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Man not prejudiced by attorney's assistance

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Even though a defendant's counsel was found to be ineffective based on his "television fantasy" trial strategy, the 7th Circuit Court of Appeals affirmed the District Court denial of his petition for habeas corpus because he didn't show he was prejudiced by his attorney's performance.

In Cleveland C. Bynum v. Bruce Lemmon, No. 07-2634, Bynum contended his trial attorney, Charles Graddick, was ineffective for failing to put him on the stand at the hearing on his motion to suppress his post-arrest confessions to murdering five people. Bynum gave two separate statements to the police regarding the murders. The Indiana Court of Appeals and Lake County post-conviction court affirmed his convictions, finding Graddick's assistance not to be ineffective. The District Court did find Bynum's attorney's assistance to be ineffective, but ruled it didn't prejudice him.

Bynum claimed before trial he told Graddick the police threatened him when he asked for an attorney and that they would charge his fiancee with obstruction of justice, leaving their son in protective services. Because of those alleged threats, Bynum said he agreed to sign a Miranda rights waiver form and make his first of two statements.

Instead of having Bynum testify at the mid-trial suppression hearing, Graddick only questioned the officers, whose testimony contradicted what Bynum told Graddick. At an evidentiary hearing for post-conviction relief, Graddick testified he decided to move to suppress the confessions during trial because he thought there were holes in Bynum's testimony and he didn't want to give the state advanced notice of his trial strategy.

Using the first prong of the test under Strickland, the 7th Circuit Court of Appeals agreed with the District Court that Graddick provided ineffective assistance. Graddick's plan to get evidence of coercion from the police through the officers' testimony was considered by the District Court as not trial strategy but "television fantasy." That strategy failed and Bynum was left with no evidence that his two confessions to police were coerced. And, Graddick's reason for keeping Bynum off the stand because he couldn't withstand cross-examination was baseless, wrote Judge Ilana Rovner.

"The only way Bynum could have succeeded on his motion to suppress was to put forth evidence of coercion through his own testimony. And any prejudicial testimony Bynum gave at the suppression hearing would not have affected any other part of the proceedings," she wrote. "Graddick thus had no reasonable option but to put Bynum on the stand."

However, Bynum failed to prove he was prejudiced by Graddick's ineffectiveness. Judge Rovner wrote that the 7th Circuit judges could readily assume Bynum would have been acquitted had the two confessions been suppressed because the state was left with little evidence. The state courts ruled that it wasn't reasonably probable that had Bynum testified, he would have succeeded on his motion to suppress. That conclusion wasn't contrary to Indiana Supreme Court precedent or based on an unreasonable determination of the facts in light of the evidence presented, wrote the judge.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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