Thursday, October 21, 2021

Split Innocence No Bar To Criminal Defense Malpractice Claim

The Wisconsin Supreme Court evenly split in review of a Court of Appeals decision that is left standing as a consequence.

The decision of the court of appeals is affirmed by an equally divided court.

The issue was whether the client's guilt of one charged offense barred his malpractice claim for other charges of which he was innocent.

The client had admitted theft charges but denied two sex assaults.

The sex charge conviction was vacated on a finding of ineffective assistance of counsel after the client had served jail time. 

[Jama] had no one to advocate for his version of events as [Gonzalez] intentionally did not speak with him, intentionally did not investigate the facts in [Jama’s] possession and intentionally did not incorporate [Jama’s] version into the defense theory … [Gonzalez] chose to make up “facts” which had no nexus to the facts known by [Jama], which had little to no support in the evidence, and which were internally conflicting.

The court of appeals held that "split innocence" does not bar a malpractice claim against former criminal defense counsel where the client is innocent of some but not all charges

The parties here do not dispute that, in Wisconsin, the actual innocence rule applies to all criminal malpractice plaintiffs. However, as stated above, the parties dispute how to resolve the specific split innocence issue under the reasoning and language of controlling Wisconsin case law. Gonzalez asserts that the case law supports his argument that Jama, as the criminal malpractice plaintiff in this case, has to prove innocence as to all charges of which Jama was convicted. Jama asserts that the case law supports his argument that it is sufficient to allege that he can prove innocence only as to those charges for which he alleges that his former defense counsel provided negligent representation, even if he cannot prove innocence on one or more other charges. As we explain, we agree with Jama.


We discern no suggestion in Hicks that the values embodied in the adopted policy considerations would be undermined if, as here, the criminal malpractice plaintiff were able to recover based strictly on negligence resulting in conviction for conduct for which the plaintiff claims actual innocence—here, sexual assault. More specifically, none of the five policy considerations, which all concern “guilty” defendants, appear on their face to apply here, where Jama alleges that he can prove he is not guilty. The Hicks court stressed that it was adopting the actual innocence rule because “as a matter of public policy, persons who actually commit the criminal offenses for which they are convicted should not be permitted to recover damages for legal malpractice from their former defense attorneys.” Id., ¶48. That public policy is not served when a person did not actually commit the criminal offenses that are the subject of the malpractice action.


we conclude that, under the Skindzelewski/Hicks/Tallmadge actual innocence rule, the circuit court erroneously dismissed Jama’s complaint because Jama claims actual innocence as to the vacated sexual assault convictions that form the basis of his malpractice claims in that complaint.

(Mike Frisch)

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