Cooper & Elliott Blog

Where’s the Real Crime? The Injustice of Criminal Defense Malpractice

Posted on Thu, Sep 6, 2018 @ 8:41 PM

Imagine being accused of assault. You know that, at the time, you were miles away with several witnesses. Nothing to worry about, right? But months later, you find yourself convicted and incarcerated.

This kind of personal calamity is an example of what can happen to a person’s life when he or she becomes a victim of criminal defense malpractice.

The criminal side of legal malpractice

We’ve discussed what constitutes legal malpractice and why civil litigation attorneys should not shy away from these cases. We’ve detailed the impact on the victims of civil cases where justice has been derailed by legal malpractice.

However, the legal risks for the defendant are amplified when legal malpractice occurs in criminal law. In civil litigation, the outcome usually centers around financial compensation for damages (though civil litigation cases, when settled without a trial,  may include conditions that are not financial).

The outcome of a criminal case is likely to involve something more precious than money. What’s potentially at stake, for the defendant, is his or her liberty, and often, drastic reputational harm. When a defendant is convicted in a criminal case through neglected evidence or attorney inexperience, there are options for recourse through civil litigation.

Oversight leads to criminal defense malpractice

The case cited above was real—it involved our client.

In this case, the accused, George Hamilton* encountered the drunken complainant (a boyfriend of one of George’s employees) in a parking lot around midnight.  There was no fight and no assault.  Hours later, in a separate incident, the boyfriend was assaulted in his apartment by several individuals. George was indicted for the assault. Multiple witnesses could have provided an unimpeachable alibi for George, but they weren’t called to testify—or even interviewed—by his criminal defense attorney. Worse, at trial the defense attorney became confused and questioned George repeatedly about the parking lot encounter, and the jury convicted him for that (even though it wasn’t mentioned in the indictment).

Because of the defense attorney’s mishandling of the case, George was imprisoned for three years for a crime he could not have committed and for which he was never legally charged.  Fortunately, his conviction was eventually overturned, and he was released from prison.  He came to us for justice and we sued the criminal defense attorney and obtained a substantial jury verdict in his favor.

In this case, the defendant was wrongfully imprisoned—not as a result of criminal actions, but because of criminal defense malpractice. If you have been injured through legal malpractice that calls for civil litigation, give us a call. We’re here to help.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case

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