Shaw v. State, Department of Administration

meet, ity had allows investors to failed rely improvement districts without SHAW, Petitioner, J. John having improvement fear of an district dis- simply change plans solved of a

by neighboring landowners. Alaska, STATE of DEPARTMENT OF ADMINISTRATION, Public Defender Municipal Executive Directive further Backstrom, Agency, and David C. Re- protects private possi- landowners from the spondents. differing priorities bility public between private balloting and interest assessment Alaska, STATE DEPARTMENT OF by requiring municipality to follow a ADMINISTRATION, Public Defender procedure special op- it votes in whenever Backstrom, Agency, and David C. Peti- majority position private landown- tioners, balloting.11 ers in assessment It is undis- puted that municipality did follow procedure it when voted abolish the SHAW, Respondent. John J. approved and water sewer districts and support improvе- decided not to the road S-4933, Nos. S-5010. private ment district. for reasonable Supreme Court of Alaska. property municipali- owners to assume the ty regulations will follow its own and di- Oct. rectives. type

SD & R made the of reasonable protected by

investment that should be

Takings municipality Clause. While the right

has the duty minimize resources, municipal

waste this case all justice,

“in fairness and [the cost] public

should be borne as a whole.” Central,

Penn 438 U.S. at 98 S.Ct. at SD & R established that there are disputed

no issues of fact material and that judgment entitled as a matter superi- law. Because I would affirm the grant judgment, of summary court’s I

dissent. owner,

11. Unlike a private property Contingency special B. Executive for circumstances: If Municipality Directive 8 "intends” that the petition will special circulated and there exist landowners, majority private vote require circumstances that the Munici- only oppose majority preference oppose pality majority preference "special circumstances.” private property, Department owners Voting 2. Petition Process Procedures Assembly will an submit Memorandum to the Municipal Property: Mayor, describing special circumstances special private A. Petitions of property recommending administration be petitions owners: When are circulat- sign petition authorized to in accord with private property ed benefit owners it is special circumstances.... majority preference intended that the owners, added). (emphasis Executive Directive 8 any Municipal share less the property, shall determine the outcome of the petition.... Paskvan, Paskvan,

Joseph Hoppner L. & Fairbanks, petitioner-respondent John J. Shaw.

Randy Olsen, Atty. Gen., M. Asst. Fair- banks, Cole, Gen., Juneau, Atty. Charles E. Alaska, for respondents-petitioners State of Dept, Admin., Public Defender Agency, and David C. Backstrom. C.J., MOORE,

Before WITZ, BURKE, RABINO MATTHEWS and COMPTON, JJ.

OPINION WITZ, RABINO Justice. petitions

These raise questions several out of a action brought by a criminal defendant First, attorney. we address at what prejudgment time legal interest mal- practice brought against a criminal action. begins Second, to accrue. we question address the whether innocence or actual legal so, action is If relevant. must further decide who bears the burden on the issue. We address these issues in turn.

I. FACTUAL AND PROCEDURAL

BACKGROUND long complex proce- factual and background dural in this case is set out in (Alaska 1991) Shaw v. P.2d 1358 I). opinion We limit this {Shaw to sum- marizing the dates events relevant to questions petitions: (1) these raised Shaw was of two convicted counts of bur- glary 1973; larceny and two counts of (2) upon apprehension after fleeing the state, Shaw was sentenced for the 1973 (3) 1980; 15,1986, on August convictions Shaw’s convictions were set aside as “con- defective;” stitutionally filed Shaw legal his attor- ney and the Public Defender’s office on January at 1359-60. Finally, 1988. Id. ac- when Shaw’s cause of the statute of determine I we held malpractice arising Phillips, as to limitations tion arose. State ‍​‌​​​‌‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​‌​‌‌​​​​​​​‌‌‌‌‌‌​‌‍begin proceedings does 1970)(“All out of criminal damages ... should criminal defendant until after the run carry from the time the cause of Id. at 1362. post-conviction relief. obtains accrues_”). consistent- judgments ly held in the context of civil parties moved es- Subsequently both case on different “a of action accrues when all cause law tablish forming for a statement law issues: Shaw moved elements basis essential prejudgment interest ac- regarding when the claim have occurred.” Lamoreux crues, moved establish the and the State (Alaskа 1988) Langlotz, 151 P.2d concerning, among other of the case law omitted). Thus, question (citations proven to be things, the elements forming did the essential elements when all proof. burdens of accompanying the and accrue. the basis of Shaw’s claim motion, superi- the response In to Shaw’s I, “obtaining post- In held Shaw we that found that the court mal- legal relief is an element of conviction upon ob- of action accrued Shaw’s cause 816 P.2d at practice in criminal cases.” Therefore, taining post-conviction relief. clear, then, n. is that all the 1360 2. 09.30.070, prejudgment interest under AS legal malprac- of essential elements Shaw’s upon complaint. of service commences he claim did not accrue until obtained tice motion, supe- responsе to In the State’s 15, August 1986.2 on that, held as the acknowl- rior court State interest, leg- regard In prejudgment to duty, duty and breach of edged both all provided that causes islature has to only burden at trial was Shaw’s 11, action that accrue after June 1986 proximate connection between causal 139, 9, SLA subject to AS 09.30.070. Ch. § negligent defense at trial and his counsel’s provides, part: statute 1986. The damages. superior his claimed (b) finds Except when the court that ruled at trial the State had the further that otherwise, proving, by agreed prejudg- parties burden of pro- the affirmative that day accrues from the ment interest original actually guilty of the Shaw was on the defendant or the cess served charges. day received written notifi- the defendant and injury cation an has occurred that petitioned for review of the court’s brought that a claim pre- time ruling concerning the at which injury, that whichever defendant for judgment accrues and the State interest ruling petitioned for of the estab- earlier. review parties’ law case lishing the of the 09.30.070(b). As no written notice was AS trial.

