Lawyer cleared in malpractice case filed by murder-trial client

April 05, 1995|By Dennis O'Brien | Dennis O'Brien,Sun Staff Writer

An Annapolis lawyer was cleared of malpractice charges yesterday when an Anne Arundel Circuit Court judge threw out the case because the convicted murderer who filed the suit failed to present enough evidence for a jury to consider the issues.

Judge Eugene M. Lerner ruled that Albert M. Givens Jr., 40, did not present the expert testimony necessary to show that Paul Kirby's handling of his 1993 murder trial fell short of the standard of care expected of lawyers. Givens was convicted at the end of that trial.

"None of the plaintiff's witnesses were lawyers or had any expertise in the legal field," Judge Lerner said yesterday in dismissing Givens' suit.

The ruling came after Mr. Kirby's attorney, Glen Trimmer, argued that Givens didn't prove any of the claims alleged in the suit filed Nov. 29, 1993, after Givens' first-degree murder conviction.

"All the evidence shows that certainly Mr. Kirby did the best he could to defend his client," Mr. Trimmer argued.

Givens is serving a sentence of life without parole. He was convicted April 14, 1993, of the murder of Marlene Kilpatrick, 55, who was stabbed, beaten and sexually assaulted in her Arnold home in January 1993.

Yesterday in his opening statement, Givens, who represented himself, said he was wrongly convicted because Mr. Kirby did not call key witnesses and failed to challenge state's evidence. He also said that Mr. Kirby never informed him -- before he was hired for $25,000 -- that this was his first case involving DNA evidence. Givens' conviction was based in part on DNA in saliva markings found on a bottle at the murder scene.

"Mr. Kirby botched and blundered his way through the entire trial, with reckless disregard for his client's rights and his client's life," Givens told a six-member jury.

Mr. Trimmer noted that the Court of Special Appeals upheld Givens' conviction and that the Attorney Grievance Commission dismissed Givens' grievance against Mr. Kirby.

He also said Circuit Judge Raymond G. Thieme Jr., who presided over the murder trial; attorney Thomas C. French, the judge's law clerk during the trial; and assistant state's attorney Kathleen E. Rogers, who prosecuted the case, would have testified on Mr. Kirby's behalf.

After Judge Lerner's ruling, Givens' mother, Ellen Hockenberry, said she and her son could not afford an attorney to handle the suit or testify as an expert.

"Everything I had went to my son's defense in his trial," she said.

Mr. Kirby, a lawyer since 1973 and a former assistant state's attorney and assistant public defender, said he did everything he could for Givens but feels sorry for his former client.

He also said Judge Lerner's ruling didn't surprise him, though he was relieved the legal challenge was finished.

'I think we showed that it wasn't anything that I did that got [Givens] convicted," he said.

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