VICTIMS' GUIDE TO TIMBER THEFT - THE "LEGAL" ASPECT
Finding a lawyer: The problem of affording a lawyer in a civil suit was discussed in F above. There is a further problem. Some victims have not been able to find a lawyer at any cost, or at least a lawyer close enough to prevent the victim from having to pay unreasonable travel costs for his attorney. One victim was told by several lawyers: “We don’t take land cases.” Sometimes the victim leaves a message and never gets a return call, and can only guess why the case is being rejected. Some lawyers have told the victim that they have at some time in the past represented the defendant or the defendant’s family, so it would be a conflict of interest for them to represent the plaintiff in a timber theft case. Please note that they do not say they are representing the defendant or his family currently; only that they have at some time in the past. This is such a broad interpretation of conflict of interest that, in a county with a small population, it is hard to see how, after a few years of practice, any attorney could take any new case. A victim who has already been refused help by the Sheriff and Commonwealth’s Attorney can hardly be blamed if his frustration boils over at also not being able to find an attorney to represent him civilly, and he begins to question the entire justice system. Victims who are up against rich or powerful interests are particularly inclined to question whether those factors had something to do with being unable to find a lawyer.
Dealing with legal tactics: Victims who have grown up believing in the fairness of the American justice may have a rude awakening. The “get-even” warrants mentioned in E above are part of that, but there are others. One victim received a phone call one morning to inform him that surveyors hired by the opposition would be on his land that morning surveying. There had been no motion for permission, no court authorization, none of the advance notice surveyors commonly give – nothing. The victim needed to be, and had intended to be, in Frankfort that day. With no idea of what his rights were against this court-orderless incursion, he had to cancel that trip to deal with the situation. The opposing attorney dismissed his concerns and the lack of a court order with the cavalier statement that he could do anything with the victim’s land he wanted to. It is true that the opposition attorney can get access to the victim’s land if he can convince a judge to issue a court order, and so long as he stays within the boundaries of the order, but legally his rights go no further than that. In practice, unfortunately, they apparently go considerably further. The same victim learned later in the court process that there had been a number of trespasses on his land without a court order. There were no sanctions – in fact no action at all - against the defendant or his attorney for those illegal trespasses.
Bar Association Futility: A victim who hopes that the Bar Association will act on complaints based on actions like the above will learn that a bar complaint is probably a waste of time. One victim filed a bar complaint in a case where one of the opposing attorneys had sworn a false statement – a complaint backed up by copies of the attorney’s own emails that contradicted his own sworn false statement – a complaint which was immediately rejected by the Bar Association on the grounds that no breach of legal ethics had occurred. The victim has no recourse when this occurs.
Rights in Court: Many victims are new to the legal system, and are ignorant of what they can and cannot do, and there will generally be nothing to guide them.
Furthermore, the rules are different for criminal and civil cases. For example, in a prosecution by the state, the victim has no standing. The prosecutor will be very clear about the fact that the victim is not his client. A good Commonwealth’s Attorney may consult with the victim periodically, but there is apparently no requirement to do that. A victim generally can attend court hearings as a spectator, but generally cannot participate in any way, even if he disagrees with information being presented or wishes to provide information that might be helpful. Some judges have been known to recognize a person in the audience who stands in an attempt for attention, but that is apparently at the discretion of the judge and he has no requirement to apply that privilege even-handedly; some judges do not, as at least one victim discovered. A bid for participation may even irritate the judge. Furthermore, a prosecutor can elect to negotiate a settlement with the defendant without the permission of the victim, and the victim will have no power to alter it. A judge may ask the prosecutor if the victim agrees, and may even let the victim speak in court, if he is one of the judges who does that, but he can and probably will accept the settlement over the objections of the victim, although the settlement may drastically reduce, or totally exclude, any restitution for the victim.
In a criminal case, the victim is even more restricted during the trial. He cannot be present in court except when he testifies, whereas the defendant is present during the whole proceeding and can fill in his attorney if a new issue comes up. The victim has no such advantage. The Commonwealth’s Attorney is not even allowed to ask the victim about points made by the defense which may be false, to enable him to rebut them, because the victim is not allowed to hear any other person’s testimony if he is a witness during the trial, which he almost always is. In at least one case, the judge ruled that the victim’s wife could not be in court, even though she was not a witness. Consequently, the victim will only know what transpired at the trial by acquiring the court record later.
In a civil case, a victim has a little more freedom. While he may not be able to come forward with his attorney when routine motions are being heard, he can be present at the table with his attorney when the trial takes place. This eliminates what can often be a great disadvantage to the victim, that of not being able to hear and assess opposing testimony, and provide rebuttal where rebuttal exists.
Be the Criminal: All of this has caused at least one victim to tell his friends that if you are going to be caught up in the court system, especially the criminal side, then be the criminal, because criminals have all the rights and victims none.