Maryland Criminal Attorney Blog

The answer to the question is yes, in Maryland a 16 or 17 year old can be charged as an adult. In fact if the if it is alleged that the juvenile committed the robbery with a dangerous and deadly weapon, original jurisdiction lies with the adult system in the Circuit Court. If there is no allegation that a weapon was used, the juvenile could only be charged as an adult upon the granting of a motion filed by the State to do so.

I had a case that illustrated this jurisdictional issue this week in the Circuit Court for Baltimore County. My client, who was just 16 years, 8 days old at the time of the alleged offense is charged with robbery with a dangerous and deadly weapon, robbery, assault and wear carry or transport a deadly weapon. He and three co-defendants were all charged with the alleged knife robbery of a man in his mid forties. I will explain the facts in a moment, but a brief overview of the juvenile versus adult jurisdiction, a topic about which I have blogged in the past, should be helpful.

Continue reading " In Maryland, can a 16 or 17 year old be charged as an adult for the crime of robbery " »

Maryland Criminal Attorney- This is a legal question that I am asked quite often, mostly by young men. The answer to the question is contained in the trite but partly true expression that "15 will get you 20". The general rule is that the age at which a young person can legally consent to engage in vaginal intercourse, sexual contact, or a sexual act with another person is 16 years. There is an exception to this rule if the older participant (usually the man) is less than four years older than the girl. In other words, it may or may not be illegal for an 19 year old to have sex with a 15 year old or a 18 year old to have sex with a 14 year old depending upon when the participants birthdays occur. A violation of the statute only occurs if the participants' birthdays are four years or more apart. (Note: under the sexual child abuse statute it is unlawful to engage in sexual conduct with a child under the age of 18 if the adult has temporary or permanent custody of the child. This subject is covered in greater detail in another blog).

The unusual part of the statute, as compared to most criminal statutes, is that it creates a strict liability standard. What I mean by that is that it doesn't matter whether the child looked older than she really was, whether she told the offender that she was older than she really was or whether he reasonably believed she was older than she really was. The law states that if an adult 4 years or more older than the child under 16, engages in sexual conduct with that child, he is guilty - period. There is no knowledge or intent requirement under this statute hence the standard - strict liability.

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The Probation Before Judgement Statute, Criminal Procedure 6-220, was updated several years ago to allow a person to be sentenced to a period of incarceration as a condition of the Probation Before Judgement. Why you ask, would a Maryland Criminal Defense Attorney think that amending a statute to allow for someone to be incarcerated when the previous iteration of the statute did not allow for incarceration, is a good thing?

To understand the answer it is important to first understand what Probation Before Judgement is. The best way to explain what Probation Before Judgement is, is to explain what it is not. Probation Before Judgement is NOT a conviction under Maryland Law. Under the statute a judge has the authority to strike out the guilty finding in most any criminal case. (There are a few crimes for which probation before judgement is not available including first, second and third degree sex offenses, first degree murder as well as second or subsequent convictions for DUI or CDS cases if the first conviction resulted in Probation Before Judgement).

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Many federal criminal defense attorneys are not aware of the pitfalls of the federal safety valve provisions. Persons charged with federal drug crimes need to retain an experienced criminal attorney familiar with all aspects of federal criminal law. An inexperienced or unknowing lawyer can expose a client to catastrophic risks. Here is why.

As we are all keenly aware, the federal government’s “war on drugs” is ensnaring hundreds of people with little or no criminal records who are caught up, for a myriad of reasons, with the distribution of drugs. This can range from a person carrying cash for a friend to pay for an airline ticket, to delivering a package to another person in exchange for cash to pay the rent or feed a child. Because of very harsh federal sentencing laws, the smallest players in a drug ring often end up being the most harshly treated. Most of time this is because the leaders of drug operations very often end up cooperating against others – including those below them whose “loyalty” they often gained through fear and threats of harm. Oftentimes, those persons caught on the lowest rungs of a drug conspiracy find themselves with few alternatives because they do not have significant information to provide to federal prosecutors, who retain exclusive control over who gets cooperation departures under the federal sentencing guidelines. As a result, defendants with minor or minimal culpability in a drug operation frequently end up on the receiving end of prosecutions involving tremendously high sentencing guidelines and, more critically, large minimum mandatory sentences.

