Maryland Criminal Attorney Blog

One of the most difficult areas of the law facing criminal trial lawyers is handling eyewitness identifications, both in and out of the courtroom. There is no doubt that eyewitness identifications are often one of the most powerful pieces of evidence against a criminal defendant. They are also extremely unreliable, especially when the identification is the result of a police "show-up" -- a procedure where a single criminal suspect is paraded before a witness who is then asked to make an identification. More often than not, the witness is brought by police to see the single criminal suspect being held by the police and under circumstances suggesting that the police have captured the right man. There is often a palpable pressure on the victim to identify the suspect simply because it will please the police.

Unfortunately, Maryland courts have made it extremely difficult for defendants to suppress bad eyewitness identifications. In 2006, the Maryland Court of Appeals in Jones v. State, 395 Md. 97 (2006) ruled that judges must evaluate eyewitness identifications in two stages. The first is whether the police procedures used in the identification were "impermissibly suggestive." If it is not, then judges must end the inquiry and cannot consider whether the identification itself was reliable. The burden lies with the defendant to establish a "prima facie" case that the procedures were police procedures were fatally flawed. If the defense can show that the police procedures were inappropriate, then the burden shifts to the prosecutor to show by clear and convincing evidence that the identification was reliable.

The job of convincing a Judge that the police procedures were improper is even more difficult given that police officers will rarely admit to doing anything wrong.

But skilled defense lawyers can often convince judges to look at unreliability of the identification as an indicator that the identification procedures had to have been flawed. A recent case handled by the Maryland criminal defense attorneys at Silverman, Thompson, Slutkin & White ("STSW") http://www.mdattorney.comillustrates this point.

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According to a Fox News report, eight people have been arrested today in South Carolina in connection with the Michael Phelps bong photo. It is being reported that seven of the people are being charged with possession of marijuana and one for dealing. One of the arrests includes a suspect who was trying to sell the infamous bong on Ebay for $1000,000.00.

Apparently, the marijuana was smoked at a University of South Carolina party in November of last year. Putting aside my personal feelings on whether this is a prudent use of our law enforcement resources, from a legal standpoint, this case is a disaster that can never survive in court.

As a criminal lawyer that has been involved in the prosecution of over 3000 drug cases, I have yet to see a charge, let alone a conviction, on possession of a controlled dangerous substance based upon a photograph of someone allegedly ingesting a controlled substance.

The way it always works is the police seize a drug, the drug is tested by a crime lab, the analysis is submitted in court as evidence. No chance of a conviction here, period, based upon the information reported.

I recently filed a multi-million dollar case against the Baltimore City Police Department involving an illegal and unwarranted body cavity search. The case details are best reported in the Baltimore Sun. Having received many inquiries since than on the law in this area, I will explain the nuts and bolts of the legality of strip searches in Maryland.

The key Maryland cases regarding the reasonableness of a strip search are State v. Nieves, 383 Md. 573 (Md. 2004) and Paulino v. State, 359 Md. 341 (Md. 2007). Both cases reiterate that it is well established both that the State has the burden of proving the legality of a warrantless search and that warrantless searches are per se unreasonable under the Fourth Amendment absent some recognized exception. Although a search incident to arrest is a recognized exception to the warrant requirement, a strip search incident to arrest is held to a much higher standard.

The Nieves court held that the reasonable, articulable suspicion standard applies in the strip search incident to arrest context. Nieves, 383 Md. at 596. While strip searches for felony arrests may always be justifiable, strip searches following arrests for minor offenses are generally ‘found wanting’, unless the officer had information that would have led to a reasonable suspicion that the person was carrying weapons or contraband at the time of the arrest. Id. at 592. Nieves was arrested for traffic offenses that included driving on a suspended license, negligent driving, failure to control speed, and giving false accident information. The court found that a strip search following Nieves’ arrest was not reasonable because the nature of the traffic violations for which he was arrested failed to create a suspicion that he was carrying weapons or contraband. Id. at 596. The justification for the search of Nieves based on his prior drug offenses and the fact that he was driving a car whose owner was associated with drugs was also found lacking. The court held that allowing a strip search based on prior drug arrests would amount to allowing a search based on a person’s status, rather than an individualized assessment of the circumstances. Id. at 597.

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Maryland Criminal Attorney - Does a sentence of life without the possibility of parole for a 13 year old constitute cruel and unusual punishment and therefore violate the 8th Amendment to the Constitution? That is exactly the question that the United State's Supreme Court may consider in a 20 year old case from Florida. There was an article about this case in the New York Times today explaining the basic facts as well as the possibility that the Supreme Court will hear the case. http://www.nytimes.com/2009/02/03/us/03bar.html?em.

Although the facts of the case are not technically relevant to the 8th Amendment issue, I think they are worth a brief description. The Defendant in the case, Joe Sullivan, was one of three boys who admitted to burglarizing a 72 year old Florida Woman's home in 1989. Several hours after the burglary, someone entered the home and raped the 72 year old owner. At trial the woman could not identify him but after the court made the defendant repeat something that the rapist had sad to her she testified that "it's been six months. It's hard but it [ his voice] sounds similar". One of his co-defendants also testified against him but it is not clear from the Times' story what exactly he testified to since he did not claim to have been present during the rape. Additionally, Mr. Sullivan's attorney did not give an opening statement in the one day trial and his closing argument apparently lasted only a few minutes. The attorney was later disbarred and is still ineligible to practice in Florida. Biological evidence was recovered but was apparently destroyed prior to the advent of DNA evidence. The judge sentenced Mr. Sullivan to life without the possibility of parole and he has now served 20 years of that sentence. The Florida Court of Appeals just rejected a request to review the case and the case was appealed to the Supreme Court.

Continue reading " Is Life Without Parole Sentence for 13 Year Old Cruel and Unusual Punishment? " »