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$1.6 Million Sought In Legal Malpractice Suit Against Public Defender

Kansas Supreme Court reinstates convicted child abuser's legal malpractice suit against defense attorney.

Originally filed in 2003, the lawsuit was filed against then-public defender Sarah Sweet-McKinnon by a man she represented in a child sexual assault case. Jason Mashaney is seeking $1.6 million in a

legal malpractice suit alleging ineffective counsel.

The Kansas Supreme Court on Friday ruled that the former Sedgwick County public defender, who now heads the Reno County Public Defender’s Office, can be sued for malpractice.

The state charged Jason Mashaney in October 2003 with one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child, based on allegations by the mother of Mashaney’s 5-year-old daughter.

The district court appointed Sweet-McKinnon as Mashaney’s lawyer. After one jury trial ended in a mistrial, Mashaney was tried a second time and convicted on July 9, 2004.

Before sentencing, Mashaney filed a pro se motion to set aside the verdict based on ineffective assistance of counsel, “alleging a number of general allegations to support his argument that Sweet-McKinnon’s representation had been deficient,” according details in Friday’s opinion.

A district court judge appointed new counsel and held an evidentiary hearing on Mashaney’s motion in November 2004, but then denied the motion and sentenced Mashaney to nearly 37 years in prison.

Virginia A. Girard-Brady of the Appellate Defender’s Office represented Mashaney in his appeal, and the Court of Appeals subsequently denied a petition to review the case.

In April 2008, Mashaney again filed a pro se motion alleging ineffective counsel, this time for both the trial and his direct appeal. The lower court denied the motion and Mashaney appealed to the Court of Appeals, which reversed and remanded the case to the district court for an evidentiary hearing.

After the hearing, the district judge granted Mashaney’s motion on April 11, 2011, and the case went back onto the court’s calendar for retrial. Mashaney and prosecutors reached a plea agreement in late December 2011, where Mashaney entered an “Alford plea” on two counts of attempted aggravated battery and one count of aggravated endangering a child and the state dropped the original charges.

The court sentenced Mashaney in February 2012 to six years in prison and, since he had already served more than that, ordered his release.

Between entering the plea and sentencing, Mashaney filed the civil malpractice suit against Sweet-McKinnon, Girard-Brady, and the Board of Indigents’ Defense Services (BIDS).

Mashaney always denied abusing his daughter.

In their responses to the suit, both attorneys contended Mashaney’s plea in the case prevents him from pursuing a negligence claim. Girard-Brady also asserted Mashaney filed his suit beyond the statute of limitations.

Sedgwick County District Judge Douglas R. Roth granted the defendants’ motions, agreeing with BIDS it lacked the capacity to be sued and that Mashaney’s Alford plea foreclosed suit against the attorneys.

The appellate court found Mashaney’s suit was filed in time, but split on the effect of Mashaney’s plea. The majority, according to Friday’s decision, held that a criminal defendant must prove actual innocence in order to pursue a malpractice action and that Mashaney’s plea foreclosed the possibility.

The Supreme Court, however, agreed with a dissenting justice, Judge G. Gordon Atcheson.

“Kansas does not require a legal malpractice plaintiff who bases his or her claim on ineffective assistance of counsel in a criminal case to prove actual innocence of the charged crimes,” the opinion states.

The court remanded the case back to Sedgwick County for further proceedings.

Originally posted by John Green in The Hutchinson News.

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