The Intoxilyzer 8000 DUI machine has arrived in Cuyahoga County.

Because of a judicial ruing in Franklin County, state officials cannot prove, for the time being only, that a new DUI breath testing machine, intended to be the statewide standard for the quick detection and arrest of drunken drivers, produces accurate and reliable results.  The machine in question is called the Intoxilyzer 8000.  See the June 4, 2011 article written in the Columbus Dispatch.  Even though this Court found this new machine to be unreliable, a number of other municipal courts have reached the opposite conclusion.  Ohio's "Administrative Code" has already listed the Intoxilyzer 8000 as one of the few approved breath machines in Ohio for DUI use. Cuyahoga County municipal courts are now just beginning to get their Intoxilyzer 8000 machines delivered.   Most legal scholars agree that eventually these rather new machines will be approved by all Ohio courts, either individually or by some eventual Supreme Court of Ohio decision.  In the meantime, many local prosecutors will be getting various motions to challenge the reliability of these new machines.

Mr. O'Shea is the City Prosecutor in his home city.   His police department just received the Intoxilyzer 8000 a couple of weeks ago.   He expects that at least a few lawyers will challenge the machines.

Stay tuned for details.

Appeals Court in California Rejects "Plain Smell" Exception to a Search Warrant

An Appeals Court in California rejected (for now) an argument brought by the prosecution that an officer who smells unlit marijuana in a closed bag does not need a search warrant.     But the Court also suggested that California's highest court needs to revisit this issue. See:  http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202520041375

Ohio's Supreme Court has already held in 2001 that the odor or marijuana (lit or unlit) may form the basis for a warrantless search.    The Ohio Supreme Court stated:

Many state and federal courts have previously confronted this issue and concluded that the detection of the odor of marijuana, alone, by an experienced law enforcement officer is sufficient to establish probable cause to conduct a reasonable search. See, e.g., People v. Kazmierczak (2000), 461 Mich. 411, 413, 605 N.W.2d 667, 668 ("the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle");  [*50] Mendez v. People (Colo.1999), 986 P.2d 275, 280 ("the smell of burning marijuana may give an officer probable cause to search or arrest"); State v. Secrist (1999), 224 Wis. 2d 201, 210, 589 N.W.2d 387, 391 ("The unmistakable odor of marijuana coming from an automobile provides probable cause for an officer to believe that the automobile contains evidence of a crime."); Green v. State (1998), 334 Ark. 484, 490, 978 S.W.2d 300, 303 ("the odor of marijuana emanating from a particular bag located on a bus is sufficient to provide probable cause to conduct a search of that bag"). Likewise, federal courts share this view.

The Court then went on to state:

"[I]f the smell of marijuana, as detected by a person who is qualified to recognize the odor, is the sole circumstance, this is sufficient to establish probable cause. There need be no additional factors to corroborate the suspicion of the presence of marijuana."

Obviously, pot smokers have to drive much more carefully in Ohio.

The "Castle Doctrine" results in the reversal of a murder conviction.

We had previously blogged about a legal issue called the "castle doctrine" - a doctrine that has developed over the years concerning what a person can or cannot do when their home (aka their "castle") is invaded by an intruder.  See our November 16, 2010 blog. This past week, the Cuyahoga County Court of Appeals reversed a murder conviction on this very issue.   See the Plain Dealer story here.    The Court's opinion is here.   The Cuyahoga County Prosecutor's office claims for now that they will seek review by the Ohio Supreme Court.   It looks like at least the Cuyahoga County Court of Appeals is willing to give some strength to the purpose behind the Castle Doctrine.   Stay tuned for more info as this issue (and this very case) develops.

Upcoming Oral Argument at the US Supreme Court on the Issue of Separation of Church and State

On October 5, 2011, the US Supreme Court will hear oral arguments about one of the more closely watched separation-of-church-and-state cases in many years. Can a teacher at a private religious school sue that private religious school for a violation of the Americans with Disabilities Act (the "ADA")? If the teacher worked in a public school, the answer would be yes. But if the teacher works in a private religious school, some argue that the "freedom of religion" aspect of the First Amendment means that such private schools can set any "religious" rules they want - even if they violate the ADA. We'll see.   For more read this short blog on this case.

