Posted On: December 5, 2011 by Brian G. Thompson

Domestic Assault Defendants Very Poorly Represented

Any Experienced Baltimore Criminal Defense Attorney will tell you that it is a very bad idea indeed to take your divorce lawyer ( or personal injury lawyer, or real estate lawyer or...) with you to criminal court. I have blogged many times about this issue but it still never ceases to amaze me how many people do just that, in spite of the stakes.

Legal situations obviously don't get more serious or perilous than ones in which your very freedom is on the line. Unfortunately, too often people in these situations tend to simply call the only attorney they know or retain whoever their Aunt Lucy or Uncle Joe tells them to call. For whatever reason people rarely investigate an attorney's background or qualifications prior to retaining the attorney. This is in most instances a colossal mistake that can have devastating consequences for the client. I was retained last week by a client in exactly this situation in a http://www.mdattorney.com/lawyer-attorney-1300820.html case. Here are the facts.

My client and his wife of twenty years are currently in the midst of a less than amicable divorce and custody battle. My client works with disabled children and his wife is a Registered Nurse. Neither has a criminal record. As we all know, divorce and custody fights are often emotionally charged situations that can become volatile or even violent; and that is what happened in this case.

My client was at his home with their children when his soon to be ex-wife showed up unannounced. He informed her that she was not welcome in his home but she shoved him aside and entered the home anyway where an argument ensued. She eventually left after my client called the police. My client then filed charges against her for burglary and assault. She then filed counter-charges, claiming that it had been he who assaulted her, not the other way around. Each then made a critical error - they each called their divorce attorneys, who, of course, told them that they had handled "many" criminal cases over the years and were more than "qualified" to handle these criminal charges. After all, they already know all about the relationship...... and won't have to "reinvent the wheel" as would be the case, if they were to refer the case out to another attorney.

Neither my client nor his ex undertook any independent investigation into the experience or qualifications of these divorce attorneys to handle a criminal case. My client was shocked and angered when in less than 30 seconds I pulled up his lawyers’ entire career case load on the Maryland Judiciary Case Search website, (http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp) and showed him that in that 30 year career she had handled exactly 37 criminal cases - just about one case per year. I explained to him that most busy criminal attorneys handle more than 37 cases every month! He very quickly understood how woefully unqualified she had been which in turn explained her performance in the case.

When they arrived in court, his attorney conferred with his wife's divorce attorney who, as hard as it may be to believe, had handled even fewer criminal cases than she had. They were unable to come to any resolution and both told their clients that they would go to trial. What they did not explain is that under Maryland Law there is no “mutual affray” defense as there is in many other States. In other, words, you cannot consent to being assaulted in Maryland. This means that in a cross complaint situation such as this one, BOTH parties can be convicted if the judge or jury doesn't believe that one was the aggressor and the other was acting in self-defense.

Now, criminal defense 101 is that you NEVER subject your client to criminal prosecution if there is a practicable and ehtical way to avoid it. Thankfully in most of these situations there is a very easy way to avoid prosecution and that is for each defendant to invoke his or her marital privilege or 5th Amendment privilege and refuse to testify. To clarify what I mean by this, in Maryland there is a one-time right that can be asserted by a married person whose spouse is accused of assaulting him. If that right is asserted, the State cannot compel that spouse to testify in the case.
Under the 5th Amendment to the Constitution, as most fifth graders know, a person cannot be compelled to testify against himself in any case. In a situation like this, that privilege is always available unless the State's Attorney drops the charges against one of the parties and grants that person immunity from prosecution in the matter. Only then, can that person be compelled to testify because there is no longer a possibility that he will incriminate himself. Indeed, a trip by any person reading this blog, to any criminal court in the State, on any given day would almost certainly afford a person the opportunity to witness a case being handled this way, probably several times. It is beyond malpractice for these attorneys to have allowed their clients to subject themselves to possible incarceration when that result was so easily avoidable. And it gets worse. Not only did these divorce lawyers fail to counsel their clients to invoke either or the above described rights and refuse to testify, they took their clients to trial in front of one of the most unforgiving judges in the State, Judge Norman Stone III of the District Court for Baltimore County. They pressed on with this ill-conceived strategy even after the judge specifically warned that they both might be convicted and incarcerated.
Now obviously, if this case ended well I would not be writing this blog so I am sure it will come as no surprise to anyone to hear that Judge Stone found them both guilty and sent them both to jail for 30 days. They were taken from the courtroom in handcuffs by the court officers, right in front of their devastated children and shocked divorce attorneys. It took him 2 days and her 3 to raise the $7,500 each in bail fees. (The judge set each of their appeal bonds at $75,000. Bail bondsmen typically charge a 10% non-refundable premium to write the bail so they spent $15,000 just to get out of jail pending their appeals).

As I have written many times in the past, these situations as common as they are avoidable. I don't understand why some attorneys routinely take cases that they are patently unqualified to handle, but they do. Fortunately there is a wealth of information out there including the Maryland Judiciary Case Search Website that make it possible to very quickly determine if indeed an attorney is experience in the type of case a person is facing. I'm not saying that experienced criminal defense attorneys never make mistakes that lead to bad results for their clients; I am simply saying that they don't make mistakes in situations as obvious as this one. Had my client and his wife done just the most basic due diligence, this result would most certainly not have occurred.

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