When I went into work this morning, I had no idea that it was a holiday. Which apparently explained why the University was deserted. Not that much work gets done there over the holiday break anyway, mind you. But, in light of the mass desertion, I did a couple of hours of work and then went home for some well-earned "vacation" time. If that's what you can call dealing with a five-year old, a three-year old, and a two-month old.
Apparently, however, the entire world didn't take a vacation, which explains at least in part this case. In which Justice Aronson holds that in order to establish a legal malpractice claim against your attorney in a criminal case, you have to show not only that you're actually innocent of the offense for which you were convicted, but also that you were innocent of every lesser included offense as well.
The underlying "actual innocence" requirement is manifestly a results-oriented departure from normal causation principles in the first place, so I'm not sure that Justice Aronson's holding is in any way incoherent. But let's realize what this means. Let's say, for example, that your terrible attorney -- really, really terrible -- performed so incompetently that you were convicted of first degree murder and sentenced to 250 years to life. Even though all that you really did was spit on a guy's shoe. Like I said, your attorney was really, really bad.
Sorry. No malpractice lawsuit. Even if you could prove, beyond a shadow of a doubt, that all you did was to spit on a guy's shoe, and that the reason that you were convicted was because your crappy attorney told you that spitting on a shoe counted as "murder" in Califonia. Tough luck for you. Because you're still guilty of spitting, which is technically battery, which is a lesser included offense of murder. So no malpractice claim.
The results can get even more absurd -- I was thinking, for example, of a scenario where you were convicted of murder but all you really did was to litter, and a court might well hold that leaving a dead body around was litter too, so you can't sue as long as you threw a popsicle stick on the ground. But whatever. It's a silly doctrine to begin with, and one need not go to the ends of the Earth to prove the point.
Just watch out the next time you litter or spit. And hire -- or be appointed -- an incompetent attorney at your peril.
P.S. - The criminal defense attorney who was allegedly incompetent here was Vincent La Barbera, who practices down here (or, from my perspective, up there) in Santa Ana. Who's got a much nicer head of hair than mine!