Patrick Vanderpool's defense attorney — the guy sitting beside him and advising him in a first-degree sexual assault case — wasn't a licensed attorney.
Yet that wasn't enough for Vanderpool to get a new trial.
Douglas County District Judge James Gleason refused to overturn Vanderpool's conviction for sexually assaulting an 8-year-old girl, ruling Friday that former attorney David Walocha competently represented Vanderpool, even though Walocha wasn't licensed.
In turn, Vanderpool, 28, will remain in prison serving his 10- to 15-year sentence.
The ruling is the latest fallout from Walocha's 12-plus-year run of practicing law without a license.
Walocha was disbarred after authorities — following up on a tip from Vanderpool's mother — discovered that he had handled more than 65 cases from 1998 to January 2011 without a law license. Walocha's license was suspended in 1996 after he failed to pay his state-required bar association dues.
Gleason, however, ruled that mere failure to pay dues doesn't automatically render an attorney ineffective. Gleason pointed to 14 other rulings — all from other states — in which courts ruled similarly.
“In varying sets of circumstances, courts of other states have determined, almost unanimously, that an attorney whose license has been suspended for failure to pay dues may still be ‘counsel,'” Gleason said.
The ruling came as a pleasant surprise to prosecutors, who originally braced for the idea that Vanderpool's conviction would be overturned.
Vanderpool's new attorney, Douglas County Public Defender Tom Riley, said he would appeal. The Nebraska Supreme Court has never ruled on a case with the same quirky pattern of facts as Vanderpool's.
In February 2010, prosecutors charged Vanderpool, then 25, with first-degree sexual assault of a child. Prosecutors alleged that Vanderpool made a girl perform oral sex on him over a period of several years, starting when the girl was 8.
Vanderpool hired his friend Walocha — then a bartender who also billed himself as an attorney. Walocha never disclosed that he had let his law license lapse.
On the eve of trial, under Walocha's advice, Vanderpool pleaded guilty to the crime. He didn't discover that Walocha wasn't a licensed attorney until after he was sentenced.
Soon after, Vanderpool filed a motion for postconviction relief — arguing that Walocha hadn't given him effective counsel.
The judge ruled that Walocha capably represented Vanderpool. Gleason noted that Walocha had filed a motion to suppress Vanderpool's statements to police — a motion that succeeded.
The judge also noted that Walocha arranged a plea deal for Vanderpool in which prosecutors reduced his charge from first-degree sexual assault to attempted first-degree sexual assault. That reduced Vanderpool's punishment from a 15-year mandatory minimum to one to 20 years in prison.
“Most if not all of the statements (about Walocha's performance) are refuted by the record,” Gleason said.
Prosecutor Katie Benson said Vanderpool's “guilt or innocence wasn't in question.” During the plea hearing, Vanderpool told the judge that he had made the girl perform a sex act on his “private parts.”
Gleason said he found no credibility in Vanderpool's claim that Walocha told him he had to admit to the crime — or in his claim that Walocha had promised that he would get probation.
Walocha “told me that during the plea I had to say nothing was promised to me or I would not get probation,” Vanderpool said. “I believed this is how the system worked ... and believed it was most important that I not go to jail.”
Though he wasn't questioned in court, Walocha told The World-Herald that he never promised probation to Vanderpool. And court transcripts of the plea hearing show that the original case judge repeatedly informed Vanderpool that he faced up to five years of probation or 20 years in prison.
The case judge said he could not guarantee what sentence Vanderpool would get.
“Patrick Vanderpool unequivocally represented to the (judge), on the record, that no promises were made by anyone regarding his sentence,” Gleason ruled. “To now determine that his plea was not voluntarily entered ... would be to make a mockery out of the arraignment.”
Riley said he was disappointed by the ruling, though not necessarily surprised.
“The initial reaction is ‘Well, geez, how could you possibly say that this is effective when someone was not licensed?' But the case law is nuanced.”
So, too, were prosecutors' arguments. At first blush, Riley said, prosecutors “seem to be (making) a duplicitous argument.”
“On the one hand they're saying he committed a criminal offense by representing individuals without a license,” Riley said. “But here they're saying even though he committed a criminal offense, he did a constitutionally sufficient job of representing the client.”
Benson, a deputy Douglas County attorney, said there was nothing controversial about the prosecutors' stance.
Yes, she said, Walocha represented Vanderpool competently. And yes, she said, he was not authorized to practice law. (Walocha was given a 30-day jail sentence after pleading guilty to the misdemeanor.)
“It's two separate issues,” Benson said. “His performance in (Vanderpool's) case doesn't take away from the fact that he was practicing intentionally and knowingly without a license.”
Contact the writer: