Sexual Assault Charges in New Jersey Ineffective –
Assistance Finding Is Held Basis for Legal Malpractice Judgment
As re-posted from, New Jersey Law Journal
Mary Pat Gallagher
January 19, 2012
A former client of the Public Defender’s Office won summary judgment in a malpractice suit after a Mercer County judge gave collateral-estoppel effect to a finding that he received ineffective assistance of counsel.
Superior Court Judge Darlene Pereksta granted the motion on liability and causation in Hagan v. Office of the Public Defender, L-1346-10, on Jan. 6, leaving only damages to be litigated.
The ineffective-assistance finding led another judge to vacate Lewis Hagan’s 2004 convictions of fourth-degree criminal sexual contact and third-degree child-welfare endangerment.
After direct appeals failed in 2007, Hagan petitioned for post-conviction relief, claiming his trial counsel, Assistant Deputy Public Defender Robert White III, failed to explore evidence that accusations made against him by the child’s mother were retaliatory.
In October 2003, Hagan told the school principal of the 13-year-old, D.B., that her mother F.B., his girlfriend, was physically abusing her. When the principal informed him that D.B. was cutting class, he authorized giving her detention. The principal notified the Division of Youth and Family Services of Hagan’s allegations, resulting in an investigation.
Hagan obtained a temporary domestic violence restraining order against F.B. on Nov. 17, 2003. She then obtained a similar order against him, claiming he made terroristic threats and burglarized her home.
On Dec. 4, 2003, F.B. reported to the police that D.B. claimed Hagan propositioned her sexually and touched her inappropriately a month earlier. Hagan was questioned and arrested. About a month later, Hagan was granted a final restraining order against F.B.
During a December 2004 trial, Hagan testified about his deteriorating relationship with F.B., but White did not present evidence about Hagan reporting F.B. for child abuse or the involvement of DYFS, despite Hagan’s assertion that he told White about the DYFS referral in a May 2004 letter. White also failed to mention the restraining order against F.B., except briefly in his summation.
At the PCR hearing before Judge James Mulvihill, Hagan testified that he repeatedly told White about the restraining order and asked him to look into the DYFS report because it would show he was a responsible parent, but that White never answered his letters.
The report, obtained in the PCR case, confirmed Hagan’s account.
Hagan also claimed he told White about a possible witness, Derrick Williams, who claimed he heard F.B. brag about setting him up.
White testified that he did not investigate the restraining orders for fear it would open the door for the state to mention the terroristic threat and burglary charges initially brought against Hagan but dismissed.
White said he was not aware of the DYFS referral but would not have used it because D.B.’s credibility was so weak he did not need to.
He also said he tried to contact Williams and learned he was in prison, and the public defender representing Williams refused to allow an interview.
White claimed that 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 and that Hagan undermined that defense when he took the stand against his advice.
Mulvihilll vacated the conviction based on ineffective assistance, finding White should have used the evidence of Hagan’s child-abuse report and the restraining order and should not have been deterred from speaking with Williams, and a reasonable probability existed that the outcome would have been different if he had done so.
Appellate Division Judges Joseph Yannotti and Thomas Lyons affirmed on Aug. 7, 2009, finding “substantial credible evidence” supported Mulvihill’s decision.
Hagan was retried and acquitted on March 16, 2010. By then, he had been in custody for six years, mostly at the Adult Diagnostic and Treatment Center in Avenel.
In his motion for summary judgment in the malpractice case, Hagan contended that ineffective assistance is tantamount to malpractice, that the issues had been litigated to a final judgment to which the public defender and White were privy, and that fundamental fairness barred requiring him to relitigate them.
The public defender argued against issue preclusion on the grounds that the issues — whether Hagan was guilty in the PCR case and whether White was negligent in the civil case — were not identical, nor were the parties, because White and the office were not defendants in the PCR proceeding and had no lawyers representing them.
With summary judgment granted on liability and causation, Hagan’s lawyer, Cherry Hill solo Jeffrey Hark, says he has moved for lost wages under a state law that allows wrongfully convicted people to recover $20,000 for each year of incarceration, plus legal fees. He also will seek noneconomic damages.
Public Defender spokesman Tom Rosenthal referred questions to the Attorney General’s Office. Its spokesman, Lee Moore, declines comment.
White, now with Morris Starkman’s Cherry Hill firm, did not return a call.