respective burdens at We AFFIRM. defendant, in- prejudgment provided to 15,1988, January began to accrue on terest II. DISCUSSION1 complaint was served. when Prejudgment In- A. At What Time Does Former B. Is Innocence of a Crimi- Malpractice Legal Action terest His Defense nal Defendant Who Sues Brought Against a Criminal Defense Malpractice Attorney Relevant? Attorney Begin to Accrue? previously have not addressed We pre In to determine when in- accrue, of a criminal begins the relevanсe defendant’s judgment exercise; (3) (2) duty; questions of that breach issues in this case concern Both questions negli- law de novo. proximate law. We review connection between the causal 1371, Langdon Champion, 745 P.2d 1372 n. 2 resulting injury; gent and the 1987) (Alaska (citations omitted). damage resulting profes- from the actual loss or negligence.’” Belland O.K. Lumber sional’s malpractice of four ele- “Professional consists 638, Co., (Alaska 1990) Inc., (quot- ‘(1) professional duty use ments: 171, Martin, ing & 667 P.2d Linck v. Barokas skill, prudence, diligence as other such 1983)). n. 4 commonly possess profession members subsequent that mental ... that nocence to defendant’s value determination it malpractice his former de- far worse convict an innocent man than attorney. survey A of case fense law In re Win go man freе.” let a indicates this other states area 358, 1077, ship, 90 S.Ct. U.S. constitutes a small but (1970) (Harlan, J., 25 L.Ed.2d concur growing percentage Alto, see State v. ring); 589 P.2d Jeffrey cases. 2 Ronald E. & M. Mallen (Alaska 1979) (“[P]lacing the 21.1, Malpractice Smith, Legal at 284 n. § beyond state reasonable 1989). (3d In ed. cases have ad- reflects our doubt criminal cases belief issue of a dressed the criminal defendant’s it is an innocent man be worse tha[t] guilt, majority the vast of courts have held free.”). jailed go that a man than guilt3 innocence or the actual This is evidenced value determination Before defendant relevant.4 de- protections provided array an ac ciding join majority whether cused the United Constitution States issue, courts on we first address and the Alaska Constitution. When the question of whether the civil arena even power prosecuting brings state its as a inquiry an be made. allows such individual, authority bear on an the Con holding, think it does. so we base by imposing stitutions the accused purposes our decision different carefully crafted limitations5 on the state’s goals justice criminal sys- of the ability prosecute.6 tems. dispute Few would that reliable factfind- indisputable primary It that a significant goal ing is a of goal, goal, also both the perhaps paramount the of the system systems. criminal and the civil justice criminal both the against arenas, concerning truth innocent accused an courts seek the erroneous con society viction. in dispute. sys- Our has made “a funda- the In the criminal events charged); 3. We distinction case make a in this between the dence he is innocent the crime of 169, guilt Lunney, or a "actual” innocence of defendant and Carmel v. 70 N.Y.2d 518 N.Y.S.2d 605, 607, 1126, "legal" (1987) (unless guilt the or of a N.E.2d a innocence defendant. 511 1128 innocence, "Legal” guilt plaintiff "public policy or assert innocence is that determination can his by prevents made trier the of fact a maintenance of a criminal trial. Tucker, against attorney’’); "legally" guilty Bailey v. Thus a defendant found his 533 Pa. has been 237, —, 108, guilty beyond (plaintiff 621 A.2d by found a reasonable doubt a jury peers adjudication. that he is innocent of the crime of his in a criminal offense). charged any lesser included guilt is or "Actual” intended to a to refer determi trial, by preponderance nation in a civil a of the engaged the defendant in the con protections right 5. Such include the assis- prior duct he was accused of in the criminal trial, attorney, speedy right to a tance of an Aiken, proceeding. See also Glenn v. trial, 409 Mass. right jury privilege against a the incrimination, self- 699, 783, C.J., (1991) (Liacos, N.E.2d prohibition against and the dou- . (“A concurring) adjudication is an States, jeopardy. Brinegar ble See United result, legal guilt. 174, of a 160, defendant’s As a a U.S. (1949) 69 S.Ct. 93 L.Ed. 1879 necessarily verdict not address "[tjhese does the issue of (noting historically rules are guilt. examples a defendant’s actual grounded rights Two suf system, developed of our point. fice to make A defendant who com safeguard tions, unjust men dubious convic- may acquitted jury, life, mitted the crime be if the resulting liberty, forfeitures by prose based on the evidence introduced property"). cution, had a reasonable as to doubt the defen legal guilt. alternatively, dant's Or a defendant Oklahoma, 68, In Ake v. 470 U.S. 105 S.Ct. acquitted guilt because evidence 1087, (1985), Supreme 84 L.Ed.2d Court suppressed being by due to it tainted some con recognized protective role of the Constitu- by person stitutional violation nel.”). law enforcement tion, noting: private "The in the accura- cy proceeding places of a an indi- liberty uniquely or vidual’s life at risk is almost Burkoff, Indeed, 4. John compelling. safeguards M. Criminal Ethics the host of Defense 3.1(c), (1992); Aiken, years § at 3-11 see Glenn this Court over the fashioned dimin- (1991) (in 409 Mass. 569 N.E.2d ish the risk of erroneous conviction stands as a attorney malpractice, plain order to recover for Id. at testament to that concern." 