Jama I. Jama v. Jason C. Gonzalez

Appeal No. 2019AP629
WISCONSIN COURT OF APPEALS
DISTRICT IV
JAMA I. JAMA,
PLAINTIFF-APPELLANT,
V.
JASON C. GONZALEZ AND WISCONSIN LAWYERS
MUTUAL INSURANCE COMPANY,
DEFENDANTS-RESPONDENTS.
FILED
JUL 09, 2020
Sheila T. Reiff
Clerk of Supreme Court
CERTIFICATION BY WISCONSIN COURT OF APPEALS
Before Blanchard, Kloppenburg, and Nashold, JJ.
ISSUE
This appeal presents a novel issue in Wisconsin, namely whether a
former criminal defendant may, as a plaintiff, sue his or her former criminal
defense attorney for legal malpractice when that plaintiff alleges that he or she can
show actual innocence as to some, but not all, of the criminal charges in the
underlying criminal case, and the civil complaint alleges that the former defense
attorney provided negligent representation only as to the charges of which the

No. 2019AP629
2
criminal malpractice plaintiff alleges that he or she can show actual innocence.1
This novel Wisconsin issue involves what we refer to as criminal malpractice
plaintiffs’ claims of “split innocence.” It differs from the issues raised before and
recently resolved by the Wisconsin Supreme Court in Skindzelewski v. Smith,
2020 WI 57, __Wis. 2d __, __N.W.2d__, in which the Court for the first time
addresses and relies on the actual innocence rule adopted in Hicks v. Nunnery,
2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809; see also Tallmadge v. Boyle,
2007 WI App 47, 300 Wis. 2d 510, 730 N.W.2d 173. Unlike in Skindzelewski,
where the criminal malpractice plaintiff could not prove actual innocence
regarding the offense at issue, the criminal malpractice plaintiff in a split
innocence case, such as Jama’s, alleges that he or she can prove actual innocence
of those charges for which he or she alleges the former defense attorney provided
negligent representation. Unlike in Skindzelewski, where the criminal malpractice
plaintiff seeks an exception to the actual innocence rule, Jama argues that his split
innocence situation falls within the rule.
Because resolution of this novel split innocence issue appears to
require application of public policy considerations in ways not addressed in Hicks,
Tallmadge, or Skindzelewski, pursuant to WIS. STAT. RULE 809.61 this appeal is
certified to the Wisconsin Supreme Court for its review and determination.
1 We use the phrase “criminal malpractice plaintiff” to refer to Jama and any other
person who formerly faced criminal charges and now pursues civil remedies against his or her
criminal defense counsel. See Humphries v. Detch, 712 S.E.2d 795, 800 n.5 (W. Va. 2011)
(citing cases explaining that the term “criminal malpractice” refers to “legal malpractice in the
course of defending a client accused of a crime” (quoted sources omitted)); Barker v. Capotosto,
875 N.W.2d 157, 161 n.2 (Iowa 2016) (“The term ‘criminal malpractice’ has been used to
describe a legal malpractice action brought by a former criminal defendant against his or her
former criminal defense attorney.”).

No. 2019AP629
3
BACKGROUND
Jama I. Jama, the criminal malpractice plaintiff in this case, filed this
legal malpractice action.2 We first summarize the allegations in his civil
complaint.
After Jama was criminally charged with sexual assault, burglary, and
theft, he hired attorney Jason C. Gonzalez as his defense counsel. Jama told
Gonzalez that he had committed the theft as charged in the criminal complaint, but
that he had not committed the other crimes charged, including the two sexual
assault charges. Jama asserted his innocence as to the sexual assault charges then,
and has continued to do so since.
The civil complaint further alleges that, during the criminal jury
trial, Gonzalez made numerous errors, including not meeting with Jama until the
third day of trial after both sides rested and not asking Jama details about the case
until after the trial was completed, when sentencing was impending.
At trial, Jama was convicted of four felonies (second-degree sexual
assault, third-degree sexual assault, and two charges of burglary) and one
misdemeanor (theft).3
2 The Honorable Ellen K. Berz presided over the criminal proceedings and the Honorable
Valerie Bailey-Rihn presided over the civil action.
3 More specifically, Jama was convicted of sexual assault of an intoxicated victim,
sexual assault without consent, burglary with intent to commit a felony, burglary with intent to
steal, and misdemeanor theft. The circuit court subsequently vacated the two burglary
convictions for lack of evidence, and on appeal in the criminal case this court affirmed. See State
v. Jama, No. 2014AP2432-CR, unpublished slip op. ¶¶5, 10, 30-35 (WI App Feb. 25, 2016). In
this civil case, the circuit court’s decision and the parties’ briefing on appeal address Jama’s
malpractice claims as pertaining only to the sexual assault convictions. Therefore, we do not
(continued)

