Unkept Promise Draws Ineffective Assistance Finding

The United States District Court for the District of Columbia (Judge Royce Lamberth) vacated counts in a murder case

Even good lawyers make mistakes. Sometimes, their mistakes are so serious that they prejudice the outcome of their client’s case. This opinion arises out of an ineffective assistance of counsel evidentiary hearing held for Calvin Smith, one of several defendants charged and convicted in an extraordinarily lengthy trial that ended over 20 years ago. By mandate issued by the D.C. Circuit, this Court was directed to evaluate whether Mr. Smith’s defense counsel failed to adequately represent him for one of the three murders he was convicted of participating in.

During opening arguments for the trial, Mr. Smith’s defense counsel promised the jury that an eyewitness would identify other people, and not Calvin Smith, as being present and involved in the relevant murder. No other theory or defense was raised as to that murder. Over half a year into the trial, on the day the witness was set to be called, and after the defense case-in-chief had already begun, Mr. Smith’s counsel discovered that the witness was not just unhelpful, but potentially extraordinarily damaging to the defense. So, he declined to call the witness. Consequently, the defense strategy collapsed.

After consideration of defense counsel’s briefing, ECF No. 2910, the government’s briefing, ECF No. 2909, the whole record, and the applicable law, the Court concludes that counsel rendered objectively ineffective performance that prejudiced Mr. Smith. The Court does not reach this decision lightly. Counsel was, and is, a good lawyer. Counsel practiced before this Court for several years. The Court personally observed counsel diligently advocate for his clients in case after case. Yet here, counsel made a mistake of constitutional significance. Therefore, the Court will VACATE Mr. Smith’s convictions on Counts Four and Five.

Ineffective assistance

Defense counsel’s deficient performance is the product of two related principles: failure to investigate before making strategic decisions and failure to deliver on a promise to the jury.

Facts

Taking those principles together, defense counsel’s decision to base the Dent murder defense around Benbow—premised on an uninformed understanding of Benbow’s credibility and substantive testimony—and promise that theory in opening, constituted inadequate performance. Mr. Smith’s defense counsel broke a crucial promise to the jury, and upended the defense’s strategy, because counsel made that choice before determining what the key witness was ready to say. That renders the defense strategy, and the promise of testimony, an unreasonably uninformed choice not to be protected under Strickland.

First, for vetting Benbow, the evidence shows that Mr. Smith’s defense counsel poorly investigated the witness’s faults prior to promising his testimony, prior to the beginning of the defense case-in-chief, and even prior to the day of his testimony.

In September of 2001, Mr. Carney sent a memorandum to his investigator, Becnel, about the investigative plan for the Dent murder. Gov.’s Ex. 3. He laid out several options, including two possible eyewitnesses: Dawn Carter and Leo Benbow. Id. Citing police reports and notes from around the time of the murder, Smith Ex. 4, he stated that Benbow saw three men, including men by the name of Rodney Freeman and Clayton Thomas, shoot Dent along with “a light skinned dude.” Gov.’s Ex. 3. Mr. Carney asked his investigator to track down leads regarding both witnesses and potential corroboration for their stories. Id. He directed Becnel to “Find Leo Benbow.” Id. He noted at the end that “[w]hen these people are located, I have specific questions to ask. So try and catch me before you talk to them. I may wish to take a statement from Benbow.” Id. At the time, he also said that Benbow “is a witness at trial for our defense.” Id.

Approximately eight months later, in May of 2002, Mr. Carney delivered his opening statement and promised the eyewitness who would exonerate Mr. Smith. Two months after that, Benbow was served with a subpoena to appear and testify. Smith Ex. 5. And approximately two months after that—four months after opening argument and a year after defense identified Benbow as a possible, critical eyewitness—Becnel interviewed Benbow (apparently for the first time) about what he saw that night. Hr’g Tr. 55, 179. During that interview, he identified Clayton Thomas as being one of the three individuals to kill Dent, stated that Calvin Smith was not, and signed a statement to that effect. Smith Ex. 3; Hr’g Tr. 55, 179. Mr. Carney testified that he believes he was present when Benbow was interviewed by Becnel but can’t be certain. Hr’g Tr. 95, 179 (Mr. Carney referring to an interview around September 11, 2002, or a day or so earlier). Becnel is “fairly positive” that Mr. Carney was not there. Id. at 269. Whether or not Mr. Carney was there in September of 2002, there is no evidence that anyone from the defense team had substantively interviewed Benbow prior to that point, and certainly not before the May 2002 opening statement.

Based on the record before the Court, it appears that the promise in the opening statement was based on almost no actual knowledge of Benbow’s credibility and likely substantive testimony— outside of the available police reports and discussions with other potential witnesses at the scene who “completely contradicted everything Benbow was saying,” see id. at 182. 4 Even if there had been some substantive contact not otherwise memorialized or explained, the investigation was objectively deficient given that it inexplicably failed to uncover the crucial reasons why Benbow’s testimony posed a ticking time bomb for the defense before opening statements. 

(Mike Frisch)