105 S.Ct. prove by tiff must of the evi- at 1093. longer are however, al law and Constitutions no factfind- case tem, goal of reliable are not confined to applicable, thus we innocent goal protecting the ing and the plaintiffs guilt be- determination may conflict.7 accused However, yond reasonable as not- doubt. conflict, it is the goals these When two above, the that the civil ed determination factfinding give that must goal of reliable inquiry into innocence or the (cid:127)arena allows goal paramount protecting way to the plaintiff does not end guilt actual Isra- As Lafave and the innocent accused. inquiry. Simply our el noted: prevented system in the from deter- itself, goal factfinding, as a Reliable mining innocence or the actual equally the accura- seek to ensure question plaintiff does not resolve the nonguilty guilty verdicts and cy of both innocence the actual whether innocent, Protection verdicts. is relevant in a however, places priority greater attorney. his former re- accuracy verdict. it conclude that is. minimize the chance flects desire to If mal a criminal convicting person at the an innocent even practice action his former defense increasing the price of chance engaged in the criminal con escape person may conviction. trial, duct he was accused of Israel, R. Jerold H. Wayne LaFave & recovery on public policy prevents part. 1.6(c), (1984).8 at 45 Procedure Criminal § recovery that civil previously We have held Thus, system the criminal resolves shifting an individ should not be tool the innocent ‍​‌​​​‌‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​‌​‌‌​​​​​​​‌‌‌‌‌‌​‌‍ac- protecting between conflict responsibility for individual’s ual’s factfinding choosing cused and reliable principle applicable criminal acts. This ensuring accuracy to err on side of the case hand. to In order ensure accu- of verdicts. Co., Arms 659 In Adkinson v. Rossi by the racy, the criminal trial limited (Alaska 1983), 1236, 1240 we held that P.2d provide the to de- protections Constitutions man- a who had been convicted of plaintiff guilt a termining beyond the defendant’s slaughter killing for a victim with a shot- times Consequently, reasonable at doubt. gun action bring a tort could particu- of the truth in a the determination gun of for and seller the the manufacturer in order fulfill the lar case is subsumed im- personal as a result of losses suffered goal protecting the innocent. of resulting a de- prisonment allegedly from “allowing however, gun. stated that the in the We system, In the fect defendant, a who has been convict- arise conflict does not same killing, impose liabili- innocent is no ed of an intentional protecting of an accused goal consequences of his ty others of the paramount. protective The on longer barriers runs counter to ba- conduct by an our state and feder- own anti-social provided accused conflict, previously quot- Harlan discussed the different Justice We have noted ing concerning Justice Black’s observation: the effects erroneous views held systems. In part in the civil and criminal a for truth. outcomes A criminal trial is in search 370-72, designed system Winship, at 1075- But it is also a 397 U.S. at 90 S.Ct. re by insuring J., that no one is criminal- (Harlan, concurring). “freedom" He noted that in a 77 ly punished the State first succeed- unless damages, money "we view it as no suit for admittedly difficult task of convinc- ed in the general there to be an erro- for more serious guilty.... ing defendant a than for verdict in the defendant’s favor neous that the benefits to Framers decided The plaintiff’s to be an erroneous verdict there required by from the kind of derived case, on the other favor.... any Rights loss in well worth Bill of were hand, disutility social we do view the "efficiency” that resulted. equivalent convicting as an innocent man Corey, P.2d n. 15 McCracken guilty.” disutility acquitting who is someone Florida, 1980) (quoting Williams v. Alto, 371-72, quoted in 90 S.Ct. at Id. at 78, 113-14, 26 L.Ed.2d S.Ct. U.S. n. 16. P.2d 406-07 (Black, J., concurring and dissent 446 ing)). underlying justice plaintiff prove sic values our criminal den actual system.” Id. relied on Adkinson Although innocence. conclude that in- we Bar, (Alas- Fogcutter Lord v. 813 P.2d guilt рlaintiff nocence or the actual of the 1991), ka to hold that a customer drunken relevant, place we decline to by who was served alcohol viola- bar proving plaintiff. actual innocence shop dram tion of the statute and who already haveWe burdened a criminal de- committed subsequently felony could not bringing fendant damages recover from the bar for he suf- attorney by his defense requiring imprisonment. fered as a result of his Id. obtaining additional element first at 668. post-conviction require relief. Rather than Adkinson Lord differ plaintiff his actual innocence present plaintiffs case in that both succeed, we hold that the defen- claimed that the in some defendants were plaintiff’s dant raise the issue way responsible for the acts com аctual as an affirmative defense.9 by plaintiffs, mitted whereas a mal attorney, or in this ease the as practice claiming suit the is not party raising defense, the affirmative attorney plain contributed to proof by will thus the burden of same, tiff’s criminal act. The cases are preponderance of the evidence as to the however, injury in that the claimed or con plaintiff.10 actual Morrow v. sequence is the same: The claims Homes, Inc., New Moon 548 P.2d negligent that were it not for the action of (Alaska 1976)(“The party raising the affir- another, subjected he would not have been generally mative defense bears the burden imprisonment. As we did in Adkinson issue.”). as to that Lord, hold that if en plaintiffs gaged they in the criminal are conduct ac Shaw has established the first two of, cused then alone should bear full required elements the four elements responsibility consequences of their claim well as the acts, including imprisonment. Any subse additional element quent negligent plaintiffs superseded necessary for a greater cul pability plaintiff’s criminal conduct. prior out of a criminal matter. The City Kotzebue, 627 Wilson v. remaining two elements causation and Cf. 623, (Alaska 1981)(holding plain a that damages.11 prove causation, In order to tiff’s intentional conduct in in that results preponderance must by Shaw establish a of jury any recovery will bar himself the attorney’s evidence “but for” merely negligent a defendant negligent misrepresentation, the criminal whose conduct contributed to the jury would have a more returned favorable plaintiff’s injury). Thus, prove verdict. Shaw will a not guilty have found him of holding In cases that innocence guilt charged beyond of conduct a actual rele reasonable vant, majority place of courts the bur- doubt. Ackerman, (and partially responsible