In many situations, the only relief from mandatory sentences for those with little or no criminal history is the so-called “safety valve.” Many lawyers talk about the safety valve, but very few understand what it is and what it truly entails. It is perhaps the most misunderstood and most difficult opportunity for relief from mandatory minimum sentences and the sentencing guidelines. Federal crimes lawyers who do not specialize in federal criminal defense work run the risk of harming their clients through misguided efforts to gain relief under the safety valve provision.

It is critical to remember that there are only two ways to avoid minimum mandatory sentences upon conviction for a drug trafficking or drug conspiracy offense in federal court. One way is to cooperate with law enforcement and provide “substantial assistance” in the prosecution of others under section 5K1.1 of the guidelines. The other is to seek relief under the safety valve -- Section 5C1.2 of the federal sentencing guidelines. (18 U.S.C. § 3553(f)) This section allows a judge to reduce federal sentencing guidelines and ignore mandatory minimum sentences in determining punishment for eligible defendants.

But while understanding the possible benefits of relief under the safety valve is easy, becoming eligible for the relief is more difficult and fraught with peril for the unwary defendant. In fact, a failed attempt to gain “safety valve” relief can have a tremendously negative impact on a federal criminal defendant.

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In 1994 New Jersey became one of the first states to implement sex offender registry and notification laws. New Jersey enacted what became known as “Megan’s Law,” or the Sex Offender Registration Act, in response to a brutal sexual assault and murder of seven-year-old Megan Kanka by a convicted sex offender who lived across the street from her. Congress responded that same year by implementing their version of Megan’s Law, called the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (“Wetterling Act”). Pub.L.No. 103-322, 108 Stat. 1796 (1994), codified at 42 U.S.C. § 14071 (2000). The Wetterling Act, drafted to protect the public from violent sex offenses committed by repeat offenders, developed guidelines for registration, and more recently, community notification, and classified its registrants as “sexually violent offenders” or “sexually violent predators,” the latter of which was forced to comply with heightened registration requirements. Id. at § 14071. See generally, 61 Md. Law Rev. 739, 722-45 (2002). The Wetterling Act also mandates that each State may decide to what extent that information will be made available to the public. See H.R. Rep. No. 104-55 (1986).

The Maryland General Assembly soon followed, motivated both by appalling incidents within its own borders, as well as the federal funding incentive for compliance with the Wetterling Act, and enacted its first sexual offender registration in 1995. These laws were aimed at responding to the high recidivism and danger that sex offenders posed on its citizens. see Md. Fisc. Note, 2005 Sess. H.B. 770; see generally, 61 Md. Law Rev. at 742. Maryland has since amended its laws to maintain compliance with the Federal Act. Sexual offenders are required to register with the Crimes Against Children and Sexual Offender Registry for either a minimum term of ten years, or life, depending on the offense. § 14071. Maryland’s registry is operated by the Sexual Offender Registry unit of Department of Public Safety and Correctional Services (“DPSCS”).

Maryland has four categories of persons convicted of sexual offenses: 1) a child sexual offender; 2) an offender; 3) a sexually violent offender; and 4) a sexually violent predator. The first two, child sexual offender, and offender, pertain to a conviction of sexual offense in the fourth degree. The Maryland legislature left the judge with discretion to determine whether persons convicted of this offense should be required to register as a sex offender. §§11-701. Fourth-degree sexual offense is a multipurpose offense, meaning that it is an offense having alternative elements and may be committed in more than one way, any one of which is sufficient for conviction. See § 3-308; Cortex v. State, 656 A.2d 360, 104 (MD 1995). This implies that while some defendants who have been convicted of the sexual offense in the fourth degree have committed a crime in such a way as to warrant registry, this Court can exercise its discretion to determine others convicted need not register.

Continue reading " History of Maryland Sex Offender Registry Laws " »

Many Marylanders are often wrongly accused of child abuse. Police and prosecutors are often too quick to rush to judgment and fail to do a complete investigation. In several cases, I have been able to exonerate innocent defendants by obtaining the Social Service records of the alleged child-victim. These sealed records, although sometimes difficult to obtain, often point to the real abuser.

The problem arises when a child shows physical signs of obvious abuse. One case I had involving a teacher being charged with physically abusing a 7 year old student. The school nurse had seen marks on the child and inquired the source. Rather than point the finger at the true abuser-the child's mother- the child thought it would be simpler to wrongfully accuse a teacher. In the child's mind, it was better to accuse an innocent teacher (whom the child disliked anyway) than point the finger at the true abuser, who the child otherwise loved and relied upon.

