Wrongly Convicted Man Has Malpractice Claim

(CN) — A Salvadoran imprisoned for three years and ultimately deported for having sex with a teen whose birth certificate was phony may sue his former attorney for malpractice, a federal judge ruled.

The judge refused Friday to seal supporting documents and award summary judgment to a lawyer accused of malpractice by his former client — a man who, after pleading guilty, going to prison, and being deported due to a conviction of having sex with a 15-year-old, hired a new lawyer who found out her birth certificate was fraudulent.

Carlos Lopez-Siguenza, a Salvadoran living in New Jersey, was arrested in 2003, after Melissa Aguilar Cruz told police that she had sex with him when she was 14 and he was 21.

Charged with sexual assault and child abuse, Lopez-Siguenza told his lawyer, Mark Roddy, that he believed that Cruz had reached the age of consent prior to the sexual contact.

But after Roddy told him he had no chance of prevailing at trial, Lopez-Siguenza pleaded guilty to one count of second-degree sexual assault of a minor in 2004.

After three years in state prison, Lopez-Siguenza was deported to El Salvador.

He was arrested in Utah in 2011 for entering the country illegally, so his mother hired another attorney, Jorge Coombs, who investigated the conviction.

Coombs allegedly noticed that the name on Cruz's 1987 birth certificate — which was not notarized or certified, and was handwritten in Spanish — differed from the one she gave police.

Lopez-Siguenza says the General Consul of Honduras ultimately told Coombs that the name Melissa Gabriela Aguilar Guerrero did not exist in the Honduran National Register, and that the national identification number on the birth certificate was not in the proper format.

But the consul found a birth certificate for a Melissa Gabriela Andino Munoz born on March 3, 1984, living in southern New Jersey, court records show.

The trial court gave Lopez-Siguenza habeas corpus and vacated the conviction in 2012.

Lopez-Siguenza then sued Roddy for legal malpractice, breach of fiduciary duty, and breach of contract in 2013. The court later dismissed his civil rights claims against the Atlantic City Police and prosecutors.

New Jersey Chief U.S. District Judge Jerome Simandle granted Roddy's motion to dismiss in 2014, but also granted Lopez-Siguenza leave to amend his legal malpractice claim.

Roddy later moved for summary judgment and to seal the supporting documents.

Simandle denied both motions Friday, finding it unclear whether Roddy's failure to investigate the authenticity of the birth certificate was reasonable.

"On the one hand, defendant investigated Ms. Cruz's age by seeking and obtaining a notarized or certified copy of her birth certificate from assistant prosecutor [Janet] Gravitz," Simandle wrote. "On the other, that alone may have been deficient in a case like this, according to plaintiff's expert, where plaintiff told defendant that he believed her to be above the age of consent and that 'her true age was well-known within the community,' where defendant did not interview any other potential witnesses to corroborate Ms. Cruz's age and where Ms. Cruz's name did not match the name on the birth certificate produced by the state."

Noting that Roddy does not speak Spanish, the judge added that "Roddy never followed up on his demand for a notarized or certified document."

"He never attempted to interview persons familiar with Ms. Cruz's age, nor did he ask an investigator to do so, nor did he take any steps to question the foreign document," Simandle wrote. "The suspicious signs included the facts that the name Cruz is nowhere mentioned, no second surname is listed for the father (contrary to Hispanic naming conventions), and the information is handwritten rather than typed." (Parentheses in original).

The judge refused to seal Roddy's supporting exhibits to prevent disclosure of Cruz's identity, finding that she was not under the age of 18 when she had sex with Lopez-Siguenza.

Roddy's attorney, Jennifer Gottschalk with the Law Offices of Richard Sparaco in Cherry Hill, N.J., said, "We accept the court's ruling and will prepare to proceed to trial."

Lopez-Siguenza's Cherry Hill-based attorneys, James Barry and Michael Galpern with Locks Law Firm, and Benjamin Folkman, did not return requests for comment Monday.

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