Indiana prisoner fails again in nearly 20-year effort to have his trial counsel declared ineffective

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An Indiana state prisoner has lost again in his nearly 20-year effort to have his trial counsel declared ineffective.

The Seventh Circuit Court of Appeals affirmed a U.S. District Court decision on Monday,  denying Birt Ford’s bid for post-conviction relief for a crime that occurred in 2005.

Ford, an Indiana state prisoner who was sentenced to 70 years in prison for raping his estranged wife, sought post-conviction relief multiple times over 20 years and from all levels of the court system, based on his claims that his trial and appellate counsel had failed to proceed with plea negotiations and failed in witness testimony strategy.

Appellate Judges Diane Sykes, David Hamilton and Michael Brennan heard the case.

According to court documents, at the time of the crimes in 2005, Ford had been married to his wife, Yolanda, for 10 years, having four children together. Ford had a history of domestic abuse against his wife, even making threats against her in front of a police officer who was helping her retrieve personal items from the family home after she and the children moved out.

After moving out, Yolanda obtained a protective order prohibiting Ford from contacting her or visiting her residence. But that didn’t stop Ford from making several attempts to call her and see her, which had turned violent at one point.

On the evening of June 11, Yolanda put the younger children to bed and fell asleep while watching TV with their oldest daughter, Laressa, who was 17 years old at the time. She awoke to Ford kicking in her back door. When she tried to call 911, Ford took the phone and broke it. From there, Ford threatened Yolanda with a kitchen knife and forced her to have sex with him.

The next morning, when Ford was taking a shower, Yolanda took the children and escaped from the home. After going to a sexual-assault treatment center, the examining nurse noted that Yolanda had sustained injuries “consistent with forced penetration.” Police interviewed Ford that same day, who characterized the events differently, saying the sex was consensual.  Ford was charged with rape, burglary, criminal deviate conduct and several other crimes.

Ford was found guilty of five of the seven charged crimes, including rape, criminal deviate conduct, burglary, criminal confinement and invasion of privacy. He was sentenced to 70 years in state prison.

Ford appealed to both the Indiana Court of Appeals, which affirmed the judgment, and the Indiana Supreme Court, which denied further review.

In 2007, Ford was appointed postconviction counsel when he submitted his first petition in state court, raising claims under Strickland v. Washington (1984) for ineffective assistance of counsel, saying his public defense attorney, Mitchell Hicks, failed to pursue plea negotiations and made several errors in witness strategy at trial.

From that point on, according to the 7th Circuit’s Monday ruling, the record of what happened in the state trial court is “almost totally silent.” In 2010, Ford’s appointed postconviction counsel withdrew from the case, and private counsel was then retained. The record was picked up eight years later, in 2018, when the private counsel also withdrew.

After attempts to move for reconsideration and compel Hicks to file an affidavit responding to his interrogatories (which Ford had mailed to Hicks but had not received a response), Ford submitted his own affidavit in support of his postconviction claims. In that, Ford stated that, shortly before the trial, Hicks had informed him that the prosecution was “willing to negotiate,” so Ford had instructed Hicks to “see what kind of deal they would offer,” but Hicks “never did what I requested.”

According to the ruling, Ford never said he would have acknowledged his guilt and pleaded guilty if the prosecutor had offered a favorable plea deal.

Among the other claims made, Ford said Hicks had not called his sister to testify about Yolanda’s “habit of lying” to Ford, even though Hicks told the jury she would be a witness. Ford also said that Hicks was ineffective for not calling him as a witness in his own defense, even after telling the jury that he would testify. And finally, Ford complained that Hicks’s cross-examination of Laressa had “opened the door” for the prosecution to “paint a negative picture” of Ford.

At the trial, Hicks had asked Laressa, “You’ve seen your dad mad before, haven’t you? He gets pretty vocal when he gets upset, doesn’t he?” To which Laressa answered, “Yes.”

A trial judge dismissed Ford’s postconviction petition, concluding specifically on the plea-negotiation issue that because Ford had not confirmed that he would have admitted his guilt—a prerequisite for a guilty plea in Indiana—he had not shown that “plea negotiations would have affected the outcome” of the case. The court also concluded that testimony from Ford’s sister would have been inadmissible character evidence and that Ford’s testimony would have been cumulative or contradictory—meaning both would have been unhelpful to the case and not supporting a conclusion that Hicks had performed ineffectively.

Ford appealed on the same issues, but the Indiana Court of Appeals affirmed the trial judge’s decision. On the plea-negotiations argument, the appeals court took a different path,  saying that no evidence beyond Ford’s own “self-serving” affidavit supported his version of events. The appeals court agreed with the trial court on the other claims, but once again did not address the cross-examination of Laressa.

Ford then sought review from the Indiana Supreme Court, arguing the same thing, except this time leaving out Hicks’s cross-examination of Laressa. But again, the high court declined review.

Ford didn’t stop there. He then set his gaze on the federal court with a pro se petition for habeas corpus, raising the same issues. But the district judge also denied relief and an evidentiary hearing.

However, the district judge still had a concern about Ford’s opportunity to “fairly litigate” the plea-negotiation argument based on the state court’s previous failure to hold an evidentiary hearing to help him collect evidence.

Given this concern, the district judge granted a certificate of appealability, leading Ford to the 7th Circuit Court of Appeals.

The 7th Circuit appointed Xiao Wang and the Bluhm Legal Clinic at Northwestern University’s Pritzker School of Law as pro bono counsel. Two law students assisted Wang with the case.

Over two years after the argument in 2023, the circuit court affirmed the district court’s decisions on all of Ford’s raised arguments, denying the contention that Hicks was ineffective counsel.

Notably, regarding Ford’s additional complaint that the state court failed to offer him an evidentiary hearing for gathering evidence for his plea-negotiation claim, the court stated that Ford could not fault the state trial court for the lack of an evidentiary record.

“He was represented by counsel in 2007 when he filed his postconviction motion and for 11 years thereafter,” wrote Chief Judge Sykes in the Monday opinion. “His attorneys were responsible for developing a factual basis for his Strickland claim, but as far as the record shows, neither his appointed attorney nor retained attorney did so. Their failures are imputed to Ford.”