A man whose conviction of child molestation was overturned because his public defender provided an inadequate defense will recover more than half a million dollars from the state, New Jersey Criminal Attorneys report.
Most of the compensation to be paid Lewis Hagan is the result of a mediated agreement that resolved malpractice and other claims for $400,000, with another $75,000 for attorney fees.
The settlement came after the judge in Hagan v. Office of Public Defender, L-1346-10, gave preclusive effect to another judge's vacating of Hagan's conviction based on ineffective assistance of counsel.
Lewis Hagan was accused in December 2003 of sexually propositioning his girlfriend's 13-year-old daughter, D.B., and touching her inappropriately. Tried in Middlesex County and found guilty of fourth-degree criminal sexual contact and third-degree endangerment of the welfare of a child, Hagan spent more than three years in jail and was released in February 2007.
In his November 2007 petition for post-conviction relief, Hagan contended that at trial, Assistant Deputy Public Defender Robert White III failed to explore important evidence. The evidence suggested that D.B.'s accusations were made in retaliation for Hagan reporting to the principal of her school that her mother was physically abusing her, which resulted in an investigation by the Division of Youth and Family Services (DYFS). In addition, when the principal told Hagan that D.B. was cutting class, he authorized giving her detention. At the time of Hagan's arrest, he and D.B.'s mother had restraining orders against each other.
At the PCR hearing before Superior Court Judge James Mulvihill, Hagan testified that he repeatedly informed White about the above evidence, but White never responded. Hagan further claimed that he told White about a potential witness, Derrick Williams, who said he heard D.B.'s mother boast about setting Hagan up. White asserted that he tried to contact Williams, who was in prison, but his lawyer refused to allow an interview. White said his defense strategy was to attack D.B.'s credibility and portray Hagan as a man who had a healthy relationship with his girlfriend and her children, but Hagan undermined that strategy by taking the stand against his advice.
Mulvihill vacated the conviction based on ineffective assistance of counsel. In his view, White should have used the DYFS report and the restraining order, and should have found a way to speak with the potential witness. An appeals court affirmed and vacated the conviction on August 7, 2009. Hagan was then retried and acquitted.
In Hagan's malpractice suit, Judge Darlene Pereksta of Mercer County Superior Court gave Mulvihill's holding preclusive effect, despite arguments that neither the issues nor the parties in the civil and criminal cases were identical. Pereksta followed up in May 2012, awarding Hagan $75,312 under the compensation statute, representing more than two years lost income as a machinist from the time of conviction to release.
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