Glenn v. Aiken

• Decision Date: 08 April 1991
• Citation: 409 Mass. 699,569 N.E.2d 783
• Parties: , 4 A.L.R.5th 1060 Bobby GLENN v. Paul R. AIKEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 783

569 N.E.2d 783

409 Mass. 699, 4 A.L.R.5th 1060

Bobby GLENN v. Paul R. AIKEN.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 4, 1990.

Decided April 8, 1991.

Stephen Hrones, for plaintiff.

Erik Lund (Cynthia C. Smith, with him), for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

The Appeals Court reversed the plaintiff Glenn's conviction of arson because of an error in the judge's charge. Glenn's trial counsel, the defendant in this case, had not properly preserved that issue for appellate review. Commonwealth v. Glenn, 23 Mass.App.Ct. 440, 503 N.E.2d 39 (1987). The court reversed the conviction because the error in the judge's charge created a substantial risk of a miscarriage of justice. Id. The Commonwealth elected not to retry Glenn, who had already served fourteen months of his sentence. In this action, Glenn seeks to recover against his former trial counsel for malpractice that he claims cost him fourteen months of freedom.

A judge of the Superior Court allowed the defendant attorney's motion for summary judgment on the ground that, on the summary judgment record, it was uncontested that the defendant attorney's negligence, if any, did not cause Glenn his loss of freedom. The motion judge concluded that there was no dispute of material fact on the causation issue because the trial judge in Commonwealth v. Glenn, stated in an affidavit that, if an objection had been made to the error in his charge, he would have overruled it. The trial judge said that he read the charge from what he said was a reliable source of jury instructions, the Superior Court charge book, which cited Commonwealth v. MacKenzie, 376 Mass. 148, 150, 379 N.E.2d 1100 (1978), as supporting the faulty language in the charge. ¹ If, on this record, the judge's uncontroverted opinion as to what he would have done if the defendant attorney had objected to the error in the charge is conclusive on the causation issue, the defendant attorney's alleged negligence would not have been the cause of Glenn's imprisonment, and summary judgment for the defendant attorney was properly entered. See Leavitt v. Mizner, 404 Mass. 81, 88, 533 N.E.2d 1334 (1989) (summary judgment record showed that any negligence of criminal defense counsel did not harm former client plaintiff). We allowed the defendant attorney's application for direct appellate review.

Before we consider the basis for the motion judge's decision, we shall dispose of two issues that the defendant attorney asserts, in any event, justify the motion judge's allowance of summary judgment in his favor. He argues that, because the Appeals Court did not reverse Glenn's conviction on the ground of ineffective assistance of counsel, an issue Glenn's appellate counsel did raise, Glenn may not recover in this action. He cites in support only the trial court opinion in Weaver v. Carson, 62 Ohio App.2d 99, 404 N.E.2d 1344 (1979). Although the Appeals Court did not rule directly on the question of ineffectiveness of counsel, it may have done so implicitly when it observed that "[t]he failure to object to the instruction cannot reasonably be attributed to tactical considerations." Commonwealth v. Glenn, supra 23 Mass.App.Ct. at 445 & n. 1, 503 N.E.2d 39. The best that can be said for the defendant attorney on this issue is that the Appeals Court did not rule explicitly that he was ineffective in a constitutional sense. In any event, we see no logic in making a judicial ruling of attorney ineffectiveness in the constitutional sense a condition precedent to the liability of an allegedly negligent criminal defense attorney. Although an appellate court's ruling that counsel was not ineffective may well justify precluding a criminal defendant from maintaining a malpractice action against his trial counsel, ² if an appellate court did not reach the issue because it reversed the conviction on another ground, a former criminal defendant is not collaterally estopped or precluded from presenting the issue of his defense attorney's negligence.

