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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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