Idaho Criminal Defense Blog : Boise Idaho Criminal Lawyer & Attorney : Chuck Peterson Law Firm : Civil Rights, Trial, Felonies, Assaut, DUI : Boise, Idaho Falls, Pocatello, Idaho

The other shoe has fallen.  John Bujak, formerly the Canyon County Prosecutor, has been charged with Grand Theft by Deception and by Embezzlement, and the investigation of the case is set out in a detailed affidavit that is available online at the Idaho Press Tribune website, or here.  But before you think this thing is over, I bet there are more falling shoes in our future.  Here's why:

First, the affidavit indicates that although Bujak maintained neither he nor his chief of staff Tim Fleming would profit from the contract between Canyon County and Nampa City, BOTH did profit and neither apparently thinks there was any problem with their conduct. Bujak told the investigators that the issue wasn't whether he took the money, but rather, whether he was permitted to take the money. Apparently in his mind, those statements that he would not personally profit (the Canyon County Commissioners say that they were led to believe Bujak would not profit) were only intended to refer to his agreement to "not take a salary increase."  So the investigation reveals that as the money came in from the City, which believed it was going to pay the County, Bujak used the money for his personal expenses, transferring money to his own private accounts.  It also shows that in late March 2010, Bujak used the same money to buy a $10,000 cashiers check for Tim Flemming - Bujak's former chief of staff. Why was the $10,000 cashiers check, purchased out of Nampa City funds that were intended for Canyon County, going to Tim Fleming? Gift? Bonus? Mr. Fleming may have some explaining to do.

Second, the affidavit indicates that the contract (Prosecution Services Agreement) was between the City of Nampa and Office of the Mayor, and the Canyon County Prosecutor and Canyon County. Bujak's claim has been that it was a personal contract between he and the City. If the contract actually is not in his name, then the money is likely not his; it belonged to the County. All of this stuff will impact on the pending lawsuits and bankruptcy proceeding. That failure to disclose to the Bankruptcy Court that he had possessed and sold a Rolex watch, could still land Bujak in another criminal case - in federal court. And of course there is the divorce proceeding and Bujak's lawsuit against protagonists Bob Henry and the Michaelson law firm - remember he said they defamed him when they claimed that he had received money that he wasn't entitled to?  Kind of sounds like the charges of Grand Theft in the new criminal case, doesn't it?

Third and foremost in my mind is the likely involvement of the Idaho State Bar.  Bujak has been practicing law on a contract basis while this has been pending. He serves as an officer of the court and his conduct is subject to review by the Bar. 

Then again - I guess that potential fourteen years for each GRAND THEFT count will probably consume his time.  After all - he took the money - admits he got $236,000 from the City of Nampa that they believed was going to the Canyon County Prosecutor's Office. The only question is whether he was ENTITLED to take it.

I bet Kerry Michaelson and Bob Henry will sleep a lot easier tonight. They called it years ago.

And Mayor Dale, City of Nampa, Canyon County Commissioners: who was driving that bus when each of you allowed this mess to go on for a year? Just how is it that Canyon County taxpayers got Bujaked on your watch? You've got some explaining to do, too.

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 If you have been injured by an Idaho state, county, or city employee and you want to bring a civil lawsuit for damages, you MUST file a notice of tort claim before you can bring a lawsuit to recover for your injuries. Even if the potential defendant is not an employee - you still must file the notice of tort claim to have a chance to recover money damages from injuries or death that resulted from a government employee or agent's negligence.  The law in Idaho requires that the tort claims notice must be filed WITHIN 180 days of the date of your injuries. Again, if you do not file the notice of tort claims within that time, you HAVE NO RIGHT TO SUE.  

