April 15, 2016

Maryland Justice Reinvestment Act

The Maryland Assembly has recently passed the Justice Reinvestment Act which is generally aimed at significantly reduces Maryland's prison population. Our partner, Judge Joe Murphy (ret.) played a key role in formulating much of this legislation. The legislation passed the House by a vote of 122-19 and the Senate 46-0. Gov. Hogan is expected to sign the bill into law this spring.

Many major policy changes are highlighted below in this text but include a unique opportunity for inmates serving mandatory minimum sentences for drug offenses an unprecedented opportunity to return to court and ask for a sentence modification.

Some other highlights to the bill include:

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November 3, 2015

Dismissal of DUI and DWI Charges in Baltimore County

As an Aggressive Former Baltimore County Prosecutor and DUI/DWI Attorney, I have prosecuted and defended well over 5,000 DUI's in my almost 20 year career. These cases are prosecuted very aggressively in Maryland with few dismissals and even fewer acquittals. The police have been trained to write highly detailed reports describing their interactions with defendants too include their performance on field sobriety tests. These detailed reports are then testified to in court and are very often viewed as sufficient evidence to convict, at least of Driving While Impaired, even with low blood alcohol readings such as .05 or .06.

I handled a case in Baltimore County this week in which my client blew only a .06. The prosecutor initially refused to dismiss the case. However, after speaking with me in detail about the circumstances of the police officer's stop of my client and his performance on the field sobriety tests, I convinced her that she would be unable to prove the case. Here are the facts:

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October 26, 2015

Child Pornography Cases Prosecuted More Aggresively in Baltimore County Than in Other Jurisdcitions in Maryalnd

As an Aggressive Criminal Attorney and Former Baltimore County Prosecutor, I have defended dozens if not hundreds of individuals who have been charged with Possession and/or Distribution of Child Pornography. I have been practicing exclusively criminal defense for the last 17 years since leaving the Baltimore County State's Attorney's Office and handle these types of cases all over the State. There is simply no question that they are prosecuted more aggressively in Baltimore County than in most any other jurisdiction. For this reason, it is imperative to find a full time criminal attorney who has substantial experience handling Child Pornography cases, in Baltimore County.

I recently defended an individual in Baltimore County that is a good illustration of how aggressively these cases are prosecuted there. Here are the facts:

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October 26, 2015

Successful Representation in Child Pornography Case

As an aggressive Criminal Defense Attorney, who is also a former Assistant State’s Attorney, I have helped numerous clients accused or charged with possession or distribution of child pornography. These serious charges can be prosecuted in State court or Federal court. Since State criminal charges are different than Federal criminal charges, which often carry far more severe punishment, I team up with my partner and former Federal Prosecutor Andrew White, who led the sex offense unit of the United States Attorney’s Office for more than 7 years. Over the years Andy has had tremendous success using his connections to have these cases prosecuted in State courts where there are no minimum mandatory sentences, as there are in the federal system. However, even in State court, these serious crimes may result in a felony conviction, extended prison sentences and the requirement to register as a sex offender.
Serious consequences
In Maryland, a conviction even for Misdemeanor Possession of Child Porn mandates registration as a Tier I Sex Offender for 15 years. A conviction for Felony Distribution or Possession with the Intent to Distribute Child Porn mandates registration as a Tier II Sex Offender for 25 years. Additionally, a charge of possession for distribution of child pornography will likely impact every aspect of your life. From job prospects, to where you can live, to not being able to step on the property of your child’s school, to having the police notify your neighbors of your status, as well as inclusion on sex offender websites with your exact home address and picture.
I recently had a young man facing these daunting consequences. Here is what happened:

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June 4, 2015

Not Guilty Verdict in Felony Assault Case Utilizing Defense of Others Strategy

As an Aggressive and Experienced Criminal Defense Attorney and former Assistant State's Attorney, I have prosecuted and defended well over a thousand First and Second Degree Assault Cases. These serious cases can carry substantial penalties to include lengthy jail sentences upon conviction - particularly when a serious injury is involved. The maximum penalties are 25 years and 10 years respectively. Many people are shocked to learn that second degree assault carries such a long jail sentence in spite of it being a misdemeanor.

