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

 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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