Court found defendant should have been put on stand

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If your client says his statement to police was coerced, it is ineffective assistance of counsel not to call him to testify at the suppression hearing.

Judge Ilana Diamond Rovner wrote for the Seventh Circuit, "True, [counsel] testified at the post-conviction hearing that he intended to elicit evidence of coercion through the officers' testimony. But this plan, as the district court aptly observed, is 'not trial strategy; it is television fantasy.'"

Nevertheless, the court on Mar. 27 let the conviction stand, concluding it was not unreasonable for the state courts to find that the defendant was not prejudiced by his attorney's performance.

In 2000, Cleveland C. Bynum was convicted of murdering five people in Indiana state court.

After his conviction, Bynum contended that his trial counsel was ineffective for failing to put him on the stand at the hearing on his motion to suppress his post-arrest confessions.

Bynum maintained that that he told his counsel that police threatened him when he asked for a lawyer, handcuffed him to a chair for nine hours, deprived him of food and water, and refused to let him use the bathroom.

Bynum also said that police threatened to charge his fiancée with obstruction of justice, which would result in their son entering protective services.

Finally, Bynum claimed that his second confession was fabricated by the police officers.
However, Bynum's attorney did not call him to testify during the suppression hearing, at which the trial judge found the statements voluntary.

At the post-trial hearings in state court, his attorney explained that he thought the best way to show coercion was to get the officers to tell inconsistent stories about the interrogation, and testified he was afraid that Bynum's version of events would not withstand cross-examination.

Both the trial court and the Indiana Court of Appeals held that counsel was not deficient.
In federal court, both the district court and the Seventh Circuit concluded that Bynum's counsel was deficient, but that it was not unreasonable for the state courts to find he failed to show prejudice.

Without testimony from Bynum, after the officers unanimously denied coercion, there was no evidence of coercion to support suppression of the statements.

The court further found that counsel's explanation — that he did not think Bynum would withstand cross-examination — was baseless, because the hearing was conducted outside the jury's presence.

The court concluded, "even if Bynum had crumbled under cross-examination, it would not have affected the jury's estimation of his guilt."

Accordingly, the court held that Bynum's counsel was deficient, and it was unreasonable for the state courts to hold otherwise.

Nevertheless, it found that it was not reasonably probable that the trial court would have credited Bynum's testimony over the contrary evidence — testimony of three police officers and Bynum's signed waivers of his rights.

Thus, the court found the state courts could reasonably hold that Bynum could not show prejudice, and affirmed the district court's denial of his habeas corpus petition.