What really is compression asphyxia?

What really is compression asphyxia? Steve Lombardi, attorney discusses the condition in a legal context.

Eye-In-The-Sky Kaching-Cameras! Go Live on Independence Day

Involved in an Iowa car accident and need answers? Try the Lombardi Law Firm website. www.lombardilaw.com or 515-222-1110.

Drunk Driving News for February 22, 2011

Todd Miler who shares office space with me handles OWI cases in central Iowa. His availability to me has allowed me to watch how the law works to handle the criminal defense of these cases. I’ve been handling the PI side of drunken driving cases now for the better part of 30 years and they can be a challenge. The law is somewhat convoluted and patched together from a public policy trying to deter drinking and driving while trying not to compensate those who are drunk and driving. The estate claims and the dependent claims can proceed but with some restrictions. Of course after reading thousands of wrong-way driving news reports from all over the country the risks of drinking and driving are pretty telling. If I can answer your questions give me a call; otherwise here today are the news items for Iowa about OWI, drinking and driving or drunk driving as it’s commonly referred to. Here are some stories for today. Contact information: sdlombardi@aol.com and 515-222-1110.

2010 CRIMINAL FEE SCHEDULE

If you require the services of a criminal defense lawyer contact Mr. Lombardi and he will refer you on. One lawyer that provides criminal defense and has a wealth of trial experience provided us with his 2010 Criminal Fee Schedule. We provide it today and if it fits within your budget call for a referral. sdlombardi@aol.com or call 515-222-1110

Criminal Law Drunk Driving - What you need to know about our services.

: If you’ve been arrested for drunk driving you need to see an attorney within the first ten days after your arrest. Todd Miler has been representing people arrested for OWI or OMVUI for over 10 years. You need to call him for an immediate appointment.

Pedestrian is killed and driver of Hummer is not charged.Why?

Just because criminal charges are not filed won’t preclude a civil action because the legal standard for finding culpability are very different. The criminal case focuses on whether there is evidence of a crime and the standard is beyond a reasonable doubt. The civil law focuses on whether or not there is a preponderance of the evidence to show the driver was negligent. Of course comparative fault is of the pedestrian is also at issue. Essentially were one or both at fault, negligent, in causing the accident.

SHOW ME YOUR PAPERS!

Lately I’m growing more and more concerned that we are moving towards living in a police state. Today I hear that the Des Moines Police Department entered Peggy’s, the popular Drake University hangout, and demanded to see everyone’s identification. Is this the USSR? Nazi Germany?

Why do criminal defendants need a bonsman?

Whenever a person is arrested in Iowa the Court is going to need some assurance that the arrested person will appear at their upcoming court dates. The easiest way to make sure that they appear is to require them to remain in jail. Fortunately, in almost every case an amount of money is set as bail which a person can post with the Clerk of Court to obtain release from jail. For minor offenses, often times the judge will release someone on their own recognizance, which is their simple promise to appear for court.

Criminal Law Commentary: It is time to decriminalize marijuana in Iowa.

It is time to decriminalize marijuana in Iowa. Nebraska has. Minnesota has. So have Ohio, New York, Massachusetts, California, Oregon, Colorado, Mississippi, North Carolina and Nevada. In any of those states, a person in possession of marijuana for purely recreational purposes can not be sent to jail or prison. They can only receive a fine. Decriminalization doesn’t mean its legal, just like speeding isn’t legal. It just means that we shouldn’t be sending a person to jail or prison for possessing a small amount of marijuana.

Caught on video at Des Moines City Hall.

Theft involves the taking of property of another.  The last I knew, this is still America and in order to be convicted of a crime requires, among other things, proof beyond a reasonable doubt.  Its easy to take aim at persons accused of crime and criminal defense attorneys, but walk with me one day, meet my clients and you will feel differently about the fight to preserve our way of life.  Its cases like Ryan Wacome's that erode our rights little by little.
 
According to the Des Moines Register, Ryan Wacome has been charged with a series of thefts at Des Moines City Hall.  Wacome was a 20 year-old janitor.  The Register says that small amounts of money were missing from desks over the past month so they contacted the Des Moines Police Department and set up a sting operation.  A detective put a "small amount of money" in a desk and placed a camera to record whatever occurred.  The camera allegedly caught Wacome removing the money.  I hope he has not been charged with the other alleged thefts as has been reported.  It would be one thing for him to agree to make restitution for the other amounts of money, but it would likely be a violation of his rights to get convicted of the other alleged thefts.  Even if he confesses, Iowa criminal law requires more than that for an otherwise uncorroborated crime.  I would also be curious to hear what evidence there is that the other thefts actually did occur.  I keep some pennies and nickels in my desk but I can't tell you how many.  Let me look, hmmmm, I thought I had a few more.  Better call the Des Moines PD and set up a sting.
 
But here is the other thing: video and photographic evidence are sometimes the most unreliable evidence.  Look at this photograph of an alleged burglary yesterday in Des Moines.  Jurors are common people just like you or I, and if its difficult to tell who is in the photo, then that is not proof beyond a reasonable doubt.  Thankfully most jurors are cognizant of that fact.  I once had a convenience store robbery case where it was caught on surveillance video.  The clerk alleged a weapon was displayed and she was stuck in the cooler.  There was a cop in the parking lot and my client was nabbed walking out the door into the parking lot.  It was 5 a.m.  Very few other persons were around.  The person in the video did resemble my client and he was facing a 62-year prison sentence.  For good reason, my client is a free man today.  A photo is not always worth a thousand words.

Des Moines has been robbed!

