Christopher Piris v. Alfred Kitching

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTOPHER PIRIS, NO. 71054-1-1
Appellant, DIVISION ONE
v.
ALFRED KITCHING and JANE DOE PUBLISHED OPINION
KITCHING, husband and wife and their
marital community; SOCIETY OF FILED: March 9, 2015
COUNSEL REPRESENTING
ACCUSED PERSONS (SCRAP);
ERIC NIELSEN and JANE DOE
NIELSEN, husband and wife and their
marital community; NIELSEN,
BROMAN & KOCH P.L.L.C; and
KING COUNTY,
Respondents.
Lau, J. — Christopher Piris appeals the trial court's dismissal on summary
judgment of his legal malpractice suit against his former attorneys and King County
arising from his underlying criminal case. Piris contends the trial court erred when it
determined that he failed to allege and prove his innocence of first degree rape of a
child, a necessary requirement to maintain his legal malpractice lawsuit. We conclude
that Piris's negligence allegations fall outside the narrow exception to the innocence
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requirement we recognized in Powell v. Associated Counsel for Accused, 125 Wash. App.
773, 106 P.3d 271 (2005) (Powell I), and Powell v. Associated Counsel for Accused,
131 Wash. App. 810, 129 P.3d 831 (2006) (Powell II). We affirm summary judgment
dismissing as a matter of law Piris's legal malpractice claim.
FACTS
The material facts are not disputed. In 1997, the State charged Christopher Piris
with three counts of first degree rape of a child based on crimes he committed when he
was 13 years old. By the time he was charged with the offenses in Superior Court, Piris
was 19 years old. Piris was represented at trial by attorney Alfred Kitching from the
Society of Counsel Representing Accused Persons (SCRAP).1
On September 25, 1998, Piris pleaded guilty to two counts of first degree rape of
a child. His statement of defendant on plea of guilty indicated a standard sentencing
range for the crimes as 159 to 211 months of confinement.
At sentencing in May 1999, the trial court denied Piris's request for a 48-month
exceptional sentence below the standard range. The court imposed a low-end
sentence explaining:
THE COURT: ... Mr. Piris, I have considered these requests for
exceptional sentence, and it's the conclusion of this court that there are not facts
in this file that would support an exceptional sentence.
There are certainly—this file represents a tragedy undoubtedly in your life
and a tragedy in the lives of many of your family. Be that as it may, I just do not
feel there are facts in this file that will support an exceptional sentence down.
What I am going to do, however, is I am going to sentence you at the bottom of
the standard range which is—Mr. Rogers, I hope I'm correct on this—is 159
months.
1Attorney Michael Frost associated with Kitching as co-counsel. Frost is not a
party in this action.
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Piris appealed the length of his sentence. Attorney Eric Nielsen, from Nielsen,
Broman and Koch law firm was appointed to represent Piris on his appeal. Nielsen
successfully argued on appeal that the standard range sentence of 159 to 211 months
was erroneous because the trial court used the version of RCW 9.94A.360 in effect at
the date of the sentencing hearing instead of the version in effect at the date the
offenses were committed. This statute was amended in 1997, about two years before
Piris was sentenced. Under the correct version of the statute, Piris's offender score
calculation yielded an offender score of 6 rather than 7 and a standard range of 146 to
194 months rather than 159 to 211 months of confinement. Former RCW 9.94A.310
(1993).
In a February 14, 2000 per curiam opinion, we vacated Piris's sentence and
remanded for resentencing based on the sentencing error. On the same day, the court
clerk's office mailed a cover letter and a copy of the opinion to Nielsen and a prosecutor
in the King County Prosecuting Attorney's Office. The cover letter was addressed to
Eric Nielsen at Nielsen's then business address and to Gary Ernsdorff at the King
County Prosecuting Attorney's Office. The same cover letter shows both the sentencing
judge and Piris were copied in on the letter and opinion.2 Piris was never resentenced.
In 2010, Piris was released from prison after serving his original sentence. In
May 2012, he was summoned to King County Superior Court for a probation violation.
While reviewing Piris's file, a superior court judge discovered that Piris had never been
2 Piris's brief argues, "According to Piris, he never heard from Nielsen regarding
the reversal." Appellant's Br. at 3. There is no citation to record facts.
