Willey v. Bugden

• Decision Date: 19 December 2013
• Docket Number: No. 20120623–CA.,20120623–CA.
• Citation: 750 Utah Adv. Rep. 44,318 P.3d 757
• Court: Utah Court of Appeals
• Parties: Alan WILLEY, Plaintiff and Appellant, v. Walter F. BUGDEN Jr.; Tara L. Isaacson; and Bugden & Isaacson, LLC, Defendants and Appellees.

318 P.3d 757

750 Utah Adv. Rep. 44

Alan WILLEY, Plaintiff and Appellant,

v.Walter F. BUGDEN Jr.; Tara L. Isaacson; and Bugden & Isaacson, LLC, Defendants and Appellees.

No. 20120623–CA.

Court of Appeals of Utah.

Dec. 19, 2013.

Robb Jones and Andrew M. Bossory, for Appellant.

Stuart H. Schultz and Byron G. Martin, for Appellees.

Judge STEPHEN L. ROTH authored this Opinion, in which Judges JAMES Z. DAVIS and CAROLYN B. McHUGH concurred.

ROTH, Judge:

¶ 1 Alan Willey was convicted in 2007 of seven counts of aggravated sexual abuse of a child. He subsequently challenged his conviction on appeal, arguing that he received ineffective assistance of counsel when his defense attorney decided not to call a memory expert at trial. See State v. Willey, 2011 UT App 23, 248 P.3d 1014. That claim was rejected and his convictions affirmed by this court. Seeid. ¶ 1. Willey then sued his former attorneys, Walter F. Bugden Jr. and Tara L. Isaacson, and their law firm, Bugden & Isaacson, LLC (collectively, the attorneys) for legal malpractice. He claimed that by failing to call a memory expert at trial (the memory expert malpractice claims) and failing to communicate plea offers from the State (the failure to communicate claim), the attorneys violated the standard of care applicable to their representation of him. The district court granted the attorneys' motion for summary judgment, and Willey now appeals. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2 This appeal is the latest development in an ongoing legal saga that began more than seven years ago. In April 2006, Willey, a long-time elementary school teacher, was charged with nine counts of aggravated sexual abuse of a child, a first degree felony.¹SeeUtah Code Ann. § 76–5–404.1(4), (5) (LexisNexis Supp.2013).² One of Willey's former students (Child), in his early twenties at the time of the report, accused Willey of inappropriately touching him almost daily during the 1993–1994 school year. The attorneys represented Willey through two criminal trials—the first ended in a hung jury, and the second resulted in Willey's convictions on seven counts, which we affirmed on appeal. See State v. Willey, 2011 UT App 23, ¶ ¶ 18–20, 248 P.3d 1014.

¶ 3 The State's “primary witnesses” at both trials “were Child and four other students from his fourth grade class who recalled seeing” Willey inappropriately touch Child. Id. ¶ 3.³ “At the first trial, the State also called six ... witnesses who testified to having been similarly sexually abused by Willey when they were his students in different classes at different schools.” Id. (citing Utah R. Evid. 404(b)). But “the State elected not to use these ... witnesses” at the second trial, “having concluded that they distracted from the ultimate issue of whether Willey had sexually abused Child.” Id.

¶ 4 After the first trial resulted in a hung jury, the State “widened its investigation ..., interviewing twelve more of Child's former classmates,” and investigating Willey's conduct while employed at another school district. Id. ¶¶ 4–5. Eight of Child's classmates “remembered that Willey would repeatedly rub Child's chest under his shirt,” and “[o]ne of [them] further recalled that Willey would crouch down next to Child's desk.” Id. ¶ 4. The State also “discovered notes handwritten by a school administrator from another school district where Willey had taught prior to the events involving Child. These notes confirmed that teachers and parents had complained that Willey was inappropriately touching boys in his classes.” Id. ¶ 5. The school “received additional complaints about similar inappropriate touching” the next year, but the administrator did not report any of them to the police. Id. Instead, he “instruct[ed] the principal to closely monitor Willey, encourag[ed] parents not to say anything about the touching, and [told] Willey that if he sought psychiatric help, he would keep the allegations out of Willey's personnel file.” Id. After Willey “transferred to ... the school district in which Child attended school,” further complaints about Willey's conduct at his new school “were handled similarly to the previous complaints.” Id.