If your case involves any of the following types of entities or their employees or agents, you will need to file a Tort Claims Notice before you can bring suit:

• State office or department;
• State agency, authority, commission or board;
• State hospital;
• State college or university; 
• County;
• City;
• Municipal Corporation;
• Health District;
• School District;
• Irrigation District;
• Special Improvement or Taxing District;
• Hospital or Nursing Home established by a County or City;
• Any other State or local governmental entity

There is no "form" that is required for your tort claims notice, but it must include certain information including the conduct and circumstances which brought about the injury; the nature of the injury or damage; the time and place the injury or damage occurred; the names of all persons involved; the amount of damages claimed; the residence of the claimant. 

This is a very important requirement that you may not get right if you rely on your own understanding of the law. If you get this one wrong - you have no case, so get some help. Call a lawyer who has experience with this. I have had to tell that potential client that his right to sue under state law was gone because he had failed to file a proper notice of tort claim, and that was a conversation I will never forget. So get some help.

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 KTVB news reported last night that all felony charges filed against five former Blackfoot high school football players have been dismissed, leaving only misdemeanor charges of battery. A few weeks ago the allegations gained international news status, and were discussed openly by national news programs and radio call in shows. Generally, the stories made it sound as if the school district and its staff - teachers and coaches alike - had all managed to fall asleep at the wheel, while student bullies molested and abused their team mates.

And now the charges have been dismissed. Why? Because there is little or no proof that anyone was sexually abused. So little proof that the deputy prosecutor who ran from the streets proclaiming the sky was falling has had to eat his own accusations. And that is where the lack of discernment on the part of the office and its leader has to eat at each of the kids charged, their families, and frankly, leaders in the community. When cases are brought that fail so completely in proof, everyone loses.

The kids who were charged and their families lost. They had to spend money to defend against baseless allegations. The community reputation was harmed. The coaches and school administrators looked like they had lost control of their charges. And the kids who were "harassed" lost too. Whatever really happened, it paled in comparison to the prosecutors claims. They were embarrassed, the subject of speculation and in some cases, shame. Prosecutors made a big deal out of little or nothing.

Prosecutors are just people and they make mistakes. They overcharge and under-prove occasionally, all to the mistrust of those who put them in office to investigate first, and charge later. But the lack of judgment in Blackfoot this past month in shouting from the mountains that their high school football team was a bunch or sexual abusers represents a failure on their part to ask tough questions first. It is in sharp contrast to what I usually see where I practice.

The only right thing to do when confronted with such a "cluster" (an old Army term for "monumental disaster") was to dismiss the felony charges. 

Good to see they got that part right.

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Just before Christmas I spent a little time with Zachary Neagle. When Zach was charged with the murder of his father in March of 2009, I followed the case with special interest. I am a dad and I could not imagine what might lead a kid to kill anyone - let alone his father. Fathers are supposed to be protectors and providers. But here was this little kid in an orange jumpsuit facing the most serious crime. 

Charged as an adult. As if this little scrub was a man.

Eventually Charles Craft, Zach's lawyer - and a fine lawyer and Zach's protector at that - called and offered me the chance to get involved. I saw the case as a chance to keep this kid from spending his life in prison. The prosecutor in the case had even suggested that "he" had taken the death penalty off the table because of Zach's age - which was really no concession because the United States Supreme Court had ruled years before that someone Zach's age was not old enough to be executed. Maybe Bujack knew that - more likely he did not.

Zach's story had been told on primetime news programs across the nation. He had killed his father to protect his brother and sister from facing the sexual abuse he had experienced.

So I got in the case with Charles Crafts and I met Zach's family, and read the court cases dealing with such matters, and I came to the conclusion that this was the riskiest of propositions. If the case went to trial and Zach was convicted of murder he would go to an adult prison. All 4-foot-8-inches of him. Eighty pounds of kid in a place where inmates able to lift more than that amount with one hand would turn him into someone none of us could imagine. 

I imagined that he might win at trial. Lots of people told me that no jury would ever convict a kid who killed to protect himself from child abuse. But a jury would have to conclude that Zach acted out of necessity to protect himself and his siblings - not out of revenge for the wrongs he had experienced. That risk was simply too much for a kid so young. So in the end Zach plead guilty to manslaughter, not murder, and he headed off to juvenile corrections.

