ARE WE REALLY INNOCENT UNTIL PROVEN GUILTY?

Innocent until proven guilty is a phrase we hear often. From the plain verbiage it assumes that until you have been proven guilty you are innocent. But is this really how the public perceives an accused? Do we really look at them as though they are innocent individuals charged with crimes that the Government must prove before this innocence is gone?

The English lawyer Sir William Garrow (1760–1840) insisted that “accusers be robustly tested in court. An objective observer in the position of the juror must reasonably conclude that the defendant almost certainly committed the crime.” But is this reality? Considering that it is the Government who has the most access to the media the accused is behind the proverbial eight ball from the beginning, most likely already convicted in the court of popular opinion known as the media. Have you ever read an article about an accused written from the perspective of the accused? The answer is most likely no. This modern phenomenon flies in the face of time honored concepts of humanity and law.

No one can dispute that citizens have far more access to information than ever before. Social media, online news and the internet in general provide people with a gateway to news access never before available. But has this availability of media coverage destroyed the presumption of innocence?

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Consider the fact that news articles are often written from the police perspective. News stories often quote police reports drafted by the officer’s themselves. Rarely if ever is an accused contacted and provided an opportunity to supply a written narrative of the events that transpired from their perspective. Rarely if ever is the accused given the first opportunity to address the public through a media story. This leads to the inescapable conclusion that citizens are flooded with information about a particular case or person from the government's perspective. This is the information they have to rely on to form their initial opinion of innocence or guilt. In essence the government has already proven each and every element of the offense beyond a reasonable doubt and the individual is no longer innocent in the court of popular opinion. The danger with this phenomenon is that popular opinion may find its way into the jury room.

To insure that this very important right is preserved it is the duty of every citizen to withhold judgment until they have heard both sides of the dispute. To do otherwise is to change the burden of proof to the accused. Are we prepared as a society to ignore years of careful jurisprudence and create a different "media burden" and "court burden." Is our own lustful appetite for dirt more important than well thought concepts of law? Only time will answer these questions and only those actually accused of crimes will care.

ASSET PROTECTION

Many folks mistakenly believe that asset protection is a tool only for the wealthy. The simple truth is most people have more asset value than they think. A few simple steps can protect those assets in the unfortunate happening of lawsuits, nursing home care, divorce or any other unfortunate situation.

There are a few commonly overlooked assets that individuals may want to protect.
HOME EQUITY

Determining whether or not you have equity in your home is as simple as determining what is owed on the balance of your mortgage and subtracting this amount from your homes fair market value. The County Auditor and other real estate valuing websites are good starting points for this analysis. If this amount is a positive number congratulations you have positive equity in your home. However, creditors may see your home as an available source of repayment by attachment, lien, or foreclosure.

LIMITED LIABILITY COMPANY MEMBERSHIP UNITS

Most folks believe that forming a limited liability company offers them complete insulation from lawsuits, judgments, and other forms of garnishment so long as they hold all of the assets of the company in the name of the LLC. In the event that the LLC is a company with positive value, the membership units maintained by the individual may also have value. That value is another asset of the individual that creditors may seek to attach, lien or attach to recover.

PROTECTING YOUR ASSETS

In the past individuals have been reluctant to consider an irrevocable trust as a viable option to asset protection. The nature of irrevocable trusts is such that assets in, lose their flexibility leaving you the inability to acquire and dispose as you see fit. However, recent changes to the law and the manner of implementation have created a scenario where your assets are safe yet flexible.

HOW DOES IT WORK?

When you combine an irrevocable trust with a limited liability company and a management agreement you acquire the benefit of asset protection with the feature of asset control.

STEP 1: An irrevocable trust is formed. Ohio residents have the luxury of recent changes to the law that allow for the creation of certain trusts that insulate trust assets from the reach of creditors. These trusts also change the nature of the property in that they are now owned by the trust. This has far reaching implications in situations such as divorce and elderly care, to name a few.

