Today’s Outside Counsel Column in the NYLJ by Garber and Vaughn does not mention or discuss legal malpractice.  Nevertheless, its thesis is highly relevant. 

"The 212 people exonerated by DNA evidence since 1989 have raised significant awareness about the criminal justice system’s failure to protect the innocent from wrongful conviction and have led to reform in the handling of criminal investigations and prosecutions.

As 149 of these DNA exonerations have come in the last seven years, a body of data has recently developed that can now be relied upon for meaningful analysis of the causes of erroneous convictions. Cases most likely to result in the conviction of the innocent involve faulty eyewitness identification, misleading forensic evidence, false confessions, or unreliable informant testimony."

Beyond systematic problems in criminal prosecution, there is the lurking elephant of poor work by a criminal defense attorney.  Regularly unavailable for a legal malpractice case, in the absence of actual innocence, the cases of these 212 should similarly be examined for attorney shortcoming.

Incidentally, the legal malpractice statute of limitations starts to run with exoneration.