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.


  1. If it is in a county with greater than 68,000 residents then your client should file a civil suit against the landlord to recover his deposit under the TURLTA. :) Sorry people are buttheads.

  2. TURTLA doesn't apply in this particular situation. Thanks though.