When he sentenced Zach, the judge voiced his hope that Zach would get the help he needed to be rehabilitated. Zach was given a chance - a "blended sentence" - and an opportunity to get out of that adult prison sentence.

Most of the folks who stop me to ask about Zach have expressed their support, and asked how Zach is doing.  

I can report that Zach Neagle is doing well. I spent a little time with him a couple weeks ago just before Christmas. His case is pending - at some point he will go before a judge again to see when and how he might be released. His future is really in his own hands. If he works hard and does not pose a risk to himself or others the Judge may place Zach Neagle on probation and he may still avoid that adult prison sentence we feared could end his life. 

He has grown up. He is taller and he looks great. And that fear that we had about him ending up a statistic seems more remote today than it did when he plead guilty to killing his father.

Juvenile cases are different. There are more opportunities to focus the case on rehabilitation and the people in the cases tend to focus their efforts at problem solving. Being the lawyer in cases involving kids is rewarding and frightening at the same time. Just how this one will end remains a question, but Zach Neagle has a chance to have a real life. He may yet return to his mother, his little brother and sister. He will return a very different man than the child who shot his dad. 

If you have a question about a juvenile case, give me a call. 

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 Is a convenience store that sells alcohol to a minor liable for injuries caused when the minor, drunk and driving, injures or kills another? The answer is likely "yes."  I had an interesting call about such a fact pattern and did a little research to find a similar fact pattern, and there are plenty of them out there.

Generally, a store that sells alcohol has a duty to check identification of the buyer. If the store breaches that duty by failing to check, and sells alcohol to a minor, there is potential liability for the seller. If the seller routinely fails to check identification that liability could include additional damages to someone injured by the purchaser. 

In one case I know of, a minor who purchased alcohol from a convenience store collided with another car, resulting in his death.  His survivors brought a lawsuit against the store, and showed that the store (which videotaped sales) had a practice of selling beer to minors without checking for identification. The case settled because it was clear that the duty owed to the public had been breached, resulting in the wrongful death of the minor. 

The answer to this problem should be simple enough - store employees simply need to insure that they sell alcohol only to adults.

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 This week I had to write that "sorry, but I cannot take your civil rights case" letter to a man who had been badly assaulted in prison.  In Idaho over the past year there have been a number of lawsuits filed by prisoners and lawyers on their behalf for damages they received when the prison failed to protect them from other inmates.  Many of the cases have value - and for lawyers representing folks in this setting, value is a critical part of decision-making process.  How do we place a "value" - money value - on someone's case?

First, I look at the circumstances that lead to the injury. In Idaho a person may recover for specific economic and medical losses as well as "general damages." The general damages component refers to the sum of money that will compensate you for your pain and suffering - that is in addition to out of pocket lost earnings or medical expenses. A person in prison will likely have very limited economic loss when compared to a non-prisoner plaintiff in a personal injury or wrongful death lawsuit. They may have the loss of future earnings, but those prison jobs do not pay much while an inmate is serving time. The same is usually true of the medical damages. Medical treatment may have been provided by the State as part of its duties to an inmate.  

General damages are limited by Idaho law. The number today is approximately $270,000 (adjusted for inflation).  Our legislators apparently do not trust Idaho juries enough to let them decide how much money to award in a damages case. They have artificially set a cap or limit, in the wild eyed hope that our insurance premiums would go down.  Check out your last three years insurance cost - has it gone down? I don't think so!  

Next, I assess the likelihood that the case can be settled without a trial. Most cases do not get tried, but they often settle on the courthouse steps. That means that the lawyer has to spend the time to get ready and pay the costs of hiring expert witnesses, conducting discovery and investigating the clients' claims. 

Finally, I get real. You need to do the same thing with your case.  

Ask yourself what you would award if you were a juror. A case I recently rejected contained this assessment by the person who wanted me to be his lawyer:

"There is a similar case filed in Boise in which there are 30 plaintiffs who have sued for $120 million, so my share should be $4 million."