No. 2019AP629
4
While serving time related to his sexual assault convictions, Jama
through new counsel filed a postconviction motion for a new trial on the basis of
ineffective assistance of counsel by Gonzalez in connection with the trial. After a
Machner hearing,4 the circuit court vacated all convictions based on Gonzalez’s
ineffective assistance of counsel and ordered a new trial. Specifically, the court
found that
[Jama] had no one to advocate for his version of events as
[Gonzalez] intentionally did not speak with him,
intentionally did not investigate the facts in [Jama’s]
possession and intentionally did not incorporate [Jama’s]
version into the defense theory … [Gonzalez] chose to
make up “facts” which had no nexus to the facts known by
[Jama,] which had little to no support in the evidence, and
which were internally conflicting.
The State subsequently moved to dismiss all of the original charges
against Jama except the misdemeanor theft charge, and issued a new charge of
misdemeanor resisting or obstructing an officer. Jama, represented by his same
postconviction counsel, pleaded guilty to both theft and resisting or obstructing.
For these two convictions, the circuit court sentenced Jama to nine months in jail,
“deeming time served.”5
refer to the burglary charges or convictions again in this certification; they are not counts of
conviction and Jama does not base this civil action on them.
4 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
5 The parties neither referred to the newly added resisting or obstructing charge in their
arguments before the circuit court nor refer to it now in their arguments on appeal, and no details
as to the basis for the charge and Jama’s plea to it exist in the appellate record or in the Circuit
Court Automated Programs site. We express no view about whether or how the fact that Jama
admitted guilt to resisting or obstructing in this case could be pertinent to resolution of this
appeal, depending on the particular doctrinal approach used to resolve the split innocence issue.
Following the parties, we do not refer to the resisting or obstructing charge or conviction again in
this certification, and for ease of reference we speak in terms of Jama’s plea as if it were to the
misdemeanor theft only.

No. 2019AP629
5
The complaint further alleges that, as a result of Gonzalez’s
negligent representation at the criminal trial, Jama suffered damages including the
loss of his “civil liberties and freedoms.” Specifically, before the circuit court
granted the postconviction motions and Jama entered the misdemeanor pleas, he
served over two and one-half years in prison and was ordered to complete an
Alcohol and Other Drug Abuse assessment, maintain absolute sobriety, not enter
an establishment whose purpose is the sale of alcohol, report for the sex offender
registry list for life, and not appear on State Street in Madison for six years.
We now move from the allegations in Jama’s civil complaint against
Gonzalez to summarize what took place after Jama filed this action. Gonzalez
moved to dismiss the complaint on the basis that Jama’s allegations, even if true,
do not entitle Jama to relief. The gravamen of Gonzalez’s argument was that,
because Jama pleaded guilty to the theft charge after his convictions were vacated
and a new trial was ordered, Jama could not prove that he was innocent of all
charges, as required to pursue this civil action under the actual innocence rule
stated in Hicks and Tallmadge.
In response, Jama asserted that this malpractice action addresses
only Gonzalez’s negligent representation of Jama on the sexual assault charges,
that Jama suffered damages from the sexual assault convictions, and that Jama is
able to prove, and has always maintained, his innocence of the sexual assault
charges. Jama’s position is that this action alleges negligence in connection with
the sexual assault convictions only and does not allege negligence in connection
with the misdemeanor theft charge to which he pleaded guilty.
The circuit court granted Gonzalez’s motion to dismiss, stating that,
under Hicks and Tallmadge, Jama has to provide “proof of innocence of all

