Law.com


Oops! Did I Say 'No Jail'?

Leonard Post
The National Law Journal
02-07-2003


A 77-year-old great-grandmother who spent a year in prison for a crime she didn't commit has won a $1.77 million malpractice suit against her attorney, who had advised that if she pleaded guilty not withstanding her claim of innocence she'd get probation.

It started in 1996 when Roberta Carmons of Kansas City, Mo., who has an 11th-grade education, was charged with endangering the welfare of a child for having known that her son had once allegedly sexually assaulted her great-grandson and allowing it to happen again, according to Kent Gipson of the Public Interest Litigation Clinic, a Kansas City nonprofit law firm.

Carmons was not present at either alleged assault. Then 71, she worked two jobs, supporting the three generations of her family who lived with her.

Carmons' lawyer, R. Gregory Gore of Independence, Mo.'s Gore & Associates, didn't speak to any witnesses and never talked to his client about potential defenses or even what the state would need to prove, Jackson County Circuit Court Judge Edith L. Messina ruled in granting partial summary judgment. Before turning the case over to the jury to decide damages, the judge also found that Gore told Carmons that if she pleaded guilty she wouldn't go to jail.

The jurors unanimously slammed Gore with $1.5 million in punitive damages for "his complete indifference to or conscious disregard for" his client's rights. The balance of the judgment was for negligence.

SENT UP FOR THREE YEARS

The first judge to hear Carmons' criminal case refused to accept her guilty plea. The district attorney dismissed without prejudice, then refiled. In front of a different judge in 1997, Carmons got the same advice from Gore: Plead guilty. The district attorney asked for five years. Judge K. Preston Dean sentenced her to three.

Gipson's investigation revealed that when her great-grandson had accused her son of the first assault, she had taken him to the hospital where no evidence of a sexual assault was found, and where the child recanted.

"They had no case," Gipson said, so he filed a post-conviction relief motion in the state circuit court, akin to a habeas petition, claiming that there was no factual basis for Carmons' plea. Dean denied the motion, so Gipson appealed.

The court of appeals reversed and remanded, finding that "the circuit court failed to establish a proper factual basis for that offense." The case was sent back to Dean, who dismissed it, but Carmons was already out on parole. Carmons v. State, 26 S.W.3d 382 (Mo. Ct. App.).

Gipson said that Gore had committed "an egregious error in judgment" in getting her sent to prison.

Jamie Lansford of Kansas City's Benson and Associates took over a suit filed against Gore on Carmons' behalf in 2001. It was started by another attorney who left the firm.

"She was sent to a prison on the other side of the state, too far for friends and family to visit her," Lansford said. "She was hospitalized for high blood pressure. She was awakened at five every morning, subjected to the humiliation of random urinalysis, worked in the prison laundry. A granddaughter dies and she can't go to the funeral."

Gore, representing himself, denied the allegations in the suit but never responded to discovery orders, which caused the judge to issue the partial summary judgment. He never appeared in court.

Gore could not be reached for comment but has told Lansford that he has no malpractice insurance, declared bankruptcy a few years ago and has no assets that Carmons can reach. He also has told her he would like to work out a settlement, but she has yet to hear an offer.




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