Lawyer’s use of word ‘Negro’ prejudiced client, but doesn’t get PCR

A defense attorney who has since been disbarred prejudiced his absent client when he referred to him as a “Negro” before potential jurors, a judge wrote, but the offending word wasn’t enough for the Court of Appeals to grant post-conviction relief.

The panel rejected Corey Middleton’s second petition for post-conviction relief from his 2001 conviction. He was tried in abstentia by a Hendricks County jury that convicted him of Class A felony dealing in cocaine, two counts of Class B felony dealing in a controlled substance, four counts of drug possession, and possession of a firearm by a serious violent felon.

Middleton had fled the state and was located in Georgia in 2003. He was returned to Indiana and sentenced to 40 years in prison.

During voir dire, Middleton’s defense attorney Robert Williams poised this question to prospective jurors: “I’d ask you, all of you the one question and that is Corey Middleton happens to be a Negro, an African American or Black whatever term is politically correct these days, so I need to ask all of you and remember you’re under oath and please don’t take that as an affront. I don’t mean it as an affront. But I still think in this country there are some racial problems. So my job is to make sure first of all if Corey Middleton, the black man, was sitting there, would any of you have any problems forgetting he’s black or forgetting he’s white or Indian or Chinese or whatever[?] Does race make any difference to you in these proceedings because if it does we need to know that right now[?]”

Judge Robert Altice wrote in an opinion joined by Judge Cale Bradford that even though it was clear Williams was exploring possible bias among jurors, “his choice of words was wholly unacceptable and amounted to deficient performance. Nevertheless, Middleton is not entitled to reversal because he has not established that but for counsel’s error, the result of the proceeding would have been different” because there was overwhelming evidence to support his guilt.

Writing separately, Judge Rudolph R. Pyle III agreed the evidence against Middleton was considerable and that the outcome would not have been different but for Williams’ errors. But he made clear in Corey Middleton v. State of Indiana, 32A01-1603-PC-592, that the word prejudiced Middleton before his trial began.

“In a sterile environment, this word might not be any more offensive than the next. But, we do not live in a sterile environment. Words have power. … (I)t seems likely that (Williams) also understood the gravity of his choice of words; he quickly tried to correct himself and reframe his error under the guise of ‘political correctness.’

“Before evidence had even been introduced, potential jurors saw and heard Middleton’s attorney, the person who was supposed to be his advocate, refer to Middleton in a racially offensive manner. While there is no evidence that counsel intended harm to Middleton, the harm was nonetheless inflicted,” Pyle wrote.

The panel also rejected Middleton’s claims that he was entitled to PCR because Williams failed to inform him of a plea agreement Middleton said he would have accepted, and on his arguments concerning procedural errors. The COA noted Williams was disbarred in 2002 in In re Williams, 764 N.E.2d 613 (Ind. 2002) for serial neglect of clients’ legal affairs and refusing to cooperate with the Supreme Court Disciplinary Commission.