Defense with a Capital D

Eriksson’s paradise or penitentiary

Last month’s “Legal Files” dealt with the now infamous Enzo crash. Stefan Eriksson’s Ferrari crashed into a power pole at 199 mph, and he escaped with only a cut lip.

The Enzo was not as lucky; it broke in two, with pieces scattered down the road. But, as related in the story, the crash started an unimaginable chain reaction—drunk driving, drugs, a ghost named “Dietrich,” the Swedish mafia, two bank-owned Enzos spirited out of Great Britain, a public company that spent millions on lavish lifestyles for its executives before crashing into bankruptcy, guns and ammo, a tiny bus company with an anti-terrorism force, Homeland Security impersonators, a suspect fleeing the country on a boat with the video of the crash—the can of legal worms just kept getting deeper and deeper.

BUT WAIT, THERE’S MORE…

Since last month, the pieces of the Enzo and its still-complete black sibling have been sent back to the European banks that own them. The San Gabriel Valley Transit Authority has ceased operations amidst a widening investigation. Its owner was caught impersonating a police officer while trying to claim impounded vehicles. Now, the Los Angeles County Sheriff’s office is looking into how the bus company established its police force to begin with, and whether any laws were broken in doing so.

Eriksson’s trial is coming up. What sort of defenses might we expect to see in the months ahead?

What Can Eriksson Do?

“Legal Files” contacted Steven W. Thayer for his opinion. Thayer is an avid car collector and vintage racer, as well as one of the most experienced and respected criminal defense attorneys in Vancouver, Washington.

He has represented many notorious defendants, including former Olympic ice skater Tonya Harding. Asked what he would do if he were defending Eriksson, he responded:

“Any red-blooded car guy would give away his teenagers to make a dawn banzai run down the Pacific Coast Highway in a Ferrari Enzo. Although most of us will only ever have that experience on an xBox, at least in virtual reality, we won’t have to worry about the law.

“From a legal standpoint, Eriksson obviously has a damage control case. DNA tests identified his blood on the driver’s side airbag, collapsing the initial claim that the car had been driven by ‘Dietrich.’ At a bare minimum, therefore, the local prosecuting agency can prove DUI and operating a vehicle without a license or insurance.

NOT MUCH LEVERAGE

“Given the high-profile nature of the case, Eriksson’s prior record, and the deliberate effort to mislead police, not many positives leap to mind as potential leverage in negotiating the DUI and related traffic charges, except up-front payment of restitution to repair the damages to the power pole, service charges resulting from the power outage, etc., or positive efforts toward rehab in the form of alcohol counseling. Incidentally, reckless driving and false reporting to law enforcement could also be easily proved, but, curiously, were not charged.

“The police searched Eriksson’s Bel Air mansion. However, we really can’t see how the circumstances of the accident created any probable cause that the search of the residence would uncover evidence of a crime. Nor do we have any indication that a warrant was obtained.

“Generally, warrantless searches are presumptively illegal unless falling within one or more of the well-defined exceptions to the warrant requirement. For example, no warrant is required if Eriksson consented, but we have no information that that happened, either. Whether the search was based upon a warrant, or an exception to the warrant requirement, Eriksson is entitled to judicial review.

“Evidence may be excluded if a reviewing court later decides that probable cause did not exist to support issuance of a warrant, the consent was coerced, etc. Police have to follow the law like everyone else, and when they don’t, the remedy is suppression of the illegally seized evidence, which could lead to dismissal of the unlawful possession of a handgun charge.

SIX FELONY CHARGES

“Eriksson is also facing six felony charges, apparently based upon removal of the three vehicles from Great Britain; that is, three counts of embezzlement and three counts of grand theft, probably representing the two Enzos and the McLaren Mercedes.

These are presumably charged in the alternative: Embezzlement occurs when property that is lawfully in the taker’s possession is fraudulently or unlawfully appropriated by the taker. Theft occurs when the taker appropriates property to which he has no colorable claim or title.

“The government’s theory is Eriksson wasn’t planning to pay back the banks, and whether you call it embezzlement or grand theft, three property crimes had been committed. Eriksson’s counsel will undoubtedly contest the charges on jurisdictional grounds and claim lack of criminal intent, characterizing the case as civil breach of contract rather than a crime. Because a major prosecution objective in property crimes is financial restitution, Eriksson’s counsel will probably seek dismissal in exchange for a cash settlement with the banks.

SUBJECT TO DEPORTATION

“Because Eriksson is a Swedish National, and U.S. Immigration has expressed enough interest in the case to place a hold, he is potentially subject to deportation. Normally, the INS relies on a conviction to prove that the criteria for deportation have been met. Categories of conviction that could trigger deportation include aggravated felony, crimes involving moral turpitude, crimes related to controlled substances, and firearms violations. Embezzlement and theft are crimes of moral turpitude, and obviously unlawful possession of a firearm could also lead to removal.

BEST CASE / WORST CASE

So what’s ahead for Eriksson? Let me preface this with the fact criminal law and procedures vary from state to state, and I do not claim expertise in the laws of California. So, for the purposes of this discussion, let’s assume that this case is being tried in Washington.

First of all, the drunk-driving charge. Best-case outcome would be that Eriksson acknowledges that he has an alcohol problem that requires intervention and successfully petitions the court for deferred prosecution. His case would be put on hold for five years, and if he successfully completed counseling as required by the court and avoided re-offense, the case would be dismissed.

As to the firearms and cocaine possession charges, if police failed to obtain a search warrant or the search wasn’t conducted pursuant to an exception to the warrant requirement, the cocaine would be suppressed and the charges dismissed. Even if the warrant were obtained, the court could be convinced that a crash on the Coast Highway does not give police probable cause to search a house in Bel Air.

Finally, as to the theft and embezzlement charges, a jury could be pursuaded that Eriksson breached his contract with the bank, but he didn’t commit a crime. After all, he simply stopped making payments on a car. Using this logic as leverage, a deal might be negotiated whereby the banks that financed the purchase of the cars would accept a check from Eriksson (assuming he has the resources) in exchange for dismissal of the criminal charges.

If Eriksson is successful in avoiding a conviction, it is unlikely that the INS would initiate deportation procedures, and we may see him someday at Pebble Beach.

“On the other hand, if Eriksson were convicted of everything on the menu, he would likely, at a minimum, do several months in jail and ultimately face deportation back to England, and a date at the Old Bailey.

“What Eriksson needs most of all right now is a good criminal lawyer well versed in California law. Anyone who followed the fortunes of O.J. Simpson knows talent is expensive, and you get what you pay for. Because criminal defense attorneys are not generally allowed to withdraw from a case simply because their client isn’t making monthly payments, a substantial retainer would be required in a case of this magnitude.

“All things considered, this is a very complicated case, and I don’t envy the attorney who takes it on. At the same time,199-mph Enzo crashes are the stuff that legends (and legal careers) can be made from.”

Thanks to Thayer for these insights. We’ll be watching this case with interest, and will report developments to SCMers as they occur.