FRANKFORT, Ky. (Legal Newsline) - A man who was convicted of producing child pornography succeeded in reversing a judge’s $11.5 million damages verdict against him after a Kentucky appeals court ruled he wasn’t properly represented by a lawyer.
While defendants have a constitutional right to counsel in matters that could result in incarceration, the rule for civil matters isn’t so clear. Kentucky cases have held prisoners have a right to counsel in child support cases, however, and state law requires the court to appoint a lawyer, or guardian ad litem, to represent them in other civil matters if they fail to defend themselves. Civil judgements can’t be entered unless the guardian ad litem has made a defense or filed a report explaining why they couldn’t.
In this case, Larry Dale Foley was accused of luring a 12-year-old identified as A.F. into performing sexual acts on camera. The victim’s mother filed a civil suit against Foley while he was in jail on the child pornography charges and in November 2020 a judge appointed a lawyer to represent him in the civil suit.
Foley was sentenced to 30 years in prison in December 2020 and ordered to pay about $15,000 in restitution to his victim. In April 2021, Foley’s guardian ad litem filed a report saying his client planned to appeal his conviction based on ineffective assistance of counsel and would also deny having sexually abused A.F.
Foley’s lawyer repeated these arguments at a hearing but also asked to be relieved of his duties as guardian ad litem. In July, the lawyer asked to delay a hearing on damages, asked for fees, and said he couldn’t communicate with Foley as he was in federal prison.
The judge released the lawyer from representing Foley in August 2021, and the following month awarded A.F. $11.2 million verdict, including $7.5 million in punitive damages.
Foley appealed, and the Kentucky Court of Appeals, in a July 22 decision, reversed the verdict.
Because Foley is a prisoner and didn’t defend himself in the tort lawsuit, the appeals court said, he was entitled to counsel under state law. The court rejected the argument of A.F.’s mother that the guardian ad litem’s involvement at the beginning of the case was enough.
“Duties of the guardian ad litem are not merely perfunctory,” the court concluded. “Because due process includes the opportunity to examine and to cross-examine witnesses and to introduce and to refute evidence, the prisoner was entitled to counsel throughout the proceedings.”