I'm sure it will come as no surprise to most people that when a person has been arrested for a serious felony or for any charge that causes them to be processed into the jail, that person will almost without exception be subjected to a strip search. The instances that are less clear cut are those cases in which a person is only charged with misdemeanors or traffic offenses and is released either on their personal recognizance or bailed out without ever going to the detention center, as well as cases in which the police strip search (or conduct the equivalent of a strip search) prior to an arrest taking place. I am currently representing an individual in the latter category. Briefly, here are the facts:
]]> My client was pulled over on Interstate 95 for minor traffic offenses. The police officer claimed that he smelled marijuana and as a result determined that he had probable cause to search the vehicle. At this point he removed my client from the car and told him that he was going to search him for weapons for "officer safety". He began by simply patting my client down but ended up pulling my clients pants down and reaching inside his underwear to remove approximately 28 grams of heroin which my client had hidden next to his genitals. He was arrested and charged with possession with the intent to distribute heroin and simple possession. Fortunately for my client the police car that was used by the police officer was equipped with a dash board video camera that recorded the entire incident so we are not stuck with the police officers version of the events contained in the Statement of Probable Cause.I filed a motion to suppress the evidence in the case and intend to argue that, in addition to other violations of my client's rights, the police officer conducted the equivalent of a strip search on my client when he did not have legal authority to do so. Here is the memorandum of law in support of my motion of suppress evidence that I filed in this case. I changed the names of the participants as well as identifying information to protect my client's privacy.
MEMORANDUM IN SUPPORT OF
DEFENDANT’S MOTION TO SUPPRESS
The Defendant, Dwayne R., through his counsel, Brian Thompson, and Silverman, Thompson, Slutkin & White, LLC., hereby files this Memorandum in Support of Defendant’s Motion to Suppress, and in support thereof, states:
INTRODUCTION
The Defendant is charged in the above captioned matter with possession with the intent to distribute heroin, possession of heroin and related offenses. The Statement of Probable Cause reveals the following, in pertinent part: On March 26, 2009, Maryland Transportation Authority Officer D was on patrol on 1-95. Officer D observed a White Dodge Caliber bearing NY Registration ABC 123 traveling in lane #1. The vehicle abruptly changed lanes into lane #2 and got directly behind a grey van traveling in that lane. The vehicle was traveling at an approximate distance of less than a car length behind the van. After observing that traffic violation, Officer D stopped the vehicle for following too closely. The driver was identified as the Defendant from his New York drivers license. The vehicle was a rental car rented by someone else. While speaking with the Defendant, Officer D detected the odor of marijuana coming from the vehicle. The Defendant said he was headed to Richmond Virginia. Officer D arrived to assist with the search. The Defendant was removed from the vehicle and Officer D searched his person. While searching the front waistband of the Defendant’s pants, the Defendant started to pull his hands away so he was handcuffed. A zip lock bag was found in the front area of his pants which contained contraband. The Defendant was placed under arrest. The approximate weight of the heroin was 34 grams. Officer D stated that distribution was indicated because of the two source cities from which the Defendant was traveling, the third party rental violation and the amount of heroin.
As the video demonstrates that the traffic stop was pre-textual, any and all evidence seized as a result of the illegal search of the Defendant’s person must be suppressed. Even if this Honorable Court determines that there was a valid traffic stop, the search of the Defendant’s person was violative of the Fourth Amendment. Finally, there is insufficient evidence to support the charge of possession with the intent to distribute narcotics.
ARGUMENT
A. The traffic stop was pre-textual.
In State v. Williams, 401 Md. 676 (2007), the Court of Appeals discussed pretextual stops. In that case, a Harford County Deputy Sheriff was advised prior to coming on duty to be on the lookout for a certain vehicle. Id. at 679. While on patrol, the deputy noticed the car described in front of him. The deputy followed the car for half a mile on I-95 and when the car exited the highway at Maryland Route 52, the deputy stayed behind it. Prior to exiting the highway, the deputy radioed the dispatcher that he had the suspect in sight. The defendant stopped at the end of the ramp at the red light and after the defendant made his turn on green, he did so. The deputy testified that when they got to the traffic light, he concluded based on his training and experience that he should have been able to see into the car because it was so well lit, but he was unable to do so. The deputy testified that the vehicle appeared to have tint that was after-market. Id. at 680. The deputy stated that the standard practice he applied was that “if the officer in their opinion feels it’s too dark, then you can stop the vehicle.” The vehicle was stopped and a K-9 search recovered contraband. A few days later, the windows were inspected and they were legal. Id. at 681.
