Malpractice Awards Tied to Proof of Innocence


Criminal defense lawyers can be forced to pay malpractice awards to former clients only if the former defendants prove they were innocent of the crimes for which they were convicted, the California Supreme Court ruled Monday.

The ruling will make it harder for defendants to collect jury awards from lawyers who botched their cases. California counties have been sued increasingly in recent years by former criminal defendants claiming their public defenders were incompetent.

“Regardless of the attorney’s negligence, a guilty defendant’s conviction and sentence are the direct consequence of his own perfidy,” Justice Janice Brown wrote for the court.

The 6-1 decision came in a malpractice lawsuit by a San Diego man who won a $162,500 jury award against the county public defender’s office.


Kelvin Wiley, the plaintiff, served 1 1/2 years in prison after being convicted of assaulting a former girlfriend, before an important witness recanted and the district attorney decided to dismiss the charges.

Wiley then sued his former lawyer, Deputy Public Defender John Jimenez, charging that Jimenez failed to interview witnesses who could have aided the defense.

Wiley presented evidence that the victim’s neighbors, who said they saw a man other than Wiley banging on her door the day of the assault, had not been contacted by the defense investigator.

During the malpractice trial, Wiley was not required to prove that he did not commit the crime. And the trial court excluded evidence that Jimenez based his trial strategy in part on a polygraph examination that Wiley had failed, a psychological evaluation of Wiley and an earlier domestic violence incident.


San Diego County appealed the jury award, and a Court of Appeal overturned it on technical grounds. The appellate court nevertheless agreed with the trial judge that Wiley did not need to prove his innocence to prevail in the malpractice claim.

The county, citing a conflicting appellate ruling in Los Angeles, asked the Supreme Court to review the case. The state high court agreed that the lawsuit should be retried, but said Wiley must show by a preponderance of the evidence that he was not guilty of the attack on his former girlfriend.

The court distinguished between erroneous convictions that arise because the law was not properly followed and convictions of the innocent. Defendants convicted as the result of an unfair trial can make that argument on appeal and have their convictions overturned, the court said.

But only innocent former defendants should be allowed to collect money for wrongful convictions. “Our legal system is premised in part on the maxim, ‘No one can take advantage of his own wrong,’ ” Brown wrote.


“While a conviction predicated on incompetence may be erroneous, it is not unjust,” the justice added.

Justice Stanley Mosk dissented, arguing there was no need for an innocence rule, in part because proving malpractice in the criminal arena is extremely difficult. “The majority hold that a defense attorney owes no duty . . . to act competently toward a client he or she knows to be guilty of a crime,” Mosk complained.

Justice Kathryn Mickle Werdegar, also writing separately, said she agreed with the result in the case but chided the majority for making a ruling based on “policy and pragmatism” rather than law.

Deputy San Diego County Counsel William A. Johnson Jr., who argued for the public defender, predicted that the court’s ruling would reduce frivolous lawsuits.


“Where there are closer questions in terms of judgment calls made by lawyers, it will allow a little more latitude to the public defender to defend himself and also make the burden just a little tougher on the plaintiff to show that he was innocent,” Johnson said.

Malpractice suits in the criminal arena are not uncommon, and some counties “are seeing more and more of them,” Johnson said. Even so, the plaintiffs are believed to rarely prevail.

Timothy J. Kozel, who represented Wiley in the malpractice case, could not be reached for comment.