Law.com

First Exoneration, Next Compensation?

Mary P. Gallagher
New Jersey Law Journal
02-23-2004


DNA evidence cleared John Dixon of rape and freed him from prison in 2001, but he now seeks another sort of vindication.

He has sued the public defender's office, alleging that for 10 years it turned a deaf ear to his requests for DNA testing. And on Feb. 6, Essex County Judge Mary Jacobson denied a motion to dismiss his suit, Dixon v. Segars, L-7598.

The public defender's office had tried to get the case thrown out, claiming it was time-barred. The office also said a law allowing damages for wrongful conviction and imprisonment, N.J.S.A. 52:4C-1 et seq., does not apply to Dixon because he pleaded guilty.

But according to Dixon's attorney, Paul Casteleiro, those arguments did not sway the judge.

Jacobson noted that the public defender was still representing Dixon as late as 2000. In addition, she relied on Alampi v. Russo, 345 N.J. Super. 360 (App. Div. 2001), which held that convicts cannot sue for legal malpractice unless they are exonerated. That meant the clock did not start running for Dixon until 2001.

Dixon's papers describe a chain of events that began on Jan. 18, 1991, when he was arrested for kidnapping, rape and robbery about three weeks earlier in Irvington, N.J. The victim picked him out of a photo array.

New Jersey abandoned that type of identification process in 2001 as unreliable, says Casteleiro, a Hoboken, N.J., solo practitioner who took on Dixon's case in 1999 under the auspices of the Innocence Project in New York.

Moreover, Dixon's 5-foot, 8-inch, 150-pound physique did not match the 6-foot, 190-200 pound attacker described to police, adds Casteleiro.

Dixon alleges that he began asking right away for a DNA test but his assigned public defender, Regina Marrow, did not meet with him for almost three months.

Dixon first pleaded not guilty but changed his plea, allegedly on Marrow's advice. He claims that after brushing off his requests for testing, she told him he had no defense and would get 50 years if he went to trial. Dixon claims he wrote twice to Judge Leonard Ronco, pleading for DNA testing and insisting that he was innocent. He says in his court papers that he pleaded guilty for fear he would lose at trial without the test.

When Dixon appeared before Ronco for sentencing on Nov. 12, 1991, Marrow made an oral request to withdraw the pleas.

According to the transcript, Ronco asked, "It's not even relevant to this case, is it, DNA?" and the prosecutor replied, "I doubt it." Marrow then said, "It may be relevant only to the extent that the State never moved to have Mr. Dixon examined." She also referred to the existence of a rape kit collected at the time of the crime and to Dixon's assertion that the DNA would not match. Ronco denied the motion.

There was no plea deal, and Dixon was sentenced to 45 years, with 15 years of parole ineligibility, consecutive to a 15-year sentence he was serving on a Union County robbery.

He did no better on appeal. Because Dixon wanted to raise the issue of Marrow's incompetence, the case was assigned out to pool attorney Jack Gerber of Elizabeth, N.J., according to the complaint. But Gerber never consulted with him and raised only the issue of an excessive sentence, Dixon alleges.

The sentence was upheld but Dixon claims he continued to ask for DNA testing, writing to Gerber; Michael Marucci, head of the Essex defenders' office; the Administrative Office of the Courts and others. In 1996, he sued to force testing but the case was dismissed.

In September 2000, the Essex County prosecutor's office agreed to pay for testing. Deputy Chief Assistant Prosecutor Robert Laurino said in a December 2001 interview with the Law Journal that he did so based on the dearth of evidence against Dixon and his unceasing efforts to obtain testing.

The test showed that Dixon's DNA did not match the sperm in the rape kit, and Essex County Judge Harold Fullilove vacated the conviction on Nov. 29, 2001. Six days later, Dixon walked free.

Casteleiro cannot say how much extra jail time the denial of DNA testing cost his client. But he estimates that Dixon would have been paroled after three years on the robbery, meaning he spent at least seven extra years behind bars.

Last September, Dixon sued Marrow, Gerber, Marucci and Public Defender Yvonne Smith Segars, claiming they failed to exercise the requisite standard of care or meet their contractual obligations. Dixon seeks compensatory and punitive damages.

No answer has been filed, but the defendants moved on Jan. 2 for summary dismissal on the ground that Dixon's time to sue began to run no later than his sentencing in 1992, and ended in 1998.

They also argued that the wrongful imprisonment statute does not apply where someone brings about his own conviction and that Dixon cannot prove he is innocent of all charges.

Jacobson rejected the time bar and said there was an issue of fact about whether the statute applied.

Peter Aseltine, spokesman for the attorney general's office, which represents the defendants, declines to comment. Gerber did not return a call.

Casteleiro says Dixon appears to be the first person in New Jersey cleared by DNA evidence to sue a former lawyer over delayed testing. But those who have done so elsewhere have faced serious obstacles.

A Wisconsin jury awarded $2.6 million in 2000, but an appeals court reversed. Hicks v. Nunnery, 643 N.W.2d 809 (2002), held it was not enough that prosecutors chose not to retry Anthony Hicks after he was cleared by DNA evidence from hair found at a rape scene. Hicks also had to prove his innocence in the civil case. In Tibor v. McNamara, 52 Cal. App. 4th (1997), a California appeals court reached a similar conclusion.

A New Jersey appeals court recognized a right to DNA testing in 1991, two days before Dixon's arrest. In State v. Thomas, 245 N.J. Super. 428, the court reversed a kidnapping and rape conviction and remanded for DNA testing, where the trial court had denied a post-verdict motion for testing.


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