More on GPS tracking in the criminal prosecution world

The Fifth District Court of Appeals recently issued a new decision concerning the use of GPS devices in criminal cases.    In this recent decision, the Court held that the police were not permitted to plant a GPS device on the defendant's car without a warrant.    See the rest of the newspaper article.   And see the written decision. We have previously posted on this important topic.

Stay tuned for more details as higher courts address this issue.

Success for Our Business Client

On Thursday of last week we obtained a $97,000 verdict for a client of ours in their difficult attempt to get paid on a long-outstanding invoice. This client performed an extensive and valuable service for a customer who had gotten himself in a very difficult personal and financial situation. The customer consistently created management problems for our client – which caused our client to have to deal (at times) with this particular client on a daily basis. Our client provided monthly invoices to the customer, and, for reasons associated with its concern for the client, let the invoices go somewhat unpaid until after our client had completed its obligations under the contract. Our client’s customer refused to pay the balance due under the contract, and our client made a large number of out-of-court attempts to get the balance paid. Longtime personal relationships were affected, and our client, in some large measure, was personally insulted that the customer would not pay as the customer was obligated to do. At trial, the customer claimed (for the first time) that he had problems with the invoices that were regularly generated by our client. He also refused to acknowledge that many of the extra charges that were contained on the invoices were created by his conduct during the course of the performance of the contract. In short, he just didn't want to pay the balance due – despite the fact that he was a rather wealthy man. After the verdict, his lawyer claimed that he was going to appeal the verdict of the jury.

The verdict was both an economic and personal victory for the client. The defense in the case consisted of a bogus and personal attack on the integrity of our client’s work, so this verdict was in many ways equally about the client’s dignity as it was about the money.

This one felt good.

Anthony Sowell and Ohio’s Death Penalty Trial Process

Many folks here in Ohio (and in other parts of the country) have been paying close attention to the murder trial of Anthony Sowell – a man accused of kidnapping and murdering (and then dismembering or burying) 11 women in and around his home in Cleveland, Ohio. His trial lasted many weeks, included many witnesses and exhibits and cost much taxpayer money. But the same law that applies to all death penalty murder cases (cases involving much less instances of murder and far less witnesses) applied in this horrible case as well. In summary, that law and the procedure in a death penalty case goes like this. First, in order to be prosecuted for “capital murder” (i.e. death penalty murder) in Ohio, the defendant must be officially charged – in a very specific indictment - with capital murder. These death penalty “specifications” (as they are called) must be written into the indictment in a very specific way and presented to the defendant.

Second, even after the prosecution proves the elements of aggravated murder, they still have to also prove one or more of the following in order to put a defendant on death row:

(a) the killing was essentially a political assassination of the President, Vice- President, Governor, or Lieutenant Governor (or any candidate for that office); (b) the killing was for hire; (c) the killing was done in order to prevent the killer from being detected, apprehended, arrested or prosecuted; (d) the killing was done while the killer was in prison/detention facility; (e) the killing was done in an attempt to kill 2 or more people; (f) the killing was of a police officer; (g) the killer was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary; (h) the killing was of a witness to a crime; (i) the killing was of a person under 13-years of age; or (j) the killing was part of an act of terrorism.

The prosecution must prove many (but not all) of these types of murders where done with “prior calculation and design” (i.e. premeditation). The common jury instruction on prior calculation and design is as follows:

A person acts with prior calculation and design when, by engaging in a distinct process of reasoning, he forms a purpose to kill and plans the method he intends to use to cause death. The circumstances surrounding the homicide must show a scheme designed to carry out the calculated decision to cause the death. No definite period of time must elapse and no particular amount of consideration must be given, but acting on the spur of the moment or after momentary consideration of the purpose to cause the death is not sufficient.

