Clarifying If Convicted Defendant Can Sue Defense Counsel

In “Convicted Defendant Can Sue Defense Counsel for Legal Malpractice” (WisBar Court Review, Oct. 25, 2021), legal writer Jeff M. Brown reported that a man convicted on four felonies, two dismissed post-conviction on claims of ineffective assistance of counsel, can now pursue legal malpractice claims against his former defense lawyer for negligence as to two of the charges.

In Jama v. Gonzalez, 2021 WI 79, 399 Wis. 2d 392, 985 N.W.2d 458, the Wisconsin Supreme Court, in a 3-3 per curiam decision, affirmed the court of appeals (2021 WI App 3, 395 Wis. 2d 655, 954 N.W.2d 1) in a case that examined application of the “actual innocence” rule. The court of appeals determined the convicted defendant, Jama, can pursue a civil malpractice action against his former defense counsel even though Jama claims he can show actual innocence as to only some, but not all, of the criminal charges brought against him.

A reader posted a comment:

Reader: I commend the Wisconsin Court of Appeals for its decision. I was lead counsel for Tallmadge in Tallmadge v. Boyle, 2007 WI App 47, 300 Wis. 2d 510, 730 N.W.2d 173. There, for the first time in Wisconsin, the trial court applied the actual-innocence rule to bar a legal malpractice action against post-conviction counsel (Boyle) who was not the defendant’s trial lawyer. The court of appeals affirmed and created a new rule of law.

Nick Zales

Returning 17-year-old Offenders to the Juvenile Justice System

In “Juvenile Justice Means ‘Raising the Age’” (Rotunda Report, Sept. 20, 2021), the Rotunda Report reported that Wisconsin is among three remaining states that automatically send all 17-year-old offenders to adult courts. The State Bar of Wisconsin supports policies and legislation that would return 17 year olds to the juvenile justice system, as well as end the practice of routine juvenile shackling.

A reader posted a comment:

Reader: There is a statute that I think the general public (and many lawyers) are unaware of that requires 16 year olds to automatically be treated as an adult for traffic crimes. It is barbaric. 

Specifically, [Wis. Stat.] section 938.17 provides that, “a juvenile charged with a traffic ... offense in a court of criminal or civil jurisdiction shall be treated as an adult.... A juvenile convicted of a traffic ... offense in a court of criminal or civil jurisdiction shall be treated as an adult for sentencing purposes except....”

Thus, 16 year olds in Wisconsin are commonly charged with traffic crimes such as Hit & Run – Attended Vehicle. I recently had a case where two 16-year-old high school students collided and my 16-year-old client drove away thinking there was no damage. This very smart kid made a poor decision. Oddly, as I attempted to resolve the case with the prosecutor, their response was that someone that smart should have known better than to drive away and demanded my client be convicted of the traffic crime – and ultimately my client was convicted of a crime at the age of 16.

Importantly, this issue – that 16 year olds are automatically adults for traffic crimes – will get worse under current expunction reform proposals. The current proposal in 2021 Senate Bill 78 would eliminate traffic crimes from eligibility for expunction all together. Thus, 16 year olds convicted of traffic crimes are on the brink of being forever branded with that adult criminal conviction because they will be denied any possibility for expunction.

Chad Lanning
Lubar & Lanning, Milwaukee

Reader Identifies ‘Unidentified Woman’ in Photo

Several people watch as Governor Patrick Lucey, seated at desk, signs the Equal Rights Amendment. Lloyd A. Barbee (left), Marlin Schneider, two unidentified people, Midge Miller (center), unidentified woman, Mary Lou Munts (right), David Clarenbach (far right). Photo: Wisconsin Historical Society, ID 97430.

In “Five Women Who Shaped Wisconsin Law” (Wisconsin Lawyer, Sept. 2021), author Joseph Ranney said women – lawyers and nonlawyers alike – have tackled thorny issues that led to the reshaping of Wisconsin laws affecting civil rights, property, marriage, employment, and education. The article looked at five women who persevered in the face of social and political opposition to improve women’s lives in ways that reverberate today.

One of the accompanying photos, under the subhead “Mary Lou Munts: Building Modern Marriage Rights,” contained an image of an unidentified woman. A reader wrote to reveal her identity.

Reader: You will probably have learned by now that the unidentified woman between Midge Miller and Mary Lou Munts on page 42 of the September 2021 Wisconsin Lawyer is Norma Briggs, a very highly regarded activist of the day. I don’t know if she had started (or finished) law school at the time of the photo, but she did have a notable career as an attorney. Her husband was Michael Briggs, another later-in-life law student and lawyer; they were a formidable power couple in Madison, the Democratic Party, and in general civic affairs.

Scott Herrick
Rio Rancho, New Mexico