9.See Ferri v. 444 U.S. then more (1979) ("[W]hen resulting (such S.Ct. culpable) injuries L.Ed.2d 355 for their own action, incarceration). circumstances, state law creates a cause of the State is as Under these claim_”). precludes free to define the defenses to plaintiffs own his or her recovery, just as with conventional other defens- designating guilt-in-fact In as an affirmative es. defense, similarity its we note to other affirma- tive The defenses. traditional defenses of con- recognized Since have opinion, an affirmative de- tributory/comparative negligence assump- option in fense amending the State has the of plaintiffs tion of the both look ac- risk pleading allege its such a defense. plaintiffs might tions. Each defense asks how responsible injuries. be for their own Guilt-in- words, damages currently fact has the same focus. In if issue of not other before conduct, plaintiffs actually engaged in criminal this court. begin post- until obtained accrue Shaw prove In he would have order complaint. conviction relief and served original at trial on the found innocent Shaw, malpractice as most charges, innocence or actual We hold present “trial with will have to a plaintiffs, of defendant is rele- guilt a former criminal legal of a a trial.” In context in subsequent malpractice in vant a prior а malpractice out of action attorney. We AF- against his defense thus proof proceeding, standard criminal superior FIRM the court’s determination one, essence, in a stan complex be a will a can former defense prove a Shaw must dard within standard. guilt as an plaintiff’s raise the actual affir- that, preponderance of evidence by a against malpractice mative defense a attorney, negligence for the his but defendant, brought former by a guilty found him be jury could not have attorney’s and that the defense proving In so his yond a reasonable doubt. as defense be proof to this affirmative will innocence, by is limited legal Shaw preponderance the evidence. evidentiary applicable rules procedural аnd Justice, is, COMPTON, dissenting part. That in proceedings and trials. in criminal may prove only his innocence Shaw held This court has that the through the of evidence and witnesses use proceeding rele- defendant a criminal pre if have been admissable that would by brought vant a civil his sented at criminal trial. against his or her former the defendant attorney. In defense pleads If the State the affirmative I), (Alaska 1991) (Shaw we held guilt, actual its burden Shaw’s “a convicted criminal defendant preponderance of will be pursu- obtain relief before prove Shaw’s actual evidence. ing legal malpractice.” at an action for Id. guilt, the State is not limited to evidence only defendant 1360. Therefore who admissable at the charged, by of the offense virtue guilt beyond a doubt. Shaw’s reasonable set having had or her conviction above, justifications sup As discussed aside, can suit. maintain civil porting procedure the rules of and evidence limitations, in- The court now adds further setting are not applicable the criminal cluding concept crimi- creation of new present the civil arena. Thus “evidence guilt, guilt nal limited to that intro should this “actual” evidence. The calls prosecution.” underlying Sul duced penalizes “actually” then guilt. The court Wiener, at *1 1989 WL livan plaintiffs by denying them the abili- (N.D.I11. 5, 1989). June “Such evidence can resulting ty damages to recover civil any and all confidential communica include attorney’s proven their former defense tions, suppressible as well otherwise evi negligence. Pa. guilt.” Bailey, of factual dence Shaw, in to The holds that at n. 12. 237 n. 621 A.2d suit his former maintain a civil allegedly attorney malpractice defense III. CONCLUSION proceeding, must occurring in the criminal (a) that the superior AFFIRM the court’s deter- establish: conviction has been (d) aside; (b) duty; (c) duty; prejudgment in set breach mination that (e) causation; damages. criminal action did not and Shaw’s 12. underlying by offer exclude evidence in The "trial within a trial” is discussed Mal- or action, malpractice: Smith in their treatise on determine what len and the trier fact must presence or of the effect the absence evidence action] elements of [The had the "new” result and determine what traditionally by having a handled trial judge trial, must de- should have been. The goal of within a which is to deter- previously law not underlying pro- cide issues of which were what result of the mine ceeding urged adequately or briefed. should been. For ex- matter have Smith, 27.1, supra, at ample, failure Mallen & 624. § when the error relates to the to causation, regard I. to court remarks by preponder- that Shaw “must establish summary court’s un- The limited of the ance of the evidence that for’ the ‘but derlying convey facts of case does not attorney’s negligent misrepresentation, the the essence of claim. and Shaw’s Shaw jury criminal would have returned more Toney charged Powell were arrested and prove favorable verdict.” He “will to have stealing pairs pants with seventeen from would not have found him a mens’ store where both as worked charged beyond a reasonable janitors. rep- Both and Shaw Powell were provе doubt ... he would have been by public resented the same assistant de- original found innocent at trial on the (PD). fender The advised PD the court “In charges_” proving so in- his arising. “conflict situation” was nocence,” by will limited [Shaw be] However, separate attorneys for and Shaw