Third, even after the prosecution has done the foregoing (and successfully completed what is called the “guilt phase” of a capital murder trial), the prosecution must then prove that any “mitigating factors” surrounding the defendant’s life and the crime are "outweighed" by the “aggravating circumstances” of the crime. This is called the “mitigation phase" of a capital case, and can often take much longer than the guilt phase.  In many instances, the jury gets a few days or a week off after the guilt phase of the trial before the commencement of the mitigation phase of the trial. It is during this mitigation phase that the prosecution must essentially prove that the horribleness of the killing outweighs whatever “mitigating” facts that exist about the defendant’s life and the crime. The lawyers for the defendant will try to show how the crime itself was peculiar and that the defendant’s past and present life experiences (mostly beyond his control) ended up creating the person who committed the crime - in an effort to show how this defendant could have committed such a horrible act. They will present persons who knew the defendant while growing up and mental health professionals to describe why the defendant ended up the way as he did. However, if the prosecution can prove and argue that the aggravating circumstances outweigh these mitigating factors, then there will be a recommendation of death. The Judge then has the option of accepting that recommendation or not (although the assigned judge almost always indeed follows that recommendation).

This is a very short summary of the law and procedure of an Ohio death penalty trial. There are many other nuances and specifics that exist in this area of Ohio law, and the appellate case law that has been generated from these cases totals in the thousands of pages.

Mr. Sowell’s trial followed this long process over many weeks. The trial and sentencing process are now completed, and now the very long appeals process will get underway. This will go on for many years to come. We will try to monitor the process for our readers here.

Our Recent Success in Our Client's Claim Against Dollar Bank

We had some recent and tremendous success for our client against a Pittsburgh-based bank called "Dollar Bank." The client had a large number of checks stolen from his apartment by a person he knew - and Dollar Bank let this person cash over $18,000.00 in fraudulent checks. Dollar Bank then refused to reimburse the client for the amounts fraudulently taken from his account (in violation of Ohio law).  It was our good faith belief  that the "investigators" for the Bank did not approve of the client's sexual orientation "lifestyle" and the fact that the thief was also gay. The lawyers for Dollar Bank as much stated so (somewhat accidentally) during pretrial discussions.  The Bank and its lawyers easily spent double  the amount at issue (or more)  in attorney fees, deposition costs and other court fees in fighting this case when they could have easily resolved the case for even less than the loss.  Silly. Anyway, the Bank attempted to make up a number of rather silly excuses as to why they would not reimburse the client the money. The investigators at the Bank were instructed to ignore requests from the client (and his lawyers) to even discuss the reimbursement issue. After the client filed suit to get his money back, the Bank made up even newer and sillier excuses as to why they would not pay the client back. The Bank even permitted itself to be listed as the "victim" (for criminal restitution purposes) in the criminal case that was filed by the State of Ohio against the thief - and still took the position that they did not have to pay our client.

The trial judge rejected all of the rather silly excuses advanced by Dollar Bank - and the Court of Appeals affirmed the Judge's decision. The Bank is now trying to get the Supreme Court of Ohio to take the case. Stay tuned to see what happens next.  Incredible cave-person mentality from even a bank here.

So What Happened with the Casey Anthony Case?

There were many of you who were rather surprised (and perhaps disturbed) by the jury’s verdict in the recent Casey Anthony case in Florida. I use the words surprised and disturbed because there was much written/spoken by the media (and many on-the-street citizens) about the verdict - specifically about the claimed injustice that verdict gave to the memory in the innocent young girl who died. This case, and specifically the verdict in this case, should remind us all of a few things. We need to remember that anyone who was not actually on that particular jury did not see what that particular jury saw – and that includes (i) the so-called media experts who claimed they were so keenly aware of how everything works in the criminal justice system and (ii) the by-stander non-experts who thought they had seen it all by reading the paper and watching television reports. Anyone who has enough criminal trial experience knows a few things that many of these folks either don’t know or simply forgot.