Probably not. It is a mistake to assume that your case will have a particular value based on what others have received, or more importantly - what others have sued for. That $120 million number in my example is meaningless.  If each of the 30 plaintiffs received the maximum $270,000 for general damages, the total value of the 30 cases excluding special damages (lost earnings, medical costs, future lost earnings and medical costs) would be $8.1 million. And that assumes everyone's case gets the same amount, which is also not likely. 

The real value of your case is seldom as high as you want to believe. Thirty years of doing this has taught me that it is usually less than I expect it to be. 

Trying to evaluate what your damages are in a potential civil case? Whether the case is for personal injury, wrongful death, civil rights violations or fraud, your damages are very individual and the value of the case will likely be difficult to predict.  You need to take into consideration a lot of individual factors - including where the case will be tried (Boise or Bonners Ferry) and who will be trying it. 

Don't get swayed by TV lawyers who proudly claim that they got "$300,000 for John's auto accident injuries."  Your case may be nothing like "John's" and that lawyer may have taken $300,000 for a $3,000,000 case.  

Most importantly - shop around. You have time. Don't be afraid to make more than "one call," and do not hesitate to talk to many lawyers about the facts of your case.  Finding the right lawyer is too important to do otherwise.

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 Can parents sue a school district for wrongful death, when their theory of liability is that the district owed their child a duty to supervise her or her killers? The answer here - no.  

In Stoddart v. Pocatello School District, the Idaho Supreme Court (Justice Horton writing the decision) affirms the district court's decision and dismisses the school district from the case, leaving no likely ground for recovery by Cassie Jo Stoddart's family. Still, the decision is predictable. Generally speaking, a case founded on negligence requires proof of a duty owed to the victims; a breach of that duty; proximate cause (the breach must have been a substantial step in bringing about the harm), and resulting damages. The Court acknowledged a duty on the part of the district to take reasonable steps to protect their students from foreseeable harms faced by their students, but found that the plaintiffs had failed to prove that the harm here was foreseeable.  There is much more here and the decision is very instructive on the law in Idaho (and most other states) as it relates to the duty to protect, so take a quick. There is also mention of an "alternate" basis for the decision - that the duty to protect students that would be imposed on school districts would be enormous were they to rule otherwise.  Justice Horton points out that the decision does not change the duty to protect students when there is specific information establishing a child may be a target for violence. Here, there was not sufficient evidence based on an earlier investigation by the school or facts at the time of the murder. 

The duty to protect arises when there is notice to the district that violence may be directed at a particular child. Foreseeability is again the key - if you can't foresee that there is a real threat, the duty to protect does not arise.  

None of this will help Cassie Jo's parents deal with their tragic loss, and the decision is in no way a reflection on the part of the Court that it views their loss as any less tragic. Still - crime victims cannot always find relief in the civil court processes. If you are a victim of a crime, consult a lawyer about the facts of your situation. 

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 A recent Idaho Court of Appeals decision addresses an issue often raised by clients facing a restitution order following conviction or entry of a plea of guilty to a crime. In State v. Blair, a woman who had been convicted of stealing money from her employer objected to the amount of restitution the court determined she owed. She requested a post-sentencing hearing to determine the actual amount, but the court denied her request and entered an order for $5831.43. On appeal she claimed her due process rights had been denied when the court refused to hold another hearing to determine how much money she owed. The Court of Appeals disagreed and the decision of the trial court was affirmed.

This case is instructive because it succinctly identifies the due process right at issue - a fair procedure for determining the amount of money owed - and points to the restitution statute to flesh out the method used by the law to give both sides an opportunity to be heard on the question. Due process really means just that - before you are deprived of your property, the State must afford you an opportunity to be heard in a meaningful way and at a meaningful time. The statute in question permits both sides to present evidence that is relevant to the court's determination of restitution, and does not require the judge to hold another hearing. The "process" due under the statute, to ensure a fair determination, is a hearing where the state and the defendant have the opportunity to be heard on the question. As that is what happened here, the Court's determination was upheld.

