Tough Week

It was a pretty tough week.  My dad was in trial on a civil suit.  They say never to represent yourself in a case but my dad had no choice.  I can't even imagine the emotional stress involved in that process.  His days were really long.  After completing a full day in court he had to prepare for the next day staying up until around 1:00 am and getting up at 6:00 am to do it all over again.  

It is amazing to me how much stress and emotion can be felt on behalf of a loved one.  I think in many cases we get more worked up than my dad.  I attended the temple first thing in the morning on Wednesday.  I also called my mom a couple times through the week to check on her.  Luckily during the week we had fantastic news about David's case and him being able to practice medicine without restrictions.  I literally fell to my knees with gratitude for that one.

Nothing can really prepare you to receive frustrating and bad news.  My dad sent us out a text that in essence the child molester was awarded over 3 million dollars.  It makes you lose so much faith in the system when an honest, integritous, hard working man is forced to pay a child molester even one dime.  And then I always feel like I have to brace myself for the inevitable dragging of my dad's name through the mud in the media.  When my dad sent out the text I was sobbing within seconds.  I had a hard time getting composure.  I wanted to call home right away but knew that my parents were tired.  Myca called me and we talked.  I just wanted to go home and give my parents a big hug.

 

This is the email my dad sent out explaining the case.

In December of 2000, I signed a $500,000.00 a year contract with Grant County for felony representation in Superior Court. This was not a negotiated contract as the County had tweaked the contracts over the years and I was sent the contract that they intended to have. While I felt conflicted in the provision that the contract pay the expenses of investigators and experts, nonetheless, I signed it thinking that I could set up a system insulating the attorneys. There is now in place an ethical consideration that makes it a violation to have such a contract. The problem is, do you pay attorneys or do you pay experts? The contract required a minimum of 4 attorneys and in 2001 and 2002 we had no problems. We divided the cases pretty much equally and I had a good group of sub-contracting attorneys who took cases. I set up a fund to pay experts and investigators even though I myself, did not usually employ investigators. I withheld 7.5 % from each check
for this fund. This contract required that we cover all felony appointed cases regardless of the number of felony cases filed by the Prosecutors office. We were doing well until the end of 2002 when we lost Ben Hernandez who was hired as a Federal Defender. He gave me three weeks notice and we had to absorb his 50 cases that he did not finish. On the heels of that, Guillermo Romero was suspended in May leaving us two attorneys short. We were scrambling!!! In that year, the Proseutor's office filed 300 more cases than in the previous year. By then Ryan Earl was back and a Rule 9 intern taking the Bar in February. I supervised him and he stayed in my back pocket all year. I could not find suitable replacements for Mr. Romero or Mr. Hernandez. I found Alan White who was fabulous and Randy Smith came on board but both were only doing a limited percentage of the cases. As a result, Ryan and I were assigned way too many cases. I cherry picked
cases assigning myself to easy cases, extraditions and multiply case assignments to try to stay ahead. There is no question that I assigned myself too many cases in 2003. Meanwhile, in June of 2003, the WSBA filed the finding recommending disbarment. (To this day I vehemently disapprove of the findings) In that same time frame, I lost my insurance coverage and could not renew because of the Bar proceedings. 

In October of 2003, the Superior Court judges and I agreed that we would not be assigned to more than 17 cases per month with no more than 204 cases per year. By the end of the year, I had five attorneys on board who were able, qualified and willing to take 20% of the assigned cases. In November of 2003, I assigned myself to represent Mr. Vargas - a resident alien who had been in the US for 18 years. He was living with a woman in Quincy for 3 years and she had two children one of whom was a deaf mute that she could not communicate with. The younger daughter (Cynthia) and the deaf mute (Yesenia) had no real relationship with Mr. Vargas and he had never disciplined them. Cynthia disclosed to police that Mr. Vargas had been touching her and Yesenia coroborated the same conduct as to herself. Mr. Vargas was arrested charged with child molestation and indecent liberties. A no contact order was entered forbidding contact with his girlfriend. He
violated the terms and his bail went from $30,000 to $100,000.......Ryan and I went to see him in early December. Ryan was my interpreter. We talked for 45 minutes. Mr. Vargas was adament that he had not committed this offense. He gave us a list of witneses. We went from there to the prosecutors office and signed a request to interview witnesses. I talked to Steve Scott about the same. As the pretrial conference approached, I continued to talked with Prosecutor Knodell. At the pretrial, I represented that discovery was complete without mentioning that I had not yet interviewed witnesses. As the trial date approached, we had not conducted interviews. Mr. Vargas was in telephone contact with his girlfriend. The State had not sent out subpeonas. I explained to Mr. Vargas that even though the witnesses were not appearing, the State had two more weeks (until January 9th) to get this case to trial and that the case was not going to go out on
December 23rd. After a long discussion, we agreed that he did not want material witness warrants to go out for his girlfriend and he signed a waiver. Mr. Knodell was mad that he was in contact with his girlfriend and asked me about SOSSA - a sentencing alternative that requires an evaluation and allows a prison term to be suspended while the person does 6 months in jail. I had to explain that to Mr. Vargas even though I new that he would not be eligible because he did not admit the conduct. We decided to represent to the court that he would obtain an evaluation (to get Mr. Knodell settled down) and get the witnesses in. He waived his right to a speedy trial to June 1st. 