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resentenced.3 The judge imposed a low-end sentence of 146 months, with credit for all
time previously served. The record is silent as to the resentencing court's rationale for
the sentence imposed.
Piris sued Kitching, Kitching's employer (SCRAP), Nielsen, and the Nielsen
Broman & Koch law firm, alleging malpractice.4 In a second amended complaint, Piris
named King County as a defendant.
In September 2013, Nielsen moved to dismiss Piris's lawsuit on summary
judgment, alleging that Piris "cannot prove, and does not assert, his actual innocence of
the crimes of which he was convicted. Therefore, his claims of legal malpractice is
barred under Washington law." King County and Kitching joined in the motion.
The trial court granted the summary judgment in favor of all the defendants. In
its written order, the court reasoned, "The basis for the dismissal is the 'actual
innocence' requirement as set out in Anq v. Martin, 154 Wash. 2d 477[, 114 P.3d 63]
(2005)." The court also denied Piris's subsequent reconsideration motion. Piris
appealed.5
ANALYSIS
Piris maintains the trial court erred by applying the "actual innocence"
requirement "in a case alleging malpractice at sentencing . .. ." Appellant's Br. at 1. He
3 The original sentencing judge had since retired.
4 We refer to Nielsen and his law firm as "Nielsen." We refer to Kitching and
SCRAP as "Kitching."
5 On August 21, 2014, Nielsen filed a motion to strike portions of Piris's reply
brief.
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argues, "A plaintiff in a legal malpractice action alleging sentencing errors only is not
required to demonstrate 'actual innocence.'" Appellant's Reply Br. at 1. Piris does
not contend he is innocent of the crimes for which he was convicted. He relies
mainly on the narrow exception to the innocence requirement we adopted in Powell I
and Powell II.
This court reviews de novo a trial court's decision to dismiss a complaint on
summary judgment. Powell, 125 Wash. App. at 775. The parties agree that this issue
should be decided as a matter of law. Legal issues are reviewed de novo. State v.
Williams, 96 Wash. 2d 215, 220, 634 P.2d 868 (1981).
In criminal malpractice6 cases, proof of innocence is an indispensable element of
a plaintiff's cause of action. In Falkner v. Foshauq, 108 Wash. App. 113, 29 P.3d 771
(2001), addressing an issue of first impression, we held that a plaintiff alleging legal
malpractice occurring during representation in a criminal matter must establish
postconviction relief and demonstrate his innocence by a preponderance of the
evidence, in addition to the elements of a civil legal malpractice claim. The core dispute
in this case involves the innocence element. Because Piris entered a knowing and
voluntary guilty plea, he cannot allege his innocence in this civil malpractice action.
Falkner, 108 Wash. App. at 120. The actual innocence requirement is one of two
proximate cause requirements a malpractice plaintiff must establish. Anq v. Martin, 154
6 "Criminal malpractice" refers to legal malpractice that occurs when an attorney
defends a criminal defendant. Falkner, 108 Wash. App. at 118 n.6 (citing Otto M. Kraus &
Ronald E. Mallen, The Misguiding Hand of Counsel—Reflections on "Criminal
Malpractice," 21 UCLA L. Rev. 1191, 1191 n.2(1974)).
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Wn.2d 477, 482, 114 P.3d 637 (2005). The other—postconviction relief—is not at issue
here.
The innocence requirement is based on compelling public policy considerations.
Requiring a defendant to prove by a preponderance of the evidence that he is
innocent of the charges against him will prohibit criminals from benefiting from
their own bad acts, maintain respect for our criminal justice system's procedural
protections, remove the harmful chilling effect on the defense bar, prevent suits
from criminals who "may be guilty, [but].. . could have gotten a better deal," and
prevent a flood of nuisance litigation. These considerations all support our
conclusion that postconviction relief is a prerequisite to maintaining the suit and
proof of innocence is an additional element a criminal defendant/malpractice
plaintiff must prove to prevail at trial in his legal malpractice action.
Falkner, 108 Wash. App. at 123-24 (footnotes omitted) (alteration in original).
In Owens v. Harrison, 120 Wash. App. 909, 86 P.3d 1266 (2004), Owens appealed
a trial court order dismissing his malpractice lawsuit on summary judgment. He argued
trial court error premised on requiring him to allege and prove he was innocent of the
crime for which he was convicted as part of his criminal malpractice claim and the
dismissal of his breach of contract claim. Owens argued that we should "carve out an
exception to the innocence requirement where defense counsel fails to convey a plea
offer and, as a result, the defendant receives an increased sentence." Owens, 120 Wn.
