In 2011 a federal judge ordered Kevin Reddington to swear out an affidavit explaining why he had not put his own client on the witness stand.
The client was serving life for first-degree murder and had spent years arguing that Reddington failed him. The judge did not hold a hearing. He told the lawyer to answer under oath, in writing, within a deadline.
Reddington filed it in two days. The court then found he had not been ineffective and dismissed the petition.
The case has never appeared in any profile of him, and it is the most direct test of his trial work in the public record.
The conviction
Timothy Duguay was convicted of first-degree murder on November 24, 1997, in Plymouth County Superior Court, for stabbing his neighbor Robert Madera to death. He received a life sentence, and the SJC affirmed in December 1999.
Reddington was trial counsel only. Duguay had separate appellate counsel, whose performance he also later attacked, and eventually proceeded on his own.
His federal habeas petition raised five claims of ineffective assistance. Two were withdrawn. Three went to a decision.
The three claims
That Reddington would not let him testify.
That Reddington failed to call his girlfriend as an alibi witness.
That Reddington botched the polygraph evidence. Duguay said he had passed two polygraph tests, that Reddington failed to lay the foundation required to get the results admitted, and that he should have called a second expert to shore up the first.
The third claim was not frivolous, and the court said so plainly. Reddington’s polygraph expert testified that he had conducted more than 5,000 examinations and had been qualified in many courts, but as Judge Nathaniel Gorton wrote:
“He did not, however, provide any statistical evidence of the reliability of polygraph examinations nor address the level of accuracy of his prior examinations. Without such testimony, the trial judge must exclude the polygraph evidence… As such, the trial judge held that Att’y Reddington had not met the requirement described in Stewart.”
So the foundation was in fact not laid, and the evidence was in fact excluded.
The claim still failed, on a point that decides a great many ineffective assistance cases:
“Without verification of the nature and content of Dr. Abrams’ testimony, there is no evidence or even allegation before the Court indicating that Dr. Abrams’ testimony would have been any different than Mr. Johnson’s. For that reason, the Court finds that Petitioner has failed to make the required showing for an IAC claim on this ground.”
Establishing that a lawyer made a mistake is not enough. A petitioner has to show the mistake changed something.
The affidavit
On the other two claims the judge wanted the lawyer’s own account. His order:
“Attorney Kevin J. Reddington, Duguay’s trial counsel, is directed to provide, on or before March 31, 2011, to Clerk of Court an affidavit addressing only his decisions as trial counsel not to offer testimony of the Petitioner or Ms. Tanya Anshewitz.”
This is worth pausing on. Attorney-client privilege normally protects those conversations absolutely. It gave way because Duguay waived it himself when he made his lawyer’s performance the issue. A client who claims ineffective assistance opens the file.
Reddington filed on February 24, two days later. The court’s summary of it:
“Att’y Reddington submitted an affidavit stating that, before and during trial, he spoke at length with Duguay regarding whether he should testify and ‘clearly and unequivocally’ told him that he had ‘a constitutional right to offer testimony and the decision is his and his alone.’… Att’y Reddington explains that, in light of that potential cross-examination, he advised Duguay not to testify. He states that Duguay declined to testify and opines that his decision was a ‘result of clear, calculated consideration’.”
On the alibi witness:
“Att’y Reddington reports that, prior to trial, he spoke to her by telephone on several occasions and interviewed her in person at length. He concluded that Ms. Anshewitz ‘did not support and… would have hurt Mr. Duguay’s case before the trial jury.’ He attests that he spoke with Duguay in detail about Ms. Anshewitz’s prospective testimony and Duguay ‘endorsed the tactical decision not to present her as a witness.'”
The court accepted it, holding the decision was not “manifestly unreasonable when made,” the governing standard for a strategic choice.
It also had a contemporaneous record to check the affidavit against. At the close of the defense case in 1997, Reddington had stated on the record: “I have spoken to Mr. Duguay extensively about this issue.”
The ruling
“Consequently, for the reasons set forth in this Court’s February 22, 2011 Memorandum & Order, and based upon Att’y Reddington’s affidavit, the Court concludes that Att’y Reddington did not provide ineffective assistance of counsel at trial and Petitioner Duguay is not entitled to a writ of habeas corpus.”
The petition was dismissed on February 28, 2011.
What happened after, and what we could not determine
Duguay moved for reconsideration and was denied in June 2011.
He then asked for a certificate of appealability, and in August 2011 Judge Gorton granted one on all issues, on the ground that “reasonable jurists could debate” the ruling.
That deserves care, because it is easy to misread. A certificate of appealability is a finding that a question is close enough to be worth an appellate court’s time. It is a comment on the difficulty of the legal issue, not a criticism of the lawyer.
The case had already been to the First Circuit twice before the merits ruling, on a 2009 remand and a 2010 vacatur that sent the trial ineffective assistance claim back to be decided.
Whether Duguay pursued the 2011 certificate to a decision, we could not determine. No First Circuit opinion appears in the databases we searched, and we could not reach the docket. Treat the appellate history after August 2011 as unresolved rather than assuming it ended there.
Why this is the useful document
Profiles of trial lawyers run on verdicts and anecdotes. Verdicts are the client’s outcome as much as the lawyer’s, and anecdotes come from the lawyer.
Duguay is different. A federal judge examined specific decisions Reddington made in a murder trial, with the benefit of the trial record and a sworn account, under a legal standard designed to test exactly that. On the polygraph the court found he had not met the foundation requirement. On the two decisions that mattered most, whether his client testified and whether an alibi witness was called, it found his judgment reasonable and his client informed.
Every criminal defense lawyer who tries serious cases eventually gets accused of this by a client with nothing left to lose. What is unusual is a written judicial answer.
Common questions
Has Kevin Reddington ever been found ineffective?
Not in the reported decisions we located. In Duguay v. Spencer a federal judge examined the claim on the merits and concluded he “did not provide ineffective assistance of counsel at trial.”
What is an ineffective assistance of counsel claim?
A constitutional claim that a lawyer’s performance fell below an objective standard of reasonableness and that the deficiency affected the outcome. Showing a mistake is not enough on its own; a petitioner must also show it made a difference.
Can a lawyer be forced to testify about a client?
In this situation, effectively yes. Attorney-client privilege protects those communications, but a client who claims ineffective assistance waives it as to the decisions at issue, which is why the judge could order an affidavit.
What does a certificate of appealability mean?
That a judge considers the question close enough that reasonable jurists could disagree, allowing an appeal to proceed. It reflects the difficulty of the legal issue, not a finding against the lawyer.
What was the underlying case?
Timothy Duguay was convicted of first-degree murder in 1997 in Plymouth County for stabbing his neighbor to death, and sentenced to life. The SJC affirmed in 1999.
All quotations taken verbatim from Duguay v. Spencer, 765 F. Supp. 2d 90 (D. Mass. 2011) and 791 F. Supp. 2d 271 (D. Mass. 2011), Gorton, J. Subsequent history from 811 F. Supp. 2d 531 and 811 F. Supp. 2d 533 (D. Mass. 2011). Appellate history after August 2011 could not be verified. General legal information, not legal advice.