In Wisconsin, a person who brings a legal malpractice suit against the lawyer who represented the person in a criminal case must prove, among other things, that he or she is actually innocent of the criminal charge. Skindzelewski v. Smith, 2020 WI 57, ¶10, 392 Wis. 2d 117, 944 N.W.2d 575; Tallmadge v. Boyle, 2007 WI App 47, ¶¶15, 18, 300 Wis. 2d 510, 730 N.W.2d 173; Hicks v. Nunnery, 2002 WI App 87, ¶¶34-49, 253 Wis. 2d 721, 643 N.W.2d 809. But what happens in a case of “split innocence,” when the person is guilty of some of the crimes but not others? In a case of first impression, the court of appeals holds the person need only prove his innocence of the specific criminal charges as to which he alleges the lawyer performed negligently.
Jama was charged with multiple crimes. He admitted to a theft but denied charges of sexual assault. In postconviction proceedings Jama alleged his trial lawyer provided ineffective assistance of counsel. The circuit court agreed, vacated all the convictions, and ordered a new trial. The state ultimately dismissed all charges except the theft, to which Jama pleaded guilty, though by that point Jama had spent over two years in prison. (¶¶4-8).
Jama then sued his trial lawyer for negligent representation on the sexual assault charges. The circuit court dismissed the case based on the “actual innocence” rule because Jama was guilty of the theft. (¶¶10-12). After a thorough canvassing of the language and policy reasoning of Skindzelewski, Hicks, and Tallmadge (¶¶15-43), the court of appeals concludes that, “on the facts of Jama’s split innocence situation, proof of Jama’s actual innocence of the charges as to which he alleges legal malpractice falls within the actual innocence rule.” (¶34).
As we noted here, in conjunction with our summary of Skindzelewski, the court of appeals had certified the “split innocence” issue to the supreme court in this case. The supreme court declined the certification, so the court of appeals had to tackle the issue itself. UPDATE (1/27/21): Gonzalez has filed a petition for review, so the supreme court may decide the issue yet. FURTHER UPDATE (3/25/21): The supreme court granted the petition for review, so it will now weigh in on the matter. FINAL UPDATE (10/20/21): The supreme court split 3 to 3 on the case (Karofsky did not participate), so the court of appeals decision is affirmed. The order is here.