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Ineffective Assistance of Counsel

By: Derek Hawkins//September 7, 2020//

Ineffective Assistance of Counsel

By: Derek Hawkins//September 7, 2020//

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7th Circuit Court of Appeals

Case Name: Adetokunbo Philip Fayemi v. Emily Ruskin

Case No.: 19-1241

Officials: EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges.

Focus: Ineffective Assistance of Counsel

In 2002 Alice Minter became ill and weakened; her hair fell out; while in a hospital she entered a coma and seemed on the brink of death. Medical tests superior to those available in 1961 revealed the cause: her blood and urine contained vastly more thallium than the natural concentration. For a few months her fiancé Adetokunbo Fayemi had been providing some of her food and drink (something that continued while she was in the hospital). Seven of Minter’s friends and relatives who ate occasionally at her home or hospital room also suffered from thallium poisoning, though to a lesser degree. Her dog died of thallium poisoning after it ate scraps from her table.

Evidence at Fayemi’s trial for attempted murder showed that he had purchased 50 grams of thallium sulfate, enough to kill about 50 people. Fayemi falsely told the supplier that he needed the substance for research but asserted in court that he and Minter wanted it to kill rats and mice, a forbidden use. Fayemi’s defense was that Minter had been careless with her share of the poison, but the fact that Fayemi often ate at Minter’s house without showing any traces of thallium poisoning—and that a good deal of thallium was found in a salt shaker (thallium sulfate is a tasteless white powder that looks like salt) in Fayemi’s kitchen—embarrassed that defense. A toxicologist testified that Fayemi’s body contained only the amount of thallium that would be expected in one who handled the substance but did not ingest any. The jury also heard that Fayemi owned many other poisons and had threatened to kill Minter if she left him.

The jury convicted Fayemi of attempting to murder Minter plus seven counts of aggravated battery with respect to the seven other victims. He was sentenced to 27 years in prison. The convictions were affirmed on appeal, and a state court rejected a collateral aback. 2016 IL App (4th) 140480-U (June 23, 2016). A federal judge denied his petition for a writ of habeas corpus under 28 U.S.C. §2254. 2019 U.S. Dist. LEXIS 3814 (C.D. Ill. Jan. 9, 2019).

The only argument that has made it to this court is that Fayemi’s trial lawyer violated the Sixth Amendment (applied to the states through the Fourteenth) by telling the jurors, in his opening statement, that Fayemi would testify. Counsel used this to introduce the theory of defense—that Minter asked Fayemi to get the thallium for her and was careless with it. Fayemi had told his lawyer that he would testify. But after the state judge decided that some of his prior convictions, plus evidence that he owned and had annotated at least one book about how to poison people, could come in on cross-examination, counsel persuaded Fayemi not to testify. Fayemi waived that right in open court. On collateral review his theory is that a lawyer furnishes ineffective assistance by promising that the defendant will testify, when the defendant may change his mind. Every judge who has looked at the case so far has rejected that argument.

We may assume that counsel’s strategy backfired when Fayemi changed his mind, though it is hard to presume that the jury held this against the defense. It was given a standard instruction not to draw an adverse inference. And mention of potential testimony gave counsel a means to introduce the theory of defense before the jury heard the prosecution’s case. Minter testified, for example, that she had never heard of thallium before her illness and did not ask for any from Fayemi; counsel’s opening statement may have helped the jurors keep open minds about that subject pending the defense case. Sometimes lawyers take risks that seem justified but do not pan out; this may have been such a situation.

Because the state court did not render a decision “contrary to” law clearly established by the Supreme Court, we ask whether it applied that established law “unreasonably”. It did not. The state’s appellate judges concluded that, whether or not counsel’s performance was deficient, there was no possibility of prejudice. The decision did not turn on a line between “reasonable probability” and some other standard. Instead the court remarked that the evidence against Fayemi was “overwhelming” (¶49). The evidence we have mentioned deserves that label, and there was more. The trial judge told the jury to disregard Fayemi’s decision not to testify. It is inconceivable that one sentence in the opening statement (counsel’s sole mention that the jurors would hear from Fayemi) could have affected this verdict.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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