Guilty Until Proven Innocent—Legal Malpractice?

Girard, PAMindy's son, Michael, was 18 years old when he sexually assaulted a minor. But there are two sides to every story and Mindy believes that Michael never got a fair trial, due to legal malpractice on the part of his Public Defender. Although Mindy's son was charged with a terrible thing, he is also mentally challenged, which was never brought up in court, and there are many more issues that made Michael "guilty until proven innocent."

"Michael was crucified even before he went to court," says Mindy, and to a large extent, she blames it on the Public Defender (let's call him Mr. D). Michael was arrested on September 24, 2006, likely the worst day of her life.

Mindy isn't saying this is an excuse for what he did, but Michael was about 12 years old mentally when this happened; he suffered from impulse control issues and at the age of 3 he was diagnosed with ADHD.

According to Mindy, this is what happened. "I had a family living with me; a 10-year-old girl, her mother and stepfather, whom I had known all my life. I was at work and her mother was downstairs; Michael and the girl were found upstairs by my friend—her stepfather—with their pants down. Apparently they had been upstairs, alone, for more than a few hours. By the time I got home a policeman was there and asked me to bring Michael to the station for questioning. My son always tells the truth, and he talks a lot—he told the police that they had oral sex. It was terrible; I couldn't believe what I was hearing.

"He wasn't arrested at that point. We were called back the next day and he was questioned again, for about an hour. I have never had any legal trouble and no reason to ever need a lawyer; it never occurred to me to get a lawyer or tell Michael to stop talking. Again, he was allowed to go home. I went to work the next day and on September 26, the police charged Michael with statutory sexual assault and four other charges.

"I got a phone call from Mr. D, the Public Defender. 'The best thing to do is let him stay in jail so it will take off time that Michael will get,' he told me. That's all I heard from him for some time. Mr. D's secretary told me to get character letters but I was a mess." Mindy had been diagnosed with clinical depression and couldn't pull herself together to do even the simplest of tasks, which was to prove very unfortunate for Michael. Still the attorney's office offered no help or support when she wasn't forthcoming with the character references, and there could have been plenty.

"Michael had never been in trouble nor has he ever been sexually attracted to kids," Mindy says. He had gone to summer camp for mentally challenged youths and worked as a camp counselor for a few years afterward; he took part in the Special Olympics and had a good school record. After his arrest, Michael had a psychiatric evaluation (he was in the state hospital for 90 days) that determined he was competent to stand trial. "If you tell Michael something, he understands, but he won't remember it 20 minutes later," says Mindy, adding that Mr. D had Michael's medical records from the time he was three years old, but they were never brought up in court, and there was no investigation.

"Michael had been in state prison for 14 months when Mr. D told me that if Michael signed a plea bargain, he wasn't looking at any more jail time, he wouldn't have to register as a sexual offender, and he would get payroll," says Mindy.

"Mr. D told me I could pick up my son, he was coming home. On November 27, 2007, I went to court and Mr. D said that Michael was not 'state material,' and that was just about all he said in Michael's defense, and the plea bargain was never brought up. The judge said, 'We have to save our kids from people like you.' Would he have been so biased if Mr. D had brought up Michael's history, his mental problems? If there had been an investigation?

Michael was sentenced to 86 months in state prison, minus 14 months for time served.

"'We have to appeal,' I said to Mr. D. What Michael did was very wrong, it was terrible, but he isn't a felon. Instead, he told me that Michael didn't want a trial! Of course Michael didn't understand the charges. My friends advised me to ask Mr. D for Power of Attorney; he sold me (for $50) Financial Power of Attorney only. He knew what we needed but he didn't care what happened to my son.

"I got a phone call from Michael. He had another attorney, who told Michael that because his former attorney did not file an appeal in a timely manner, he was not granted the appeal.

"Michael isn't doing too well these days; they keep changing his meds, and because he is so hyperactive, being in a cell is the worst thing. No, there is worse than that: when the inmates found out his charges, Michael was sexually molested.

"I can't help but think that Mr. D is guilty of legal malpractice. If Michael didn't sign the plea bargain; if Mr. D had brought up Michael's medical history; if Mr D filed the appeal on time…perhaps Michael wouldn't have to spend another three years in jail."