No. 2019AP629
6
charges” that were charged in the underlying criminal case. The court ruled,
“because Mr. Jama pled guilty to the theft charge, even though he … has always
claimed that he was innocent of the sexual assault charges … [Gonzalez has]
prevailed on [his] motion to dismiss.”
This appeal follows.
DISCUSSION
In Wisconsin, all plaintiffs alleging legal malpractice must prove
four elements in order to prevail: “(1) an attorney-client relationship existed;
(2) the attorney’s actions were negligent; (3) the attorney’s negligent actions
caused the client’s injury; and (4) the client suffered an actual injury.”
Skindzelewski, 2020 WI 57, ¶9. In Skindzelewski, the Supreme Court, citing
Hicks, 253 Wis. 2d 721, ¶34, holds that, in a criminal malpractice case, the
plaintiff “must additionally prove that he was actually innocent of the criminal
charge as a component of the causation element.” Id. See also Tallmadge, 300
Wis. 2d 510, ¶¶21-22 (applying the actual innocence rule to criminal malpractice
claims against postconviction counsel).
The parties here do not dispute that in Wisconsin the actual
innocence rule applies to all criminal malpractice plaintiffs. However, as stated
above, the parties dispute how to resolve the specific split innocence issue under

No. 2019AP629
7
the reasoning and language in controlling Wisconsin case law.6 Gonzalez asserts
that the case law supports his argument that, as the criminal malpractice plaintiff
in this case, Jama has to prove innocence as to all charges of which Jama was
convicted. Jama asserts that the case law supports his argument that it is sufficient
to allege that he can prove innocence as to only the charges of which he was
convicted and for which the plaintiff alleges that the former defense counsel
provided negligent representation, even if the plaintiff cannot prove innocence on
one or more other charges. As we explain, Wisconsin precedent, comprising
Hicks, Tallmadge, and Skindzelewski, does not appear to contemplate a situation
like this. Certification of this appeal would give our supreme court, the policy-
making body in our state court system, an opportunity to review the actual
innocence requirement in the context of the novel split innocence issue here.
We first explain pertinent details of the Wisconsin Court of Appeals’
Hicks and Tallmadge decisions and the Wisconsin Supreme Court’s
Skindzelewski decision, including the public policy considerations identified in
those decisions as supporting adoption of the actual innocence rule, and how those
decisions do not address the split innocence issue presented in Jama’s case. We
conclude by reiterating our reason for certification.
6 As we explain in this certification, the questions raised by the parties based on the
Court of Appeals’ decisions in Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643
N.W.2d 809, and Tallmadge v. Boyle, 2007 WI App 47, 300 Wis. 2d 510, 730 N.W.2d 173,
remain unaddressed and unanswered by the Supreme Court in Skindzelewski v. Smith, 2020 WI
57, __Wis. 2d __, __N.W.2d__. For this reason, we did not order the parties to submit additional
briefing based on the Skindzelewski court’s affirmation of the Hicks and Tallmadge actual
innocence rule.

No. 2019AP629
8
1. Wisconsin Precedent: Hicks, Tallmadge, and Skindzelewski
a. Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809.
We begin with the Court of Appeals’ decision in Hicks, which
adopted the actual innocence rule that was relied on by the Supreme Court in
Skindzelewski, 2020 WI 57, ¶9.
Hicks was convicted and imprisoned on charges of robbery,
burglary, and sexual assault. Hicks, 253 Wis. 2d 721, ¶3. Hicks consistently
maintained his innocence as to all three charges. Id., ¶37. On appeal, the court of
appeals reversed all three of Hicks’ convictions because Hicks had been denied
effective assistance of trial counsel. Id., ¶3. The Wisconsin Supreme Court
affirmed as to all three charges, but on the ground that the real controversy had not
been fully tried as to any charge. Id.
The State subsequently “dropped all charges against Hicks.” Id.,
¶12. Hicks then filed a legal malpractice suit against his former trial counsel,
Attorney Nunnery. Id., ¶13. The civil jury found that Hicks would have been
found not guilty on all charges at his criminal trial had it not been for Nunnery’s
negligent representation, and awarded Hicks substantial damages. Id., ¶¶13, 34.
Nunnery appealed, arguing as pertinent here that he was entitled to judgment in his
favor because Hicks failed to prove his innocence on all charges. Id., ¶¶1, 32.
Following the reasoning and considerations of “public policy”
adopted by the California Supreme Court in Wiley v. County of San Diego, 966
P.2d 983 (Cal. 1998), the court in Hicks concluded, “[A]s a matter of public
policy, persons who actually commit the criminal offenses for which they are
convicted should not be permitted to recover damages for legal malpractice from