There have been many news stories this week about "robbery."  Robbery is a term that is used rather loosely in the general public, but has a specific term in an Iowa courtroom.  For example, if someone has a lawnmower stolen from their yard, upon discovery they yell "I was robbed!"  This is not a robbery.  When the Iowa Chops said they were leaving town, we all said "we were robbed!"  Of course, that is not a robbery.

According to news reports, there were some Git-N-Go stores that were all "robbed" a couple nights ago.  In a couple of the incidents, the clerks said guns were displayed and money was stolen.  If proven beyond a reasonable doubt to a unanimous jury, this is the classic definition of robbery.  In at least one incident though the alleged suspects were nothing more than mere opportunists and grabbed cash out of the register while the clerk was away without any threats or weapons.  This is not robbery, and is nothing more than a misdemeanor theft.  When caught, however, their charges will need to be negotiated.

In another incident, Pegkella Dameron is charged with robbing a Kum-N-Go because she allegedly threw a punch after being confronted for stealing some candy and tea.  If convicted, she'll go to prison for a long time.  The legislature has considered changing this law so that people like Pegkella that commit an assault during a simple shoplifting event would not be going to prison, but thus far they have not changed the law.  At present, this may meet the current Iowa definition of robbery.

Darnell Ramey is charged with robbing a Wells Fargo concession stand during a Coldplay concert.  Apparently there were others involved, according to the Des Moines Register.  The Register does not make it clear what involvement or charges the others are facing.  This case will involve an analysis of accomplice responsibility and a determination will need to be made of each person's role in this incident.

Often times, robbery charges in Iowa should be nothing more than misdemeanor thefts.  Robbery is a forcible felony requiring either a 25 year or 10 year prison sentence depending upon the level, so be careful the next time you say someone robbed you.  There are some specific defenses to these charges.

When police rule an accident is an “accident” does that preclude a civil suit?

Civil versus Criminal Actions - The accidental shooting.

Several newspapers reported on an accidental shooting in Southeast Iowa in the town of Donnellson. Here is the situation. Two men were shooting targets with high-powered rifles. One was a 29 year old man, Levi Martinson. The other is James Easter, 31. These two men were shooting out from a second story window at Easter’s home. They were shooting with high-powered rifles at targets set by a pond. Martinson was holding his rifle by the barrel. The gun accidentally discharged shooting and killing him. The police investigated and concluded it was “an accident”. An autopsy was conducted and there is no mention of any ballistics tests being performed.

In this case the shooter is the person who later died. You can’t sue yourself, but if the gun were defective then the manufacturer might be legally liable. And of course if an autopsy, ballistics tests, blood splatter evidence and other tests showed the decedent was not holding the gun then we would have a very different case.

Let’s assume for the sake of this post that two men are out shooting targets and the gun one holds does accidentally discharge killing the other. The police, like they did in this case conclude it was accidental, is there a possible civil action.

Will the police conclusion of an accidental shooting preclude a civil action?

The quick answer is, no, it doesn’t preclude a civil suit and a finding of negligence. The police are looking at whether or not the actions by Martinson were a violation of the criminal law; not civil law. Criminal law and civil law are like apples and oranges. Every crime has elements to be proven. Elements are like ingredients in a recipe. If when baking chocolate cupcakes you leave out an ingredient the cupcakes won’t bake or taste right. Proving a violation of the criminal law is similar to following a recipe in food preparation.

Elements of Crimes and Civil Actions

The elements of crimes (the criminal statutes) are different, very different, than the elements of civil rules of conduct. One element that is very different for crimes and negligence (torts) would be intent. A person must intend to do the act and for most crimes the act intended is one that will or is likely to result in death, injury, fright or the deprivation of another’s property.

In this case of the shooting that resulted in death the likely criminal considerations could be murder or manslaughter. To commit the crime of murder you have to have intention to do an act that is likely to cause death of another person. Manslaughter is doing something really dumb, like actually pointing a loaded gun at someone. Criminal intent is vital to a successful prosecution. Intent isn’t involved as an element in negligence actions. In this case the man was simply holding the gun by the barrel and it discharged. There was no intent to do harm.

Now let’s look at civil laws. A jury’s evaluation of what the shooter did might consider other facts, like what a reasonable man might have done in this instance. Inquiry into exactly how the gun was being held, were they fooling around, was there another way to hold the gun and had it every accidentally discharged previous to the day of the fateful events. Experts would evaluate what actually caused the gun to fire without a finger on the trigger. If it has to do with gun maintenance then who owned the gun and if it were properly cleaned and maintained would it not have discharged? Everyone has a duty to not act unreasonably in a way that causes injury or death to another person.

Burdens of Proof

The burdens of proof, the standard by which a case must be proven, have to do with the amount of evidence needed to be produced, is different in criminal and civil cases. Due to the presumption of innocence the burden of proof in criminal cases is much higher.

Think of the burden of proof as a level of proof required to demonstrate to Judge and jury that your side of the argument on any given point is more persuasive than the your opponents. Don’t confuse the burden of persuasion for any given element with burden of proof. The burden of persuasion remains on the party whose duty it is to prove any one element.

The burden of proof placed on a prosecutor to prove the defendant has violated the criminal law is beyond a reasonable doubt. On the other hand civil law violations are about negligence or fault and the burden of proof is a preponderance of evidence. A preponderance of the evidence is the greater weight of evidence. Think of preponderance of evidence as the scales of justice; just tip the scales and you win. But with the burden being beyond a reasonable doubt and you have a much tougher job in putting on enough evidence to make the elements of the crime true beyond any reasonable doubt.

And that’s the difference. Yes there can still be a civil case by the estate of the dead man or his wife and children.