If you have a restitution question, take a look at the Blair case. Judge Gutierrez' decision does a nice job of setting out the law and the logical application of the facts to his decision. The case also reminds me of the importance of hammering out the restitution issues with the client before we get to that sentencing hearing.  The State typically sends out copies of the claimed restitution items, and we are usually looking to "make it right" if our client has pleaded guilty or been found guilty because the court will undoubtedly take that fact into account when deciding on the sentence.  Pay the restitution and usually you get a lesser sentence.  

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 The Idaho Statesman reports that an Idaho priest has been accused of sexual misconduct stemming from his assignment at an Idaho Falls church in 1981. The allegations involve a man who was under 18 at the time. A similar claim was apparently made against the priest in 2005, resulting in his treatment out of state in 2006. 

Idaho law prohibits sexual contact with a minor. Our law includes two felony charges covering such matters - lewd and lascivious acts with a minor under 16, and sexual battery of a minor 16 or 17. Both charges frequently carry prison sentences, so the notion that sending someone out of state for treatment would "solve" the problem misses the mark. The Statesman report deals with allegations that have not been proven, and as such, Rev. William Gould is entitled to the full protection of the law, including the presumption of innocence.

More problematic for the church is the bad press and the potential lawsuits which might flow from the reported sexual misconduct. If church officials had knowledge of the 2005 allegations, it is almost impossible to imagine that they gave Rev. Gould the "return to work, problems solved" light. Then again, we don't know what the circumstances were that resulted in that "treatment." Maybe there was no touching at all, and their efforts were directed at restoring the priest to his position of trust, entirely in good faith. And their knowledge of Gould's problems in 2005 does not necessarily mean they had knowledge in 1981 (when the "new" allegations are reported to have occurred).

Regardless - it doesn't look right. And it is not right. Priests, pastors, bishops and other religious leaders are called to a level of scrutiny that they must either withstand or be replaced. It is not possible for any church to simply "shuffle" the problem away to some other parish. As the Pope is reported to have proclaimed today, the problems in the Catholic church are the result of insiders, not some huge conspiracy from outside. For the Church - it is a matter of "purification" according to the Pope. For victims of clerical sexual abuse, the options include both criminal and civil cases. 

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 If you have been watching the news out of Portland, you know that a jury awarded the victim $1.4 million in a sex abuse case brought against the Boy Scouts of America for their failure to protect scouts from sex abuse at the hands of one of its Scout leaders. At trial the plaintiff argued that the Scouts had been keeping a list of suspected abusers, but never came up with any procedure to stop the sexual abuse of the young men in the program. The jury agreed - and the punitive damages phase of the trial began this week. The jury awarded another $18.4 million punitive damages - for the dismal performance of the Boy Scouts to protect the plaintiff and others from a known child molester. Punitive damages are awarded to PREVENT this stuff from happening again by punishing the responsible party.

Here's the kicker - Seattle Times reported that an Oregon Scouting Executive testified that the parents - that's right - the parents were to blame. Right. Not the Boy Scouts with their list of suspected child abusers. Not the Church of Jesus Christ Latter Day Saints - which chartered the troop, provided its leaders and SETTLED OUT before trial of the case. No not those organizations or their leaders.

According to church member and attorney Eugene Grant (yes, I said attorney), the parents were negligent. The parents should not have reasonably trusted that the Mormon leaders or the Boy Scouts, who chose the leaders and organized the Troop, would have stopped a suspected pedophile from molesting boys entrusted to their care.

"But Grant said he believed the council was not responsible for the abuse, even though he admitted that a Scoutmaster and a Mormon bishop who both knew Dykes made "bad decisions" if they had any role in allowing the sleepovers."

INCREDIBLE. 

By the way - the church considered the information it possessed on the sexual abuse of the young boy to be confidential. Sound familiar?

The jury is in and that "parents are to blame" defense didn't play so well. And it shouldn't have played well. The jury got it right - the leadership of the Boy Scouts were responsible, and now they must pay.

If you have been the victim of sexual abuse get some real help. There is justice out there for sex abuse victims.

