Criminal – Effectiveness of counsel – Racial bias

Where a defendant moved to withdraw his guilty pleas due to ineffective assistance of counsel premised upon his plea counsel’s bias against African-Americans, a judge’s decision to deny that motion must be reversed because the defendant showed bias on the part of plea counsel that necessarily infected his representation of the defendant.

“The defendant appeals from a Superior Court order denying his motion to withdraw his guilty pleas due to ineffective assistance of counsel premised upon conflict of interest, specifically, his plea counsel’s bias against African-Americans, a racial class of which the defendant is a member. After review, we conclude that the defendant established an actual conflict of interest. As a result, we reverse. …

“On appeal, the defendant contends that the judge erred in ruling that he had failed to establish an actual conflict of interest since he relied on the same Facebook posts that the Supreme Judicial Court did in determining that plea counsel had a disabling conflict of interest in [Commonwealth v. Dew, 492 Mass. 254 (2023)]. … We answer only the narrow question whether the posts at issue establish an actual conflict for this defendant; on that basis, we conclude that they do.

“We acknowledge that, unlike the circumstances in Dew, the Facebook posts were not made and shared during the time plea counsel represented the defendant, … and that, unlike the situation in Dew, plea counsel did not make explicitly racist or bigoted statements to the defendant during his representation. … In this case, however, we do not consider either the three-year gap between plea counsel’s representation of the defendant and the posts or the fact that plea counsel did not add private abuse of the defendant here to the public airing of his racist views to bar the defendant’s claim of actual prejudice. Plea counsel created a ‘pattern of [social media] posts,’ Dew, 492 Mass. at 266, that reflected an intense racism and bigotry that we cannot conclude developed overnight and which we do not conclude sprang into existence in the relatively short time between 2011 and 2014. Similarly, although we acknowledge that the defendant did not suffer the explicitly bigoted treatment that plea counsel visited on his client in Dew, where the Supreme Judicial Court has already concluded that plea counsel’s social media postings, taken alone, exhibit extreme bias, we do not read Dew to require overt acts to ‘confirm’ the existence of an actual conflict. …

“Because we conclude that, on these facts, the defendant showed bias on the part of plea counsel that necessarily infected his representation of the defendant, we part ways with the motion judge and hold that the defendant did establish an actual conflict of interest.”

Commonwealth v. Mains (Lawyers Weekly No. 81-134-24) (9 pages) (Docket No. 23-P-921) (Dec. 18, 2024).

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