I recently secured an acquittal for a Maryland school teacher who was charged in such as case. The incident, which I will describe below, resulted in the alleged victim sustaining a traumatic brain injury and was charged as a First Degree Assault. Needless to say, given the serious injury to the victim, the State was aggressively prosecuting the case. He are the facts:


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June 3, 2015

Not Guilty in Second Degree Rape Case

Sex Offenses including Second Degree Rape charges are among the most serious criminal offenses that are handled in the criminal just system. Anyone who is charged with Rape or any other Sex Offense requires the assistance of an Aggressive and Experienced Criminal Attorney who has substantial experience handling these types of cases. In the twenty years that I have been practicing exclusively criminal law, I have handled scores if not hundreds of Rape and Sex Offense cases both as a prosecutor and as a criminal defense attorney.

I have written many times in this space about the importance of hiring an experienced criminal specialist when charged with any criminal offense. When dealing with Rape of Sex Offense charges, it is not just important, it is an imperative. I just finished successfully defending a 19 year old charged with Second Degree Rape in St. Mary's County that was a shocking example of what can happen if this imperative is not observed. I was brought into the case 8 months after the charges were filed and just after the client's current lawyer told him that he should plead guilty to Second Degree Rape and accept a 12 year prison sentence. His parents then reached out to me for a second opinion. Here are the facts:

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June 2, 2015

Experienced DWI/DUI Lawyers Avoid Mistakes

The client did possess a commercial driver’s license but when he was pulled over for exceeding the speed limit by 15 miles per hour, he was operating his personal vehicle. When the Trooper approached the defendant he smelled of alcohol, had a flushed face and had slurred speech. The Trooper asked him to step out of the vehicle to perform field sobriety tests. In the opinion of the officer, his performance on the field sobriety tests indicated that he was impaired by alcohol. He was taken into custody and once back at the barracks, agreed to take the breathalyzer. The test result was .11 grams of alcohol per 210 milliliters of breath. The case against the defendant was strong to be sure. The Trooper clearly had probable cause to pull him over as he was exceeding the speed limit by 15 miles per hour. Based on the smell of alcohol, his performance on the field sobriety tests and the Trooper’s other observations, it was also quite clear that the Trooper had probable cause to take him into custody and request that he take a breathalyzer. He blew a .11 which is above the legal limit of .08. The attorney pled his client guilty to the DUI “per se” charge under 21-902A2 of the Motor Vehicle Code. In mitigation, he explained his client’s circumstances to include that he was the father of 3 and the sole breadwinner for the family. He advised that he was a truck driver with a commercial driver’s license. The attorney then requested probation before judgment so that his client "would be able to maintain his CDL and his employment". The judge granted the request, stuck the guilty verdict and entered probation before judgment. Both the client and the attorney walked out of the courtroom with looks of relief and satisfaction. But did the attorney really do a good job for his client? The answer is no because, presumably due to his lack of experience, he didn’t understand the law. What the inexperienced apparently didn’t understand is that under Maryland Vehicle Law 16-803, even a probation before judgment on 21-902A violation, Driving Under the Influence of Alcohol, violation results in the mandatory revocation of a person's commercial driver's license for a year for the first offense and a permanent revocation for a second or subsequent offense. The fact that he received probation before judgment does not prevent the MVA from suspending his commercial driver’s license as the attorney apparently believed. The appropriate way to handle a case like this would have been to either try to convince the prosecutor to allow the client to plead to the lesser offense of 21-902(B). Under this subsection the defendant would not be subject to having his commercial license revoked. I have convinced prosecutors to do this in these types of cases many times simply because it is more often than not the right thing to do. If the State’s Attorney were unwilling to accommodate, as they usually are in these types of cases, then the case must be taken to trial. The attorney should have moved to suppress the test result and argued to the court that the evidence was sufficient only for the 21902B violation, but not the 21902A violation. These arguments are successfully made on a variety of grounds every day in the district courts of this state. Because this was not done, this client is going to have a rude awakening when he is notified by the MVA that his commercial license and therefore his livelihood will be taken away for a year. Had this client taken the time to do a little research and hired a DUI/DWI specialist, it is highly unlikely that this would have occurred.As an Aggressive and Experienced DUI Attorney, I have represented dozens of Defendants in DUI cases who have commercial driver's license. These cases pose a unique set of challenges and considerations for Maryland DUI Attorneys as the administrative sanctions associated with commercial driver’s licenses are far different than the sanctions associated with standard Class C driver’s licenses. I have blogged often about the importance of selecting an attorney who specializes in DUI/DWI Defense when charged with this serious offense and this advice is even more applicable to cases involving commercial driver’s licenses. Unfortunately, all too often we see attorneys with little or no experience with these types of cases appearing in court to represent clients. Because of their lack of experience, these attorneys often make mistakes that can have serious consequences for their clients.
Often these attorneys make simple mistakes that no experienced DUI/DWI attorney would ever make. I was representing a client in the District Court of Baltimore County a few days ago. While waiting for my case to be called I witnessed an attorney whom I know not to be a Criminal/DUI Specialist representing a client in a DUI case involving a defendant with a commercial driver's license. I found out later that this attorney was a so called “general practitioner who spends the majority of his time handle divorce and personal injury matters. In other words, he was NOT a DUI/DWI specialist. Here are the facts.

