Atty Bias Eyed As New Path For Mass. Conviction Challenges

By Rachel Rippetoe | June 23, 2023, 7:30 PM EDT ·

A recent Massachusetts high court decision to toss a Black Muslim man's conviction based on his defense attorney's racist and xenophobic online posts is being hailed as a win for racial justice, and advocates say it could lead to other cases being challenged on grounds of bias by appointed counsel.

The decision, handed down by the Massachusetts Supreme Judicial Court on June 15, vacated Anthony Dew's 2016 conviction based on evidence that his court-appointed attorney, Richard Doyle, habitually posted hateful and profane rhetoric online, which a panel of judges found to be a conflict of interest, showing that he harbored "a deep-seated animus for peoples of the defendant's race or religion."

That a defense lawyer's animus against a certain race or religion alone would constitute a serious enough conflict to overturn a conviction is a huge step in the right direction, according to Mirian Albert, a staff attorney for Lawyers for Civil Rights Boston.

"That, in and of itself, is the groundbreaking part because the court isn't asking necessarily that potential defendants specifically demonstrate that there was a conflict of interest," she said. "That conflict of interest is presumed thanks to this decision, and that's a huge precedent."

According to Northeastern University School of Law professor and former criminal appeals attorney Daniel Medwed, criminal justice reform advocates had been watching the case closely because it could change the game for other defendants who feel they weren't zealously represented by their court-appointed counsel.

While efforts to rid the justice system of racial bias have typically focused on people in positions of power, such as judges, jurors and prosecutors, Medwed said that a defense attorney is crucial to a person's right to a fair trial. As a result, he said the high court's focus on the actions of defense counsel is a "unique and powerful way" to weed out racial animus in the courts, he said.

"If you have money, you get to hire a lawyer. Then presumably, you could do some due diligence and figure out what person is the right fit for you," he said. "But when you're assigned a public defender, you don't really have that luxury. And so this idea that the biases of a public defender could be a structural conflict of interest, regardless of how the person performed in the case, could be a potential game changer in terms of empowering indigent criminal defendants to get better representation."

The Committee for Public Counsel Services, which assigned Doyle to handle Dew's case as his appointed "bar advocate," has already taken steps to identify other cases Doyle has handled through his work with the agency.

The agency's chief counsel, Anthony Benedetti, said in a statement that more than 2,500 letters had been sent out and that the committee had already assigned attorneys to assess 69 cases, with at least three active motions for new trials already filed.

"We have zero tolerance when it comes to racist, hateful rhetoric from our attorneys — both from staff and members of the private bar," Benedetti said. "If it becomes apparent that one of our attorneys cannot uphold this fundamental mandate, we will take immediate action."

Medwed and Albert are both hoping the high court's ruling will lead to many more motions for a retrial, not just from Doyle's clients, but from any defendants who believed their court-appointed defense lawyer had a bias against them.

"For legal advocates, and community organizers, the ruling demonstrates that the individual who is the target of the bias, or harassment or discrimination, they don't bear the burden of proof that their right to counsel was violated," Albert said.

In the underlying case, Dew had been indicted on 19 charges, including sex trafficking, rape and drug possession. Acting on Doyle's advice, Dew pled guilty to all counts except the rape charge and was sentenced to concurrent terms of eight to 10 years.

After a 2017 investigation into Doyle's social media posts, CPCS suspended him from criminal case assignments for one year, concluding "that Doyle violated his duty of loyalty to his Muslim and 'other non-Caucasian' clients."

According to the Supreme Judicial Court's order, Doyle posted racist material to Facebook, including celebrating the apparent death of a Muslim man and referring to Black men as "thugs." Based on his location tags, Doyle wrote some of these posts inside the courthouse itself, the investigation found.

The order also cited outside witnesses who overheard Doyle demand that Dew remove his kufi prayer cap, a traditional religious item worn by some Muslim men, during their meetings. The court said that it couldn't know for certain that "an attorney who did not share the animus Doyle harbored for persons of the Muslim faith and Black persons would have negotiated a better plea agreement," but because the court couldn't rule this out, it was enough to be considered a conflict of interest.

"On the record before us, we cannot credibly assume that Doyle's representation was not affected by his virulent anti-Muslim and racist views," the court found.

What is still unclear, Medwed said, is if the Dew case will be considered the floor or the ceiling for future cases about inadequate counsel in Massachusetts.

"On the one hand, because this is such an egregious example of bias, there's a possibility that, you know, a lot of other defendants will fall short in reaching the new standard," he said. "But here's why I'm really optimistic: It provides precedent to at least make these claims. And in future cases, it'll be up to the lower courts and the appeals court and the Supreme Judicial Court to create a more nuanced picture of the Dew case and the precedent."

Presumably, Medwed said, there will be future cases where the petitioner falls far short of Dew, and as the appellate courts continue to rule on new motions, the Massachusetts judiciary "might create a doctrine that doesn't suggest you have to be this blatantly, egregiously racist," Medwed said.

He expressed confidence in the court's willingness to continue addressing the issue based on what he said was its recent work to address racial bias in the judiciary. He pointed to a 2016 decision, Commonwealth v. Warren, in which the court ruled that police are not justified in pursuing people based solely on their choice to flee when they see law enforcement.

"The judges said, given the prevalence of racial profiling, flight doesn't go to consciousness of guilt, it goes to survival instinct," Medwed said. "Just because a Black person in Boston runs from the police, it doesn't mean they're guilty of anything."

These kinds of rulings from the high court give Medwed hope that the Bay State's criminal justice system will continue to progress toward a more "race neutral" approach.

Medwed also said the ruling would encourage greater government oversight over the bar advocacy program, and that it could also serve as precedent for defendants to request a new attorney at the first signs of racial bias.

"It's incredibly hard to get a new lawyer," he said. "If you're indigent, and you get assigned someone, you're often stuck with that person. And that's a problem. That's another way in which we penalize the poor."

Because the Dew ruling is not focused on performance in trial but on the counsel's personal biases, it could be much easier for defendants to make a case for why they need a new lawyer.

"At the early stage, when a client is saying, 'I don't want this lawyer,' a judge will be like, 'Well, what has the lawyer done?'" Medwed said. "But this at least gives the defendant an opening, and it gives the judge a way to really think about whether that person might have a bias."

"I think we could see many more successful challenges at the front end," he said.

--Editing by Jill Coffey.

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