No. 2019AP629
9
their former defense attorneys.” Id., ¶¶39-46, 48. Accordingly, the Hicks court
held that, in addition to proving the four elements of a standard legal malpractice
claim listed above, public policy considerations require that a criminal malpractice
plaintiff may not prevail without also proving to the civil jury that he or she “is
innocent of the charges of which he [or she] was convicted.” Id., ¶46. Because
the actual innocence issue had not been resolved in the circuit court, the court of
appeals remanded the case for a new trial “limited to the issue of whether Hicks
committed the offenses of which he was convicted.” Id., ¶¶46, 56.
The Hicks court identified five specific public policy considerations
relied on by the California court in Wiley as supporting its adoption of the actual
innocence rule for criminal malpractice plaintiffs. We now quote them at length:
1. Permitting a convicted criminal to pursue a legal
malpractice claim without requiring proof of innocence
would ... shock the public conscience, engender disrespect
for courts and generally discredit the administration of
justice.
2. Allowing civil recoveries to guilty plaintiffs
impermissibly shifts responsibility for the crime away from
the convict.… Regardless of the attorney’s negligence, a
guilty defendant’s conviction and sentence are the direct
consequence of his [or her] own perfidy. [W]hile a
conviction predicated on incompetence may be erroneous,
it is not unjust.
3. Tort law provides damages only for harms to the
plaintiff’s legally protected interests, and the liberty of a
guilty criminal is not one of them. The guilty criminal may
be able to obtain an acquittal if he [or she] is skillfully
represented, but he [or she] has no right to that result.
4. Even in cases where the causal link between an
attorney’s negligence and a client’s erroneous
imprisonment is most obvious (such as where the attorney
fails to bring a clearly meritorious motion to suppress
evidence that establishes guilt, which the state could not
prove without it), civil recovery by a guilty plaintiff is not
warranted because of the nature and function of the

No. 2019AP629
10
constitutional substructure of our criminal justice system.
That is, [certain] features of the criminal justice system …
and other constitutional protections are to safeguard against
conviction of the wrongly accused and to vindicate
fundamental values. They are not intended to confer any
direct benefit outside the context of the criminal justice
system. Thus, defense counsel’s negligent failure to utilize
them to secure an acquittal or dismissal for a guilty
defendant does not give rise to civil liability.
5. Unlike victims of legal malpractice in a civil
context, who most often have no redress except a recovery
from the negligent attorney, wrongfully convicted criminal
defendants have the opportunity to rectify the wrong by
asserting their Sixth Amendment right to effective
assistance of counsel. Not only does the Constitution
guarantee this right, any lapse can be rectified through an
array of postconviction remedies, including appeal and
habeas corpus. Such relief is afforded even to those clearly
guilty as long as they demonstrate incompetence and
resulting prejudice.
253 Wis. 2d 721, ¶¶40-44 (internal quotation marks and citations omitted).
Because the facts in Hicks did not call for the court to delve into the
topic, that court did not address whether requiring that a criminal malpractice
plaintiff prove that he or she “is innocent of the charges of which he [or she] was
convicted” means all charges in the criminal case or only those that are the subject
of the malpractice action. Id., ¶46. To repeat, Hicks alleged that trial counsel was
negligent as to all of the charges on which trial counsel represented Hicks, and that
Hicks had consistently maintained his innocence as to all of those charges. Id.,
¶¶3, 37. Here, however, as stated, Jama alleges negligence and maintains his
innocence only in connection with the sexual assault convictions and does not
allege negligence in connection with the misdemeanor theft charge to which he
eventually pleaded guilty.
We observe that there appears to be no suggestion in Hicks that the
values embodied in the adopted public policy considerations would be undermined

