In a claim for legal malpractice, the disgruntled client is generally required to prove that the prior representation would have produced a better result but for the negligence of the attorney. A new decision from California's Fourth District Court of Appeal reminds us that a convicted criminal can only prevail against his former defense attorney if he can prove that he was wrongly convicted, i.e., that he was in fact innocent of the crime.
Lindsel Redante was convicted on multimple charges of sexual offenses involving minors. Attorney Alan Yockelson was appointed to represent Redante in an appeal from his conviction. The appellate court affirmed the conviction, and the California Supreme Court decined review. Redante demanded that Yokelson draft a petition for habeas corpus. Yokelson did so and forwarded it to Redante for his use. Redante then represented himself in a series of unsuccessful habeas corpus cases in state and federal courts. Dissatisfied, Redante then sued Yokelson seeking damages for malpractice. The trial court granted judgment in Yokelson's favor, which the appellate court confirmed.
The Court of Appeal points out the following grounds on which it found no potential liability against the attorney:
♦ An appellate attorney need not make every argument the client demands. He is only obliged to raise those arguments that are potentially meritorious.*
♦ A criminal defendant "has no constitutional right to counsel in habeas corpus proceedings, and consequently, no right to effective assistance of counsel."
♦ A criminal defendant who sues for legal malpractice must prove his actual innocence of the underlying criminal charge. A non-innocent defendant cannot claim to have been harmed by an attorney's negligence. Redante never alleged or attempted to prove he was factually innocent in the context of his malpractice claim. Even if Yokelson had committed an error -- which the Court concluded he had not -- that error did not place Redante in any worse position than his own criminal conduct warranted.
The decision in Redante v. Yockelson (October 30, 2003), Case No. D041480, can be found at these links in PDF and Word formats.
* The arguments that Redante most wanted to have made on appeal, and which Yokelson presented half-heartedly if at all, included the assertion "that the law regarding age of consent was anachronistic and the minor victims consented" to the sexual activity with which Redante was charged.
Specifically, he claimed his conviction was a 'travesty of justice' because the acts forming the basis of his conviction [which he admitted to in his own trial testimony] were not considered illegal in some states and most of the civilized world. He further claimed the age of consent is 15 in most countries, 14 in others and 12 in Spain.
The Court did not need to reach the merits of those arguments directly in the context of the malpractice case, but nonetheless conveys the unsurprising view that the arguments had no merit.
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