Failure to Advise MPD Officer of Potential Employment Consequences of His Testimony Was Not Ineffective Assistance

Turner v. United States (decided August 10, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judge McLeese, and Senior Judge Reid. Opinion by  Judge Reid. Nigel A. Barrella for Mr. Turner. Trial Judge: Robert E. Morin.

Facts: Turner, an officer with the Metropolitan Police Department (MPD), was convicted after a bench trial of simple assault based on an excessive force incident. Turner testified in his defense, but the trial judge concluded that his testimony was "not credible" and found him guilty of the assault. MPD filed disciplinary charges against Turner based on the assault, but a panel of MPD officers reasonably doubted that Turner was guilty (despite the conviction), and recommended that he be returned to full duty. However, the U.S. Attorney's Office later informed MPD that it would no longer sponsor Turner's testimony in future cases due to the adverse credibility finding made against him. Based on that, MPD amended the disciplinary charges against Turner, and he was fired.

Turner challenged his conviction on the basis of ineffective assistance of counsel, arguing that his trial attorney should have informed him of the adverse employment consequences that could flow from his decision to testify in his criminal trial. The trial court denied the claim.

Issue: Was trial counsel's failure to advise a defendant of potential adverse employment consequences that could result from his decision to testify constitutionally deficient performance?

Holding: No. Although the Supreme Court has held that an attorney must advise a defendant of the potential immigration consequences of a criminal case, that ruling does not extend to potential employment consequences. Unlike immigration cases, where deportation is "intimately related to the criminal process," Turner's loss of his job did not flow directly or automatically from his criminal case. Moreover, while immigration consequences can be determined from reviewing the pertinent statutes, an attorney would have "to jump through several speculative hoops" to advise Turner of the employment consequences from his decision to testify and a finding that his testimony was not credible.

Of Note: Because the DCCA found there was no deficient performance, it did not reach the issue of prejudice.  It did, however, note that the prejudice inquiry would present difficulties for Turner. He did not contend that the result of his trial might have been different had he not testified, and the DCCA saw no way it could "erase the trial court's finding that [Turner's] testimony was not credible," so that there was no basis for the court to eliminate the grounds for his termination.

DG

Read the full opinion here.