First, because of the way the jury system works, the jurors only see what the judge declares they should see (and this strict controlled environment is required by law). The jurors see none of the pretrial briefs filed by prosecutor or the defense lawyers. The jurors see none of the pretrial hearings and hear nothing that goes on in the sidebars. The jurors know nothing of evidence that was barred from presentation. The jurors are barred from going to the crime scene on their own or doing any type of internet investigation of facts and issues. And jurors only see evidence presented in a very specific and controlled way. In many ways, the jurors see the least amount of the proceedings than anyone else – and the system is designed that way. As many of you already have seen, in order to serve the controlled environment of the jury, jurors must sometimes be “sequestered” during the trial and during the jury deliberations phase.

Second, the jurors take an oath to follow the specific law that is given to them. They are to apply this law to the facts that are presented to them in the controlled environment of the courtroom. The jurors have to apply this law – including the jury instructions on “circumstantial evidence” and “reasonable doubt” (each state has a different definition of those 2 terms). They have to apply these definitions regardless if that following has the net effect of producing a verdict that is against their “gut” feeling.

Third, more and more juries these days are requiring police and prosecutors to all have “CSI” capabilities in evidence gathering and trial presentation. This is what many prosecutors in this area call “the CSI effect.” This is despite the fact that much of what folks see on TV is pure fiction – and this is despite the fact that most governmental bodies are faced with severe budget deficits which make using the sophisticated machines and techniques seen on TV (even the ones that may in reality exist) essentially impossible. Any good defense lawyer and any good prosecutor is going to keep this “CSI effect” in mind during any trial.

If you even want to see exactly what a jury sees, you must enter and leave the trial courtroom at the exact same time as the jury does. You must be barred from seeing any proceedings or items that the jury does not see. You must refrain from watching any television or radio or from reading any written media on the trial. You must also be barred from investigating any facts or issues while the trial is proceeding. You must also take an oath to follow the jury instructions that the trial judge gives you.

In short, the jury sees a play or movie very different than anyone else does. Experienced trial lawyers know this – and make sure that they assume nothing when it comes to what the jury knows or should know. It may be that the prosecution in this case made a number of assumptions about what the jury knew or should know. This is the danger of a circumstantial case – and it happens every day in the US during criminal trials. It just so happens that this particular trial made national headlines.

Violent Video Games and The First Amendment

The United States Supreme Court has once again told us that the First Amendment is essentially the “first” amendment for a reason. In the recent case of Brown v. Entertainment Merchants Association, the Court held that a California law (which regulated the sale violent video games to minors) was still in violation of the First Amendment. The Court held that the "freedom of expression" part of the First Amendment has only a very small number of exceptions, including child “obscenity,” “incitement,” and “fighting words.” The Court held that despite the fact that the technology associated with video games was new, the Court did not need to create a new exception to First Amendment protection. The Court essentially held that video games are entitled to the same historical First Amendment protection as books, movies, music, and other expressive entertainment. The Court acknowledged that while many of the video games are in fact disgusting, “disgust is not a valid basis for restricting expression." This US Supreme Court has made a number of recent First Amendment decisions which indicate a clear and strong protective instinct for freedom of expression.    As you may recall, and as we posted on March 18, 2011, the Court even held the disgusting things yelled at the funerals of dead soldiers was protected speech.

What is the John Edwards Indictment All About?

You may have read about the recent indictment of former presidential candidate John Edwards. The general allegations claim that he illegally used campaign funds (to the tune of $925,000) to fund the cover-up and support of his affair and child-fathering activities with a woman by the name of Rielle Hunter. Under Federal Law (called the “Election Act”), it is illegal for anyone to donate more than $2,300.00 to a federal candidate in a primary election in 2008, and all contributions of any amount must be reported. A violation of the Election Act is a federal crime. Interestingly, the allegations do not claim that checks were written out of the campaign checking account. Instead, the allegations claim that two wealthy supporters of Edwards gave $725,000.00 and $200,000.00 (respectively), outside of any deposits into the Edwards’ campaign coffers. Instead, those donors gave the money directly to the effort to keep the Hunter matter quiet (and to keep the “family man” image of Edwards alive). If Edwards was not a candidate for federal office, these cover-up payments would not be illegal. However, it is alleged that these payments were made solely under the proverbial table to assist Edwards’ campaign by hiding the scandal from the public eye. Under federal law, any money used to advance the campaign effort is subject to reporting and the $2,300.00 limit.

