Massachusetts’ highest court ordered a new trial for a Dorchester man convicted of a 2010 shooting murder because his lawyer was really bad.
Omay Tavares, now 33, was convicted on Oct. 17, 2011, for first-degree murder in the shooting death of George “Jeffrey” Thompson on Jan. 7, 2010.
“Failure to investigate the only defense a defendant has,” the Supreme Judicial Court established in 1987 in their ruling in Commonwealth v. Haggerty, “falls below the level of competency expected.”
It’s one of several precedents that informed the justices in their Friday decision to affirm a lower court’s ruling on Tavares’ motion for a new trial. The request asserted “ineffective assistance” because his lawyer didn’t look into the information that indicated he wasn’t the killer.
His trial lawyer in that case was hired by a “family friend” for a flat fee of $5,000, according to the SJC.
Little did they know, but that attorney was taking on this case — his first murder case as lead counsel — right after a one-year bar suspension for “gross incompetence” that got his last client thrown in prison. The SJC ruling makes clear that the attorney’s skills got no better during that suspension.
Prosecutors two weeks before trial made the defense attorney aware of a “proffer,” which the SJC defines as information on one or more crimes given up to the government in exchange for that information not being used against the person presenting it, that indicated that someone else — identified as “HH” — was the likely perpetrator and not Tavares.
Apparently, the attorney made no move on this information. He got the redacted document a day before trial and didn’t ask for a continuance to investigate the new information, nor did he capitalize on interviewing “HH” when the court ordered him available ahead of trial.
The attorney before trial “requested and received court-ordered funds to hire experts in the fields of cell site location information and ballistics, but did not retain an investigator to find or speak with witnesses,” according to the SJC decision. He did, however, round up Tavares’ “mother, girlfriend, and work supervisor as witnesses to argue that the defendant’s traits and habits were inconsistent with the shooter.”
The attorney‘s explanation for not investigating this information, when he was tested in support of the motion for a new trial at the motion hearing, was that “he feared his witnesses might not be available at a later date.”
The motion judge said that decision fell “measurably below that which might be expected from an ordinary fallible lawyer” and it even failed as a tactical decision because there was no evidence the witnesses wouldn’t be available later and that they — the mother, girlfriend and supervisor — “could not provide a confident alibi” anyway.
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