Ineffective Assistance By Attorney Facing Disbarment
The District of Columbia Court of Appeals vacated most of the counts convicting a criminal defendant, concluding that the failure to grant habeas corpus relief had been error
The performance of Dugger’s now-disbarred trial counsel, Raleigh Bynum II, fell far below prevailing professional norms in many respects. From the beginning, Bynum lied to the court and to Dugger about his qualifications to take on the representation. The trial judge, before permitting Bynum to take over the representation from far more experienced counsel, pressed Bynum on his qualifications to defend against the serious charges. Bynum assured the court (and Dugger) that he had experience trying serious felonies, including assaults with intent to kill, when in fact all evidence indicates that Bynum had never appeared in court in a criminal case of any stripe. In fact, Bynum was in the midst of disciplinary proceedings for similarly misrepresenting his qualifications to take on a medical malpractice case in South Carolina (where he was not barred), leading to his disbarment. During those disciplinary proceedings, and just one month before he began representing Dugger, Bynum admitted that he lacked the ability to take on any clients in any legal matter due to various medical issues.
Bynum’s unfitness was, unsurprisingly, evident during Dugger’s trial. While Dugger raises nearly a dozen largely substantiated deficiencies with Bynum’s performance—ranging from Bynum’s failure to even retrieve predecessor counsel’s trial file to his decision not to retain an investigator—three deficiencies in particular stand out. First, Bynum elicited testimony during his cross-examination of a witness that Dugger was a drug dealer, and rather than moving to strike that testimony, he repeated and highlighted it for the jury. Contrary to the trial court’s ruling, he had no conceivable strategic reason for that course of action. Second, Bynum failed to impeach Wright with any of his criminal convictions, including for the violent offense of second-degree assault and for drug possession. The government acknowledges these convictions were “favorable impeachment evidence” and does not dispute that Bynum was deficient for failing to put evidence of them before the jury. Third, Bynum did not object when the trial court instructed the jury, at the government’s request, that it could consider the evidence of Wright’s peaceful character when assessing who was the first aggressor. As the government concedes, and as we previously determined in the direct appeal, no such evidence had been introduced and the instruction was erroneous.
But for the combination of these deficiencies, we conclude that there is a reasonable probability that the outcome of Dugger’s trial would have been different, at least as to the lead counts against him. Where the defense was predicated on a theory that Wright shot at Dugger first, Bynum’s deficiencies were prejudicial where he (1) highlighted evidence that his client was a drug dealer rather than striking it, (2) failed to introduce evidence of Wright’s own violent and drug-related convictions, and (3) permitted the jury to be instructed about the non-existent evidence of Wright’s peaceful character without objection. We therefore reverse the denial of Dugger’s § 23-110 motion and vacate most of his convictions.
The trial judge had expressed concern about the defendant’s decision to replace his public defender
The trial judge, the Hon. Lynn Leibovitz, was wary of the request to substitute counsel. Judge Leibovitz explained to Dugger that Page was “as good a lawyer as Mr. Dugger could ever have,” whereas she had never even seen Bynum before despite having been a Superior Court judge for well over a decade.
Senior Judge Glickman dissented in part. (Mike Frisch)