Rumor has it Edwards could not reach a plea deal that did not include jail time.

Many legal scholars feel that this is a new or unique use of the Election Act. There are sure to be a number of pretrial motions filed by the defense team claiming that the Edwards indictment is an improper use (or stretch) of the reporting requirement and $2,300 limit in the Election Act. We will continue to monitor this case for our readers.

Driving-While-Drugged

We recently gave a educational presentation to a group of other lawyers about a somewhat less known crime of "driving-while-drugged."  In Ohio, in addition to driving under the influence of alcohol, one can also be arrested and prosecuted for: (i) driving with a prohibited concentration of specifically enumerated drugs (usually illegal drugs) in one's system (called a "per se" violation); and/or (ii) driving under the influence of any drug (legal or illegal) that affects one's coordination to any "appreciable degree."

Obviously, this type of prosecution requires that the police legally obtain a blood sample (vs. the BAC alcohol collection machine) - so there are more medical/scientific issues with this type of prosecution than alcohol-related DUIs.   Further, when it comes to the specifically enumerated drugs that cannot be in your system (there is a list in the DUI statute), you can still be guilty of the driving-while-drugged DUI even if you are in reality coordinated enough to drive.  Further, and perhaps more importantly, this driving-while-drugged type of DUI can happen to almost anyone who is not careful with their prescribed or over-the-counter medications.

We have seen more of these types of cases with our elderly clients (who would never dream of driving after even one drink) who are on a series of prescribed medicines and with clients who suffered some old trama injury who unwittingly became addicted to the pain medication.

So, as the doctor and the pharmacists say, read the labels of all drugs you are taking to see about any warnings about operating "heavy machinery" (like a car) when taking the medication.   And remember that you can be found guilty of a driving-while-drugged "per se" charge even if you are in fact completely sober at the time you are caught driving.

GPS Tracking by the Police - Again

We have previously written about Ohio law treatment of the issue of police attaching a GPS device to a car without a search warrant - a new issue which has arisen out of new technology. Well . . . The Supreme Court of the United States may be taking the issue up very soon. In the August 2010 opinion of United States v. Maynard, a federal court of appeals held that the police do in fact need a warrant to use a GPS device. The Federal Government is trying to appeal that ruling to the United States Supreme Court.  The United States Supreme Court does not have to take the appeal (it is up to them to decide if it has enough importance), and if it declines to do so, then the appellate court ruling stands - and, by a sort-of legal default, becomes the law of the land.    Stay tuned for details on this one.  Many police departments are watching.

What is an Expungment, and Who Cannot Get One.

An "expungement" is a legal process whereby a person with a conviction for a crime can have that record sealed from discovery by a background check.  Ohio has a series of expungement statutes, and these statutes provide who is and who is not entitled to an expungement. Expungements in Ohio are called "sealing of the record." In order to be entitled to an expungement (or sealing of the record), a defendant must have one, and only one, "conviction" - and it is that single conviction that can be sealed.   Normally, traffic offenses (except DUIs) are not considered a "conviction." Further, even if a defendant has just one conviction, there are certain convictions which a defendant may never expunge/seal. The most common are murders or crimes involving death, DUIs, crimes where the victim is under the age of 18, and what are called "crimes of violence." Many of our DUI clients are surprised to find out that what they believe to be just a  "traffic" offense will remain on their record forever. Further, one-time stupid events which result in technical convictions of crimes of violence (e.g. see State v. Derison where a baseball fan who got into a scrape with the police ended up a with an assault conviction that cannot be expunged), can result in a conviction that remains on one's record for life. We often have clients who have really turned their past life around, and want to get their convictions sealed so they can get a better job or get bonded or licensed in a trade.    It sometimes pains us to tell them that they cannot get that expungement.   It is always better to discuss the impact of the Ohio expungement statute with your lawyer at the time of the plea or trial - and not years later when the crime is a part of your distant past.     Further, some industries, including the nursing industry, are entitled to see expunged records when they are screening prospective employees.  Further, law enforcement officials are always permitted to view expunged records when they are are investigating someone for a subsequent crime.