¶ 5 “At both trials, [the attorneys] presented a memory confabulation defense, calling into question the reliability of Child's decade-old memory, specifically by alleging that a ‘good,’ encouraging touch by a teacher had been distorted in Child's memory over time into a ‘bad,’ sexual touch.” Id. ¶ 6 (footnote omitted). This strategy “was formed through consultation with a memory expert [the attorneys] had used in several other cases. Before the first trial, [the attorneys] discussed with this expert the potential benefits and detriments of using a memory confabulation defense under the facts of this case.” Id. ¶ 7. Because “the evidence that was available for the first trial ... [was] generally corroborative of Child's allegations,” the attorneys and the expert agreed that it would be “difficult to argue that Child had confused a ‘good’ touch with a ‘bad’ touch, thus undermining [the attorneys'] defense theory that Child's memories were the result of memory confabulation.” Id.

During their consultation, the memory expert further inquired whether there was a paper trail of any other independent or contemporaneous complaints made against Willey for inappropriate or sexual touching and opined that, if there were, such evidence would significantly undermine a memory confabulation defense. The memory expert also candidly explained that given the corroborating evidence available before the first trial, he could be compelled to testify under cross-examination by the State that the Child's memory of sexual abuse did not appear to be the result of contamination. [The attorneys were] further concerned that a memory expert's testimony would potentially open the door to admission of [testimony from witnesses who claimed to have seen Willey touch other students].

Id. The attorneys accordingly decided against “presenting a memory confabulation defense through an expert” because that approach “could end up bolstering the State's case.” Id. Instead, they “elected to present such a defense by cross-examining the witnesses so as to highlight the discrepancies in or questionable circumstances surrounding their testimonies.” Id.

¶ 6 The attorneys' strategic “decision not to have a memory expert testify at trial was further reinforced by the additional evidence that came to light between the first and second trials.” Id. ¶ 8. In particular, “the school administrator's notes amounted to a paper trail of independent, contemporaneous corroboration of inappropriate touching” that the attorneys “recognized ... [w]as ‘exactly the type of information that [the expert] said would sink the ship.’ ” Id. Although the administrator's notes, testimony from prior classmates, and testimony from other witnesses who might be called “did not specifically corroborate” all of Child's allegations, the attorneys “believed that this evidence did tend to show that Willey had touched Child or other children inappropriately, thus undermining a memory confabulation defense that Child had in his mind turned a ‘good’ touch into a ‘bad’ touch.” Id. Consequently, the attorneys decided to rely on “the same strategy at the second trial that [they] had employed at the first trial: challenge the witnesses' credibility through cross-examinationrather than relying on a memory expert whose testimony could potentially be used to bolster the State's case.” Id.

¶ 7 Between the two trials, Willey and the State also entered into plea negotiations. Before the second trial began, the State offered to dismiss all of the charged first degree felony counts and forgo prosecution for any potential criminal behavior that occurred at his prior school district in exchange for Willey's Alford pleas ⁴ to two misdemeanor counts of lewdness involving a child. The parties offer disparate accounts of their subsequent discussions. The attorneys maintain that Bugden promptly contacted Willey by phone and advised him that the State had offered an advantageous plea bargain but that Willey rebuffed the offer, explaining that he could not imagine accepting even a favorable guilty plea in light of his innocence and the negative response of his family to any plea that required Willey's acknowledgement that he was guilty of sexual misconduct. The attorneys asserted that they then sent Willey a detailed letter analyzing the State's offer in light of the evidence that would likely be presented at Willey's next trial. To support their account, the attorneys provided the district court with a copy of the letter, a Federal Express receipt showing a delivery to Willey's address, delivery charges to Bugden's business credit card, and three affidavits attesting to the underlying facts. Bugden stated in his affidavit that after sending the letter, he and Isaacson “exhaustively discussed with Mr. Willey the evidence against him” and the State's latest plea agreement. The attorneys also pointed out that Willey admitted in a psychosexual evaluation before sentencing that he “recalled having some plea agreements but declined them because ‘[a]t the time [he] knew [he] was innocent and thought it would come out at trial.’ ”

¶ 8 By contrast, Willey asserts that he never received any written communication from the attorneys regarding a plea offer, and he denies receiving any information about the damaging evidence the State uncovered after the first trial that could have substantially influenced his decision about going forward. He does acknowledge that Bugden notified him of one plea offer by phone, but Willey maintains that Bugden's only advice was that “he wouldn't think less of [Willey] if [he] accepted the plea deal.” In support, Willey offers his own affidavit.

¶ 9 At his second trial, Willey was convicted of seven counts of...