STEP 2: Form a limited liability company. The membership units of the LLC will be owned by the Trust. Your assets you seek to protect will also be owned by the LLC. This prevents creditors from attempting to utilize the membership units as an asset during collection.

STEP 3: The trust and you enter into a management agreement wherein you are vested with the authority to manage the LLC. This allows you the flexibility of controlling the assets owned by the LLC but the membership units owned by the trust, with the benefit of those assets being safe.

MOVING FORWARD

If you or someone you knows wishes to develop the peace of mind in knowing the assets they worked hard to acquire are safe from the reach of creditors then this is something that needs serious consideration. Contact my office to schedule a cost free analysis to determine if this approach is beneficial for you.

Why Wouldn’t The Lawyer Take My Case?

If you were injured in an automobile accident chances are you sought legal advice to determine if you were entitled to compensation for your injuries.  The media is flooded with Personal Injury firms advertising that they can help you get paid.  And better still, you do not have to worry about paying the lawyer any money upfront, because they do not get paid until you do!  To the individual involved in the accident this is a win win scenario.  So then why didn’t the lawyer take your case?

 

Most lawyers handling personal injury claims agree to represent individuals involved in an automobile accident on a contingent fee basis.  This means that the fee ultimately paid to the lawyer is determined by a percentage of the final recovery.  In other words if your lawyer agreed to a one third contingent fee and your case settled for $10,000.00 your lawyer would receive approximately $3,333.33 for his or her services.  Additionally, in most contingent fee scenarios the lawyer agrees to advance any costs associated with the case (filing fees, court reporter fees, records request fees, etc.)  This means that the client does not encounter any costs to pursue their claim.  Probably the most attractive feature of a contingent fee scenario from a client perspective, is that if your case does not yield compensation by settlement or verdict, you do not owe the lawyer any money (you will have to reimburse the firm for case expenses only).

  When you breakdown the dynamics of the contingency fee scenario it becomes very obvious that all of the risk associated with the case belongs to the lawyer.  The lawyer is investing his or her time and money into the case with the expectation of yielding a profit from the final settlement or verdict.  For this reason many firms will not accept a client unless a careful cost benefit analysis promises a favorable outcome.  When you realize that all of the risk associated with the case rests with the firm, you will have a better understanding of why a lawyer may or may not decide to accept your case on a contingent fee arrangement.

Is Your Cell Phone Password Safe From The Police?

Most Americans would tell you that they value their privacy.  To protect and serve, law enforcement is often required to invade that privacy.  Constant advancements in technology usually keep private citizens one step ahead of law enforcement.  However, several recent Federal Court decisions regarding the ability of law enforcement to compel private citizens to open their password protected cell phones, may cause people to rethink how they protect those devices from prying eyes.

In 2014 a Federal Court in Virginia ruled that law enforcement could compel an individual to open a cellular telephone protected by a fingerprint lock.  The Court distinguished fingerprint locks from a password stored in ones memory, reasoning that fingerprints are not any different than other items law enforcement already maintains the right to compel individuals to provide like DNA, fingerprints, or  handwriting samples.   Compelling someone to reveal a password stored in their brain however, would be the equivalent of compelling someone to testify against themselves, which the law does not allow.  Similarly in Texas and California, Federal Judges have ordered individuals to open telephones seized by the police in criminal investigations that were locked by fingerprint.  

Very recently a Federal Court in Pennsylvania refused to compel an individual to reveal his pass code to open his telephone.  The basis for this refusal was the protections provided by the Fifth Amendment to the United States Constitution. (privilege against self incrimination)

It appears that the courts at the Federal level have drawn a distinction between fingerprints and pass codes with the former maintaining none of the Constitutional protections of the latter.  The United States Supreme Court will most likely have the final say on this issue.  Until then I will be using a pass code.