The Crazy Funeral Protestor Case

Last week, the United States Supreme Court issued a difficult decision involving what can be the painful scope of the First Amendment. In Snyder v. Phelps, the Court held that scathing and hurtful comments made by a weird religious church at the funerals of military personnel killed in action are nevertheless protected by the First Amendment right to free speech. The Westboro Baptist Church membership would travel to the funerals of dead soldiers and hold signs and make comments that the soldiers had died as punishment for homosexuality in the US (statements like "pray for more dead soldiers" and "God hates fags"). This so hurt and angered the father of one dead soldier that he (the father) file a lawsuit and succeeded in obtaining a multi-million dollar verdict against the members of the church. However, once the case reached the Supreme Court of the United States, the Court (in an 8 to 1 decision) reversed the verdict - holding that, regardless of how hurtful and inflammatory the church members' speech was, it was still protected by the First Amendment. The Court concluded that the hateful speech, speech specifically designed to inflame, is still entitled to First Amendment protection.

This decision will surely be the foundation for more free speech decisions to come down the road in the future. Most legal commentors agree that if the speech in this case passes the First Amended test, then much emotionally draining speech will as well. Stay tuned. Given this decision, this is not the last time this issue will come up in the media.

US Supreme Court Case on DNA Tests

There has been a recent number of stories in the written press and TV media about convicted prisoners who are seeking to use modern DNA technology to see if that DNA technology can produce evidence that will get them a new trial. The science and technology behind DNA evidence is really less than a decade old, and many convicts (who claim that they did not have access to the technology at the time of their prosecution) assert claims that they are actually innocent and that DNA evidence will prove that innocence.

Recently, the United States Supreme Court has entered the fray with the decision of Skinner v. Switzer. In short, this decision basically holds that convicts can file "civil rights" lawsuits to force the authorities to give them access to DNA technology. Prosecutors had argued that once a defendant had exhausted all of that defendant's appeals in the state court system, then they should not be able (sometimes years later) to file a "federal" civil lawsuit to seek evidence that they should have sought out and used in the original "state" criminal trial process. The Supreme Court rejected the prosecution argument, but made it clear that just because the convict files that lawsuit does not mean that he will win that lawsuit. The convict will still have to prove that his civil rights were violated (this is a complicate process in the federal court system). Nevertheless, we expect that a new increased number of civil rights lawsuits will be filed by long-incarcerated convicts to seek DNA relief.

Two Types of Claims or Lawsuits When Someone is Killed by an Accident

When someone is killed in an accident (due to someone else's mistake or intention), the estate of the deceased person has two types of lawsuits or claims that the estate can maintain. One is called a "wrongful death" lawsuit, and the other is called a "survivorship" lawsuit.

The "wrongful death" lawsuit involves a claim by the estate of the deceased person for all of the damages that the death has caused to a specific list of persons: (i) the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and (ii) for the exclusive benefit of the other next of kin of the decedent. The lawsuit or claim will be pursued to find out what those damages are. After the lawsuit is settled to tried to a verdict in one court, the probate court (another court that controls how the money of the estate is divided up) must determine how those proceeds are divided up with each heir.

