Jason Gonzalez
Fitchburg Mayor Jason Gonzalez, who is also a criminal defense lawyer, is being sued for attorney malpractice. His former client, Jama Jama, is seeking unspecified compensation after being convicted of felonies that were ultimately overturned by Dane County Judge Ellen Berz due to Gonzalez’s negligent legal representation.
Gonzalez declined to comment on the civil lawsuit, deferring questions to his attorney Peyton Engel. “A lot of times in criminal law, you wind up with clients unhappy with the way things turned out. That’s part of the daily grind of a criminal defense attorney. That’s what we’ve got here,” says Engel. “I would encourage people to wait and see how it goes before drawing conclusions about Jason.”
The lawsuit filed by Jama comes as the mayor awaits a decision from the Wisconsin Supreme Court regarding several counts of lawyer misconduct brought by the state Office of Lawyer Regulation, which is seeking a rare public reprimand of Gonzalez over complaints filed by two other former clients.
Gonzalez was hired by Jama to represent him in a 2014 criminal case. Jama was charged with third degree sexual assault, second degree sexual assault, and two felony counts of burglary of a dwelling, as well as misdemeanor theft and resisting an officer. He was found guilty on all counts by a jury on Feb. 28, 2014, and sentenced that December.
Jama hired attorney Cole Ruby six months into his sentence to seek post-conviction relief. In February 2017, Berz vacated the convictions and granted Jama a new trial due to Gonzalez’s “ineffective assistance of counsel.”
During the retrial, prosecutors dismissed the felony charges against Jama; he plead guilty to two misdemeanors and was released from jail for time served. According to the complaint, Jama eventually spent 200 more days in jail than he should have for the crimes he was ultimately convicted of.
In her 30-page decision granting Jama a new trial, Berz writes that Gonzalez “never bothered to interview his own client.”
“[Gonzalez] rarely even spoke to [Jama], but for making arrangements to receive payment. He did not query [Jama] for his side of the story,” wrote Berz in her 2017 decision. “He did not consult with [Jama] about planned strategies or defense theories, he deflected [Jama’s] requests for meetings and information.
“[Gonzalez] approached his representation of defendant like a law school exam (how many possible defenses are presented in this hypothetical) rather than as a solemn undertaking requiring communication, investigation and preparation. At stake was not simply a grade; at stake was defendant’s liberty.”
In Jama’s first trial, Berz found that Gonzalez “chose to make up ‘facts’” which “had little to no support in the evidence and which were internally conflicting.” Berz notes that in Gonzalez’s closing argument, he told the jury that evidence pointed to Jama’s identical twin brother as the perpetrator, despite a video that showed the brother at a grocery store during the time of the alleged crimes.
Gonzalez also offered a defense that Jama had difficulty speaking English even though his client is fluent and has no accent.
Additionally, Gonzalez floated a theory that Jama was never with the victim even though there was evidence to the contrary.
“Gonzalez cobbled together his multiple, conflicting defense theories from whole cloth,” wrote Berz. “He was not constrained by the evidence provided in discovery, any defense investigation or the facts known by his client.”
At various points in the proceedings, Gonzalez offered bizarre objections. As described by Berz, Gonzalez, “for no discernable reason, objected to using the letter ‘C’” to designate the location of a condom wrapper on an exhibit used during the trial.
During cross-examination of a witness, Berz said Gonzalez attempted to elicit testimony “that ranged from having no relevance to being totally ludicrous.”
Berz said the prosecutor knew Gonzalez “lacked a working knowledge of, let alone proficiency with, the rules of evidence. And, [the prosecutor] took full advantage of that deficit.”
Gonzalez’s malpractice insurance provider, Wisconsin Lawyers Mutual Insurance Company, is named as a defendant in the complaint but declined to comment.
Engel says Gonzalez plans on fighting the lawsuit and hasn’t spoken to Jama’s attorney about how much financial compensation is being sought. However, Engel says some time ago, Jama “made a demand of $1.5 million which is not in the realm of possibilities.”
Engel says there’s a high standard for malpractice cases. “You have to show you were actually innocent of the crime that you were convicted of,” says Engel.
A transcript of Jama’s 2014 trial reveals that Gonzalez himself sought, but was not granted, a motion for a mistrial after calling into question his own cross-examination of a witness.
“I’m not sure how effective that cross was…. I’m not sure what negative impact that has had on the jury,” said Gonzalez. “There’s been significant expense incurred by the state as well as the defense and the defendant and the court system and the taxpayers and the jurors. I reluctantly move the court for — to grant a mistrial.”