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 The Idaho Supreme Court decided an interesting case in which the Boy Scouts of America sought to dismiss a case brought by sex abuse victims who had not proceeded with their cases until they were adults. Generally, Idaho civil law contains a statute of limitations that ends liability for civil cases after some number of years. For example - if you are in an automobile accident and have a claim for negligence, the law says that you must sue within two years of the date of the injury or your claim goes away, forever. The injury may remain but your ability to collect from the persons who hurt you is eliminated. So you always have to make sure that you get that case filed within the statute of limitations.

In Morgan v. Boy Scouts of America, district court judge Michael McLaughlin ruled that the statute of limitations did not bar a civil action brought by three former Boy Scouts for sexual abuse they contend occurred in 1979 and 1982. Plaintiffs filed their cases in 2007, relying on title 6, chapter 17 of the Idaho Code, which provides a statutory cause of action for sex abuse victims. In July of 2007 an amendment to the law permitted the filing of a case “within five (5) years of the time the child discovers or reasonably should have discovered the act, abuse or exploitation and its causal relationship to an injury or condition suffered by the child, which ever occurs later.” I.C. § 6-1704. Based on the "discovery" part of the statute, child sex abuse victims in Idaho have a far greater time in which to bring their case for damages they incurred as a result of the abuse. 

Rather than just changing the statute of limitations, the Idaho Supreme Court recognized that the provisions of § 6-1701 and its amendments was the creation of a new cause of action, with greater rights than provided at common law. The legislature has created a civil cause of action for crime victims, but that statute is not applied retroactively.

"Because the scope of liability imposed under Idaho Code title 6, chapter 17 substantially differs from that available under the common law, the statutory scheme cannot be retroactively applied. “A statute will not be given a retroactive construction by which it will impose liabilities not existing at the time of its passage.” Ford v. City of Caldwell, 79 Idaho 499, 509, 321 P.2d 589, 594 (1958). While procedural and remedial statutes can be given retroactive effect, a statute that creates a right to damages where none previously existed cannot be considered to be remedial. State ex rel. Wasden v. Daicel Chem. Indus., 141 Idaho 102, 106, 106 P.3d 428, 432 (2005). Damages and punishments are substantive law. Id. Consequently, regardless of when the Does’ cause of action would have accrued under the amended statutory scheme, the statute cannot be applied to the conduct that gave rise to the cause of action because it occurred between 1979 and 1983, at least six years before the statute was enacted. Thus, the BSA cannot be held accountable for behavior that was not actionable at the time it occurred."

Bottom line - the case goes back to the district court, which had refused to dismiss the case. And the abuse victims are left without the one thing the legislature intended to create, a right to seek a remedy in court. But this decision is consistent with the law cited by the court and other cases which have held likewise. This time we are reminded as lawyers and persons with potential cases that we must act - not wait.

Protect your rights in any civil case and move sooner rather than later to protect your rights. Don't wait - move. 

If you have been injured you need to pay attention to the limitations placed on every case. Not simply the statute of limitations (START there), but also the underlying legal precedent in that area of the law.

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 Almost forgot about this one - Charles Hartman - pled guilty to sexual abuse of a minor in 2007. On January 13th a jury awarded his victim $1.9 million. Boise lawyer Walt Bithell represented the victim, who was 16 at the time she was molested. Speaking about the role of the civil case:

"The civil case is designed to do what the criminal system won't do - try to make the family whole. You cannot believe the impact on the victim, and the victim's family," said Bithell, who said in 40 years of practicing law he can remember only one other time when a family pursued a civil judgment in a sex abuse case.

The unanimous jury awarded $1 million in punitive damages, and the balance ($921,000) to cover general damages, counseling and the damage to the family relationships.  Although most offenders go to prison and have no money to provide for their victims - that is not always the case.  Hartman reportedly has business and real estate that might provide a way to recover the verdict.

