Articles Posted in Ineffective Assistance

Published on:

This case, Desetti v. Chester, (Virginia Supreme Court), June 4, 2015, holds that a criminal defendant cannot bring a legal malpractice claim against her former lawyer because she was not factually innocent of the charge.

Few legal malpractice cases succeed in the criminal context because the plaintiff (formerly the criminal defendant) must prove all the elements of a legal malpractice case and that he was factually innocent of the charged crime. The reason for this rule is to prevent the criminal from profiting from his crime. Very few criminal defendants can accomplish the task of demonstrating factual innocence.

In this case, Judy Gayle Desetti was convicted of felony assault arising out of an altercation between Judy, her son and a police officer. After she was convicted, Judy proved that her criminal defense counsel was ineffective because he failed to convey a plea bargain offer that would have reduced the charges to a misdemeanor. The attorney also allegedly failed to respond to the plea offer. He also failed to inform Desetti that a finding of guilty would entail a mandatory jail sentence of six months. Based on these shortcomings with her legal representation, Desetti received habeas corpus relief and her conviction was vacated.

Published on:

Fink v. SHELDON BANK, Ill: Appellate Court, 1st Dist., 3rd Div. 2013 – Google Scholar.

Illinois has long followed the actual innocence rule, which holds that a criminal defendant may not sue his former attorney for legal malpractice unless he can prove that he was actually innocent of the crime.

A plaintiff in a legal malpractice case must prove a case-within-a-case, that is he must prove that, but for the lawyer’s negligence he would have won the underlying case. In the criminal context, the word “won” means “actual innocence.”

Published on:

This case is a somewhat routine affirmance of a bank fraud conviction and the rejection of an ineffective assistance of counsel claim. The Defendant alleged that her lawyer rendered ineffective assistance of counsel by failing to call certain witnesses at the trial of the case. In the criminal world, an ineffective assistance claim is equivalent in many ways to a legal malpractice claim. If there is a finding of ineffective assistance of counsel, the defendant is sometimes entitled to a new trial.

Here, the defendant fired her lawyers, but was assisted by stand by counsel at her trial. Counsel decided not to call certain witnesses because the potential risk of their negative testimony far outweighed the potential reward. This case makes it clear that these decisions are for the lawyer to make at trial, except in unusual circumstances.  The Seventh Circuit explains the rules applicable to witness testimony issues: “A “lawyer’s decision to call or not to call a witness is a strategic decision generally not subject to review. The Constitution does not oblige counsel to present each and every witness that is suggested to him.” United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (quoting United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997)). Indeed, Parker acknowledges that the decision whether to call a witness was her attorney’s to make.”

Comment: the point here is that it is almost impossible to win a legal malpractice case on the ground that the lawyer failed to call a witness. That decision was the lawyer’s to make in his professional judgment.