No. 2019AP629
11
if, as here, the criminal malpractice plaintiff were able to recover based strictly on
negligence resulting in conviction for conduct for which the plaintiff claims actual
innocence—here, sexual assault. More specifically, none of the five public policy
considerations, which all concern “guilty” defendants, appear on their face to
apply here, where Jama alleges he can prove he is “not guilty.” The Hicks court
stressed that it was adopting the actual innocence rule because “as a matter of
public policy, persons who actually commit the criminal offenses for which they
are convicted should not be permitted to recover damages for legal malpractice
from their former defense attorneys.” Id., ¶48. That public policy does not seem
to be served when a person did not actually commit the criminal offenses that are
the subject of the malpractice action.7
On the other hand, the public policy considerations are written in
sweeping terms. Taken at a literal level, they could be read to bar all malpractice
actions by any person who has been convicted of any of the original charges in the
underlying criminal case, without considering the nature of the individual charges.
Under this view, actual innocence would be binary in each case—guilty of any of
the original charges, then not deserving of a potential civil recovery.
7 We note that in his concurrence in Tallmadge, Judge Fine summarizes the Hicks rule
as follows: “a convicted defendant cannot recover against his or her lawyer for legal malpractice
that allegedly caused the defendant’s conviction unless the defendant can show by the civil
burden of proof that he or she was actually innocent of the crime and, also, that the lawyer’s
malpractice was a cause of the conviction.” Tallmadge, 300 Wis. 2d 510, ¶32 (citing the
reasoning of Hicks, 253 Wis. 2d 721, ¶¶ 34-50). Judge Fine’s use of the singular “conviction”
and “crime” may suggest the orientation that Jama advocates, requiring only proof of innocence
for each specific criminal charge as to which the criminal malpractice plaintiff alleges his or her
former defense attorney performed negligently.

No. 2019AP629
12
b. Tallmadge v. Boyle, 2007 WI App 47, 300 Wis. 2d 510, 730 N.W.2d 173.
In Tallmadge, the Court of Appeals also relied on the actual
innocence rule adopted in Hicks. Tallmadge, 300 Wis. 2d 510, ¶12. As with
Hicks, the language in Tallmadge could be interpreted as either supporting or
running contrary to Jama’s position.
Tallmadge was sentenced to 265 years in prison after being found
guilty of fifteen counts of sexual assault. Id., ¶2. His trial attorney, Attorney
Weedman, unsuccessfully appealed the convictions in state court. Id., ¶¶3-5.
Attorney Boyle was directed to seek habeas corpus relief for Tallmadge, but
Tallmadge later fired him. Id., ¶¶6, 16-17. Tallmadge then retained a new
appellate attorney, Attorney Sutton, who filed a federal writ of habeas corpus
raising three issues as to all of the fifteen counts, and two issues specifically as to
two of the counts. Id., ¶7. Thus, if Sutton’s efforts had been in any way
successful, there were potential pathways to complete reversal but also potential
pathways to only partial reversal. However, the writ filed by Attorney Sutton was
dismissed because it was not timely filed. Id., ¶8. Tallmadge subsequently
brought a legal malpractice suit against Boyle for failing to file a state or federal
writ of habeas corpus. Id., ¶¶10, 16. The circuit court granted Boyle’s motion for
summary judgment dismissing the complaint. Id., ¶12. Applying the Hicks
innocence rule, the court stated, “There is no evidence in this record, other than
Mr. Tallmadge’s assertion, that he is innocent.” Id.
The court of appeals affirmed, holding that the same public policy
considerations supporting the actual innocence rule adopted in Hicks “apply
equally to cases involving criminal defense attorneys hired to represent criminal
defendants after conviction.” Id., ¶¶21-22. The court also stated that these public

No. 2019AP629
13
policy considerations require that the criminal malpractice plaintiff must “prove
that ‘but for’ that defense counsel’s actions, the convicted criminal would be
free.”8 Id., ¶22. The court also made the broad statement that, before Tallmadge
could be entitled to “a get out of jail free card,” he would have to “prov[e] to a
jury that [he] is innocent of all fifteen counts for which he was convicted.” Id.,
¶19. The court explained that, because none of Tallmadge’s appellate attorneys
had been able to develop any meritorious claims in Tallmadge’s criminal case as
to any of the fifteen convictions, let alone all of them, any assertion that Boyle,
specifically, would have secured Tallmadge’s freedom was “purely speculative.”
Id., ¶¶18-19. Thus, it appears that the Tallmadge court approached the case as if
all fifteen convictions were both the subject of the malpractice action as well as
the subject of Tallmadge’s unsupported assertion of innocence, despite a lack of
clarity on this and other issues as summarized in the case.
The Tallmadge court reiterated the public policy considerations
identified in Hicks, highlighting as the primary public policy consideration the
view that “[p]ermitting a convicted criminal to recover in a legal malpractice
action against former defense counsel would result in the criminal being indirectly
rewarded for his [or her] crimes.” Id., ¶22 (citing Hicks, 253 Wis. 2d 721, ¶38).
8 This “would be free” statement and the accompanying discussion in Tallmadge are not
supported by citation to authority. Tallmadge, 300 Wis. 2d 510, ¶¶18-22. The Tallmadge court
may have been conflating the “would be free” concept with the rule adopted by some courts in
other states that a criminal malpractice plaintiff must have obtained postconviction relief vacating
the convictions that are the subject of the malpractice suit, as opposed to proving actual innocence
in some other manner. See Barker v. Capotosto, 875 N.W.2d 157, 158, 166 (Iowa 2016)
(concluding that public policy considerations support requiring that a criminal malpractice
plaintiff obtain postconviction relief). Here, to repeat, Jama’s sexual assault convictions were
vacated and the State did not reissue those charges.