procedural evidentiary applicable and rules provided. Powell were never proceedings “may criminal trials only through his innocence use of willing testify Powell was that Shaw evidence and witnesses that nothing had to do with the theft but presented if his admissible at criminal permit defense counsel him do did 1 Op. trial.” 572-573. Further, so. did not [defense counsel] advise Shaw that he could take the stand above, proves If all Shaw former defense, in his own he because wanted attorney may prove, defense then Additionally, Powell. several the affirma- witnesses trial were not allowed guilt. tive defense “actual” of Shaw’s The testify as to statements Shaw because former defense will not limited of the threat to Powell. to presenting at the evidence admissible Evidence trial. include confi- Id. at Powell and Shaw were both sup- dential communications and otherwise convicted. pressible guilt. of “actual” evidence failed to appear sentencing imposed plaintiffs, on burdens these arrested in appear. was 1979 for failure to coupled advantage given with the sentencing original charge, former After attorneys, virtually forecloses at- ‍​‌​​​‌‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​‌​‌‌​​​​​​​‌‌‌‌‌‌​‌‍appealing and while his failure appear torney conviction, malpractice suits out of pled Shаw was arrested and representation. public policy, being No posses- nolo contendere to a felon in law, any nor can justify case this result. I of a handgun. sion Id. at 1360. Shaw unpersuaded by arguments am support prison served time in December limitations, of these original conviction, further and therefore until March 1980 on the dissent. September from December 1981 until possible It is lawyer’s reconcile this discussion of dant must show “that his skill fell ... causation with the court's discussion of causa- lawyer ordinary below that of a skill and justification tion in One Shaw I. advanced in law, training in the ... that this requiring post- Shaw I for a defendant to obtain performance defective contributed in some prerequisite conviction relief to mainte- way to his conviction.” Larson v. nance of a сivil former (Alaska 1980). post-convic- In a defense counsel was that proceeding petitioner tion relief promotes judicial econo- prove by preponderance all evidence my many litigated quest issues necessary prior judgment facts to overturn the post-conviction duplicated for relief will be State, 231, of conviction. Merrill v. 457 P.2d later in the action. This is (Alaska 1969), grounds, 234 rev’d on other dispositive post-conviction because relief State, Donnelly 1973). v. P.2d 396 516 proximate relevant to the issue of causation. post-conviction Unless successful relief based Shaw, (citation omitted) (em- 816 at 1361 P.2d on ineffective assistance counsel satisfies phasis added). citation, aIn footnote to the malpractice the causation suit, element of civil court remarks: promotion judicial there will proof The be no proceedings in econ- the two obtaining omy, post-conviction justification requiring post- similar. In that relief counsel, for ineffective assistance of defen- evaporates. conviction relief