In general, it is unlawful for anyone to divulge information concerning social service records. Maryland law states when records may be divulged. This is not a mandatory provision but a discretionary one.

The Court in Baltimore City Dep’t of Social Servs. v. Stein, 328 Md. 1, 612 A.2d 880 (1992) proposes criteria for determining whether social services records are discoverable. They refer to a “need to inspect” threshold. One must cross this threshold in order to examine social service records. The Court outlines factors for crossing this threshold. They are:
- the nature of the charges brought against the defendant
- the relationship between the charges
- the information sought
- the likelihood that review of the records would result in the discovery of relevant information

The court also suggests other methods of determining the relevancy of the information without the records being directly examined by the defendant. They suggested in camera proceedings in which the court determines whether all, part or none of the record is admissible. This helps protect the information in the records, as was the intent of the legislature when enacting this statute.

Once these steps are followed, and the Social Service records are known, the true abuser may be revealed. In the case above, the records documented a pattern of abuse by the mother for over five years. The records showed the mother had beaten the child on 7 different occasions, leaving marks remarkably similar to the ones which prompted the teacher to be charged. Once this was brought to light, the mother confessed and the charges were dropped against the teacher.

For further information on defending criminal child abuse cases, please contact the Maryland criminal defense lawyers at Silverman, Thomson, Slutkin and White.

In federal criminal cases, defense attorneys may use extrinsic evidence to show a witness’ bias, but you may not use is to impeach by showing a specific instance of conduct.

FRE 608(b) states: Evidence of Character and Conduct of Witness

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross- examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.

This rule is well settled by the Courts, as they do not want to risk confusing the jury with a “mini trial” on issues that do not tend to prove or disprove the guilt of the defendant. See U.S. v. Martz, 964 F.2d 787 (8th Cir. 1992) but really I could refer you to any case dealing with this issue because there seems to be no exceptions.

A risk of proceeding under 608(b) is that if the Court does not allow you to introduce extrinsic evidence to impeach a witness, you will be bound by the witness's answer. See U.S. v. Martz, 964 F.2d 787, 789 (8th Cir. 1992). Therefore the attorney must make a tactical decision, because once the question is asked, you are stuck with the response.

It has been pretty well laid out in case law that extrinsic evidence can be used to show bias even though the FRE’s do not specifically deal with the term “bias.” See U.S. v. Abel, 469 U.S. 45, 49 (1984). FRE 608 does not apply to evidence of bias or interest. Johnson v. Brewer, 521 F.2d 556, 562 (8th Cir. 1975). However it is in the judge’s discretion as whether to admit the evidence. U.S. v. Gomes, 177 F.3d 76, 81 (1st Cir. 1999). The judge may exclude the evidence it it would distract from the main issues and would add little practical value to the defense. Id. Inherent in this rule allowing is the rule that the cross-examiner is not bound by the witness’ answer when attempting to show the witness’ bias. See Johnson at 562.

The 5th Circuit went on further to explain the reasoning behind this concept. It explained that a witness’ bias, as opposed to veracity, is not a collateral issue and thus evidence of past behavior that proves or disproves bias is admissible. U.S. v. Fusco, 748 F.2d 996, 998 (5th Cir. 1984).

U.S. v. Phillips, 888 F.2d 38 (6th Cir. 1989) deals with both these issues. Here the defendant wanted to introduce testimony of the informant’s drug use at a certain party that the informant’s had denied. The Court did not allow in the testimony under 608(b) because it was too far removed from the case to have a bearing on the defendant’s guilt or innocents. However in this case the Court states, “Though the Federal Rules of Evidence do not specifically so state, prior misconduct of a witness which is probative of the bias of that witness may be proved by extrinsic evidence.” Id. at 41.

For further information, please contact the federal criminal defense attorneys at Silverman, Thompson, Slutkin & White.

As a Maryland Criminal Attorney I am often required to deal with issues involving bail. In fact I spoke with a women first thing this morning whose daughter was locked up on a $25,000 bail and charged with Armed Robbery and Assault. The poor women was completely without a clue as to what bail was or how to post it. The defendant was due to be in court for a bail review just a few hours later so she had very little time to get educated and decide what to do.

