Sued for Malpractice, Defense Lawyer Can Attack Client's Alibi That He Was Elsewhere During Crime
Convicted of armed robbery, Jeffrey Marrero won an appeal after serving a year and eight months in jail and has not been retried.
But now he is suing his former attorney, Howard Feintuch, for malpractice, contending that he would never have been convicted in the first place if defense counsel had properly handled the case.
It appears that Marrero may have been factually innocent: Telephone records supported testimony of two witnesses that he was at home 19 minutes before the robbery. And, as the prosecution put it in a memo requesting dismissal of the indictment against Marrero after the appeal, it was “highly unlikely” that he could have traveled a mile and a half from there to the deli in time to commit the crime, recounts the Appellate Division of New Jersey Superior Court in its opinion (PDF) today.
Meanwhile, asked to identify the perpetrator at Marrero’s trial, store owner Ralph Greiss testified, initially, “He’s not here.” Then, when given a second chance, he selected a jury member.
However, Marrero says in his suit, Feintuch, Porwich & Feintuch botched his defense by failing to conduct an adequate investigation to support his alibi and undermining his alibi defense at trial during cross-examination of Greiss and summation, the opinion continues.
In response, the defense in the malpractice case sought to depose a childhood friend of Marrero’s who spent time with him on the day of the robbery. The judge hearing the discovery motion said no, reasoning that whether or not Marrero was in fact innocent is irrelevant to the malpractice case.
However, the Appellate Division has sided with the law firm in an interlocutory appeal of this ruling, explaining that very broad pretrial discovery is ordinarily permitted and that Marrero’s guilt, if shown, would be relevant to the malpractice defense.
While both guilty and innocent suspects are entitled to a competent defense, any testimony by Richard Stenzer implicating Marrero in the crime could be relevant to undermine the causal connection between defense counsel’s alleged malpractice and the plaintiff’s conviction and incarceration, the appellate court explains.
“Without knowing the content of Stenzer’s testimony, it is premature to assess whether the information gleaned from any deposition will be admissible.”
Hat tip: Legal Profession Blog.
