Abstract

Excerpted From: Sophia Sabet, A Broken Shield: Ineffective Assistance of Counsel Claims in Cases of Racist Defense Attorneys, 93 Fordham Law Review 1035 (December 2024) (297 Footnotes) (Full Document)

Imagine: you are charged with a crime and face imprisonment. You cannot afford a lawyer, but one is appointed to you. Your lawyer urges you to take a plea deal, which you ultimately accept. Years later, you find out that your lawyer holds overtly racist beliefs toward the very racial group you belong to. This is where Anthony Dew found himself in 2021, five years after his attorney urged him to accept a plea deal that sentenced him to concurrent terms of incarceration of eight to ten years.

In March 2015, Dew, a Black, Muslim man, was indicted on nineteen charges, including five counts of trafficking a person for sexual servitude and one count of rape. In February 2016, Richard Doyle was appointed to represent Dew. In one of Dew and Doyle's first meetings, Dew wore a kufi prayer cap due to his Islamic faith. Doyle demanded that Dew remove the kufi, instructing Dew, “don't come in this room like that ever.” Only two weeks later, Doyle left a meeting without saying a word to Dew upon seeing Dew wearing his kufi. Shortly before Dew's trial date, Doyle told Dew not to wear “that shit,” referring to the kufi, in front of a court officer.

Despite Doyle's problematic behavior, Dew at the time did not realize the extent of Doyle's animus toward Black and Muslim people. Unbeknownst to Dew, from 2014 to 2017, Doyle made and shared numerous racist social media posts about Black and Muslim people. Among these posts were statements calling for violence against Muslims, anti-Muslim slurs, comments that mocked Black people, and references to Doyle's clients as “thugs.” Doyle made these posts while representing Dew.

Upon learning of these racist posts in 2021, Dew filed a motion for a new trial and for leave to withdraw his guilty pleas, arguing that Doyle's racism was an actual conflict of interest that violated Dew's right to effective assistance of counsel under the Sixth Amendment to the U.S. Constitution and article 12 of the Massachusetts Declaration of Rights. As Dew's motion attorney argued, “If you have an internal set of beliefs which put you at odds with the defendant being a person, how can you possibly say that you represent him with undivided loyalty?” In the first court decision of its kind, the Massachusetts Supreme Judicial Court vacated Dew's convictions and ordered a new trial, finding that Doyle's documented racist views created an actual conflict of interest that violated Dew's right to the effective assistance of counsel.

The Sixth Amendment provides that every criminal defendant has the right to the assistance of counsel. The right to counsel is considered with “peculiar sacredness” as the assistance of an attorney is necessary to provide criminal defendants with a fair trial. However, racism pervades our criminal justice system, including the legal profession. The legal profession is among the least diverse professions in the United States and is racially unrepresentative of American society. Criminal defense lawyers are not immune to racism. Indeed, lawyers like Doyle, who harbor racist beliefs toward the clients they represent, further entrench what is already a systemically racist criminal justice system when their biases impede on the effectiveness of the representation they provide.

Commonwealth v. Dew was a significant decision as it has been historically difficult for criminal defendants with racist attorneys to find recourse, especially when racism is not reflected on the record. This difficulty is due to the U.S. Supreme Court's ineffective assistance of counsel standard, articulated in Strickland v. Washington, which requires criminal defendants to prove that their counsel's deficient performance was prejudicial to their case. As racism can impact a defendant's representation in various, invisible ways, defendants are often unsuccessful in petitioning for ineffective assistance of counsel under this standard. Accordingly, there is a gap in protection for defendants who determine that their defense counsel harbored racist views toward their racial group during the representation. This Note will analyze the Supreme Court's standards for ineffective assistance of counsel and will argue that a defense attorney who is racist toward their client's race has an inherently prejudicial conflict of interest such that a new trial is warranted.

Part I of this Note details the Sixth Amendment case law pertaining to the right of counsel, the ineffective assistance of counsel standards, and the ethical obligations of counsel. It then examines the role of defense attorneys and the implications of racism in the defense bar. Part II outlines approaches courts have utilized to analyze ineffective assistance of counsel claims when criminal defendants allege that their defense attorney harbored racist views toward their racial group during the representation. Finally, Part III recommends a conflict-of-interest approach for defendants with racist counsel, putting forth the proposal that such attorneys should be viewed as inherently prejudicial.

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A defense attorney who is racist toward their client's race fundamentally calls into question the representation received. A defense attorney is meant to be a zealous advocate for their client and uphold the guarantees of the Sixth Amendment. To prevail on an ineffective assistance of counsel claim, the Supreme Court held in Strickland v. Washington that a criminal defendant must prove that their counsel's performance was deficient and that the deficiency prejudiced the defense. In Sullivan and Cronic, the Court supplemented the Strickland standard by holding that a conflict of interest that adversely affects the representation received or a denial of counsel will satisfy Strickland's prejudice prong.

Despite the ineffective assistance of counsel framework created by the Court, Strickland leaves a gap in protection for criminal defendants with racist counsel. Namely, the prejudice prong is often difficult for defendants to meet, particularly when there is not a direct connection between the racism and the defendant. Racism should not be tolerated in any form; thus, courts should not utilize Strickland when addressing ineffective assistance of counsel claims of racist defense attorneys.

To adequately address a defense attorney who harbors racial animus toward their client's race, a Sullivan approach should be utilized as a defense attorney who is racist toward their client's race is conflicted. However, criminal defendants in such circumstances should not have to prove how their attorney's racism adversely affected the representation as required by the Sullivan standard. Instead, courts should view a racist defense attorney as having an inherently prejudicial conflict of interest, warranting a new trial in accordance with the guarantees of the Sixth Amendment.

J.D. Candidate, 2025, Fordham University School of Law; B.A., 2021, Boston College.