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.