I saw him again the first part of June when he gave me the name of the two girls as HIS witnesses - the first time in my 23 years that I had seen that happen! In February of 2004, I was suspended from the practice of law, my contract was terminated and I abandoned my appeal resulting in my disbarment in late May. Garth Dano was appointed to represent him and it took him about two months to get interviews. Naturally, he obtained an investigator. The younger daughter had recanted her testimony a few days after the allegation and while Mr. Vargas knew it, he never told me about it. As a result of her recantation, the Judge released him pending trial. Mr. Vargas then passed two polygraphs and in August of 2004, his charages were dismissed with prejudice. 

He filed suit against Grant County and me personally in May of 2006 claiming a 1983 civil rights violation for ineffective assistance of counsel and state malpractice. The County settled the suit for $250,000.00. I was left for trial representing myself and without experts. He testified that I had never been in court with him and that I had talked to him one time for 5 minutes and told him that he had to plead guilty. The court record clearly showed that I had been in court with him 3 times.

Garth Dano dismissed the State malpractice claim against me because one of the elements of malpractice in a criminal case is actual innocence. You can't use the polygraph for that and they knew that they would be unable to prove that Mr. Vargas was innocent. They kept in place the 1983 action (if they get $1 they get their attorney fees) and moved ahead. Judge Quakenbush (20 yrs as a lawyer and 30 yrs as a Judge) presided over the trial. He had some definite opinions about Grant County. At the end of the Plaintiff's case he did not dismiss the suit on the basis of State action - meaning he found that I was a State actor even though a private, independent contractor with Grant County. I think that he is clearly wrong. Without that connection, the lawsuit is dismissed. Guilt or innocense is not an issue in this case. The claim is that in the administration of the contract through my policies as administered, he was denied effective assistance of
counsel and in my actual representation of him, he was denied effective assistance of counsel. They argued that had I done my job, he would have been aquitted in Dec. 2003. The deaf mute never recanted and, in my opinion, was an amazing witness. No doubt in my mind had he gone to trial in Grant County he would have been convicted. Mr. Dano's experience is that he has handled about 100 felonies and had tried two sex cases. My trial experience was thousands of appointment cases, hundreds of felony trials and 25 felony sex trials alone. 

The trial was exhausting but I tried a great case. Naturally, the videotaped deposition of the deaf mute that was taken in 2008 did not come in as evidence because it was not relevant to my representation. I had no experts because I could not afford any. The State's expert blasted me! It was an ass kicking! I had it handed to me. Obviously, the jury did not believe me or Ryan that we had seen this guy. George Ahrend even told Ryan that he had better watch out or he was going to be like me!

The jury was out 4 hours and returned a verdict for the plaintiff in the amount of $762,500.00 for the $4,000 that he lost in wages including emotional distress.

After the verdict, they have a right to seek punitive damages. They put me on the stand and asked me if I had filed a bankruptcy 3 weeks after being served this suit. The answer was "yes!" They asked me if I told them that they would have to earn it the hard way. The answer was "yes!" They asked me if I told them that I would sit on a beach, quit my job and see that he was never paid a dime. The answer was a resounding "yes!" They held up a picture of my BMW - Asked about my tournament ski boat that my brother was holding for me until after my bankruptcy and also asked about the home that a brother had given me - I wish! My personal favorite was how many times I had seen "Phantom of the Opera!" I told them that I had seen it last year. When asked if I traveled around the world I put a plug in for Alysha - by that time I knew that the jury was going to hose me - punitives are to punish me and the County - they returned with 2.5 million in
punitive damages. The message is clear that flat fee contracts are out!

The strangest thing was having Judge Quakenbush address the jury with a speech that included the directive that this was the first time that a 1983 action had been brought against an individual with a flat fee contract and that this case would "move" across the Nation as a standard. I could only smile!

Francis Floyd will take this up on appeal and they believe that it will be reversed. I am confident that this will be discharged in my Chapter 13. Garth Dano will receive a National award! I am going to say that again - Garth Dano will receive a National award and will lecture around the Country! I will live in the house that my brother gave me and hope that my tournament boat comes back! Phantom will continue to be a part of my life!- I will continue to travel the world so long as Alysha continues to fly. I will drive my BMW till it dies! I will be in the Columbia Basin Hearld one more time. I will sleep every night knowing that while I am not perfect, I tried to do a good job for Mr. Vargas and he knows it! Oh, and I almost forgot - he is a child molester and got away with it!

I give you that short recitation so that you may have the ability to just let it go - I have! My love to all of you.......thank you for your love and support! 

TE