Ineffective Assistance by PD Leads To $550,000 Recovery From State

By Mary Pat Gallagher All Articles
New Jersey Law Journal January 2, 2013

A man whose conviction of child molestation was overturned because his public defender provided an inadequate defense will recover more than half a million dollars from the state.

Most of the compensation to be paid Lewis Hagan is the result of a mediated agreement that resolved malpractice and other claims for $400,000, with another $75,000 for attorney fees.

The settlement came after the judge, in Hagan v. Office of Public Defender, L-1346-10, gave preclusive effect to another judge's vacating of Hagan's conviction based on ineffective assistance of counsel.

The settlement was on top of $75,312 awarded Hagan last May under N.J.S.A. 52:4C-1 et seq., which compensates people convicted and imprisoned for crimes they did not commit. They may recover, for each year in jail, the greater of $20,000 or twice their income in the year prior to incarceration, plus legal fees.

Hagan was accused in December 2003 of sexually propositioning his girlfriend's 13-year-old daughter, D.B., and touching her inappropriately on her inner thigh. Tried in Middlesex County and found guilty of fourth-degree criminal sexual contact and third-degree endangerment of the welfare of a child, he spent more than three years in jail and was released in February 2007.

In his November 2007 petition for postconviction relief, Hagan contended that at trial, Assistant Deputy Public Defender Robert White III failed to explore evidence that D.B.'s accusations were in retaliation for Hagan reporting to the principal of her school that her mother was physically abusing her, which resulted in an investigation by the Division of Youth and Family Services. In addition, when the principal told Hagan that D.B. was cutting class, he authorized giving her detention.

At the time of Hagan's arrest, he and D.B.'s mother had restraining orders against each other.

At the PCR hearing before Superior Court Judge James Mulvihill, Hagan testified that he repeatedly informed White about his restraining order against the mother and asked him to look into the DYFS report, but White never responded.

White testified he did not pursue the restraining order issue because he feared it would open the door to evidence about charges of terroristic threats and burglary that D.B.'s mother made against Hagan, although those charges were dismissed.

Hagan further claimed that he told White about a potential witness, Derrick Williams, who said he heard D.B.'s mother boast about setting Hagan up.

White asserted that he tried to contact Williams, who was in prison, but his lawyer refused to allow an interview.

White said he did not know of the DYFS report but would not have used it anyway.

White said his defense strategy was to attack D.B.'s credibility and portray Hagan as a man who had a healthy relationship with his girlfriend and her children, but Hagan undermined that strategy by taking the stand against his advice.

Mulvihill, the same judge as in the criminal case, vacated the conviction based on ineffective assistance of counsel. In his view, White should have used the DYFS report and the restraining order and should have found a way to speak with the potential witness.

An appeals court affirmed and vacated the conviction on Aug. 7, 2009. Hagan was then retried and acquitted.

In Hagan's malpractice suit, Judge Darlene Pereksta of Mercer County Superior Court gave Mulvihill's holding preclusive effect, despite arguments that neither the issues nor the parties in the civil and criminal cases were identical.

Pereksta followed up in May 2012, awarding Hagan $75,312 under the compensation statute, representing more than two years lost income as a machinist from the time of conviction to release.

Hagan's lawyer, Jeffrey Hark of Hark & Hark in Cherry Hill, then asked for $102,780 in legal fees — a $68,520 lodestar enhanced by 50 percent — but the motion was never decided and the parties resolved the remainder of the case, including fees, at a Nov. 21 mediation with retired Superior Court Judge L. Anthony Gibson, now with Youngblood, Lafferty & Sampoli in Linwood. The deal was finalized in December.

Hark says Hagan hopes that the case will prevent others from repeating what he experienced — three years in the sex offender unit at Avenel, which allegedly left him traumatized, depressed and suffering from nightmares.

Assistant Public Defender Dale Jones says he is aware of no other case where an ineffective assistance of counsel holding was given preclusive effect. Pereksta's ruling "may well be unprecedented" and is "problematic for us" because "it shuts the door on being able to litigate the issue of attorney competence in a civil proceeding," he adds.

The office opted not to appeal, however, on the advice of the Attorney General's Office, which did not want an appellate ruling that would be binding on other judges, and there was little chance of prevailing, given the facts, Jones says.

White, now with Morris Starkman's Cherry Hill firm, did not return a call.

Anne Pickman, a supervisor in the Public Defender's Office unit that handles PCR petitions, says about 25 per year are granted, almost all for ineffective assistance of counsel, but a malpractice claim can be brought only where charges are dropped or the defendant is acquitted on retrial.