Dissenting judge: Defense lawyer ‘wholly failed’ in child molest case

A divided panel of the Indiana Court of Appeals upheld denial of a convicted child molester’s post-conviction relief petition Thursday, but a dissenting judge assailed the representation by a defense attorney who he said “took a fatalistic approach to the trial and wholly failed to challenge any testimony by any State witness.”

Donald A. Pierce was convicted in 2010 of multiple counts of child molesting — charges that were affirmed in 2011 on direct appeal to the Indiana Supreme Court, which cut Pierce’s sentence from 134 years to 80 years in prison in a 3-2 decision. 

Pierce then filed a petition in Crawford Circuit Court for post-conviction relief, alleging ineffective assistance of counsel. Among other things, he claimed counsel in his trial failed to adequately investigate potential defenses and failed to object to “drumbeat” repetition testimony, depriving him of effective representation.

Judge Edward Najam and Melissa May affirmed the denial of post-conviction relief. They held there was no reversible error in the adequacy of the post-conviction court’s findings and conclusions; that defense counsel made a strategic decision not to counter alleged “drumbeat” evidence; that Pierce’s defense opened the door to evidence of child abuse syndrome by questioning the victim’s credibility and that continuing objections could have harmed the defense; that medical records not sought by defense counsel were merely cumulative of other evidence; that defense counsel had no conflict of interest; and that the defense counsel’s failure to call certain witnesses was strategic because those witnesses would not have assisted Pierce’s defense.

Dissenting Judge L. Mark Bailey agreed with Najam and May regarding Pierce’s claims regarding conflict of interest, medical records and failure to call certain witnesses. However, he leveled sharp criticism of counsel’s performance that he said met Pierce’s burden to show he received ineffective assistance of counsel.

“I am convinced that trial counsel rendered ineffective assistance in that she simply took a fatalistic approach to the trial and wholly failed to challenge any testimony by any State witness, including drumbeat repetition of (victim) J.W.’s allegations and child abuse syndrome testimony,” Bailey wrote in a 12-page dissent.

“In my view, counsel sat idly by and permitted the State to conduct its case in the sequence and manner that could most efficiently and expediently bring about a conviction. … She did so without lodging a single objection that would focus the trial court’s attention upon Pierce’s right, under the law, to promote preservation of the presumption of his innocence. And counsel apparently did not understand, as evidenced by her testimony at the post-conviction hearing, that she should — or even could — object.

“… Here, the onslaught of ‘vouchsafing’ testimony prior to J.W.’s testimony eroded Pierce’s presumption of innocence. Then the potential harm to Pierce was exacerbated when inconsistencies in J.W.’s out-of-court statements were addressed in the context of child abuse syndrome evidence. These events sufficiently undermine confidence in the verdict rendered. … Excluding hearsay, we are left with J.W.’s testimony and a nurse’s testimony that she could not document injury.”

Had counsel been effective, “We cannot know to a certainty, or precise mathematical probability, what the jury would have done,” Bailey wrote. But he concluded that in his view, Pierce met his burden by a preponderance of the evidence that he was entitled to post-conviction relief.

The case is Donald A. Pierce v. State of Indiana, 18A-PC-2848.

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