Text Messaging Considerations For Lawyers and other Professionals

In today’s digital age, many clients desire to communicate with their lawyer by text message. Text messages offer a quick and concise medium for communication. However, for the lawyer they can be fraught with peril. A practitioner must weigh issues of privacy and confidentiality against convenience.

To provide your clients a secure means of communicating by text message, consider foregoing the stock texting app on your cellular telephone for any of the encrypted text messaging apps available.  Your client will take comfort in knowing that their sensitive communications are protected.  Many of these applications also offer a feature that deletes the text message from the recipient after an elected period of time.

FOUR DO’s When Text Messaging Clients

-inform your client to consider downloading a secure encrypted texting application to communicate with you.

-consider the sensitivity of the information being texted and inform them of the deleting text feature available on many encrypted texting applications.

-investigate the effectiveness of the application you chose to be sure it supports end to end encryption utilizing the latest technology.

-encourage customers and clients to utilize secure deleting messaging applications internally as well, to avoid their messages potentially becoming evidence in the case of  litigation.

By following these simple steps you can provide your client with suitable and convenient platform for communication.

Are Speed Cameras Legal?

If you live in the Mahoning Valley Ohio, chances are you know someone who has received a traffic camera speeding ticket in the mail. These wonderful letters display a poor quality photograph of your vehicle allegedly speeding down the roadway and invite you to pay the municipality a fee for your offense. But are these speed cameras legal?

 

In March of 2015 the Ohio Senate passed Senate Bill 342. Effective immediately, the bill banned communities from using stand alone traffic cameras. However, it allowed traffic cameras that were manned by a police officer. Communities such as Youngstown, and Girard in Ohio, employ light detecting and ranging cameras (LiDAR) that are operated by or in the presence of a police officer.

 

If you drive through one of the various Ohio communities utilizing these cameras, and you are lucky enough to receive a ticket in the mail, the violation is a civil violation. This means it will not result in points on your driving record. There will however, be a fine.

 

DO I PAY THE FINE OR FIGHT IT?

 

The municipalities are counting on you paying the fine without a fight. To entice you, the fines are relatively low and the violations do not result in points on your driving record. They simply do not want to risk you challenging the constitutionality of the process. However, there has yet to be expert testimony demonstrating the scientific reliability of the LiDAR device in the jurisdictions issuing citations. For a person to be convicted of speeding based on laser-device evidence, evidence must be introduced that the laser device is scientifically reliable. East Cleveland v. Ferell, 168 Ohio St. 298, 301. Ohio law does not require an expert to testify each time the scientific reliability of the LiDAR device is brought into question. An expert would need to testify one time and be sufficiently cross examined on the scientific reliability for the court to take judicial notice of the LiDAR’s scientific reliability. This has yet to be done.

 

The future of LiDAR remains unknown. It appears that the process may continue status quo so long as municipalities keep the fines for tickets low enough to deter individuals from hiring a lawyer to challenge the process. But if history be our guide, the capitalistic nature of mankind dictates that you can expect a challenge soon.

1 Easy Step To Clearing Your Record!

https://www.linkedin.com/pulse/1-easy-step-clearing-your-record-robert-rohrbaugh-ii

Today many young people are finding that their past is effecting their future, at least as it relates to employment. Most employers who are willing to invest in an employee are also willing to pay the small sum required to perform a background check. If you have a criminal record this could exclude you from the job of your dreams.

Fortunately, most jurisdictions have provisions in their laws allowing those with criminal records to petition the proper court to seal the record of conviction or arrest. However, in most jurisdictions this provision is not without limitation. In Ohio for example, the individual petitioning the court to seal their record must demonstrate that they have not been convicted of more than one felony, not more than two misdemeanors, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction. (R.C 2953.31) Additionally, certain convictions can not be sealed.

Contact a lawyer in your jurisdiction to determine if you qualify to have your criminal record sealed. If you are eligible, invest in yourself. Sealing your record allows you to enter the workforce with a clean slate and the confidence to go after that job you always wanted but were afraid you would never get.

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