Zimmer, Duncan & Cole

The Case of the Crooked Contractor

This week, we learn about a dishonest door-to-door repairman. He was convicted and sentenced to twenty-five years for a scheme that targeted an elderly Parkston woman.
Several years later, he filed a new lawsuit challenging his conviction. In these types of challenges (called "habeas corpus" proceedings), the inmate sues the prison warden and requests release. If successful, the Court tells the warden to release the prisoner.
The case is James Douglas Lawrence v. Douglas Weber, Warden of the S.D. State Penitentiary (2011 S.D. 19).
In January 1996, Mr. Lawrence knocked on Marcella Koster's front door and sold her on an idea to waterproof her basement. The eighty-year-old Mrs. Koster agreed, especially because Mr. Lawrence told her that FEMA would reimburse the cost. (FEMA is the federal government's disaster agency.)
Mr. Lawrence came four times to work on the basement walls. He applied a "sealant" and then "strengthened" them by drilling several holes that he filled with concrete.
Each time Mr. Lawrence worked on the basement he requested payment before leaving. Each time she made a payment, Mrs. Koster asked about the FEMA reimbursement. Each time, Mr. Lawrence had an answer.
First, he told her that he would take pictures and send them to FEMA. Next, he assured her he was already "taking care" of things. The third time he told her she would soon receive a call from FEMA.
Finally, Mr. Lawrence presented Mrs. Koster with a handwritten invoice and told her to submit it to FEMA. The amounts he scrawled didn't match the $5000.90 she had paid him. The rest was mostly illegible.
After paying the fourth installment, Mrs. Koster received a call from someone she soon suspected was posing as a FEMA agent. She then contacted FEMA directly, which refused to pay for any of the waterproofing costs because there was no such program. (A similar reimbursement program had apparently ended two years earlier.)
Not surprisingly, she discovered the repairs were worthless: her basement walls still leaked.
The law caught up with Mr. Lawrence. A jury convicted him, and he began serving a twenty-five year sentence.
In particular, the jury convicted Mr. Lawrence of a crime called "theft-by-deception". To do so, the jury was required to find that Mr. Lawrence intended to defraud his victim.
After serving several years of his sentence, Mr. Lawrence asked the Court to take a second look, based on a clever theory: that the jury mistook him for a crooked contractor, when, instead, he was merely an incompetent one. (This distinction obviously won't help him if he wants more customers someday, but, if true, it would be enough to get him out of prison.)
Since this was now several years after his trial, Mr. Lawrence wasn't appealing his conviction, but, instead was using a procedure called a writ of habeas corpus.
The Latin words "habeas corpus" literally translated mean "you have the body". The phrase is directed at the warden, who is the official with custody of a prisoner's "body".
Habeas proceedings can be used at any time during incarceration but are very narrow in scope. They ask a judge to confirm that an inmate's incarceration is legitimate, and whether his conviction was backed up by enough evidence. In each case, the evidence is viewed in a light most favorable to the prosecution.
Here, Mr. Lawrence argued that the jury didn't hear evidence that he intended to trick Mrs. Koster, but, instead, that he was just plain awful at his job. Several other contractors have successfully used the same defense. But it wasn't going to work here.
The Supreme Court pointed to evidence which disproved his "ignorance" theory. The original jury had heard from a previous customer to whom Mr. Lawrence had promised the same, false FEMA reimbursement. That customer discovered (and told Mr. Lawrence) that there was no such program.
In addition, Mr. Lawrence's brother, Mike, had warned him the repairs wouldn't work. In response, Mr. Lawrence told his brother, "It's not my problem...It's not my fault if [Mrs. Koster] thinks this is going to stop the water from coming in."
The jury had more than enough proof of Mr. Lawrence's intent: he knew what she expected, his statements created those expectations, and he profited from their arrangement. His conviction was valid, and Mr. Lawrence's "body" will remain behind bars.
A link to the full opinion is available on my law firm's website, www.zdclaw.com.

Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole, LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.