Malpractice Suit Proceeds against Michigan Defense Attorney in Wrongful Conviction Case

by David Reutter

A former prisoner whose sexual assault conviction was reversed after he served seven years in prison can sue his attorney for malpractice after the Michigan Supreme Court denied leave to appeal an appellate court’s ruling.

Jackob Trakhtenberg, 73, was convicted of second-degree sexual conduct for allegedly touching the genitals of his eight-year-old daughter and forcing her to touch his genitals. He was convicted following a bench trial; his attorney didn’t ask for a jury, didn’t make an opening statement and only called Trakhtenberg as a witness.

After his appeal was denied, Trakhtenberg filed a legal malpractice claim against his defense attorney, Deborah McKelvy. Meanwhile, he moved for relief from judgment in his criminal case. That motion was denied, as was an appeal. The Michigan Supreme Court, however, ordered an evidentiary hearing.

Voluminous testimony was taken at the hearing. The appellate court reversed based on collateral estoppel, as it found in the malpractice case that McKelvy’s performance fell within the “attorney judgment rule.” It also held she was not ineffective. The Michigan Supreme Court reversed and upheld the trial court’s ruling, finding that McKelvy’s “performance in this case was constitutionally inadequate and rendered defendant’s trial unfair and unreliable.” See: People v. Trakhtenberg, 493 Mich. 38, 826 N.W.2d 136 (Mich. 2012).

Trakhtenberg was released on parole in November 2012, and prosecutors subsequently dismissed all charges.

He then continued to pursue his malpractice claim against McKelvy. The appellate court noted that in the criminal case, the state Supreme Court made findings consistent with legal malpractice.

Specifically, McKelvy had failed “to consult with key witnesses,” to properly cross-examine the victim’s mother and impeach the victim, and to interview Trakhtenberg’s son. McKelvy had further failed to adequately investigate before arriving at a trial strategy, and did not consult an expert regarding how the victim made her allegations.

As such, on November 7, 2013 the appellate court found Trakhtenberg had stated an action for legal malpractice and held his claim was not barred by collateral estoppel. It therefore reversed the trial court’s order granting summary disposition to McKelvy. See: Trakhtenberg v. McKelvy, 2013 Mich.App. Lexis 1794 (Mich.Ct.App. 2013). The state Supreme Court denied leave to appeal in March 2014.

Trakhtenberg is seeking damages in excess of $50,000 for the harm he suffered due to a “horrific miscarriage of justice,” said his attorney, James Elliott.

Additional sources: Detroit Free Press, USA Today

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