No. 2019AP629
14
We observe that, as in Hicks, there appears to be nothing in the
Tallmadge court’s discussion of this and the other public policy considerations to
suggest that a criminal malpractice plaintiff cannot recover for negligent
representation as to crimes that the plaintiff alleges he or she can show he or she
did not commit.
On the other hand, Tallmadge contains broad language—“would be
free” and “get out of jail free card”—that in itself could suggest the view, intended
by the court or not, that the criminal malpractice plaintiff cannot show actual
innocence unless he or she “would be free” on all charges in the underlying
criminal case.
c. Skindzelewski v. Smith, 2020 WI 57, __Wis. 2d __, __N.W.2d__.
The Wisconsin Supreme Court in Skindzelewski affirmed the Hicks
actual innocence rule, stating that it “requires a criminal [malpractice plaintiff] to
establish [that he or she] did not commit the crime of which he [or she] was
convicted.” Skindzelewski, 2020 WI 57, ¶2. Skindzelewski, the criminal
malpractice plaintiff, conceded his guilt as to his underlying offense of “theft by
contractor,” but sought an exception to having to establish his actual innocence
because his attorney had negligently failed to raise a statute of limitations defense,
which would have precluded his conviction. Id., ¶¶1-3, 17. The court declined to
establish such an exception to the actual innocence rule, stating that the exception
that Skindzelewski sought would be contrary to public policy considerations and
“reward criminality.” Id., ¶¶2, 22. The court explained that “[t]he law bars such
legal malpractice claims because even if an attorney’s negligence harms a
defendant by adversely affecting the outcome of the case, attorney error does not
negate a guilty defendant’s culpability.” Id., ¶17.

No. 2019AP629
15
Thus, the court in Skindzelewski confirms the actual innocence rule
adopted in Hicks, which as stated above could be interpreted to require actual
innocence of all underlying criminal charges. On the other hand, as explained
below, the decision contains language that could support Jama’s argument that, on
the facts of his split innocence situation, proof of his actual innocence of the
charges as to which he alleges legal malpractice falls within the actual innocence
rule.
Skindzelewski’s claim “rests on a legal error that would have
precluded his conviction notwithstanding his guilt.” Id., ¶17. Unlike in
Skindzelewski, Jama alleges that his injury is “entirely unrelated to [his] criminal
behavior” and rests on legal errors that led to a conviction as to which he asserts
his innocence. Id., ¶18.
The analysis in Skindzelewski echoes the focus in Hicks on
supporting the actual innocence rule with considerations of public policy.
Throughout, the court uses language such as “actually guilty,” “culpable
behavior,” and “the guilty” in support of its determination to avoid “rewarding
criminality.” Id., ¶¶17, 23.The court also emphasizes that “the defendant … bears
ultimate responsibility for his [or her] criminal conduct.” Id., ¶17. In contrast,
here Jama contends that he does not seek reward for his criminality, but seeks
damages for injury caused by Gonzalez’s legal representation regarding offenses
that Jama has always asserted he did not commit. The Skindzelewski court
reasons that “[d]espite [Skindzelewski’s] guilt, the law afforded Skindzelewski a
remedy for the erroneous conviction—namely, his liberty. The law does not,
however, give him an additional monetary remedy against his negligent lawyer.
Doing so would be tantamount to rewarding this guilty defendant for his crime,
which ‘would … shock the public conscience, engender disrespect for courts and

