Tuesday, January 12, 2010

reddo vestri , subsisto in carcer (Tales of Pro Se litigants, 2)

Here's the second in the Tales of Pro Se litigants, a case in which a lawyer might not have been able to help much, but could have maybe helped some.

In the just-decided case of Bartz v. Edmonds, the Wisconsin Court of Appeals upheld the tough-to-sue standard by ruling against Bartz's appeal in the malpractice case Bartz brought against a lawyer formerly appointed to help him.

Bartz was convicted in 1994 of first-degree intentional homicide after shooting a man in the face at close range with a shotgun. (Sometimes you go to prison after stuff like that, and sometimes you just appear on Fox News as a commentator after stuff like that.) Bartz appealed his conviction, but lost.

Bartz then filed a federal habeas corpus petition, acting pro se. The federal court appointed Edmonds to help him try to get out of prison, but the petition was denied in 2001.

Thereafter, Bartz said he never got notice of the denial, and claimed that a friend of his had been told by Edmonds, in 2004, that the petition was still active. Edmonds, though, said that he marked the order denying the petition "cc: client" and assumed that it had been sent to Bartz.

Bartz sued Edmonds, in this case, for malpractice and misrepresentation, and "breach of fiduciary duty," asserting that Edmonds had denied him the right to appeal the habeas decision, and caused Bartz to incur litigation expenses. (Edmonds denied the allegations and supplied proof that Bartz's friend could not have talked to him when he claimed he did.)

In Wisconsin, a plaintiff suing a criminal defense attorney for malpractice must, in addition to proving negligence, also prove actual innocence. Bartz never claimed actual innocence, something he was forthright about. Instead, Bartz claimed that he was not guilty of intentional homicide, and that he could have proven that instead he should be guilty of, at most, reckless homicide, a lesser charge that might have led to a lesser sentence.

Bartz lost in the circuit court, and lost on appeal, as the Wisconsin Court of Appeals applied the actual innocence rule and held that Bartz, because he wasn't claiming actual innocence (and hadn't proven that he was innocent) couldn't sue Edmonds for malpractice.

Bartz raised an interesting argument in that case, one that I don't believe has ever been explored and one that the Court of Appeals didn't deal with very much, and that argument is this:

Shouldn't a defendant be allowed to sue a lawyer for messing up and getting him convicted of a worse charge?

Wisconsin's actual innocence rule says no -- that a criminal defendant can't sue his criminal defense attorney unless the defendant was actually innocent. But that blanket rule doesn't seem to cover all the myriad ways that a lawyer's negligence could hurt a client who's guilty of a charge, but shouldn't be found guilty.

Consider a couple of hypothetical situations.

Say a defendant is arrested for arguing with his wife, and the wife lies and says she was hit in the face by the defendant. The defendant denies this but is charged with battery (for the hitting) and disorderly conduct (for the fighting.) Then assume that the man's criminal defense lawyer screws up, and doesn't introduce evidence showing the wife is lying about being hit in the face, resulting in the man being convicted of battery and disorderly conduct, and being sentenced to a lengthy jail term.

Under Wisconsin's absolute innocence rule, that man (presumably) couldn't sue the lawyer, even though he was innocent of battery -- because he was guilty of disorderly conduct. The two charges overlap, but aren't the same, and that's essentially what Bartz was trying to argue: that he was guilty of a lesser charge, and should have had the chance to get that lesser charge.

Or consider a defendant who is arrested for bank robbery, and has a confession beaten out of him; that confession is the only evidence against him at trial. Confessions can't be beaten out of people, and the confession should be suppressed from the evidence. But if this defendant's lawyer messes up -- commits malpractice -- and doesn't try to exclude the confession, the defendant will be convicted. Can he sue his lawyer? The actual innocence rule says he can't -- because he's not actually innocent, even though he shouldn't have been convicted.

Bartz went pro se on his appeal against Edmonds, and maybe he shouldn't have, because a lawyer could have raised those issues and forced the Wisconsin Court of Appeals to address them, and the Court should have addressed them, because Bartz's claim was one that's not perfectly covered by the absolute innocence rule. Bartz is claiming he's innocent of one charge, but not another, and the Court didn't explain why the rule covers that situation.

The other two claims -- misrepresentation and breach of fiduciary duty -- didn't take long for the Court to address, but maybe they should have, too: The misrepresentation claim was dismissed because Bartz "never had a viable legal malpractice claim," but, as I said above, maybe Bartz did, if he could argue that the law shouldn't cover him or should be changed. (The breach of fiduciary duty charge was dismissed because Bartz had no proof that any breach -- if there was one -- was intentional, a required element.)

I'm not saying that Edmonds committed malpractice; I think that he didn't, in fact, mess it up. What I'm saying is that Bartz raised legitimate questions that warranted consideration... but didn't get that, because Bartz went pro se.