575 (1991), 699, “leading 783 as the charge, and from 569 N.E.2d appear the failure to on post-convic- 1986 on the September require until successful October 1985 cases charge. possession in proceedings, felon other alle- tion relief or some underlying gation innocence of superior August court On charge.” 851 P.2d at 562. 1973 convictions be- set aside Shaw’s constitutionally defec- cause were However, the court mischaracterizes (emphasis added). In Id. tive. guilt inno- “majority” which considers on in- post-conviction relief based obtain relevant, jurisdictions cence because other counsel, Shaw had effective assistance require proof of innocence which lawyer’s fell “that his skill ... to show plaintiff malpractice in the civil suit do not lawyer ordinary that of a with below post-conviction necessarily require relief law, training and skill in the Carmel, In 518 proceeding. second, performance this defective 606, 1127, plain- way at 511 N.E.2d at to his convic- N.Y.S.2d some contributed proceeding tion.” conviction the criminal tiff’s challenged prior successfully had not been v. Larson 4 Id. (quoting n. 1361 Glenn, In 569 malpractice to the civil suit. 776, (Alaska 1980)). All time P.2d 780 614 783, plaintiff required to N.E.2d was original convic- served was traceable prove by a preponderance innocence tion.

evidence, post-conviction relief was but II. recovery. prerequisite held to be a hand, Pennsylvania, on the other “majority” already part of the Alaska is post-convic- “minority,” requiring only in a that hold innocence relevant of courts innocence, tion relief and but arising of a crimi- malpractice out showing disregard of reckless or wanton proceeding. The court cites John M. nal interest, the former plaintiff’s before 3.1(c), Ethics Burkoff, Criminal § Defense v. Bailey can recover. criminal defendant (1992), authority proposi- as its at 3-11 108, 237, -, Tucker, majority courts have 533 Pa. 621 A.2d tion that “a vast guilt of the held that innocence or actual (1993).3 114 relevant.” 2 R. Mal- criminal defendant today people of the State of Alaska Until Malpractice Smith, 21.3 at Legal

