Exonerated Convict Files Tardy Lawsuit Against Defender’s Office

COURT HOUSE — An accused drug dealer, who had his conviction overturned due to courtroom shenanigans by his court appointed lawyer, waited too long to let the courts know he wanted to sue the public defender’s office.
John Rogers, 38, was indicted in August 1998 on multiple drug distribution charges.
Rogers argued that it was his brother (Ray Rogers) who was arrested for dealing drugs earlier that year, not himself. Rogers claimed his brother gave his name and birth date to police instead of his own.
At trial, Rogers’ public defender Erica Smith hatched a plan to fool police. She had Rogers and his brother switch clothes in an effort to show that the arresting officer could not accurately identify Rogers. The attorney planned to have Rogers sit in the audience while his brother sat at the counsel table during the arresting officer’s testimony.
Rogers didn’t go through with the plan, which was discovered before completed.
In addition to the switcheroo plan, Rogers said his lawyer also failed to call two witnesses who were prepared to testify that Ray Rogers was dealing drugs that day, not John Rogers.
In the end, Rogers was convicted and sentenced to 14 years in state prison with no parole for six years.
Rogers was unsuccessful in his first appeal attempts. Then, in 2005 he asked a trial judge for post-conviction relief claiming his defense counsel’s mistakes were the reason he was convicted, but again he was denied.
In October 2007, however, Rogers’ conviction was overturned by an appeals court. The appellate judges found Smith’s “impostor plan” to be “ill-conceived and unethical.”
“We therefore reject the judge’s conclusion that this ill-conceived and unethical conduct on counsel’s part played no role in defendant’s conviction,” the appellate decision stated. “Where the outcome depended in large part on the jury accepting his credibility, this ploy so unfairly damaged defendant’s credibility as to deny him a fair trial.”
“We have determined that, standing alone, counsel’s conduct in devising the defendant-substitution plan warranted post-conviction relief,” the decision concluded.
Following this reversal, Rogers’ indictment was dismissed in July 2008.
Two months later, Rogers retained another lawyer for his civil lawsuit. That civil attorney didn’t immediately file the notice required by the Tort Claims Act, suggesting he needed to thoroughly review the matter to “be completely sure of what transpired.” The notice was finally filed on Nov. 3, 2008.
When attempting to sue a public entity, state law requires that a claimant file notice, or inform the entity of its intentions, within 90 days of the “cause of action.” The claimant then has six months from the date the notice is received to file suit in an appropriate court of law.
The 90-day rule gives the entity time to settle the matter out of court; conduct investigation and prepare a defense; correct the conditions or practices which gave rise to the claim; and inform the state about any liability that it may be expected to meet.
On July 14 last year, Rogers filed a motion for leave to file his notice late. The motion judge determined that, for the purpose the lawsuit 90-day notice period, Rogers was “exonerated” when this court overturned his conviction on Oct. 23, 2007.
He filed his notice 10 months after that deadline. Therefore, the judge determined Rogers filed too late and denied his motion.
Rogers appealed, challenging the judge’s conclusions.
Rogers argued that the trigger date for the notice should have been when the indictment was dismissed and he could not be retried on those charges in July 2008.
The appellate judges agreed with the motion judge.
“At that point (when his conviction was overturned), Rogers was certain counsel’s conduct was negligent and that it had caused him injury,” the appellate decision stated. “Accordingly, he was required to file a notice within 90 days.”
He did not and the judges said ignorance was no excuse.
According to the state Department of Corrections, Rogers was incarcerated in state prison from July 30, 1999 to Oct. 28, 2005. He was released from the now-closed Riverfront State Prison in Camden.