No. 2019AP629
16
generally discredit the administration of justice.’” Id., ¶22, (quoting Hicks, 253
Wis. 2d 721, ¶40). Here, however, Jama argues that he was imprisoned for sexual
assault charges, despite his innocence as to those charges, and he does not seek
“additional monetary remedy.”
Finally, the court states that attorney error does not “sever[] the
causal link between a criminal defendant’s culpable behavior and the time spent
incarcerated, when the criminal defendant is actually guilty.” Id., ¶17. “In
contrast, if a defendant … serves the maximum time authorized by statute for his
[or her] criminal conduct but then serves additional time as a result of his [or her]
attorney’s error, the additional time of incarceration is causally unconnected to the
antecedent criminality.” Id., ¶18. Here, if Jama serves the maximum time
authorized by statute for his admitted misdemeanor theft conduct, but then serves
additional time as a result of sexual assault convictions that resulted from his
attorney’s negligence, the additional time of his incarceration is unconnected to
any criminal behavior on Jama’s part.
2. Application of Actual Innocence Rule to Split Innocence Situation
We now discuss a divided decision from an intermediate appeals
court in California, which contains reasoning on both sides of the issue in a split
innocence case, albeit premised on the California rule that a criminal malpractice
plaintiff must prove actual innocence by obtaining postconviction exoneration.
Wilkinson v. Zelen, 83 Cal. Rptr. 3d 779 (Cal. Ct. App. 2008). We review this
decision in some detail to provide context for its reasoning and because it is the
only case we have found that illuminates alternative approaches in a split
innocence context. In addition, the majority and dissenting opinions apply public

No. 2019AP629
17
policy considerations that are most appropriately addressed by the Wisconsin
Supreme Court.
In Wilkinson, the State presented the following evidence at
Wilkinson’s criminal trial. Responding to a call reporting erratic driving, officers
found Wilkinson stopped at a curb, behind the wheel but with her head resting on
the front passenger seat. Wilkinson, 83 Cal. Rptr. 3d at 784. When officers
tapped on the window, Wilkinson drove off, then stopped after an officer gave
chase. Id. Wilkinson smelled strongly of alcohol, exhibited slurred speech, and
could not complete a field sobriety test. Id. Officers arrested her and transported
her to the police station, where she was belligerent and uncooperative. Id.
Specifically, she grabbed an officer’s arm, causing a welt; charged at another
officer; and yelled, kicked, and banged at a door. Id.
Wilkinson testified as follows. Id. On the night in question, she was
at a bar where she met a man who offered to buy her a drink. Id. She accepted
and drank two glasses of wine. Id. She agreed to meet the man at a restaurant for
dinner, and at the restaurant she had three more drinks, over the course of three
hours, while she waited for the man, who never arrived. Id. She drove away, and
the next thing she remembered was waking up in jail. Id. After being released
from jail, she filed a police report alleging that she had been drugged. Id.
A toxicologist, testifying for the defense, opined that on the night in
question Wilkinson was under the influence of a “date rape” drug. Id. An officer
also testifying for the defense stated that Wilkinson’s symptoms appeared much
more severe than what would be expected of someone who had consumed five
alcoholic drinks over several hours. Id.

No. 2019AP629
18
Wilkinson was convicted of felony battery on a custodial officer,
misdemeanor driving under the influence, and misdemeanor failing to stop at the
scene of an accident. Id. at 781.
After all three convictions were vacated, Wilkinson pleaded no
contest to the original misdemeanor driving while under the influence and an
added misdemeanor resisting or obstructing an officer, and the remaining two
original counts (felony battery and misdemeanor failing to stop) were dismissed.
Id. at 781, 783.
Wilkinson sued her trial counsel for malpractice, alleging actual
innocence “of all charges on which [Wilkinson] was convicted,” namely, driving
under the influence and obstruction. Id. at 781-82. The circuit court granted the
defendant’s motion to dismiss without leave to amend on the ground that
Wilkinson could not plead that she was factually innocent of all the charges,
despite the fact that she had not been convicted on the original felony battery
charge after reversal of the initial conviction. Id. at 781, 783. On appeal,
Wilkinson argued that her civil action was based on malpractice resulting in the
felony battery charge and therefore it was not barred by her pleas to the two
misdemeanors and that she should be allowed to amend her complaint to allege
innocence of the felony charge. Id. at 782-83.
Based on its reading of California precedent, the California Court of
Appeals held that a criminal malpractice plaintiff “must prove factual innocence
and exoneration as to all transactionally related offenses comprising the basis for
the underlying criminal proceeding in order to maintain a malpractice action.” Id.
at 781 (emphasis added). On this basis, the majority affirmed the dismissal of
Wilkinson’s complaint because “the judicially noticed facts unequivocally