App. at 914. We declined to carve out an exception citing our holding in Falkner.
"Falkner requires a criminal malpractice plaintiff to establish actual innocence for public
policy reasons, and we see no reason to depart from that holding here. Because
Owens fails to allege or establish his innocence, the trial court properly granted
summary judgment." Owens, 120 Wash. App. at 915 (footnote omitted).
In Anq, the Angs were indicted on 18 criminal counts related to social security
fraud. The Angs initially rejected a plea offer from the State. After conferring with their
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attorney, however, they accepted what they considered a less favorable deal before the
government concluded its case. The Angs hired new counsel to review the plea. The
new attorney determined the government had not met its burden of proof at trial and
that there was no benefit to the plea agreement. The Angs then successfully moved to
withdraw their pleas and were acquitted on all counts. Ang, 154 Wash. 2d at 479-80.
The Angs sued their former attorneys for malpractice. Responding to two special
verdict forms, the jury found that the Angs failed to prove by a preponderance of the
evidence they were innocent of all the criminal charges. The Angs appealed. We
affirmed. Citing Falkner, our Supreme Court held that a plaintiff bringing a malpractice
action against a criminal defense attorney must establish his or her actual innocence of
the underlying charge by a preponderance of the evidence. Related to the legal
causation aspect of proximate causation, our supreme court explained:
Legal causation . . . presents a question of law: "It involves a determination of
whether liability should attach as a matter of law given the existence of cause in
fact." To determine whether the cause in fact. . . should also be deemed the
legal cause of [plaintiff's] harm, a court may consider, among other things, the
public policy implications of holding the defendant liable.
Anq, 154 Wash. 2d at 482 (citation omitted) (quoting Hartlev v. State, 103 Wash. 2d 768, 779,
698 P.2d 77 (1985)). Otherwise, the court wrote, the plaintiff's own bad acts should be
considered the cause of the injury: "Unless criminal malpractice plaintiffs can prove by
a preponderance of the evidence their actual innocence of the charges, their own bad
acts, not the alleged negligence of defense counsel, should be regarded as the cause in
fact of their harm." Ang, 154 Wash. 2d at 485.
The court also cited with approval Falkner's public policy rationale supporting an
actual innocence requirement: (1) prohibiting criminals from benefitting from their own
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bad act, (2) maintaining respect for the criminal justice system, (3) removing the harmful
chilling effect on the defense bar, (4) preventing suits from criminals who may be guilty
but could have gotten a "'better deal,'" and (5) preventing a flood of nuisance litigation.
Anq, 154Wn.2d at 485 (quoting Falkner v. Foshaug, 108 Wash. App. at 123).
In two related cases, Powell I and Powell II, we considered whether plaintiff in a
criminal malpractice action alleging a sentencing error against his defense attorney
must prove by a preponderance of the evidence he was actually innocent of the crime.
Powell I was decided while Ang was pending before the Supreme Court. Powell
pleaded guilty to solicitation to deliver a material in lieu of a controlled substance, a
gross misdemeanor with a maximum sentence of 12 months. Powell I, 125 Wash. App. at
774. But at sentencing, the trial court sentenced Powell for a class C felony to 38.25
months of confinement. After he discovered the error, he filed a personal restraint
petition. Our Supreme Court granted the petition on the ground that the trial court acted
outside its authority and remanded for resentencing. By the time he was released,
Powell had served 20 months in prison. He sued his criminal defense attorney for legal
malpractice and claimed damages for the time he served in prison beyond 12 months.
Defendants responded with a CR 12(b)(6) motion to dismiss his lawsuit, arguing
Falkner's actual innocence rule applied. The trial court agreed, granted the motion, and
dismissed his lawsuit. Powell appealed. We reversed and remanded for reinstatement
of Powell's criminal malpractice claim. We agreed with Powell that application of the
actual innocence rule in his case was unfair. We compared Powell's situation to that of
an innocent person wrongfully convicted:
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Although we have no particular quarrel with the innocence requirement
generally, we agree with Powell that its application in this case is unfair. And we
observe that postconviction relief, in this instance, has not entirely provided
Powell with what competent representation arguably should have afforded in the
first instance. Powell has served substantially more time than the trial court was
authorized to impose for a gross misdemeanor. We conclude that the blind
application of the innocence requirement to the facts of this case would go
beyond the public policy to be served by the innocence requirement.
