I: TRIAL ISSUES
Delays: It is not unknown for timber theft cases to drag on for five years, and some much longer. Partly this may be because of the apparently low priority the courts put on such issues, but partly it may occur because it is to the advantage of the defendant to drag the process out. For one thing, if a victim is old, as is often the case in timber theft, the victim may die before the trial, if the trial can be delayed long enough. Or the witnesses may die. The death of witnesses may seem to be a problem that applies equally to the victim and the accused, but a little thought will show this is not necessarily so. Especially in a criminal case, the burden is on the prosecution to prove guilt. In the absence of that proof, innocence is assumed. That means the prosecutor has a greater need to call witnesses to make his case, and is at more of a disadvantage if those witnesses die before the case is heard. Then there is the affordability factor. In a civil case, dragging out the case increases the legal fees to the victim. A victim who was barely able to afford a lawyer in the first place will not be able to stand long against the mounting legal fees. One older female victim who had to pay a surveyor and hire an attorney found she was running out of money, and at the same time had a serious heart attack. For the sake of her health, both bodily and fiscal, she had to drop out of the case. She told another victim, “Honey, they took everything I had.” One might say that dragging out the case also increases the cost to the defendant, but the defendant may at least have the profit from the victim’s timber to apply to the cost. The victim doesn’t have that.
“Don’t get me involved.”: Victims who seek information from others will often find that those others will talk to them only reluctantly, if at all, because they don’t want to be involved in what they correctly perceive is likely to be a long, difficult, messy process. Since, unlike law enforcement, the victim has no authority to press for information, such information is unlikely to be elicited. Victims caught in this dilemma need to be extremely careful not to offer any incentives for information, since that is likely to be construed as a bribe for false testimony.
Reluctance to testify: Of course, not everybody will be reluctant to speak to a victim. Other victims of the same logger, particularly, may be open with information. Openness in a personal conversation may not extend to the courtroom, however. Some victims find that people who were very willing to share information are not willing to be so forthcoming when they realize testifying will reveal who they are. They offer various reasons. In Eastern Kentucky, the fear of retaliation is often one of the reasons. Unemployment is high, jobs are hard to find, and large numbers of jobs may be under the control of a small number of people or organizations who may have ties to the logger, and no one wants to take any action that might jeopardize their employment. Beyond that, one commonly expressed fear is that “They’ll burn my house.” Responding that there are jails for arsonists too is generally not persuasive.
This fear is so prevalent that it impacts not only fear of testifying in another’s case, but also to even reporting the crime. One victim in 2015 called to a timber theft website and asked the website managers to report his crime for him because, as he said, logging thieves can be pretty rough people, and he was fearful of retaliation if he reported it himself. Since no Sheriff is likely to act on a third-party report, without knowing the name of the victim, where in the county the crime occurred, and other details, the third-party report would have gone nowhere. The victim was urged to report it personally, but since he didn’t identify himself or his location, it’s unknown whether he did or not.
“Let’s settle it” issue: As mentioned earlier, the issue of settling often comes up in court cases, whether civil or criminal. In criminal cases, in Kentucky, prosecutors generally have many more cases than they have resources to try, so settling is almost inevitably a preferred way of disposing of a case. The victim therefore may find both the prosecution and defense pushing for a settlement, with the victim the only one opposed and having absolutely no authority to intervene. This would not be a problem if the settlement terms took care of the victim’s loss, but that is often not the case - the very word settlement suggests the indictee will not paying in full for the charges, much less any compensation to the victim. One victim in a criminal case estimated his losses and expenses (surveys, etc) at $70,000. The prosecutor and defense arrived at a settlement in which the thief admitted guilt, served not a day in jail, and was instructed to pay the victim $9,000 in monthly installments. The victim objected but to no avail. He has stated that he does not expect to receive a dime of those payments, but even if he does, the admitted thief made a killing from the theft. $9000 is probably much less than the logger would have owed if he had signed a legal contract with the owner. In the view of that victim, crime clearly paid for that particular admitted thief, and the Commonwealth conspired in that.
In a civil case, the victim theoretically has more control over whether a settlement is arrived at, but practically, that may not be true. He has to think about the cost of continuing to pay an attorney, with no guarantee that a trial will result in a better deal and the possibility of a worse deal. So his options may nearly as limited as in a criminal case.
Compensation: If there is no settlement, then the victim’s power over compensation, criminal or civil, is even more limited. What the victim gets will depend on the jury (or in some cases the judge). It is a regrettable fact that, in most cases, the court-ordered compensation is a great deal less than the loss, and may be only a tenth of it. Or the judgment may involve some sort of jail time, possibly waived, but compensation to the victim may not even be mentioned, much less imposed. In a criminal case, the victim doesn’t have standing to appeal, so the settlement will be the end of the situation. In a civil case, he may have standing, but he again has to weigh the cost of an appeal against the likelihood of an increased judgment. In a state where the prevailing custom is to regard timber theft as a non-crime, he may well feel that an appeal is not a good gamble.
In fact, some victims have found out personally that appeals may work better for the other side. A victim in Virginia who lost timber some years back went through a long civil suit and eventually prevailed, only to find it was a pyrrhic victory. The jury granted the victim partial compensation for her lost timber and, more critically, awarded her legal costs, which were substantial. The logger challenged the award, maintaining that “legal costs,” which are specified in the Virginia law covering timber theft, were limited to items such as court fees and documents, but do not cover attorneys’ fees, which for her were five to six figures .He appealed to the Virginia Supreme Court. In January 2016, the Virginia Supreme Court, to her astonishment, upheld the interpretation that legal costs do not include legal fees. So the result of her long, stressful, expensive struggle for justice is that she is much worse off than if she had never taken action.
(For the next section of the guide, click here.)