innocence of the underlying charge”); Mahoney v. Shaheen, Cappiello,
Stein & Gordon, P.A., 727 A.2d 996, 998–99 (N.H. 1999) (holding that
only clients able to prove actual innocence can challenge decisions made
by defense counsel through malpractice actions); Carmel v. Lunney, 511
N.E.2d 1126, 1128 (N.Y. 1987) (holding that a criminal malpractice
plaintiff “must allege . . . innocence or a colorable claim of innocence” to
state a cause of action); Bailey v. Tucker, 621 A.2d 108, 113 (Pa. 1993)
(“[D]efendant must prove, by a preponderance of the evidence, that he
did not commit any unlawful acts with which he was charged as well as
any lesser offenses included therein [to maintain criminal malpractice
suit].”); Ang v. Martin, 114 P.3d 637, 642 (Wash. 2005) (requiring
criminal malpractice plaintiffs to prove actual innocence by a
preponderance of the evidence to state a cause of action); Humphries v.
Detch, 712 S.E.2d 795, 801 (W. Va. 2011) (same); see also Lamb v.
Manweiler, 923 P.2d 976, 979 (Idaho 1996) (noting that plaintiff did not
dispute that in a criminal malpractice action the plaintiff “must establish
the additional element of actual innocence of the underlying criminal
charges”); Adkins v. Dixon, 482 S.E.2d 797, 802 (Va. 1997) (holding that
actual guilt is a material consideration on issue of proximate cause).
3
The Ang case from Washington exemplifies the reasoning of those
courts that have adopted an actual innocence requirement. The Angs, a
married couple who owned a medical examination company, became the
target of a social security fraud investigation. Ang, 114 P.3d at 639.
3
Some courts have conflated the granting of postconviction relief with innocence.
See, e.g., Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995). In doing so,
they have not distinguished between what the Washington Supreme Court termed legal
innocence—a grant of postconviction relief—and actual innocence, a matter of factual
proof. See Ang, 114 P.3d at 642. Because Barker has already received postconviction
relief, and the original charges have not been pursued, only his actual, as opposed to
legal, innocence is at issue here.