Dugger v. United States
| Citation | 295 A.3d 1102 |
| Docket Number | 19-CO-1171 |
| Decision Date | 08 June 2023 |
| Parties | Timothy D. DUGGER, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Vincent A. Jankoski and Christine Pembroke, Washington, DC, were on the briefs for appellant.
Michael R. Sherwin, Acting United States Attorney at the time, Channing D. Phillips, Acting United States Attorney at the time of supplemental briefing, Elizabeth Gabriel, Elizabeth Trosman, Chrisellen R. Kolb, Elizabeth H. Danello, and Ellen D'Angelo, Assistant United States Attorneys, for appellee.
Before Easterly and Deahl, Associate Judges, and Glickman,* Senior Judge.
Opinion by Senior Judge Glickman, dissenting in part, at page 1121.
Timothy Dugger was convicted of assault with intent to kill while armed and a dozen related charges after he shot his friend, Samuel Wright. Dugger claimed that he acted in self-defense after Wright shot at him first. While Dugger's direct appeal was pending, he filed a motion under D.C. Code § 23-110, arguing that he was deprived of his Sixth Amendment right to the effective assistance of counsel. The Superior Court denied that motion. The court concluded that counsel had not been deficient in some of the ways alleged, assumed that he had been in others, but ultimately concluded that Dugger could not show the requisite prejudice to entitle him to a new trial. Dugger now appeals that ruling. We reverse and vacate the majority of Dugger's convictions.
The performance of Dugger's now-disbarred trial counsel, Raleigh Bynum II, fell far below prevailing professional norms in many respects. From the beginning, Bynum lied to the court and to Dugger about his qualifications to take on the representation. The trial judge, before permitting Bynum to take over the representation from far more experienced counsel, pressed Bynum on his qualifications to defend against the serious charges. Bynum assured the court (and Dugger) that he had experience trying serious felonies, including assaults with intent to kill, when in fact all evidence indicates that Bynum had never appeared in court in a criminal case of any stripe. In fact, Bynum was in the midst of disciplinary proceedings for similarly misrepresenting his qualifications to take on a medical malpractice case in South Carolina (where he was not barred), leading to his disbarment. During those disciplinary proceedings, and just one month before he began representing Dugger, Bynum admitted that he lacked the ability to take on any clients in any legal matter due to various medical issues.
Bynum's unfitness was, unsurprisingly, evident during Dugger's trial. While Dugger raises nearly a 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—three deficiencies in particular stand out. First, Bynum elicited testimony during his cross-examination of a witness that Dugger was a drug dealer, and rather than moving to strike that testimony, he repeated and highlighted it for the jury. Contrary to the trial court's ruling, he had no conceivable strategic reason for that course of action. Second, Bynum failed to impeach Wright with any of his criminal convictions, including for the violent offense of second-degree assault and for drug possession. The government acknowledges these convictions were "favorable impeachment evidence" and does not dispute that Bynum was deficient for failing to put evidence of them before the jury. Third, Bynum did not object when the trial court instructed the jury, at the government's request, that it could consider the evidence of Wright's peaceful character when assessing who was the first aggressor. As the government concedes, and as we previously determined in the direct appeal, no such evidence had been introduced and the instruction was erroneous.
But for the combination of these deficiencies, we conclude that there is a reasonable probability that the outcome of Dugger's trial would have been different, at least as to the lead counts against him. Where the defense was predicated on a theory that Wright shot at Dugger first, Bynum's deficiencies were prejudicial where he (1) highlighted evidence that his client was a drug dealer rather than striking it, (2) failed to introduce evidence of Wright's own violent and drug-related convictions, and (3) permitted the jury to be instructed about the non-existent evidence of Wright's peaceful character without objection. We therefore reverse the denial of Dugger's § 23-110 motion and vacate most of his convictions.
Timothy Dugger was convicted of assault with intent to kill, or AWIK, while armed, and related offenses. Dugger shot his friend, Samuel Wright, though Dugger contended that he acted in self-defense after Wright shot at him first. For more than a year, Dugger was represented in the pretrial proceedings by an experienced defense attorney, Dana Page of the Public Defender Service. But as the expected trial date approached, Page asked to withdraw her representation. She explained her understanding that Dugger wished to retain new counsel, Raleigh Bynum II.
