On Point: Published 2021

Jama I. Jama v. Jason C. Gonzalez, 2021 WI App 3; case activity (including briefs)

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.

State v. Thomas A. Nelson, 2021 WI App 2; 12/9/20, District 2; case activity (including briefs).

This split court of appeals opinion, which is recommended for publication, has “petition granted” written all over it.  Crawford v. Washington, 541 U.S. 36, 68 (2004) held that a trial court violates a defendant’s right to confrontation when it receives into evidence out-of-court statements by someone who does not testify at trial, if the statements are “testimonial” and if the defendant has not had an opportunity to cross-examine the declarant of the statement.  Yet in this case, the court of appeals holds that Nelson’s confrontation rights were not violated when the circuit court admitted a “Sexual Abuse Evaluation” requested by the police for the purpose of collecting evidence even though the author of the evaluation did not testify at trial.