Professional Negligence Law Reporter

A Virginia appellate court held that a plaintiff in a legal negligence suit had adequately pleaded that he was innocent of the underlying crime for which he was convicted.

Mark O’Hara Wright was indicted on robbery charges. His defense attorney, Andrew Graves, agreed to the prosecutor’s request to instruct the jury not only on robbery but on grand larceny from the person, which it asserted incorrectly was a lesser-included offense. Wright was convicted of grand larceny and sentenced to more than 11 years in prison. Before the end of his sentence, Wright won federal habeas relief on the grand larceny from the person conviction due to ineffective assistance of counsel in failing to object to the erroneous jury instruction at trial.

Wright subsequently sued Graves for legal negligence. Graves demurred, asserting that the plaintiff had failed to allege facts establishing actual innocence. The trial court sustained the demurrer.

Reversing, the appellate court noted that to prove legal negligence in a criminal context, a plaintiff must show actual innocence to the underlying offense. The court disagreed with the trial court’s conclusion that the plaintiff had not pleaded actual innocence to grand larceny from the person. It found that he had pleaded facts about his interactions with a security guard present during the alleged crime and his proximity to a vehicle allegedly used for it. These assertions support the plaintiff’s conclusion that he was innocent of that offense, the court held.

Thus, the court concluded that the trial court had erred in sustaining the demurrer to the plaintiff’s amended complaint.

Citation: Wright v. Graves, 2023 WL 6814023 (Va. Ct. App. Oct. 17, 2023).

Plaintiff counsel: Mark O’Hara Wright, pro se.