Levine v. Kling

Decision Date14 August 1997
Docket NumberNo. 96-2279,96-2279
PartiesRobert M. LEVINE, Plaintiff-Appellant, v. Richard KLING, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Robert M. Levine (submitted), United States Penitentiary, Florence, CO, Pro Se.

Daniel J. Pope, Bell, Boyd & Lloyd, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and KANNE and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

Robert Levine was convicted of using interstate commerce to commit murder for hire. 18 U.S.C. § 1958(a). After we upheld his conviction, United States v. Levine, 5 F.3d 1100 (7th Cir.1993), he brought this damages suit for malpractice against Richard Kling, his court-appointed appellate counsel, basing jurisdiction on diversity of citizenship. The district court dismissed the suit for failure to state a claim under Illinois law, which all agree is the law applicable to the substantive issues in the case. 922 F.Supp. 127 (N.D.Ill.1996). The question presented by the appeal, on which we can find no Illinois case, is whether a suit for legal malpractice committed in the defense of a criminal case will lie if the plaintiff cannot establish (as by a successful collateral attack on the conviction) that he was innocent of the crime with which he was charged.

Most cases answer "no," e.g., Peeler v. Hughes, 909 S.W.2d 494, 497-98 (Tex.1995); Glenn v. Aiken, 409 Mass. 699, 569 N.E.2d 783, 788 (1990); but see Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058, 1061 (1989), and we expect that the Supreme Court of Illinois if faced with the question would give the same answer. The only way in which a criminal defendant could establish injury in a case of malpractice against his defense counsel would be by showing that competent counsel would have obtained an acquittal for him. Yet because of the heavy burden of proof in a criminal case, an acquittal doesn't mean that the defendant did not commit the crime for which he was tried; all it means is that the government was not able to prove beyond a reasonable doubt that he committed it. On Levine's view there would be cases in which a defendant guilty in fact of the crime with which he had been charged, and duly convicted and imprisoned (perhaps after a retrial in which he was represented by competent counsel), would nevertheless obtain substantial damages to compensate him for the loss of his liberty during the period of his rightful imprisonment.

Not only would this be a paradoxical result, depreciating and in some cases wholly offsetting the plaintiff's criminal punishment, but it would be contrary to fundamental principles of both tort and criminal law. Tort law provides damages only for harms to the plaintiff's legally protected interests, Restatement (Second) of Torts, § 1 comment d, § 7(1) (1965), and the liberty of a guilty criminal is not one of them. The guilty criminal may be able to obtain an acquittal if he is skillfully represented, but he has no right to that result (just as he has no right to have the jury nullify the law, though juries sometimes do that), and the law provides no relief if the "right" is denied him.

Criminal law entitles a criminal defendant to competent counsel, but the consequence if counsel is incompetent and conviction results is a new trial, not an acquittal. E.g., Holman v. Page, 95 F.3d 481, 492 (7th Cir.1996). If the defendant is guilty in law, eventually he will probably be convicted even if competently represented--and he should be. To award the defendant eventually justly convicted and imprisoned substantial money (here $3.5 million is sought) for the loss of his liberty, or for that matter any money, is to give him relief to which criminal law,...

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59 cases
  • Miller v. Barber, No. 455605 (CT 5/20/2005)
    • United States
    • Connecticut Supreme Court
    • 20 Mayo 2005
    ...he cannot sue while his conviction stands. Woidtke v. St. Clair County, 335 F.3d 558, 563-65 (7th Cir. 2003); Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997). Connecticut has not adopted this element. 5. See e.g., State v. Swinton, 268 Conn. 781, 847 A.2d 921 (2004); State v. Christian, ......
  • Blackwell v. Gorman
    • United States
    • Ohio Court of Common Pleas
    • 8 Marzo 2007
    ...courts point out that Ohio follows the minority rule. E.g. Canaan v. Bartee (2003), 276 Kan. 116, 126, 72 P.3d 911; Levine v. Kling (C.A.7, 1997), 123 F.3d 580, 582. {¶ 29} The syllabus paragraph written by the Supreme Court of Ohio in Krahn provided only that "[t]o state a cause of action ......
  • Wiley v. County of San Diego
    • United States
    • California Supreme Court
    • 23 Noviembre 1998
    ...566; Bailey v. Tucker (1993) 533 Pa. 237, 247, 621 A.2d 108, 113; Peeler v. Hughes & Luce, supra, 909 S.W.2d at p. 497; Levine v. Kling (7th Cir.1997) 123 F.3d 580, 582 [construing Illinois law]; see also Lamb v. Manweiler (Idaho 1996) 129 Idaho 269, 923 P.2d 976, 978 [noting plaintiff did ......
  • Canaan v. Bartee
    • United States
    • Kansas Supreme Court
    • 18 Julio 2003
    ...have held that a plaintiff must show exoneration by postconviction relief before he or she can sue defense lawyers: Levine v. Kling, 123 F.3d 580, 583 (7th Cir. 1997) (applying Illinois law); Shaw v. State, Dept. of Admin., PDA, 816 P.2d 1358, 1360 (Alaska 1991) (Shaw I); Steele v. Kehoe, 7......
  • Request a trial to view additional results
1 books & journal articles
  • Legal malpractice in the criminal context: Is postconviction relief required?
    • United States
    • Florida Bar Journal Vol. 74 No. 1, January 2000
    • 1 Enero 2000
    ...track" approach in Duncan v. Campbell, 936 P.2d 863 (N.M. 1997). The U. S. Court of Appeals for the Seventh Circuit in Levine v. Kling, 123 F. 3d 580 (7th Cir. 1997), in an opinion by Chief Judge Posner, ruled that if the Supreme Court of Illinois was confronted with the issue, it would sid......

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