len & J. § of crime unless considered innocent were 1992), (3d ed. voices a similar conclusion. 80 guilty beyond a reasonable found and until already part Both have included Alaska proceeding. The court in a criminal doubt “majority” which hold of this of courts “actu- makes a distinction between now guilt or innocence relevant in the civil mal- “legal” guilt of a criminal suit, al” and the of our decision practice sim- Shaw I.2 defendant. heretofore What guilt. “legal” ply is now called called 221, Bispham, 316 Or. 851 Stevens other Op. guilt, n. “Actual” 3. (1993), Oregon Supreme Court hand, determination in a becomes a adopted requirement trial, exoneration of the relief or some other engaged in the crimi- the civil Stevens underlying court cit- offense. or she was accused nal conduct of which he Shaw, along Lunney, with Carmel v. ed I proceeding. suggest N.Y.2d 518 N.Y.S.2d N.E.2d Aiken, guilt, of “actual” (1987), the affirmative defense Glenn Mass. post-conviction relief is not an element of now redundant for this court to seems "majority" repre- aligning itself of courts it is from criminal part. already which it is sentation); O’Hagam, J. Schlumm v. Terrence P.C., Mich.App. 433 N.W.2d 839 require post- A of courts do not either number ruling (holding erred in that the as elements of a conviction civil or innocence plead his inno- Kinney, case. See Krahn v. cence). (1989) (holding Ohio St.3d 538 N.E.2d 1058 evidence, by preponderance being the proven There no such conflict place jurisprudence.4 no our system, the former defendant does not procedural have the constitutional and safe- justice system enables the Our guards afforded in proceeding, a criminal bring prosecuting state to its tremendous including proof beyond a reasonable doubt. authority and on an resources to bear indi- system adjudicate guilt. can vidual. Thus the contains numer- Thus we “actual” safeguards protect the ous individual. If a conviction is set aside because the safeguards, constitutional and These both counsel, pro- ineffective assistance of and procedural, right include the the assis- against ceedings dismissed, a defendant attorney, ‍​‌​​​‌‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​‌​‌‌​​​​​​​‌‌‌‌‌‌​‌‍right speedy tance of an the to a the conviction was erroneous? Has the trial, trial, right privilege to a the goal protecting an innocent been accused require- self-incrimination and achieved? Is the defendant innocent proof beyond ment a reasonable doubt. charged? crime for which he or historically grounded she was “These rules are rights system, developed “yes.” of our to safe- The answer each A instance is guard men dubious and judicial determination of the de- [and whether women] convictions, unjust resulting with forfei- originally fendant of the crime life, liberty, property.” tures of and charged has completed. Brinegar States, United U.S. denigrates justice The court the criminal 69 S.Ct. 93 L.Ed. 1879 system implicit its assertion that (1949). safeguards These enable us to be greater protection afforded defendants certain that more when we label someone proceedings, such as constitutional “guilty,” reasonably we can be confident procedural and However, safeguards, including the they are in guilty. they that fact hеightened proof, impede burden of charged. crime The court fact- abolishes safeguards finding, now that obscure truth ensure and defendants free degree of accuracy per- this brands a and attempt justi- technicalities. Its then crime, “actually” guilty son of a if a trier fy guilt by a civil determination of “actual” of fact decides it probably is more true trumpeting factfinding, revealing truth not person than that committed the pre-eminence justice system of the civil originally charged. crime rings conveniently hollow. The court over- looks fact that justice system our civil justifies adjudication of “actu- procedures such endorses al” as establishment basis of distinctions be- preclusion tween criminal and proceedings. and civil orders which render fact It makes the аstonishing absolutely that and assertion “a truth irrelevant. goal, primary perhaps paramount goal, questions cases Civil involve civil re- justice of the criminal system is to sponsibility, questions of criminal the innocent accused erroneous case, or innocence. In this must first Op. conviction.” at 570. then notes have had conviction set This aside. reliable finding goal while fact is a both he proven means that must have that his proceedings, system the criminal ... “[i]n attorney’s former defense fell actions be- goal of goal reliable and factfinding lawyer low the standard of conduct for protecting innocent accused ordinary training skill Op. (Footnote omitted). conflict.” at 571. law, performance case, defective factfinding give reliable Duty contributed cоnviction. way protecting accused, the innocent duty Thus, “the breach of have been determination of the truth admitted. ... though goal negligence subsumed order to fulfill the even of the former protecting Op. established, innocent.” at 571. defense has been suggest 4. Neither Burkoff nor Mallen & Smith is an affirmative guilt." defense "actual brought by In the treatises to a written, supports one case is cited whose criminal been set conviction has proposition guilt by of "actual” aside. he she has or is not attorney avoid demonstrated court holds charged. guilty of the crime attorney can responsibility if the civil prove, by preponderance a adoption of the rule that The court’s “actually” guilty that Shaw was is guilt by preponderance a the evidence chаrged. crime malprac- to civil an affirmative defense a results. tice suit has three unfortunate III. First, is practical person matter a who as a public policy de court asserts of criminal conduct is more in fact innocent recovery should mands this result. “[C]ivil likely preponder- found when to be shifting tool for an individual’s not be a the evidence is the standard ance of responsibility the individual’s for guilt beyond proof than when a reasonable cites Slip Op. 10. The court Adkin acts.” proof. Safeguards doubt is the standard of Co., P.2d 1236 Rossi Arms son v. that ensure that proceedings in criminal Bar, 1983) (Alaska Fogcutter and Lord are not found will people innocent 1991). Adkinson, In 813 P.2d 660 in apply not the civil suit. manslaughter at plaintiff convicted of a Second, in engages specific a pеrson who against the tempted bring a action tort very differently if is treated suf personal losses gun manufacturer crime, charged compared person to a with a imprisonment. fered as a result of conduct, engages in the same but is who Lord, kidnapping, convicted example, charged a crime. For bring tort rape, attempted to and assault charged defendant —not with a civil bar, him against the which served fraud, and found crime—who commits alcohol, he as a damages for the suffered civilly or her attor- liable because his imprisonment. of his result dam- ney’s malpractice, may recover civil Lord The court notes that Adkinson and attorney in a mal- ages against the present from case in that Shaw differ damages, suit, including punitive practice attоrney does not claim his contributed regardless of the defendant did what conveniently the criminal act. The court However, a criminal defendant who fact. and Lord fails to note that both Adkinson fraud, yet commits the same who would challenged the and had not were convicted but for the attor- not have been convicted agree I validity of the convictions. get even ney’s malpractice, may never the convicted criminal should allow trier of fact. or her case before the responsibility for the conse- “shift” Third, are treated attorneys in civil cases When, quences her acts. of his or very differently attorneys proceeding, it as a result of the criminal attorney will The criminal defense cases. has that a defendant been determined civilly mal- longer found liable for no guilty, the defendant alone should bear person later practice if he or she defends responsibility consequences. origi- “actually” guilty of the crime found However, public policy which denied nally charged, by recovery plaintiffs to civil Adkinson proceed- attorneys Yet in civil evidence. fully Lord is served our decision exposed liability ings will continue to be I, requires the criminal defen- which regardless malpractice, of what prior relief post-conviction dant to obtain not do fact. their client did did malpractice suit. bringing his or her civil criminal defendant has obtained Once the IV. her his or convic- heavy aside, already very places Alaska tion has been set there obtain crim- on a criminal defendant to detеrmination that there no judicial pub- post-conviction prerequisite relief as a simply There no responsibility. inal maintaining negligent a civil policy should allow a lic which attorney. Allow- responsibility for that his or her former attorney to shift escape liability ing negligent who negligence onto a attorney’s trier of fact to determine permitting a plaintiff, longer who no the civil crime, any probably stands convicted

