Friday, December 9, 2022

Actual Innocence

The Nebraska Supreme Court affirmed the dismissal of legal malpractice and related claims brought against a convicted client's former attorney

Davis entered an appearance indicating his representation of Buttercase concerning the federal charges. He then moved to suppress the evidence against Buttercase and, when this failed, arranged for him to plead guilty to one count of possessing child pornography, with a sentence of 30 months’ imprisonment. However, Buttercase refused to pay the full fee for a computer expert retained to testify at the suppression hearing and he rejected the proposed plea deal.

Matters came to a head when Davis asked Buttercase to sign a written agreement regarding the per diem fees for trial. Buttercase refused. He sent Davis a letter asserting that “trying to get more money (renegotiate) so close to trial seems like extortion” and that he expected Davis to perform all services allegedly required under the agreement or refund the $15,000. As a result, Davis sought and received the federal court’s permission to withdraw as counsel for Buttercase.

Buttercase filed a bar complaint against Davis, and the matter was referred to the federal court for investigation.

Buttercase pleaded guilty to a distribution of pornography offense. 

Buttercase’s ex-wife and alleged victim testified at the sentencing hearing that she and Buttercase “married when I was a minor” and that she was a “consenting adult” in videos or images of her.

The bar complaint

The federal court held an evidentiary hearing on the ethics complaint, at which Buttercase, Davis, and others testified. A magistrate judge subsequently found that “Davis did not commit an ethical violation” and “did not misrepresent the facts in his motion to withdraw” and recommended that the bar complaint be dismissed. This recommendation was adopted by the federal district court.

The civil case had a complicated history; Davis died while it was pending.

The court

Actual innocence means factual and not legal innocence; in other words, the State has convicted the wrong person. Whether Buttercase produced evidence of his actual innocence of child pornography with his ex-wife’s statement at his sentencing hearing is perhaps arguable. However, we need not decide this issue because the situation as to the obscenity charge is clear. Here, there was no evidence suggesting that the federal government convicted the wrong person of this charge. To the contrary, the only evidence that Buttercase produced as to the obscenity charge was the judgment showing that he pled guilty to it.

The court rejected a number of challenges to the proceedings below including a denied motion to recuse

Buttercase’s claims that the district court erred in disposing of the parties’ competing motions for summary judgment and its prejudgment interlocutory rulings are without merit. Accordingly, the judgment of the district court is affirmed.

The case is BUTTERCASE V. DAVIS, 313 Neb. 1  (Mike Frisch)

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