Accused killer Brandon A. Clark testified in County Court on Wednesday that he believed he knew more than his former attorney about a possible psychiatric defense, and that was one of several reasons why he believes he should be able to withdraw his guilty plea in the murder of Bianca Devins.
Clark, age 23, and both of his former public defenders were the only witnesses called to testify at the hearing. Judge Michael L. Dwyer did not immediately rule on whether or not Clark could withdraw his guilty plea to second-degree murder and will issue a decision at a later date.
Clark is charged in the July 14, 2019 death of 17-year-old Bianca Devins in Utica. He is accused of cutting her neck and posting pictures of her mutilated body on the internet.
Shortly after he was taken into custody, Clark was assigned First Assistant Public Defender Luke Nebush as his defense attorney. After working on the case together for several months, Clark pleaded guilty to second-degree murder on Feb. 10, 2020 and accepted the maximum sentence of 25 years to life in prison.
Clark was due to be sentenced in April, but that was pushed back because of the COVID-19 pandemic. On June 2, Clark filed a notice with the court that he wanted to withdraw his guilty plea and claimed Nebush had failed him as an attorney.
“With the resources I was provided, it does not look like he did his job,” Clark said of Nebush on the stand. He noted that the jail logbook states that Nebush only visited him five times, and Clark said, “I believe his visits were very brief and cursory.”
While testifying, Clark laid out several reasons why he had changed his mind about his guilty plea. He said Nebush did not provide him with all of the available evidence, specifically security camera footage from a concert prior to the murder and Clark’s Google search history on his cell phone. He said Nebush told him there was a “good probability I would never receive parole” if he took his case to trial, and that “it made me afraid to go to trial”.
Clark also said that Nebush was “largely dismissive” of the possibility of a defense of extreme emotional disturbance. Clark said that, after he pleaded guilty, he himself started reviewing case law about extreme emotional disturbance and he believed Nebush did not know what he was talking about.
“The reasons he stated had no legal basis” for not using that defense at trial, Clark testified. “I began doing my own legal research” in May using the resources at the county jail.Though Clark did admit, under cross-examination, that he did not go to law school and did not have a college degree, while Nebush has been a practicing attorney for 15 years.
Another reason Clark gave to wanting to withdraw his plea regarded two cases of possession of prison contraband while he was at the county jail. When he pleaded guilty, Clark said he believed he had been charged in both cases, but he had actually only been charged with one. Clark testified on Wednesday that he would not have pleaded guilty to anything if he had known only one case had been filed against him.
Luke Nebush took the stand after Clark and said he had notes about visiting Clark at least 15 times prior to the Feb. 10 guilty plea, and that each visit was, on average, about three hours.
Nebush testified that Clark “was coherent. He understood everything. He ever explained the incident to me” so he did not qualify for being not guilty due to mental disease or defect. Nebush said he also aggressively pursued the extreme emotional disturbance defense, so much so that he had Clark meet twice with a psychiatrist.
However, Nebush testified that it was his “impression” that the psychiatrist did not believe Clark suffered from extreme emotional disturbance, so Nebush did not want the doctor to write an official report on the record. Nebush testified that, “my plan at the time was still to use that defense” without the psychiatrist, and he discussed this with Clark. Nebush said he is well-versed in the legal understanding of extreme emotional disturbance.
Nebush said that Clark wanted to plead guilty, but Nebush was still preparing for trial. The District Attorney’s Office did not offer Clark a reduced plea deal and would only accept Clark pleaded guilty and accepting the maximum sentence.
“No self-respecting attorney would have their client plead guilty to the max,” Nebush noted.
Nebush testified that he always answered any questions Clark had about the case and he always discussed his strategies with Clark. He said he brought Clark all of the evidence and spent several hours letting Clark dig through his computer to look at the evidence, including evidence that was not relevant to the case.
“He didn’t want his life to be forgotten,” Nebush testified. He said Clark was looking at irrelevant evidence because he wanted to make a timeline of his life for a future memoir.
Nebush testified that he was honest with Clark about the likelihood of being convicted at trial, for both the murder and prison contraband charges, as well as Clark’s likely sentence for both. Nebush said he was honest with Clark about the possibility of parole, that “taking responsibility” by pleading guilty would look better to a future parole board instead of fighting the facts at trial.
In the end, Nebush said it was Clark’s decision to plead guilty in February.
“I was always preparing to go to trial,” Nebush said. “He didn’t want to put his family through that. He didn’t want to put Miss Devins’ family through any of that.”
Public defender Kurt Schultz also worked on Clark’s case. He took the stand Wednesday afternoon.