The attorney defendant next argues that, because Glenn's complaint did not allege that he was innocent of the arson charge, his action was properly dismissed. Courts have generally required that a former criminal defendant prove his innocence of the crime charged as an element of his claim that his former trial counsel was negligent in defending him. See, e.g., Weiner v. Mitchell, Silberberg & Knupp, 114 Cal.App.3d 39, 48, 170 Cal.Rptr. 533 (1980) (guilt alone was proximate cause of all damages resulting from defendant's indictment); Sullivan v. Wiener, No. 88 C 6813, 1989 WL 65163 (N.D.Ill. June 5, 1989) (Illinois law); State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 503 (Mo.App.1985) (defendant's "factual innocence" indispensable element of his cause of action); Carmel v. Lunney, 70 N.Y.2d 169, 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126 (1987) (plaintiff must allege innocence or colorable claim of innocence; guilty plea bars claim); B.K. Industries, Inc. v. Pinks, 143 A.D.2d 963, 964-965, 533 N.Y.S.2d 595 (N.Y.1988) (plaintiff has burden of proving innocence of criminal charges). Cf. Schlumm v. O'Hagan, 173 Mich.App. 345, 359, 433 N.W.2d 839 (1988) (if alleged malpractice is in sentencing representation, need not prove innocence). These cases treat a defendant attorney's negligence as not the cause of the former client's injury as a matter of law, unless the plaintiff former client proves that he did not commit the crime. Even if, as we shall conclude, Glenn has the burden in this case to prove his innocence, under notice pleading he had no obligation to allege his innocence in his complaint. ³ See Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977).

The affidavit of the trial judge in Commonwealth v. Glenn does not support the grant of summary judgment in favor of the defendant attorney. The issue of what might have happened if the defendant attorney had objected promptly to the error in the judge's charge must be decided on an objective basis. The after-the-fact conclusion of the trial judge that he would not have changed his position is irrelevant. ⁴

We disfavor calling a judge as a witness to opine on what ruling he might have made on a particular hypothesis. The fact that this particular judge signed an affidavit should not distract us from noting the inappropriateness of turning to such extra-record, subjective views and of summoning judges to testify on such matters. Probing the mental processes of a trial judge, that are not apparent on the record of the trial proceeding, is not permissible. See Day v. Crowley, 341 Mass. 666, 669-670, 172 N.E.2d 251 (1961); Washington v. Strickland, 693 F.2d 1243, 1263 (5th Cir.1982), reversed on other grounds, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Fayerweather v. Ritch, 195 U.S. 276, 307, 25 S.Ct. 58, 67, 49 L.Ed. 193 (1904) (record "ought never to be overthrown or limited by the oral testimony of a judge or juror of what he had in mind at the time of the decision"); United States v. Crouch, 566 F.2d 1311, 1316 (5th Cir.1978); Morrison v. Kimmelman, 650 F.Supp. 801, 806-807 (D.N.J.1986). ⁵ The trial judge's affidavit did not warrant entry of summary judgment for the defendant attorney.

Finally, we discuss the relevance in future proceedings in this case of Glenn's guilt or innocence of the arson charge. We conclude that Glenn will have the burden of proving that he was innocent of the arson charged in the underlying criminal proceeding.

Those courts that require a former criminal defendant to prove his innocence of the charge against which the defendant attorney defended him (see cases cited above at page 785) explicitly or implicitly reject two principles that are generally applicable to a claim that defense counsel was negligent in the defense of a civil action.

First, a requirement that a plaintiff, the former criminal defendant, must prove his innocence of the crime with which he was charged may relieve the defendant attorney, his former counsel, of liability for harm that the plaintiff suffered only because of his defense counsel's negligence. For example, if a defendant attorney failed to assert a clearly valid defense of the statute of limitations, a client who did commit the crime, but should not have been convicted of it, sustained a real loss, but he may not recover against the attorney defendant. Should it be a principle of public policy that a blatantly negligent defense counsel should be free from civil liability for his error that prevented his client from walking free? A failure of a defendant's counsel in a civil case to plead an obviously winning affirmative defense would be a proper basis for a malpractice claim, even if the civil defendant would otherwise have been liable.

This distinction between guilt in fact and legal guilt can be presented in a variety of situations. A negligent failure to move to suppress evidence seized in clear violation of the defendant's constitutional or statutory rights could lead to a conviction that would have been totally forestalled by the allowance of a motion to suppress. Such a former criminal defendant might well not be able to prove his innocence of such a crime and, under the cases that make proof of his innocence an element of his case against his former attorney, the attorney would be free from liability.

It may be difficult to defend logically a rule that requires proof of innocence as a condition of recovery, especially if a clear act of negligence of defense counsel was obviously the cause of the defendant's conviction of a crime. ⁶ We need not decide the point because the case before us does not involve clear negligence whose causal connection to the conviction is clear. A properly instructed jury could have found the defendant guilty, as the Appeals Court noted in its opinion. Commonwealth v. Glenn, 23 Mass.App.Ct. at 444, 503 N.E.2d 39. In such a...