committed the crime for which he or she convicted, principles

has not been violates justice system

of our criminal and our civil system. already

tort

proven, by post-conviction proceeding, ‍​‌​​​‌‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​‌​‌‌​​​​​​​‌‌‌‌‌‌​‌‍the former de- attorney’s

fense skill fell below minimal lawyer ordinary

standards skill law, training in criminal and that this performance

defective contributed to the

conviction. all, only recognize

If at I would an affir- despite attorney’s

mative defense that

negligence, the civil originally convicted of the crime doubt,

charged, beyond a reasonable at a proce-

trial which all constitutional and safeguards

dural were afforded. Alaska, Petitioner,

STATE of

J.R.N., Respondent.

No. S-4528.

Supreme Court of Alaska.

Oct.

Rehearing Denied Nov. Scukanec, Cynthia Hora,

John A. M. Gen., Attys. Anchorage, Asst. Charles E. Cole, Gen., Juneau, Atty. petitioner. Weller, Defender, Suzanne Asst. Public Salemi, Defender, John B. Anchor- Public age, respondent.

Case Details

Case Name: Shaw v. State, Department of Administration

Court Name: Alaska Supreme Court

Date Published: Oct 8, 1993

Citation: 861 P.2d 566

Docket Number: S-4933, S-5010

Court Abbreviation: Alaska