Convicted murderer sues his lawyer

December 02, 1993|By Carol L. Bowers | Carol L. Bowers,Staff Writer

An Annapolis handyman convicted of murdering an Arnold woman in 1992 has filed a $500,000 lawsuit claiming his lawyer's performance at trial was "negligent."

Albert G. Givens was represented at the trial by Paul M. Kirby, an Annapolis lawyer who was at one time an Anne Arundel County assistant state's attorney and who served as a public defender for more than 10 years.

In the suit filed Monday against Mr. Kirby in Anne Arundel Circuit Court, Givens -- who has served 15 months of a life sentence with no chance for parole -- claims he "would have been acquitted" of the first-degree murder charge if Mr. Kirby "was not so incompetent."

Givens claims in the suit that he paid Mr. Kirby $25,200 for his defense and alleges that Mr. Kirby did not try to have the trial moved even though the case was highly publicized. Court documents show that Givens also objects that he was not put on the stand to testify on his own behalf and alleges that his lawyer "did not ask many key questions of witnesses that were very important to my defense."

The filing is considered unusual among local legal experts, who note that most defendants who claim their attorneys committed malpractice in a trial use a procedure known as "post-conviction."

In that procedure, which can be activated only after all appeals have been exhausted, a defendant can attack the conviction by "alleging he did not have competent representation," said Alan R. Friedman, the Anne Arundel County public defender.

"It's unusual. I've been here 15 years, and I can't remember a case of this magnitude in which a civil suit was filed," Mr. Friedman said. "Mr. Kirby has a great deal of experience in criminal cases. He's not somebody new to the courtroom."

Mr. Kirby, who was in Florida, could not be reached yesterday for comment.

Timothy D. Murnane, co-counsel in the case, who was attending meetings away from his office, also could not be reached for comment. Mr. Murnane was not named in the suit.

At the time of Givens' trial, however, Mr. Murnane was representing a client in a highly publicized drug trial. In the suit against Mr. Kirby, Givens claims that Mr. Kirby did not challenge an order to proceed with the case despite Mr. Murnane's time conflict -- resulting in a violation of his civil rights.

Givens, with Mr. Murnane arguing his case, has already appealed his conviction to the Court of Special Appeals, the state's second-highest court. And in November, Mr. Murnane argued before a three-judge panel that Givens' sentence should be reduced pending the appeal hearing on his conviction.

Givens, a 38-year-old alcoholic, was convicted in April in the slaying of Marlene Fitzpatrick, who was found beaten, sexually assaulted and stabbed to death in her Church Road home in January 1992. The conviction was based on Givens' inconsistent statements to police concerning his whereabouts and the results of a relatively new DNA test performed on a sample of saliva found on a soda can in Ms. Fitzpatrick's home.

Mr. Murnane has argued the DNA test used is unreliable.

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