Thursday, July 15, 2010

Civil v. Criminal is Frustrating

As most of you know, I handle only criminal cases. So, when I get appointed to a case & read the affidavit of complaint only to determine that the case is actually civil in nature it is quite frustrating for me. For example, I was appointed to a case where my client was charged with vandalism. The affidavit described a landlord-tenant situation. The landlord was the person who had sworn out the warrant, alleging that my client had damaged the house before he had moved out. My client had signed a lease & put up a security deposit, which was not returned to him. The landlord gave no reason for withholding the security deposit & did not contact my client regarding the damage to the residence. The landlord went to the clerk's office & swore out a warrant for vandalism. My client said that the damage the landlord was alleging was not done by him or his fiance; that they were instructed to leave the key to the house on the stove & leave the front door unlocked. The landlord did not inspect the property until 2-4 days after my client had moved out.

I argued with the District Attorney all morning that this case was not a criminal case; that the criminal warrant should be dismissed & that the landlord should be instructed to swear out a civil warrant if he wanted to pursue his claim for damages above the security deposit. The DA would not agree. We had a preliminary hearing. The landlord & his son, who helps him manage his rental properties testified that the damage amounted to $2,000 - $2,500. They even had pictures of this damage. My client's fiance testified as well. She was shown the pictures of the damage & testified that she had never seen damage the landlord was pointing out & that the house was in bad shape when they moved in. She also testified that her & my client worked on the property (painting & such). This was verified by the landlord.

After all of this, the Judge agreed with me that this was a civil matter but (in the same breath) said that because the burden of proof for probable cause is so low that he bound the case over to the grand jury. I can only hope that the grand jury will not indict my client. If they do, then we're on to Circuit Court, where the burden of proof is much higher & we are entitled to discovery.

Monday, July 5, 2010

It's Just One of Those Things

I had a case where my client was charged with public intoxication. My client was the passenger in a car that had been pulled over because the driver was suspected of driving under the influence. The driver & my client were both arrested.
I wanted the charge dropped. After all, my client wasn't in public - he was in a privately owned car. The officer didn't have to arrest my client. The officer could have called one of my client's (sober) buddies to come & get him. The DA disagreed, saying the officer had no such duty to do that & that the charge was valid. The charge was dropped due to my client having other more serious charges but when I got back to the office, I did some research hoping to be able to prove the DA wrong. What I found was case law to support the DA's position that the charge was valid, the rationale being that the car being on a public roadway was enough for the charge of public intoxication to stand.
The moral of the story: if you're going to get drunk, stay on private property!!! (Though it'll be tough for you to get home for a while)...