The policy to be served is that regardless of the attorney's negligence, a
guilty defendant's conviction and sentence are the direct result of his own perfidy,
and no one should be permitted to take advantage of his own wrong. But "an
innocent person wrongfully convicted due to inadequate representation has
suffered a compensable injury because in that situation the nexus between the
malpractice and palpable harm is sufficient to warrant a civil action, however
inadequate, to redress the loss."
Powell's situation is closer to that of an innocent person wrongfully
convicted than of a guilty person attempting to take advantage of his own
wrongdoing. Powell has no quarrel with having been incarcerated for the period
of time justified by the gross misdemeanor that he pleaded guilty to having
committed. In sum, we decline to extend the innocence requirement to these
facts, for to do so would not serve the public policy ....
Powell I, 125 Wash. App. at 777-78 (citations omitted) (quoting Wiley v. County of San
Diego, 19 Cal. 4th 532, 539, 966 P.2d 983, 79 Cal. Rptr. 2d 672 (1998)).
Powell appealed. The Supreme Court remanded the case for reconsideration in
light of Ang.7 In Powell II, we adhered to our rationale in Powell I, noting that in Ang,
our Supreme Court cited Falkner approvingly and concluded that a criminal malpractice
plaintiff must prove actual innocence. Ang, 154 Wn.2d. at 486.
But neither Falkner nor Ang requires dismissal of Powell's complaint. In those
cases, the plaintiffs' allegations of malpractice stemmed from the defendants'
representation during the guilt or innocence phase of the plaintiffs' criminal trials.
In contrast, Powell does not contest his guilt, and the allegations of malpractice
stem entirely from his attorneys' failure to object to the court sentencing him to a
7 Anq was pending before our Supreme Court when we decided Powel I. After
deciding Anq, our Supreme Court granted Powell's petition for review and remanded for
reconsideration.
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much longer sentence than allowed by law. The justifications for requiring proof
of actual innocence do not apply to Powell's case.
Powell, 131 Wash. App. at 813 (footnote omitted).
"Powell will not benefit from his own bad act. He paid for his crime by serving the
maximum prison sentence that could be lawfully imposed. His unlawful restraint beyond
that period was not a consequence of his own bad actions." Powell, 131 Wash. App. at
814.8
Piris analogizes his situation to Powell. He contends that as in Powell, the
sentencing error was not the direct consequence of his own bad act. Instead, the error
committed by his attorney resulted in the court's imposition of an unlawful sentence of
159 months, resulting in an additional 13 months served. He asserts, "Just as in
Powell, the sentence exceeded the maximum that could lawfully be imposed."
Appellant's Reply Br. at 4. Piris correctly quotes the rule that "a sentencing court acts
without authority...when it imposes a sentence based on a miscalculated offender
score." In re Pers. Restraint of Goodwin, 146 Wash. 2d 861, 868, 50 P.3d 618 (2002). But
that rule is not helpful here in resolving the question of whether Powell's narrow
exception applies in this case.
8 Following our remand in Powell II, the defendants moved for summary
judgment. They first argued that, under case law and a sentence doubling statute in
effect at the time, Powell's offense was actually a class C felony. Second, they
asserted that Powell could not establish that any negligence caused him damage.
Finally, they argued that the malpractice action failed because it was not supported by
any expert testimony establishing a breach of the standard of care. Powell v.
Associated Counsel for Accused, 146 Wash. App. 242, 247, 191 P.3d 896 (2008). The
superior court granted the motion to dismiss Powell's claims. Powell, 146Wn. App. at
247. We affirmed. Powell. 146 Wash. App. at 250.
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We conclude that Powell is distinguishable from the present case. In Powell, we
acknowledged the rarity of Powell's sentencing error as a factor justifying the narrow
exception to the actual innocence requirement. There, the court mistakenly imposed a
felony sentence rather than a gross misdemeanor sentence. We noted that the
maximum term of confinement for a gross misdemeanor is limited by statute to one
year.9 But Powell was sentenced for a class C felony to 38.25 months of confinement.
