhugh’s original “incompetence” finding.
- Ginther hearings serve as an essential check when representation fails the test. Knowing Burnett’s history, it’s worth exploring, but not at the expense of the family without considering the totality of the case.
- If Burnett was in fact ineffective, this moves beyond one defendant; patterns of ineffective counsel erode public trust in the legal system. What happens when a sitting judge is deemed ineffective? How will that impact his future rulings as well as public perception?
What’s Next
If the court finds Burnett’s performance was indeed deficient and harmful, Nethery’s plea could be vacated or reversed. If not, the original sentence stands. Either way, the decision will speak volumes about the balance of fairness and finality in the Michigan legal system.
Clutch Justice will continue to monitor this case and report following the hearing.
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