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May 4, 2015

What is 2nd Degree Depraved Heart Murder in the Freddie Gray Case?

The charge against the officers of 2nd Degree Depraved Heart Murder is a real stretch in the Freddie Gray Case. Manslaughter is the most appropriate charge under these facts. Here is why:

Second Degree Depraved heart murder is the killing of another person while acting with an extreme disregard for human life. In order to convict, the state must prove (1) that the conduct of the defendant caused the death, (2) that the defendant’s conduct created a very high degree of risk to the life of Freddie Gray, and (3) the defendant, conscious of such risk, acted with extreme disregard of the life-ending consequences.

Analysis:

There is no “intent” to kill or harm requirement for this charge. The term “depraved heart” means something more than conduct amounting to a high or unreasonable risk to human life. The perpetrator must realize the risk his behavior has created to the extent that his conduct may be termed willful. Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton.

Thus, if A sets up a target shoot in an empty school lot on a Saturday morning and accidentally kills a child coming onto the grounds, he may be guilty of manslaughter, but that irresponsible conduct does not constitute a depraved heart slaying. If A, however, sets up the target shoot on a school day when he knows children are in and about the school, such conduct established the wantonness necessary to demonstrate that any killing resulting therefrom is attributable to a depraved heart. Therefore, A would be guilty of murder.

A classic example of the depraved heart killing is the shooting of a rifle into a passing passenger train with the result that a person on the train is slain. The same rationale would apply, of course, to shooting at vehicles on the highway.

In laymen’s terms: “To prove 2nd degree depraved heart murder, the police don’t have to have any intent to kill but rather their conduct was so reckless and dangerous that it should not be surprising to anyone that Freddie Gray was killed”. as disturbing as the officer's conduct was, handcuffing Freddie Gray, and putting him unrestrained in a wagon may be cruel and illegal, but one would never expect this tragedy.

Tough to prove under these facts, but most cases are over charged. That is what trials are for. For further information, Steve Silverman can be reached at ssilverman@mdattorney.com.

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May 1, 2015

Freddie Gray Police Officers Chaged Today: What Happens Next

Now that all police officers involved in the death of Freddie Gray have been charged by the Baltimore State's Attorney, I will lay out what to expect in the next 30 days.

Charged by Criminal Information:

There are two ways to charge a felony in Maryland, one way is by Criminal Information and the other way is by Indictment. The Gray defendants have been charged by Criminal Information. Criminal Information means that the State's Attorney believes their is probable cause the officers have committed one or more felonies. Under Maryland law, there must now be a judicial "rubber stamp" or independent finding of probable cause.

As of now, these defendants will automatically have a preliminary hearing scheduled within 30 days. At the preliminary hearing, a judge will listen to the evidence and make a determination if there is some link between the defendants and the felonies alleged. This is known as probable cause hearing. Most preliminary hearings involve a police officer simply taking the stand and reading the police report into the record . Defense counsel can ask limited questions as the questions relate to probable cause. In cases such as this, it is rare for a district court judge not to find probable cause that a felony has been committed. Upon the judicial finding of probable cause, the case is then forwarded to Circuit Court for trial.

