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.


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

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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:

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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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November 11, 2014

Self Defense - Defense of Others

As a Baltimore Maryland Criminal Attorney, I regularly represent defendants who are charged with Assault in the First Degree and Assault in the Second Degree. These are extremely serious offenses under Maryland Law carrying maximum sentences of 25 year for the felony and up to 10 years for the misdemeanor charge.

As I have discussed in previous blogs, it is a common misperception amongst many of my clients that the doctrine of self defense is not recognized under Maryland Law. This is simply untrue. The doctrines of self-defense, and its close cousin, "defense of others", are recognized in Maryland as well as every other State in the Union. In fact, I successfully defended a client in Baltimore City District Court utilizing both of these defenses just last week. My client was charged with Second Degree Assault resulting from an altercation he had with another motorist after a traffic incident. Here are the facts:

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November 7, 2014

Possession With Intent To Distribute CDS Defendant Successfully Defended

As a Baltimore Maryland Criminal Attorney for almost 20 years I have long recognized that when defending people you must not let the perfect result become the enemy of the good result, particularly when dealing with serious felonies such as possession with the intent to distribute controlled dangerous substances. I watch far too many inexperienced or simply ineffective attorneys treat criminal defense as if it is a zero sum game in which every case must result in either total vindication or total devastation for the client.

The truth of the matter is that in many cases, a properly prepared defense attorney with a well analyzed and prepared defense, can negotiate a resolution that is more than satisfactory to the client without exposing her to the risks of taking the case to trial. In many cases, if the prosecutor can be convinced that there are legitimate defenses to the case that may cause her to lose her case entirely, she may reduce her plea offer to something the defendant is willing to accept or even dismiss the case altogether. I had an excellent example of just such a situation play out last week in the Circuit Court for Baltimore County. Here are the facts:

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November 4, 2014

Confession Supressed in Murder Case - Client Released Pending Appeal by State

As an Aggressive Maryland Criminal Attorney for almost 20 years I have handled hundreds if not thousands of criminal cases in which my client is alleged to have made an incriminating statement or a confession to the police. For obvious reasons, these statements are devastating to the defense and under most circumstances all but ensure a conviction.

Typically the only available strategy in these situations is to file a motion to suppress the statement alleging some violation of the defendant's Constitutional Rights in the taking of the statement. Unfortunately for criminal defendants, these statements are rarely suppressed by trial judges, particularly when they are given after the defendant is advised of his Miranda rights and the statement is recorded. But that is exactly what happened in this case. Here are the facts:

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October 24, 2014

Attorneys Gaming Attorney Rating Websites

As a Baltimore Criminal Attorney with 20 years of experience I have represented thousands of people charged in criminal cases in District and Circuit Courts throughout the State. As a result of my experience, reviews of my clients and industry recognition - that is, recognition from other experienced criminal attorneys, I have earned very high ratings from attorney rating services such as Avvo and Superlawyers.

Unfortunately, I was shocked to recently learn that some inexperienced lawyers, have managed to game the system to get ratings similar to those given to highly experienced attorneys. I will discuss how specifically how I found this out below but, anyone who searches for an attorney using a rating service should carefully scrutinize the attorney qualifications of the attorney starting with how long the attorney has been practicing. This information should also be cross checked by searching the attorney on Maryland Judiciary Case Search. This website is maintained by the State and contains accurate information concerning an attorneys appearances in court. In other words, this is the court record and it doesn't lie. Here is how I found out about this situation:

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October 1, 2014

Gun Range Prosecution of Married Couple

Most Criminal Attorneys in Baltimore County Maryland are familiar with the so call "gun range cases" that have been charged in Balitmore County for the last several years. These cases are viewed as controversial by many, including the writer, as they tend to look more an effort to build gun prosecution statistics than legitimate efforts by the police to protect the community from gun weilding convicted criminals. As I have described in the past, these are very serious offenses that can in certain circumstances subject the person charged to minimum mandatory 5 year prison terms.

This past week I was able to successfully resolve two serparate matters involving husband and wife co-defendants, one in which the duo were charged in two separate jurisdictions. The facts of the two cases were nearly identical:

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September 23, 2014

As an Aggressive Maryland Criminal Lawyer, I have represented hundreds of defendants charged with Possession with the Intent to Distribute Controlled Dangerous Substances over the past 16 years. These are very serious cases, often involving complicated Fourth Amendment, illegal search and seizure issues. They are also cases that can carry lengthy mandatory sentences that must be served without the possibility of parole, particularly for repeat offenders. It is imperative that a person charged with one of these serious offenses take the time and care to ensure that they are represented by an attorney who has both the experience and the expertise to handle such a case. I strongly recommend that as in the case of being diagnosed with a serious illness, someone charged with a Felony such as Possession with the Intent to Distribute, should seek out at least two opinions from an attorney who is a specialists in both criminal law and the jurisdiction in which the person is charged.

I have blogged many times in the past about situations in which people find that they are being represented by an attorney who is not qualified to handle their case. Sometimes the individual is fortunate enough to find out before the case goes to trial. Others don't realize the mistake until they walk out a different door than the one they came in accompanied by two armed deputy sheriff's.

I was recently retained by an individual who figured out that he did not have the right lawyer just before his trial date. He is a repeat offender but has an extremely defensible case. Luckily for him, we were able to secure a postponement of his trial date to explore those defenses. Below is the memorandum of law we filed in support of our motion to suppress evidence based on the Fourth Amendment violations. We believe that their is a high probability that the evidence in this case will be suppressed. Even if the State prevails on those issues, the drugs in question were found in a secret compartment of a car that my client was driving but does not own so it is difficult to see how the State can prove beyond a reasonable doubt that he possessed those drugs at all, much less that he possessed them with the intent to distribute them. In spite of all of this, my client's previous lawyer, who is not a criminal specialist, told him he should plead guilty to a mandatory 10 year prison sentence!
Here is the memorandum. I have removed the names, date and location of the offense to safeguard my client's privacy.

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April 4, 2014

Baltimore Gun Range Handgun Cases Increasing in Frequency

In Baltimore County, the Police are increasingly resorting to investigating and ultimately arresting citizens who simply go to gun ranges such as Continental Arms in Timonium or Freestate in Middle River. As an criminal defense attorney with 20 years of experience, I have represented dozens of people who have been charged in these case, probably more than any other lawyer in Baltimore. These investigations and prosecutions are deeply troubling to me as they are nothing more than a shameless attempt to build up the police statistics for firearms prosecutions and confiscations.

The overwhelming majority of the citizens involved in these cases have only misdemeanor convictions that, more often than not, date back a decade or longer. These folks are hard working, law abiding citizens who generally speaking have no idea that they are in violation of the law by going to a gun range and renting a gun to take target practice. Most believe that if their prior records cause any prohibition at all, it is only on ownership of weapons, not simply shooting one in a controlled environment such as a gun range. To make these investigations even more troublesome and, in my view, counterproductive to the stated goal of law enforcement which is to protect and serve the community, the police utilize "ruse interviews" (everyone else just calls it plain old lying) to entrap their targets into incriminating themselves. It is difficult to believe that the police don't understand what a corrosive impact the use of scorched earth tactics such as these have on their relationship with the community they purport to serve. I was recently contacted by a Baltimore County couple that were the target of one of these investigations. I think it is a particularly egregious case. Here are the facts:

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