We viewed the error in Powell as particularly egregious because he served in
excess of the statutory maximum sentence that could legally be imposed given the
misdemeanor offense for which he pleaded guilty. The sentencing error in this case is
qualitatively dissimilar to the error in Powell. Piris's correct offender score was 6 rather
than 7 and yielded a standard range of 146 to 194 months instead of a standard range
of 159 to 211 months. Generally, a sentencing court has lawful discretionary authority
to impose any sentence falling within the correct standard range.10 The court rejected
Piris's request for an exceptional sentence of 48 months. It imposed a "bottom end"
sentence of 159 months. It declined to impose the State's high-end recommendation of
211 months. While it is correct that miscalculation of the offender score renders the
sentence unlawful, a sentence of 159 months falls within the 146 to 194 months
9RCW9A.20.021(2):
Gross misdemeanor. Every person convicted of a gross misdemeanor in Title 9A
RCW shall be punished by imprisonment in the county jail for a maximum term
fixed by the court of up to three hundred sixty-four days or by a fine in an amount
fixed by the court of not more than five thousand dollars, or by both such
imprisonment and fine.
10 Generally, a defendant is precluded from appealing a sentence within the
standard range. RCW 9.94A.585(1); State v. Mail, 121 Wash. 2d 707, 710, 854 P.2d 1042
(1993).
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standard range for Piris's offense. Unlike in Powell, Piris's original sentence of 159
months did not exceed "the maximum that could lawfully be imposed" as was the case
in Powell. Appellant's Reply Br. at 4. It is not disputed that the original sentencing court
here could have lawfully imposed up to the high end of the standard range.
Piris's assertions rely on the unfounded assumption that the original sentencing
court would have imposed the bottom end of 146 months if informed of the correct
standard range.11 That assertion rests on mere speculation. Given the record here, it is
impossible to know whether the original sentencing court would have imposed 146
months or 159 months based on a correct offender score calculation. In essence,
whether the appropriateness of 159 months drove the court's original sentencing
decision or the desire to impose the lowest possible sentence remains an unanswered
question.
Recognizing the uniqueness of the sentencing error in Powell, we observed,
The highly unusual alleged facts of this case, whereby an alleged egregious error
by defense counsel allowed a defendant to be sentenced to a term substantially
longer than the maximum term allowed by statute, and the defendant actually
served time in prison beyond the correct maximum term, are not likely to occur
with any freguency.
Powell, 131 Wash. App. at 815 (emphasis added).
We also noted with concern that
Powell's claim presents an allegation of particularly egregious attorney
negligence—failure to advise the court that it was sentencing Powell for a felony,
when he committed a misdemeanor. We do not imagine that this is a common
oversight by defense attorneys. Carving a narrow exception to the rule requiring
11 Piris's contentions that his case is controlled by Powell rests on the
assumption that the original sentencing court undoubtedly would have imposed the
"bottom end sentence" of 146 months.
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proof of actual innocence will not dissuade attorneys from pursuing careers in
criminal defense.
Powell, 131 Wash. App. at 814 (footnote omitted).
We concluded by holding, "[U]nder the facts of this case, we adopt a very limited
exception to the rule requiring proof of actual innocence in a legal malpractice case
stemming from a criminal matter." Powell, 131 Wash. App. at 815 (emphasis added).
Powell leaves no doubt that the innocence exception granted in that case was grounded
in a rare sentencing error—a defendant who mistakenly is sentenced to a felony when
he committed a gross misdemeanor.12
12 We note with concern the potential for opening a floodgate of criminal
malpractice lawsuits involving claims of sentencing errors given the ever-increasing
complexities of the Sentencing Reform Act (SRA).
"The difference of a single point may add or subtract three years to an offender's
sentence. Therefore, the accurate interpretation and application of the SRA is of great
importance to both the State and the offender. Because each offense must be analyzed
under the law in effect at the time the offense was committed, each time the SRA is
amended, it adds an additional level of complexity to the task of courts, as well as the
prosecution, the defense, and the Department of Corrections. State v. Jones. 118 Wn.