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March 27, 2015

Experienced DWI/DUI Lawyers Avoid Mistkes

Defendants in DUI cases who have commercial driver's license pose a unique set of challenges and considerations for Maryland DUI Attorneys. I have blogged often about the importance of selecting an attorney who specializes in DUI/DWI defense. Unfortunately, all too often we see attorneys with little or no experience with these types of cases appearing in court on these cases. Because of their lack of experience, these attorneys often make mistakes that can have serious consequences for their clients.

Often these attorneys make simple mistakes that no experienced DUI/DWI attorney would ever make. I was representing a client in the District Court of Baltimore County a few days ago. While waiting for my case to be called I witnessed an attorney whom I had never seen representing a client in a DUI case at all much less one involving a defendant with a commercial driver's license. I found out later that this attorney was a so called “general practitioner" who spends the majority of his time handling divorce and personal injury matters. In other words, he was NOT a DUI/DWI specialist. As the reader may have guessed, it did not go well for the defendant. Here are the facts:http://criminal.mdattorney.com/brian-g-thompson.html

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February 24, 2015

Continental and FreeState Gun Range Cases Increasing Recently

As an Aggressive and Experienced Criminal Defense Attorney, I have handled hundreds of cases involving the illegal possession of regulated firearms by disqualified persons. These are very serious offenses that can carry mandatory 5 year prison sentences depending upon why the person is disqualified. Over the past few years, detectives from the Baltimore County Police have been investigating people who have frequented Continental and Freestate gun ranges to see if the have criminal records that disqualify them from possessing handguns or other regulated firearms.

For those who are unaware, when a person goes to a gun range in Maryland, they are required to fill out a form that asks a number of questions. One of those questions asks if the person has ever been convicted of a crime that carries more than two years of imprisonment. The detectives procure these forms from the gun range and then run criminal background checks on everyone who frequented the range, including those who simply rented firearms as opposed to bringing one in with them. Those who have read my blog over the years know that I have been trying to warn people about these cynical and misguided cases for many years. These investigations are thinly veiled statistic building exercises that do nothing to advance the basic goals of law enforcement. Indeed they are, in my opinion, counterproductive to those goals as they cause people who live in the community that they are supposed to serve to become distrustful of the police and therefore less likely to assist them in legitimate criminal investigations. The police then compound the damage to the relationship between them and the community by these cases by utilizing a so called "ruse" technique to ensnare the targets of their investigation. I was recently retained in one of these cases by a boyfriend and girlfriend who shot at Continental. Here are the facts:


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February 20, 2015

Child Pornography Case Successfully Resolved - No Felony - No Sex Offender Registration - No Jail

As a former Assistant State's Attorney and current Aggressive Criminal Defense Attorney with decades of experience, I have handled scores of cases involving the illegal Possession and Distribution of Child Pornography. These cases can be charged in state court or in federal court where the penalties are far more severe. For this reason, I always team up with my partner Andrew White to work these cases as Andy is a former Federal Prosecutor who headed up the sex offense unit for 7 years. He has been very successful over the years at convincing his former colleagues to defer prosecution in these matters to the state courts. Even in State court, however, These are serious crimes that carry the possibility of a felony conviction and extended prison sentences. It may come as a surprise to some to learn that a even a conviction for Misdemeanor Possession of Child Pornography requires mandatory registration as a Tier I Sex Offender for 15 years. A conviction for Felony Distribution or Possession with the Intent to Distribute Child Pornography requires registration as a Tier II Sex Offender for 25 years.

For many people the prospect of having to register as a Sex Offender can be even more daunting than going to prison. Most people are aware of the terrible society limitations and stigma such a designation can carry including but not limited to: Limitations on where one can live, prohibition from even stepping on the property of their children's schools, notification of neighbors by the police and inclusion on web sites that includes their pictures and exact locations of their homes. I recently represented a 21 year old man who found himself facing all of these daunting consequences. Here are the facts - as always in these types of cases, I have changed or left out enough identifying facts to protect my client's anonymity but the facts of the case are completely accurate:

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