WEST VIRGINIA RECORD

CHARLESTON – John David Mooney of Huntington, who spent five years in prison because public defender Michael Frazier made a mistake, can't sue Frazier for malpractice.

On April 1, the Supreme Court of Appeals immunized Frazier from liability for faulty advice he gave Mooney in federal court.

"Any action for legal malpractice against a federal public defender must be brought directly against the United States and not the attorney," Chief Justice Robin Davis wrote.

Mooney pleaded guilty to illegal possession of a gun when he could have pleaded that circumstances justified his actions.

After all, the gun might have ended his life if he hadn't grabbed it from his former wife.

U.S. appeals judges in Richmond, Va., freed him in 2007.

In 2008, he sued Frazier and the firm of Frazier and Oxley in Cabell County.

Frazier moved to dismiss under state law immunizing public defenders that circuit courts and the Supreme Court of Appeals appoint.

Mooney answered that the law doesn't immunize lawyers that federal courts appoint.

Cabell Circuit Judge Jane Hustead agreed with Mooney but harbored doubts, so she certified the question to the Supreme Court of Appeals.

All five Justices agreed she should have immunized Frazier. Lacking specific language in state or federal law, Davis blended the two.

She wrote that a private lawyer appointed by a federal court, like Frazier, deserves the same immunity that shields a full time federal defender.

She wrote she was troubled by the fact that federal law didn't protect private lawyers in West Virginia representing indigent defendants in federal courts.

"In contrast, our legislature has seen the wisdom to provide immunity to attorneys regardless of whether the attorney is a public defender or a private attorney," she wrote.

She expressed concern about the quality and number of attorneys available to represent indigents in federal courts if they were subject to malpractice claims.

"We have little doubt that, without immunity, the lawyers in this state who represent indigent defendants in federal courts would be inundated with baseless claims of legal malpractice," she wrote.

Michael Fisher and Ben McFarland, both of Jackson Kelly in Charleston, represented Frazier and the firm.

Nicholas Preservati and Joseph Jenkins, both of Preservati Law Offices in Charleston, represented Mooney.

According to court documents, Mooney returned from work one night at Whisman's Bar to a home he shared with former wife Sandy McCloud. He fixed a meal and took it to bed.

McCloud pulled a lockbox out from under the bed. She lifted a .38 caliber revolver and pressed it against Mooney's head near the temple.

She had pulled a gun on him before. She had fired at a boyfriend. She had fired this gun at a different husband and hit him.

As a former felon Mooney knew he couldn't touch the gun without committing a crime, but it didn't matter. He twirled and snatched it.

He called the bar and told owner Terry Whisman he would bring the gun.

McCloud demanded the gun and threatened to call police.

Mooney dialed 911. McCloud cut him off. He dialed again. She cut him off.

Police picked up bits of the argument. "I'm not worried about going to jail," Mooney said. "You're losing your gun."

On his way out she ripped off his shirt. As he hurried away, she dialed 911.

He reached the bar and Whisman let him in. He reached for a telephone, but Whisman told him police were already outside.

Mooney walked out, hands in the air. An officer removed the gun from a pocket.

He pleaded guilty because Frazier advised him there was no defense.

At a sentencing hearing before U.S. District Judge Robert Chambers, Mooney tried to withdraw his plea.

He said he did something right. He said he was innocent.

Frazier disagreed, telling Chambers he would not argue justification.

Chambers ruled that although Mooney took the gun for good reasons, he committed a crime when he walked out of the house with it.

Fourth Circuit appeals judges granted a new trial, finding a jury would likely have considered a justification defense favorably.

Prosecutors chose not to press charges.

"It appears that Mr. Mooney had served over five years imprisonment before the felony charge was dropped and the case dismissed," Davis wrote.