App. 199, 76 P.3d 258 (2003), is illustrative. In Jones, the trial court was required to
analyze and attempt to harmonize three separate amendments to the SRA. As Judge
Dean Morgan observed in Jones, "[i]t is extremely difficult to identify what statute
applies to a given crime, much less to coordinate that statute with others that may be
related." Id. at 211-12. Since the SRA was adopted in 1981, it has been amended by
181 session laws.FN4 The complexity and difficulty applying the SRA is exacerbated by
each successive change to the SRA. Interpreting and harmonizing amendments to the
SRA has increasingly occupied the time of both trial and appellate courts. In all
likelihood this trend will continue. In the 58th legislature alone, 97 bills were introduced,
which proposed a total of 262 changes to the SRA. Notwithstanding constant
modifications to the law, courts strive to make the law clear, understandable, and
predictable.
"FN4. Jones, 118 Wash. App. at 211 n.32 (listing 175 session laws that amended
the SRA; however, absent from this list was Uws of 2003, ch. 53). The 58th legislature
also amended the SRA with five session laws in 2004. Laws of 2004, ch. 38; Laws of
2004, ch. 94; Laws of 2004, ch. 121; Laws of 2004, ch. 166; Uws of 2004, ch. 176. In
all, the 58th legislature considered 97 bills that would have amended the SRA. Of those
97 bills considered, 14 were enacted, www.leg.wa.gov/pub/billinfo/2003-
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Falkner requires a criminal malpractice plaintiff to establish actual innocence for
public policy reasons. Falkner, 108 Wash. App. at 123-24. "The public policy behind this
requirement is that '[r]egardless of the attorney's negligence, a guilty defendant's
conviction and sentence are the direct consequence of his own perfidy,' and, thus,
cannot be the basis for civil damages." Falkner, 108 Wash. App. at 120 (alteration in
original) (footnotes omitted) (quoting Wiley, 966 P.2d at 986)). Here, Piris's own
criminal conduct led to his conviction and subsequent sentence. His criminal history led
to an offender score calculation that yielded a 146 to 194 month standard range
sentence. A sentence of 159 months falls within this standard range.
Piris also relies on a 2008 publication of the Legal Malpractice treatise by Ronald
Mallen and Jeffrey Smith to argue that the "'issue of guilt or innocence is relevant, if the
client's complaint is the fact of conviction, rather than the severity of the sentence or
other conseguences. But 'actual innocence' is 'not relevant if the attorney's error
concerns the extent or severity of the sentence.'" Appellant's Br. at 4-5 (citation
omitted) (quoting 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 26.13
(2007 ed.)).13'14
04/chapter_to_bill_table.htm (last checked May 11, 2004);
www.leg.wa.gov/wsladm/billinfor1/rcw_sl_selections.cfm?year=03 (last checked May
11, 2004); www.leg.wa.gov/wsladm/billinfo1/rcw_sl_selections.cfm (last checked May
11, 2004); www.leg.wa.gov/wsladm/billinfo/rcw_to-biil_table.cfm (last checked May 11,
2004)." In re Pers. Restraint of Christopher LaChappelle, 153 Wash. 2d 1, 7, 100 P.3d 805
(2004).
13 The 2008 version has been revised and no longer states that rule as absolute.
It presently reads, "Guilt usually is not relevant if the attorney's error concerns the extent
or severity of the sentence." 3 Ronald E. Mallen & Jeffrey M. Smith, Legal
Malpractice § 27.13, at 1057 (2008 ed.) (emphasis added).
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None of the case authorities cited in Legal Malpractice for this statement apply to
the present case. Unlike the facts here, those cases involve (1) sentences exceeding
the statutory maximum, (2) jurisdictions that do not require proof of actual innocence, or
(3) cases where actual innocence was not raised as a defense. Piris cites no controlling
authority where a court carved out an exception to the actual innocence requirement for
a sentencing error similar to the present facts.
Given our dispositive resolution of this issue, we need not address Piris's claim
regarding collateral estoppel, King County's statute of limitations argument, or the
motion to strike.15
CONCLUSION
For the reasons discussed above, we decline to extend Powell's narrow
innocence exception to Piris's case. Piris cannot satisfy the innocence requirement
because he pleaded guilty to two charges and he does not claim to be innocent.
Accordingly, his criminal malpractice claim fails to survive summary judgment.
We affirm.
WE CONCUR:
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14 Nielsen cites the 2013 version of Mallen and Smith, also stating that guilt is
"usually" not relevant. Br. of Resp't Nielsen at 18.
15 Nielsen filed a motion to strike in this court on August 21, 2014. In it, he
alleges that certain statements made by Piris are unsupported or misstatements of the
respondents' position.
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