Maryland Criminal Attorney Blog

The client was originally charged with a third degree sexual offense under a theory of the case that he had sex with a girl who was under 16 years of age and that he was at least four years older than the girl. The facts were basically indefensible. At the time of the offense the client was 25 and the girl was 15 and they had in fact had consensual sexual intercourse. Specifically, he met the girl in a nightclub that was open to individuals 18 years of age and older and dispensed alcohol to those over 21. The girl admitted to police and later in open court that she had lied about her age, telling my client that she was 18 years old. She looked somewhat older that 15 so it was certainly believable to the client that she was in fact 18. The two spent time together that evening and ultimately had consensual sexual intercourse.

This encounter resulted in the girl becoming pregnant and ultimately led to her parents calling the police to report her encounter with my client. My client had no idea that he was in violation of the law until months after the offense when the police detective correctly advised him that it did not matter that he didn't know that the girl was underage or even that she had lied about her age at the time of their sexual encounter. The detective correctly advised him that this time of offense, known in the vernacular as "statutory rape", is a strict liability offense. That is, it does not matter whether or not the person charged knew or didn't know the child's age. All that is necessary to violate the statute is for an adult to have sexual intercourse with a child under the age of 16 if the adult is at least 4 years older than the child.

So the case was basically factually indefensible. The girl told the police that she had sex with the defendant. The defendant confessed that he had done so to the police and DNA tests proved that he was the father of the child. In this type of situation, that is as situation where the State has an open and shut case against the defendant, many people, including my client in this case, figure, why spend money on a private attorney if there is no defense? This conclusion could not be more wrong and coming to this conclusion can, and in this case did, have, terrible consequences.

I think the best way to illustrate why choosing the public defender in a situation like this is a mistake is to simply explain what happened in the case. As alluded to, the client in this case chose to be represented by a public defender. The client was actually fortunate in that he was assigned to one of, if not the best public defenders in the office. (A public defender client has no choice as to which attorney represents them in a given case). In spite of the fact that this particular public defender is a very good attorney, the client ended up pleading guilty in front of the toughest judge on the bench. Not only is this particular judge the harshest sentencer in the county and perhaps the entire state, he is known to have a zero tolerance policy regarding probation violations.

Any private attorney worth his salt would have done whatever it took to prevent his client from appearing before this judge in this particular case. I won't go into great detail here but suffice it to say that there are ways to avoid certain judges that private attorneys use every day. It is far more difficult for public defenders to employ these tactics regardless of how skilled an attorney that they may be.

The attorney compounded this error of allowing his client to appear in front of this judge by not negotiating a better plea with the State's Attorney. This defendant had no record and as such his guidelines were only probation to six months. Yet the client ended up with a five year suspended sentence. This would easily have been avoidable by telling the State's Attorney that the plea had to bind the court to the top end of the guidelines which was again, six months. I am certain that the State's Attorney would have agreed to make the plea binding. Instead, the public defender allowed the length of the suspended sentence to be determined by the judge who made the term 5 years which is 10 times the top of the guidelines.

By the time the client hired me, his fate was essentially sealed. He was charged with violation of probation. The two basis for the violation were a conviction for driving while suspended for which he received a $100 fine and one positive drug test for marijuana. I told the client and his family very clearly that while I would do my best, that the likelihood was that the judge would give him the balance of the sentence to serve in spite of the trivial nature of the violations. (Most judges would at most give the defendant a minor sanction such as a weekend or two or community service or even just a reprimand for such a violation).

We appeared in court for the violation earlier this week and true to form the judge ordered the defendant to serve the entire five year sentence. This in spite of the fact that neither the State's Attorney nor the probation agent recommended incarceration. I have agreed to file a motion for a three judge panel on a pro bono basis but had I or any other experienced private criminal attorney represented him from the beginning of this case, it is extremely unlikely that he would find himself in his current predicament.