Rape Conviction Reversed for Defense Attorney’s Not Objecting in Closing Argument

Dumas v. The State of Georgia (2016)

by David S. Marshall

A Georgia appeals court has granted Gregory Dumas a new trial after throwing out his conviction for rape and child molestation. The appeals court granted the new trial based on its finding that Mr. Dumas had received ineffective assistance of counsel.

The Sixth Amendment right to counsel (an attorney) for a criminal defendant also includes the right to effective counsel. A claim for ineffective assistance of counsel has the potential to overturn a criminal conviction. To prove ineffective assistance, a defendant must show that (1) his or her trial counsel’s performance was deficient and (2) there was a reasonable probability that, but for counsel’s deficiency, the outcome of the defendant’s trial would have been different. (Strickland v. Washington, 466 U.S. 668 (1984)).

In the present case, Mr. Dumas was convicted of the rape and child molestation of his girlfriend’s daughter. While the alleged events occurred when the girl was about seven years old, she did not report them until she was seventeen. Police issued a warrant for Mr. Dumas’s arrest at that time and took him into custody four years later.

At trial the prosecutor repeatedly and improperly questioned Mr. Dumas about his refusal to speak to police after they had arrested him and advised him of his right to silence. Criminal defendants have a constitutional right to remain silent in police custody. Georgia law also prohibits prosecutors from arguing that a silent defendant is probably a guilty defendant. Nevertheless, the prosecuting attorney repeatedly asked Mr. Dumas at trial why he did not assert his innocence by telling police his side of the story.

Mr. Dumas’s attorney objected to the prosecution’s suggestions that Mr. Dumas should have spoken to police. He objected throughout the trial until closing argument.

When the prosecutor improperly raised the issue again during closing argument, Mr. Dumas’s counsel had a number of choices. He could (1) object again, (2) ask the judge for a special jury instruction making it clear that the prosecutor’s questions were illegal and should not influence their verdict, or (3) move for a mistrial based on the prosecutor’s misconduct.

However, Mr. Dumas’s counsel failed to pursue any of these options. In fact, he did nothing at all in response. The appeals court found that, because Mr. Dumas’s attorney offered no reasonable strategic reason for this failure, his performance at trial was deficient.

The appeals court also found that the deficiencies of Mr. Dumas’s counsel had a reasonable probability of affecting the trial’s outcome. The prosecutor’s clear intent had been to persuade the jury that an innocent man would have spoken to police, an intentional violation of Mr. Dumas’s constitutional right to silence. The appeals court reasoned that since there was no physical evidence of the alleged crimes, the jury had to weigh the girl’s credibility against that of Mr. Dumas. Therefore, there was a reasonable probability that the prosecutor’s improper suggestion of guilt influenced the jury to convict.

Because the appeals court found Mr. Dumas’s trial attorney’s performance was both deficient and reasonably likely to have negatively influenced the trial’s outcome, Mr. Dumas was granted a new trial.

It has been our privilege at the Marshall Defense Firm to seek new trials for several persons in Washington State whose trial attorneys performed deficiently. We encourage everyone accused of child abuse, domestic violence, or any sex crime to seek the best possible trial attorney. But when a trial attorney drops the ball, we pursue a second chance for the accused to get a fair trial.