So what does this say about the state of justice in Idaho? First, it is possible to win a jury verdict in a civil case that seeks compensation for crime victims. Bithell is a legend here - great trial lawyer and a great man. And Walt had the things you need to win: liability AND damages. 

Second, those "run away" verdicts are urban (and country) myths! The jury awarded $1.9 million - not $99 million - like those insurance companies would have us believe. They and the legislature have limited the amount of money a victim can recover in most civil cases supposedly because Idaho juries are not "reasoned" (OK - insert the word  "smart" if you dare) enough to sort out real damages from the imagined. Nonsense. Idaho juries, and juries in virtually every courtroom across the land, have a better grasp on what is real and what is imagined than do the insurance fat cats. Think AIG would get those monster bonuses if a group of 12 jurors got to decide?

Third, to win a case like this you have to be willing to try the case. That goes for the client, family and lawyers. Defendants are not going to hand over $1.9 million without a fight, so put on the gloves and get to it. You need a gladiator for your case, and the will to see it through. And trust the jury to get to the truth.

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 Let's say that you invest a cool hundred thousand or so into a real estate project and the developer who takes your check deposits that check into his or her personal bank account.  The money is not spent to develop anything - but rather to buy a new boat or pay the developer's mortgage or car payment.  Is that fraud?  Survey says - maybe.  This is more common than you might imagine and I had this call just last week.  Did the developer have a duty to tell the investors that the money was going into his or her pockets, and not to build the condos in question?  In Idaho and most states, a false statement made to induce a person into taking action - investing money - may be the basis for criminal charges of fraud and a civil fraud case.  Every set of circumstances is different, and the answer probably lies in the writings of the parties, but if you have been the victim of this type of scheme, check out your possibilities.  Fraud is a crime - as in the "go directly to prison" type - and fraud can also be the basis for a civil remedy.  

The Idaho Department of Finance has most recently sued a company that sold investors in Idaho on the development of the Juan Dolio Resort in the Dominican Republic.  Forty Idahoans fell for the "investment" which promised fixed rate return on their money, but of course that return and their money went into someone's pockets.  If you invest money into the building of a condo shouldn't you be able to expect - or insist - that the money actually is used to construct the condo? Absolutely! Anything less - like your money going into the pockets of the developer - is fraud.  

In my practice I have clients in criminal and civil cases who are alleged to have committed fraud, and I have clients who are suing other persons in civil cases for fraud.  In the criminal setting, fraud is tough to distinguish from other failed business ventures. The cases usually turn on the question of what the person intended.

If you have a civil case alleging fraud you may be able to recover your losses.  So if that stock broker did not tell you the truth about the investment, or the real estate developer lied about where that money you invested was going, you may have a case.  Give us a call to discuss the facts.

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  I was just reading an article about the dangers posed by big rig trucks and the statistics are alarming. Every year truckers kill innocent persons because they fail to drive safely.  It happens because truck drivers suffer from fatigue, get too little sleep, drive too many miles and often rely on drugs to keep them on the road.  The US Department of Transportation studied accidents in 2005 and found that more than 144,000 trucks were involved in accidents over the course of a single year.  In more than 80 percent of the tractor trailer traffic accidents, the non-commercial driver was not at fault.  Notably most of the deaths and injuries also happened to the non-commercial driver - that would be you and me. We are the people who get injured in these collisions - the drivers of passenger cars and trucks.  The commercial truck drivers typically walk away or receive only minor injuries.

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A bank can be sued for failing to conduct a reasonable investigation before initiating a criminal complaint against an identity theft victim.  In an unpublished opinion out of New Jersey, the appellate court reversed an order granting summary judgment to the bank, and held that the main issue - whether the bank had acted with malice in calling the cops on the victim, was a matter for the jury to decide.  The bank had opened an account with a $25 deposit from a man who had a State identification card that misspelled the name of the city, described a person who was nine inches taller than the victim, and did not identify his actual employer.  A fraud investigator did a minimal investigation, and then filed a complaint on behalf of the bank against the victim.  The real bad guy ran up $9,000 worth of bad checks, all against the victim's credit, largely because he had the victim's social security number and the fake identification.  Victim spent 13 days in jail, and when a real investigation proved he had not opened the account or written the checks, the case was dismissed.  Victim then sued the bank which had reported that he had created the false account and written $9000 worth of checks.  The trial court dismissed the case, ruling that there was not proof the bank acted with malice.  Malice in this context is not "bad will" but rather the doing of an intentional act.  Here's what the court said:

