Legal Malpractice

Criminal Defense and Legal Malpractice

By (Andrew Lavoott Bluestone)

The rule is pretty clear; one may not sue a criminal defense attorney unless there is a showing of innocence.  Innocence means acquittal or reversal on appeal.  Here, in Peo v. Radcliff is a stunning example of how and why the rule exists.  In this case, defendant was convicted after a bench trial.  The implication is that the attorney told his client that the trial judge gave him "the wink" and that an acquittal was in the offing.  Note the confluence of literature, TV and this trial.

In People v Radcliffe ;2009 NY Slip Op 52593(U) ; Decided on December 18, 2009 ; Supreme Court, Bronx County ; Price, J. , "On July 10, 2003, defendant was convicted after a non-jury trial of criminal possession of a weapon in the second degree (PL 256.03 [2]) and assault in the second degree (PL 120.05 [2]) by Supreme Court Justice Dominic Massaro. Upon that conviction, Justice Massaro entered judgment against this defendant on September 25, 2003, sentencing him to two concurrent determinate terms of imprisonment of fifteen years and seven years, respectively. On November 22, 2005, the Appellate Division, First Department, rejected defendant's challenge to the trial court's suppression rulings and affirmed his conviction. On February 24, 2006, Court of Appeals Judge Victoria Graffeo denied defendant's petition seeking leave to appeal. "

"The People, in opposing defendant's motion, argue that Mr. Feige indeed provided meaningful and effective representation in that he thoroughly cross-examined the People's witnesses at the pre-trial suppression hearing, emphasized weaknesses in the People's case and delivered a persuasive summation. They further argue that defendant's waiver of his right to a jury trial and Mr. Feige's decision to rest on the pre-trial hearing testimony and stipulations as the trial record were not only a reasonable trial strategy, but were tactically justifiable since they were based on Mr. Feige's belief that doing so would achieve a favorable result. The People also correctly note that although the determination of whether counsel provided meaningful and effective representation is not dependent on achieving the desired outcome, here the trial court ultimately acquitted the defendant of the most serious charges, attempted murder in the second degree and assault in the first degree. This, they argue, supports the notion that Mr. Feige's representation was indeed meaningful and effective; that the result was not what the defendant desired, expected or liked is of no moment. This court agrees. "
 

"Since defendant's motion is predicated on Mr. Feige's mea cupla statements, scrutiny is warranted here as well. Generally, mea culpa statements made by trial counsel cannot be taken at face value because counsel may be motivated by either a desire to assist a former client or protect their own reputation (Barclay v Spitzer, 371 F Supp 2d 273, 283 [EDNY 2005]; but cf, e.g., Henry v Poole, 409 F3d 48 [2d Cir 2005]). Moreover, where, as here, an otherwise excellent attorney, who consistently performs in a highly credible manner as a member of the criminal defense bar, unexpectedly and inexplicable pleads ineptitude, skepticism is particularly called for. As such, this court is wary of Mr. Feige's claim that he lays awake at night wrought with guilt for having made "the most stunning and appalling decision" of his career.

This court finds it acutely disturbing that after spewing his mea culpas, Mr. Feige implicitly abdicates responsibility to Justice Massaro for the verdict not being what he anticipated. "Had Justice Massaro not done what he did, I would had [sic] proceeded with a trial, as I had throughout my career and as I always intended to do." Unfortunately, for both Mr. Feige and the defendant, nothing in the record before this court remotely suggests that Justice Massaro assured, promised or guaranteed that he would acquit the defendant. Even Mr. Feige's characterization that Justice Massaro gave him the "wink" is devoid of any factual support. In fact, as noted above, Mr. Feige based his strategic decision on a dubious head-nod and "unmistakable" look, which does not remotely qualify as a promise or guarantee.[FN1] To infer that Justice Massaro somehow made false or misleading representations is intellectually dishonest.

If Mr. Feige is indeed guilty of that which he claims to be, it would perhaps constitute far more than ineffective assistance of counsel. It is patently absurd to believe that an extraordinarily experienced defense attorney with an admittedly inherent distrust for the judiciary would suddenly unravel into a hideously incompetent advocate merely by the way a judge looked at him.[FN2] Of course, it is not for this court to speculative what Mr. Feige thought, believed or intended when concluding that defendant's best opportunity for success was to waive a jury. What appears unmistakable, however, is the striking similarity between the defendant's case and an ostensibly fictitious case contained in Mr. Feige's book "Indefensible."[FN3] Also unmistakable is that in one episode of Mr Feige's television drama, "Raising the Bar," another ostensibly similar [*10]fictitious case involves a corrupt judge who agrees to acquit the defendant but fails to do so.[FN4]

Perhaps Mr. Feige does indeed seek redemption for his perceived malpractice or perhaps there are other motivational forces in operation. Neither is of any moment. If, however, Mr. Feige is indeed guilty of the ills he claims to be, then in light of the accomplished author and producer he has become, disbarment, which he curiously appears too eager to accept, seems far from adequate. If, on the other hand, Mr. Feige is simply remorseful for misreading Justice Massaro, such remorse hardly qualifies as error, much less ineffective assistance of counsel; it is merely an unsuccessful defense strategy.

Full post as published by New York Attorney Malpractice Blog on December 28, 2009 (boomark / email).