The trial judge, the Hon. Lynn Leibovitz, was wary of the request to substitute counsel. Judge Leibovitz explained to Dugger that Page was "as good a lawyer as Mr. Dugger could ever have," whereas she had never even seen Bynum before despite having been a Superior Court judge for well over a decade. Judge Leibovitz asked Bynum whether he was a member of the District of Columbia Bar or if he had previously defended clients against charges as serious as Dugger's in any court. Bynum claimed that he had represented clients in Superior Court on "[v]arious—felonies, misdemeanors, drugs, assault," and that he had "done assaults with—assaults with intent to kill." When asked, Bynum struggled to name any Superior Court judge whom he had appeared before, and then pivoted to saying that he had "done stuff in the Federal Court" in the District, though he could not name a judge he had appeared before in federal court either. Bynum also clarified that he had never spoken with Dugger himself, but that Dugger's father had retained his services on his son's behalf.
Before permitting the substitution, Judge Leibovitz gave Bynum a chance to speak with Dugger while admonishing him to "be extremely candid with [Dugger] about the fact you haven't necessarily done an assault with intent to kill while armed case." Bynum retorted by again insisting that he had in fact represented a client against an AWIK charge, but simply could not say where he had done so without "look[ing] at [his] dossier." After speaking with Bynum privately, Dugger agreed to retain him, and Judge Leibovitz dismissed Page.
Only after trial did it become apparent that Bynum had never tried a criminal case. While Bynum suggested that he had tried criminal cases in the Superior Court and the federal District Court for the District of Columbia—the only jurisdiction where he was barred—independent searches of the relevant electronic databases by both a defense investigator and a deputy clerk in the Superior Court revealed no instance where Bynum was counsel of record in any criminal matter. Bynum also failed to mention to the trial court—and, it seems, to Dugger—that when he accepted the representation he was in the midst of serious disciplinary proceedings for misrepresenting his qualifications to take on another matter. See In re Bynum , 197 A.3d 1072, 1074-75 (D.C. 2018).1 Those proceedings continued throughout Dugger's trial and would ultimately lead to his disbarment for, among other things, "flagrant dishonesty." Id.
The misconduct that led to Bynum's disbarment bears a telling resemblance to how he came to represent Dugger in this case. In 2011, an incarcerated man named William Reid, Jr., on another inmate's recommendation, sought Bynum's representation in a South Carolina medical malpractice action against the hospital where Reid's wife died shortly after childbirth. In re Bynum , Board Docket No. 16-BD-029, *3, *5 (BPR Apr. 4, 2018). Reid had been represented by a different attorney in initiating that medical malpractice suit, but that counsel sought to withdraw his representation due to disagreements with Reid. Id. at *5. Bynum agreed to represent Reid after failing to inform him that he was not licensed to practice law in South Carolina and telling him, falsely, that he had experience litigating medical malpractice actions. Id . at *6. After securing the representation, Bynum "did nothing to undertake discovery or [ ] litigate the case," and the South Carolina court dismissed Reid's suit for failure to prosecute in 2014 after concluding that Bynum had not "done anything to prosecute the case in the last two years." Id. at *8-9 & n.8.
In June of 2016, the District's Office of Disciplinary Counsel filed a litany of charges against Bynum in relation to Reid's case, including: failure to provide zealous and diligent representation, intentional failure to seek the lawful objectives of clients, and conduct involving dishonesty and misrepresentation. In re Bynum , Board Docket No. 16-BD-029, *4-5 (HC Rep. Apr. 27, 2017). A disciplinary hearing was held two months later, in August 2016. Id. at *5. Bynum asserted various illnesses as mitigation. He stated that, as a result of his illnesses, he was "heavily medicated and was unable to focus [or] concentrate," that "his practice was severely limited due to his inability to focus and lack of energy and drive to attend to clients," and "that he ha[d] not taken on new clients due to his illness."
Nonetheless, Bynum began representing Dugger less than two months later, in October 2016, assuring Dugger and Judge Leibovitz of his qualifications to do so. Several months after he began...
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