A lawsuit filed against an assistant state public defender is calling into question the innocence requirement in malpractice cases against criminal-defense counsel. The Wisconsin Supreme Court took up the case and is now considering whether it should recognize exceptions to the innocent requirement.
The question was raised in Skindzelewski v. Smith, a malpractice lawsuit filed by a contractor who had pleaded guilty to theft. Joseph Smith Jr., an assistant state public defender, was appointed to represent David Skindzelewski, a roofing contractor, in his misdemeanor theft case.
The Waukesha County District Attorney’s Office charged Skindzelewski in March 2014, four years after the alleged theft. But at Skindzelewski’s initial hearing in August, Smith didn’t move to dismiss the complaint or raise the issue of the statute of limitations. Nearly a year later and after several hearings, Skindzelewski took Smith’s legal advice to plead guilty to the charge. Skindzelewski was sentenced to eight months in county jail in 2015.
Skindzelewski filed a notice of intent to pursue post-conviction relief after sentencing. In March 2016, his new attorney filed a motion seeking to vacate the conviction because the prosecution should be barred by the statute of limitations. A judge granted the motion in April, and Skindzelewski was released from jail.
Skindzelewski then filed a malpractice action against Smith, and Smith conceded negligence. Both moved for summary judgment, but the judge only granted it to Smith. The judge found that because Skindzelewski had pleaded guilty to theft, the innocence requirement of Hicks v. Nunnery prevented him from recovering from Smith.
In the appeal, the court upheld the previous ruling and declined to provide an exception to the innocence requirement, saying only the state Supreme Court could modify language in a published appellate court decision.
The state Supreme Court decided to consider the innocent requirement, and the justices heard oral arguments in the case on Monday. They asked what an exception to the innocence requirement would look like and when a person’s innocence matters when considering an exception.
Craig Powell, partner at Hart Powell in Milwaukee, argued courts should allow exceptions if a sentence is over the maximum allowed, if it violates statute of limitations and if double jeopardy exists. He said these standards would allow for a narrow exception.
“We’re not talking about the creation of an exception that would open the floodgates to litigation,” Powell said.
Brian Keenan, assistant attorney general, said even if Wisconsin established a narrow exception similar to what’s allowed in other states, Skindzelewski’s claims wouldn’t meet established requirements. Washington and Oregon created exceptions for plaintiffs who admitted they were properly convicted but challenged the nature of the sentence imposed.
Keenan argued Skindzelewski can’t bring a malpractice claim because his own criminal conduct is the ultimate cause of his injury.
“He’s a guilty man whose attorney didn’t raise the merits of defense,” Keenan said.
Chief Justice Pat Roggensack and Justices Rebecca Bradley, Rebecca Dallet, Brian Hagedorn, Dan Kelly and Annette Ziegler will decide the case. Justice Ann Walsh Bradley recused herself. Follow @WLJReporter