The kind of malice I speak of means the intentional doing of a wrongful or unlawful act without just cause or excuse. Such malice is an intentional act which an ordinarily cautious man would realize that under ordinary circumstances damage would result to one's person or property, and which does in fact damage another's person or property. The element of malice may be inferred from a lack of
reasonable or probable cause.
 

Back to the drawing board for the bank which should simply pay this guy for his grief.  They did virtually no investigation, and as a result, he spent 13 days in county jails trying to "prove" that he was not the person who stole from the bank.  I love the fact that the "expert fraud investigator" hired by the bank did such a poor job - but proceeded in the face of real evidence some other person was responsible.  And there is that other message here for all of us - protect that social security number!

This case is similar to one I handled this past year in Utah.  There, a district judge dismissed a case before the jury could decide whether a prominent Salt Lake law firm had acted with malice when it falsely reported to an insurance company (and its client) that my client (a partner in the firm) had over-billed for his work.  That allegation was false and unfounded, but it had the effect of destroying the client's ability to work as an insurance defense lawyer.  His twenty-five year career doing insurance defense work was destroyed by the falsehood.  Their proof - he had not signed into his computer during times that he billed the insurance carrier.  You know, like when he was in court!  The malice we had to prove - and I believe we proved it - is the same as here.  Not evil or bad will (though I think we also proved that), but an intentional act done without ordinary caution.  Been in a similar situation?  Call us or fill out the contact form.  Maybe we can help.  We haven't given up in Utah, case is on appeal and we expect to win.  Another lesson learned - never give up.

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I am in the process of looking for hidden assets of a potential judgment debtor (assuming we win the case and get the judgment) and came across another blog that focusses on this challenge.  Check out Asset Search Blog for info on this subject.  Very interesting.  In my case, we are looking for assets to satisfy a potential fraud and racketeering judgment.  This is always the problem - get the judgment but how do you get the client's money?  Anyway - if you are looking for this type of info, take a gander at Asset Search Blog.

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 Another week starts with a new focus - crime victims.  I am drafting a complaint in a case for a victim of a terrible crime.  She is young, and hurt and humiliated, and she is deserving of the very best chance at a future she can possibly have.  Our lawsuit may be that chance.  Crime victims are so frequently scarred emotionally and physically, and their ability to recover for their damages is almost always limited because the perpetrators so seldom have any money or property.  You see the problem with this system is simple - justice only comes in dollars on the civil side.  Great liability and huge damages will not result in any justice unless the defendant has something you can grab. There is that great line from To Kill A Mockingbird (I think!):  "Whatta' ya' got?  Give it ta' me!"  And that's my plan - take it all away from the guy who hurt her.  I probably won't be able to get it all - but this time - we are gonna' try. Victims like my client have huge problems in their futures.  They have problems trusting men and women in whom they would otherwise place trust.  They suck at relationships.  They do not complete what they start - like education and jobs.  And they have trouble parenting their own kids.  In general, they are left in a state of fear, self doubt and confusion.  So how can the system help?  Simple - give them the money they will need to get counseling, training, and education.  Compensate them for the lost earnings and opportunities that they will miss because of the crimes perpetrated against them.   Money.  There is nothing else on the civil side - and with the likely criminal outcome resulting in the perp spending a long term at a state warehouse - or penitentiary - he won't need that money as badly as the little girl whose life he so easily stole.  Wierd post for a criminal defense lawyer?  Yeah - I suppose, but most of us in the criminal court system are focussed on justice. Somedays justice takes a bite out of a guy like this.  Those tooth marks on his butt - those will be mine.  Complaint to follow.

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