No. 2019AP629
19
demonstrate that Wilkinson plead[ed] no contest to two offenses transactionally
related to the felony charge.” Id. at 788.
The majority noted that the actual innocence rule stems from the
public policy considerations that the remedies provided within the criminal justice
system provide sufficient relief for a defendant who has in fact committed a crime,
and that a guilty defendant’s harm is due to his or her own criminal conduct rather
than any attorney error. Id. at 785. The majority also noted that the habeas corpus
relief Wilkinson obtained did not establish her innocence on any of the charged
offenses and that, therefore, she had had not obtained exoneration. Id. at 786. The
majority noted California precedent applying the actual innocence/exoneration
rule to bar a malpractice claim when the plaintiff had pleaded guilty to a lesser
included offense, and explained that it would be a logical extension of that rule to
require that a criminal malpractice plaintiff must also obtain exoneration of all
transactionally related offenses. Id. at 787.
The dissent took the view that this “transactionally related” approach
was an unwarranted departure from prior California precedent, which the dissenter
understood
to mean that no malpractice action can be brought if the
plaintiff cannot prove actual innocence of all criminal
activity arising from the conduct underlying the conviction
that is the subject of the malpractice action. The fact that a
malpractice plaintiff committed some crime—no matter
how unrelated to the crime of which the plaintiff was
exonerated and is innocent—should not bar the plaintiff’s
malpractice action based on the attorney’s negligence in
connection with the exonerated crime.
Id. at 793 (Armstrong, J., dissenting, first emphasis added). The dissent further
noted that

No. 2019AP629
20
the offenses to which plaintiff ultimately entered no contest
pleas—driving under the influence and obstructing a peace
officer—may be separate from and unrelated to the felony
count of battery of a custodial officer. If Wilkinson can
plead facts that the two misdemeanors of which she stands
convicted involved conduct unrelated to the felony battery
conviction, she can state a cause of action for professional
negligence.
If Wilkinson can plead such facts, the policy
considerations upon which the court in Wiley based the
requirement of actual innocence would not be implicated in
this case. She would not profit from the criminal conduct
of which she stands convicted; she would not escape or
diminish her punishment for that conduct; and there would
be no prospect of conflicting resolutions on the issue of
whether she committed a battery against a custodial officer.
Moreover, although Wilkinson has obtained postconviction
relief on her felony conviction, she has not been afforded
full relief for her attorney’s alleged negligence. She
allegedly suffered damages resulting specifically from her
conviction on the felony count, including the loss of her job
and denial of her petition for naturalization, that are readily
compensable in money damages.
Id. at 791-92 (citations omitted).
The dissent referenced the following “troubling hypothetical” to
illustrate the difference between a split innocence case and the facts of a non-split
innocence case such as Wiley:
Suppose a defendant is convicted of a multi-count
indictment and one of the convictions is first degree murder
and another conviction is trespass, and a habeas corpus
petition is granted, and the murder conviction is dismissed
outright, yet the defendant pleads nolo contendere to the
trespass, which is essentially the situation we have here.
[D]oes public policy prevent that defendant from suing his
or her attorney on the felony conviction when they have
been actually innocent of that crime[?]
Id. at 792.

No. 2019AP629
21
The dissent concluded that Wilkinson “should have the opportunity
to attempt to plead actual innocence as to the felony conviction that was vacated
by the writ of habeas corpus and that formed the gravamen of her malpractice
claim against [her former defense attorney], and to plead that the felony conviction
was unrelated to the two counts to which she pleaded no contest.” Id. at 789.
CONCLUSION
In sum, certification by the Wisconsin Supreme Court is warranted
to address the novel split innocence issue presented here because resolution of this
issue appears to require the application of public policy considerations in ways
that we believe have not already been resolved in Hicks, Tallmadge, or
Skindzelewski. In addition, at least one set of appellate judges in a jurisdiction
that has adopted the actual innocence rule has issued a divided ruling in a split
innocence case.