On ineffective assistance of counsel in Dugger v. U.S.

It is always painful to see a criminal defendant replace a good public defender or court-appointed lawyer with an inexperienced one.

Because you don’t value what you don’t pay for.

This is what happened in Timothy Dugger v. United States, 295 A.3d 1102 (D.C. 2023), an opinion issued recently by the D.C. Court of Appeals.

A smart and seasoned criminal defense lawyer was replaced by someone who had never before tried a criminal case. 

Not surprisingly, things did not go well for the defendant.

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Charged with assault with intent to kill while armed and other offenses, Dugger was initially represented by Dana Page of the D.C. Public Defender Service (PDS).

Although I have never seen Page in trial, I know she has a good reputation.  In fact, everyone at PDS has a good reputation.  This is because they are all good lawyers and they have the resources they need to mount a good defense.

As I have often told prospective clients who expressed concerns about being represented by PDS, a PDS lawyer is who I would want to represent me if I were ever charged with a criminal offense in the District. 

And their representation does not cost you a cent.  In other words, you could not buy such legal services even if you wanted to. 

Enter Raleigh Bynum, II, a lawyer who, unbeknownst to all the parties at the time, was being investigated for flagrant dishonesty, the unauthorized practice of law and other ethical violations in South Carolina.  That investigation – underway at the time of the events at issue in this case – ultimately led to his being disbarred from the practice of law in the District. 

Bynum was retained by Dugger’s father who, like so many others, probably assumed his son would need a “paid lawyer” if he were to have any chance of success.

Judge Lynn Leibovitz, who was presiding over the proceedings at this point, is no slouch when it comes to making sure that things are on the level.

Noting that Bynum had never appeared in front of her before, the judge pressed him on his qualifications to represent a defendant with respect to such serious charges. 

Bynum claimed that he had represented multiple defendants in D.C. Superior Court but could not name a single judge.  He then “pivoted” to claiming he had “done stuff in the Federal Court” in the District but could not name a judge there either.

In other words, he lied. 

As the Court of Appeals concluded in its opinion reviewing the case, “all evidence indicates that Bynum had never appeared in court in a criminal case of any stripe.”

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Not surprisingly, Dugger was convicted of all charges.

Among the “dozen largely substantiated deficiencies with Bynum’s performance – ranging from Bynum’s failure to even retrieve predecessor counsel’s trial file to his decision not to retain an investigator” were three deficiencies in particular.

First, apparently unaware that his client had previously been convicted for drug distribution, Bynum elicited testimony during his cross-examination of a witness that Dugger was a drug dealer.  Rather than moving to strike that testimony, he repeated and highlighted it for the jury.

Second, Bynum failed to impeach the complainant with any of his criminal conviction, including for the violent offense of second-degree assault and for drug possession.

Finally, Bynum did not object when the trial court instructed the jury, at the government’s request, that it could consider evidence of the complainant’s peaceful character when no such evidence had been introduced.

Appealing his conviction, Dugger thus met the standard for proving that Bynum provided him with constitutionally ineffective assistance of counsel as spelled out in Strickland v. Washington, 466 U.S. 668 (1984).

Specifically, Dugger proved that his lawyer’s errors were so serious as to deny him his constitutionally guaranteed right to effective assistance of counsel.   

Moreover, with respect to prejudice, Dugger proved a reasonable probability that but for these errors the result of the proceeding would have been different.