The "survivorship" lawsuit concentrates primarily on the pain and suffering experienced by the deceased person from the point of the accident to the point of the injured person's actual last breath. Sometimes this period lasts a few seconds (like an automobile accident where the deceased person dies almost right away), and sometimes it can last for months (like when that same accident leaves a person in the hospital for months only to have that person eventually pass away). This period of time (i.e. the period of time where the person has temporarily "survived") comprises and often determines the value of the claim. All of the monetary compensation from this claim goes exclusively to the deceased person's estate - and will be divided up according to the will or the probate laws (if there is no will). The general theory is that the longer the person survived or suffered after the accident, the more the damages the estate is entitled to.

Most times, the deceased person's family pursues both a wrongful death and a survivorship in the same claim or lawsuit. Although they will be pursued or tried together, they require somewhat different proof and the two claims will technically have separate values.

We hope that no one reading this ever has to be personally involved in one of these claims.

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Ohio's Two Types of Damages - Economic and Non-Economic

Under current Ohio law, there are two types of damages that an injured person may recover for their personal injury: one is called "economic" damages and the other is called "non-economic damages."

Each has its own specific statutory definition, but in general "economic damages" are the bills the injured person has had to pay or be liable for as a result of the injury. For instance, in an auto accident, they include the medical bills and the repairs to the injured person's car. Further, if that person lost work as a result of the accident, then the specific amount of lost wages is also considered a type of "economic damages." Obviously, determining the exact amount of "economic damages" is (or should be if all of the parties are operating in good faith) relatively easy - a simple exercise in math.

"Non-economic" damages are often referred to as "pain and suffering" damages, but are more specifically defined to include:
pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss.

As you can probably guesss (or as some of you have actually experienced), determining the proper or reasonable amount of "non-economic" damages can be far more complicated than determining the proper or reasonable amount of "economic damages." In fact, most personal injury claims or trial disputes revolve around the proper measure of "non-economic damages." Each person's valuation of "pain and suffering" or "loss of companionship" can be quite different from another's. Suffice to say, if the pain is your own, you see its true value - while the pain you hear about for another is something that must be explained to you in such a way that you can truly appreciate what that other person is going through.

Stay tuned for more posts on how damages in Ohio are calculated - and how Ohio law actually places limits (or, as they are often called, "caps") on specifc types of damages.

More on Federal Criminal Jurisdiction and the "Interstate Commerce" Clause

On January 9, 2010, we discussed what is necessary for the federal government to prosecute crimes - specifically that the crime have an effect on “interstate commerce.” This interstate commence requirement is in play in the Federal District Court here in Cleveland, Ohio - in a deadly arson case where 9 people died in a house fire. It is unusual for federal prosecutors to prosecute arson cases - even ones that involve an arson where people have died. Nevertheless, the Federal Government is currently prosecuting (and is in trial against) a man who, they allege, intentionally set a fire that killed nine people. If they are successful in convincing a jury that he intentionally set the fire, they will seek (in a separate phase of the proceedings) the death penalty.

However, just proving that the defendant intentionally set the fire will not be enough for a conviction. The Government will also have to prove that the crime affected "interstate commence." So, how does a fire in a building in Cleveland, Ohio affect interstate commence? The building was located in Cleveland. The defendant lived in Cleveland, and all of the people who died lived in Cleveland. No one crossed state lines, and the things that were used to start the fire were all obtained in the Cleveland area. Nevertheless, this "interstate commerce" issue has already been decided by the United States Supreme Court - where they held that a fire in a 2-unit apartment building affected interstate commence because "the rental of real estate is unquestionably" an activity affecting interstate commerce. The fact that the residence in question was “rented” was enough to trigger the application of the "interstate commence" clause of the US Constitution. So, it may not be too difficult for the Government to prove that a rental house where 9 people were residing or staying has an affect on interstate commence.

Depending on the circumstances, the federal courts are often willing to expand the coverage of the "interstate commence" clause. In the next couple of years, there will be a number of big fights in the federal courts over what does or does not affect "interstate commerce" - including whether or not parts or all of the so-called ObamaCare health law is constitutionally related (enough) to "interstate commence." Stay tuned.