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Is It Time To Abolish the Actual Innocence Rule?

In most states, a former client of a criminal defense lawyer cannot sue for legal malpractice unless he can establish “actual innocence.” The Actual Innocence rule bars almost all legal malpractice claims against criminal defense lawyers. The purported basis for the rule is that the guilty person should not profit from his crimes.┬áScholars have criticized the rule as poorly reasoned and lacking in justification. One criticism of the rule is that it unfairly differentiates between civil lawyers and criminal lawyers. A civil litigator who breaches a duty to a client, causing the client to lose an underlying case, is not immune from suit. The client suing the civil litigator is not required to prove actual innocence or anything like it.

This week the Supreme Court of Kansas abolished the Actual Innocence rule. Mashaney v. Board of Indigents’ Defense Services. In Mashaney, the plaintiff claimed that he was wrongly convicted of child sexual assault due to the ineffective assistance of his court-appointed lawyers. The opinion does not furnish many details but it appears that the case against Mashaney arose when the mother of Mashaney’s five year old daughter made allegations that Mashaney had sexually abused his daughter.

Mashaney was convicted in 2004 and sentenced to 442 months of imprisonment. He steadfastly maintained his innocence. In 2011, Mashaney entered into an Alford plea under which he pleaded guilty to two counts of attempted aggravated battery and one count of aggravated endangering a child. The State dropped the remaining charges and Mashaney was sentenced to 72 months imprisonment. Because he had already served more than 72 months, he was entitled to be released from prison.

Mashaney then sued his lawyers alleging that they were ineffective and, as a result, he was sentenced to prison time. (The opinion does not explain how the lawyers were allegedly ineffective). The trial court dismissed the case on the ground that Mashaney could not establish actual innocence. The Kansas Supreme Court reversed in a thoughtful opinion that discusses the origins of the Actual Innocence Rule, the justifications for the rule and explains why the rule should be abolished.

The court explains that the problem with the rule is that a “criminal defendant has a fundamental right to be proven guilty beyond a reasonable doubt grounded in the due process protections of the Fifth and Fourteenth Amendments to the United States Constitution….And if the government fails to meet that burden in a given prosecution, the defendant should go free. The right belongs to anyone charged with a crime – guilty or innocent.” Opinion p. 24. Furthermore, the lawyer owes the same duty to the guilty client and the innocent client. A breach of that duty by the lawyer harms the client in either case.

The opinion is thoughtful and well-written and reads like a law review article without footnotes. No matter what you think about the decision, anyone interested in criminal defense, the rights of the accused or the duties of a lawyer to a criminal defendant should read the opinion.

Edward X. Clinton, Jr.

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