The Massachusetts Supreme Court ordered a new trial for a Dorchester man convicted of a shooting murder in 2010 because his attorney was really bad.
Omay Tavares, now 33, was convicted on October 17, 2011 of first-degree murder in the January 7, 2010 shooting of George “Jeffrey” Thompson.
“Failure to examine an accused’s sole defense,” the Supreme Judicial Court stated in its 1987 judgment in Commonwealth v. Haggerty, “falls short of the expected level of competence.”
It’s one of several precedents that informed the judges in Friday’s decision to uphold a lower court’s decision on Tavares’ request for a new trial. The motion claimed “ineffective assistance” because his attorney failed to investigate information suggesting he was not the killer.
His trial attorney on the case was hired by a “family friend” for a flat fee of $5,000, according to the SJC.
Little did they know, but this attorney took on this case — his first murder case as lead attorney — right after a year-long sentence for “gross incompetence” that resulted in his last client being thrown in jail. The SJC ruling makes it clear that the attorney’s skills have not improved during this suspension.
Prosecutors alerted defense attorneys two weeks before the trial to an “offer,” which the SJC defines as information about a crime or crimes to be turned over to the government in exchange for that information not being used against the person committed she submits, suggesting that someone else – identified as “HH” – was the likely culprit and not Tavares.
Apparently the lawyer made no move on this information. He received the redacted document the day before the trial and did not ask to continue investigating the new information, nor did he use the questioning of “HH” when the court ordered that he be available before the trial.
The pre-trial attorney “requested and received court-ordered funds to hire experts in cell location intelligence and ballistics, but did not engage an investigator to find or speak with witnesses,” the SJC’s decision said. However, he rounded up Tavares’ “mother, girlfriend and work supervisor as witnesses to argue that the characteristics and habits of the defendant did not match those of the shooter”.
Testifying in support of the retrial request at the motion hearing, the attorney stated that he had not examined this information that “he was concerned that his witnesses might not be available at a later date”.
The motions judge said the decision was “measurably below what could be expected of an ordinary fallible attorney,” and it even fails as a tactical decision because there was no evidence that the witnesses would later be unavailable and that they – the mother, girlfriend and supervisor – “couldn’t provide a secure alibi anyway”.
