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Vancouver man seeks new trial after third-strike conviction

New attorney argues previous lawyer did inadequate job

The Columbian
Published: July 15, 2010, 12:00am

A new attorney for a Vancouver man recently convicted of his third strike argued to a Clark County judge Wednesday his client should receive a new trial because the trial attorney did a such a poor job.

Dion Ward, 44, faces life in prison without the possibility of release under the state’s persistent offender law.

Superior Court Judge Barbara Johnson said she will issue a ruling within a few weeks.

Ward was convicted in April of second-degree assault for threatening his girlfriend of 20 years with a knife. The crime counts as a strike. Ward’s first two strikes are for second-degree assault with sexual motivation in 1999 and indecent liberties in 2000, both relating to molestation of young girls he knew.

Seattle attorney John Henry Browne argued Wednesday that Lee Baker, Ward’s court-appointed attorney, failed to have a private investigator appointed to assist him, didn’t make written pre-trial motions to challenge the state’s case and didn’t allow Ward to testify.

Baker, who has been an attorney for 24 years, said he did everything he felt was necessary and denied that he prevented Ward from taking the witness stand. He said he didn’t think Ward would have helped his case by testifying and had concerns that Ward could do considerable damage. He said when he practiced questioning Ward before trial, Ward would get off-point and make statements such as “I’ve never been violent.”

Such a statement during trial could “open the door” to allow the prosecutor to introduce Ward’s prior convictions.

In addition to the sex offenses, Ward has convictions for fourth-degree assault and driving while intoxicated.

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Baker said he made it clear it was up to Ward whether he wanted to testify.

Browne asked if Baker had Ward go on the record during trial and state that he did not want to exercise his right to testify in his own defense.

No, Baker said.

“Do you think that would be a good practice?” Browne asked.

“Probably,” Baker said.

Baker said he had handled one other third-strike case and he got it resolved with a plea deal, in which the offender received a 10-year prison term.

In Ward’s case, Baker said he talked with Deputy Prosecutor Jeff Holmes about a potential plea deal and also with Holmes’ supervisor, Camara Banfield.

The prosecutors did not make a formal offer, Baker said.

Browne said Baker should have pushed harder to get the prosecutor’s office to reduce the charge to a nonstrike offense, given the knife was folded, Ward gave it to his girlfriend when she asked for it and she was not hurt in the December 2009 incident.

“Did you go to (Clark County Prosecutor) Mr. (Art) Curtis?” Browne asked.

“No,” Baker said.

Outcome the same?

Ward testified he didn’t realize a conviction would carry a mandatory life sentence. He said Baker told him that was a possibility, but that punishment would be determined in a separate hearing.

Baker denied that, saying that’s the procedure for death penalty cases and he brought it up to Ward only to explain the difference between a third-strike case and a death penalty case.

At the April trial, Ward was also convicted of felony harassment, tampering with a witness, third-degree malicious mischief and several domestic violence court-order violations relating to the event.

Ward’s father and his younger brother testified Wednesday that Baker told them he was not going to let Ward testify.

Deputy prosecutor Holmes said there’s no evidence the outcome would have been different had Ward testified.

Ward said Wednesday he was drunk and angry when he grabbed the knife and faced off with his girlfriend. “I said, ‘I wish you were dead, you (expletive),’ and she said, ‘Give me the knife you drunken idiot.’”

It doesn’t matter that the victim was physically uninjured, Holmes said.

“I’m sure it was terrifying, and that’s all we needed to show” to prove second-degree assault, Holmes said.

“The fact that the defendant doesn’t agree with (the jury’s) decision doesn’t mean he gets to try it again,” he said.

Stephanie Rice: 360-735-4508 or stephanie.rice@columbian.com.

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