I told her that her first decision was to decide whether to let her daughter attend the bail review or to bail the her out prior to the bail review. I explained, to her great surprise, that a judge at a bail review can not only lower the bail as set by the court commission, but can also raise the bail. In many instances I advise the family members or friends who contact me about a defendant who is in jail awaiting bail to go ahead and bail the defendant out prior to the bail review because it is my opinion that in that case the bail is more likely to be raised than it is to be lowered. This is exactly what I told this women this morning as by Baltimore City bail standards, $25,000 is low for an Armed Robbery charge. If all cases where a defendant decides that he wants to (or must) attend the bail review he would be foolish not to retain an experienced criminal defense lawyer to represent him at this critical stage of the process.

Continue reading " Bail in Maryland Criminal Cases " »

Maryland Criminal Attorney- Baltimore Criminal Lawyer I represented a defendant this afternoon in Prince Georges County District Court who was charged both with acting as a home improvement contractor without a license and failure to perform a home improvement contract which usually means failure to complete the contract to the homeowners satisfaction as it was in this case. Many people, including many new contractors, don't realize that it is illegal to operate as a home improvement contractor without a license or to fail to perform the contract and that violations of this sort carry significant criminal sanctions or just how broad the definition of home improvement is.

The Annotated Code, Business Regulation Article defines both what constitutes home improvement as well as what the criminal penalties are for violations. According to Section 8-101 Home Improvement means: The addition to or alteration, conversion, improvement, modernization, remodeling, repair, or replacement of a building or part of a building that is used or designed to be used as a residence or dwelling place or a structure adjacent to that building; or an improvement to land adjacent to that building. In addition to the obvious things like building an addition or finishing a basement, home improvement includes work such as repaving a driveway and the connection, installation or replacement of a dishwasher, disposal or refrigerator. It also includes work such as landscaping or building a fence.

Continue reading " Maryland Criminal Attorney on Acting as a Home Improvement Contractor Without a License or Failing to Perform a Home Improvement Contract " »

Maryland Criminal Attorney - Baltimore Criminal Attorney Most people are aware that in Maryland a person who has been convicted of a violent crime or a felony may not possess handguns. People seem to be less aware of restrictions involving other weapons such as rifles, shotguns, assault weapons and antique firearms. I have blogged about this in the past and this blog is really intended to discuss possession of other weapons but I think an overview of the law on handgun possession will be helpful to the reader.

First of all, what exactly is the definition of a handgun under Maryland Law? One would think that this would be a relatively straightforward and easy question to answer. Unfortunately, that is not the case. There are two separate definitions under two of the three sections of the Maryalnd Code that criminalize handgun and firearm possession. Under Public Safety 5-101(n) a handgun is defined as a firearm with a barrel less than 16 inches. Under this section a handgun includes signal, starter and blank pistols. Under Criminal Law Section 4-201(c) a handgun is defined as a pistol revolver or other firearm capable of being concealed on the person. Under this definition a handgun includes short-barrelled rifles which is defined as a firearm having a barrel less than 16 inches or an overall length of less than 26 inches; and shotguns with a barrel less than 18 inches or an overall length of less than 26 inches. Under this definition a standard rifle, shotgun or any antique firearm is not deemed to be a handgun. Presumably this definition would also include starter pistols since they are included in the definition of a firearm under the Public Safety Article definition, but would not include signal or blank pistols as they are not included in that definition. Very confusing to say the least.

Continue reading " Possession of Handguns and Other Weapons by Convicted Narcotics Felons " »

Maryland Criminal Attorney - Baltimore Criminal Attorney I was hired today to represent a freshman at Towson University who got charged with possession with the intent to distribute marijuana. It is a typical case of being in the wrong place at the wrong time as well as a clear case of overcharging by the police as I have discussed in previous blogs. Although I believe the case will work out favorably in the long run, it will certainly have some short term criminal and administrative consequences.

My client moved into the dorms at Towson University just a few weeks ago. He didn't have any high school friends who were also attending the university so he signed up to be randomly assigned roommates. He soon learned that his new roommates were marijuana smokers who frequently smoked in the dorm room. This past Saturday that careless habit came back to haunt them because one of the RA's apparently smelled the smoke coming from their room and called the police.

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