The Court of Appeals noted that it is clear that the deputy used what he believed to be a tinting violation as a pretext to stop the car in order to allow a backup K-9 officer to arrive and scan the vehicle. Id. at 686. The Court cited Whren v. United States, 417 U.S. 806 (1996),which held that pretextual stops were not per se prohibited but only if the officer had sufficient cause to believe that the traffic violation upon which the stop is based has occurred.
The Court of Appeals held that the appropriate test for an initial traffic stop is that a stop is only justified under the Fourth Amendment if the officer had a reasonable articulable suspicion that a traffic law has been violated. Id. at 690. Chief Judge Bell and Judge Greene concurred but held that when conducting pretextual stops, an officer must have probable cause. In examining the facts in Williams, the Court of Appeals held that the deputy did not even have reasonable articulable suspicion to stop the vehicle. Id. at 691. The Court noted that “the test urged by the State, and applied by Deputy Wood, would allow police officers to stop any car with any tinted window, simply because it appears darker than an untinted window, and that cannot be the test for Fourth Amendment purposes, for it would effectively strip away Fourth Amendment protection for any person driving or owning a car with tinted windows.” Id. at 692. As the stop of Williams was invalid, any and all evidence seized from the illegal stop was suppressed. Id. at 693.
The same result should be reached in this case. The video in this case demonstrates that Officer Davis was not in a position to observe the distance between the grey van and the Defendant’s vehicle. As the stop was pre-textual, any and all evidence seized as a result of the illegal stop, must be suppressed.
B. The search of the Defendant’s person was illegal.
The State has the burden of proving the reasonableness, and thus the legality, of a
warrantless search. Paulino v. State, 399 Md. 341, 348 (2007). Although Maryland courts have noted the need of law enforcement to protect themselves, that right must be balanced against the individual’s right to be free from unreasonable restraint. The State cannot meet its burden in this case.
As the Supreme Court noted in Terry v. Ohio, 392 U.S. 1 (1968), the manner in which the seizure and search are conducted is “as vital a part of the inquiry as whether they were warranted at all.” Id. at 28. The purpose of a Terry frisk is not to discover evidence of crime, but rather to protect the police officer and bystanders from harm. Id. at 29. Therefore, Terry frisks are limited to a search for weapons that might place the officer or the public in danger. See Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). If during a lawful pat-down an officer feels an object which obviously is not a weapon, further patting of it is not permissible. Id. at 378. (noting that a continued exploration of a suspect's pocket after having concluded that it contained no weapon was unrelated to "the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize . . . ."); See generally 4 WAYNE R. LA FAVE, SEARCH AND SEIZURE, § 9.5(b), at 275 (1996).
As Judge Moylan, writing for the Court of Special Appeals in Anderson v. State, 78 Md. App. 471 (1989), explained:
There is under the Fourth Amendment an ever present requirement for the police to minimize even necessary intrusions. The permitted scope of an intrusion is whatever is necessary to serve the purpose of that particular intrusion, but nothing more. Both a stop and its sometimes attendant frisk are prerogatives permitted the police under predicates less substantial than probable cause. The reason the Fourth Amendment permits a policeman to conduct a minimal search (a frisk) of a suspect upon such a lesser predicate is the necessity of protecting from harm the life and limb of the stopping officer. Because almost all weapons -- guns, knives, blackjacks, brass knuckles -- are hard, palpable objects, their presence may be detected by a close pat-down of the exterior of the clothing surface. Because that is all that is necessary, that is all that is permitted.
Id. at 477.
In Alfred v. State, 61 Md.App. 647 (1985), the Court of Special Appeals noted that the frisk, therefore, requires its own independent justification, not only as to legitimacy but also as to scope. A frisk or pat-down is justifiable only if there is a particularized and individualized suspicion that the suspect may be armed and dangerous. In that case, a police officer conducted a pat-down of a young man wearing a snugly fitting pair of cut-off jeans and felt a small flat object in the suspect’s back pocket. Surmising (correctly) that the object was an item of recently stolen jewelry, the officer extracted it from the suspect’s pocket. The Court held that, since the object he felt was obviously not a weapon, the seizure was unlawful. Id. at 669.
In Weedon v. State, 82 Md.App. 692 (1990), a police officer conducted a pat-down and felt a small (3 inch by 2 inch) thick rectangular box-shaped object. The officer asserted that he did not know that it was not a weapon of some kind. On that basis the motions judge ruled that the seizure of the box was lawful. The Court of Special Appeals disagreed. The Court emphasized that the protective search is justified only by the officer’s reasonable belief that the suspect is armed and dangerous. Applying that reasoning to the facts, the Court stated:
If a police officer, while conducting a pat-down during a stop, feels an object in or under the suspect's clothing, he may remove (seize) that object only if he has an articulable basis to believe that it is a weapon which would pose a threat to his life or safety during the ensuing investigatory interrogation. It is not enough to justify the seizure that the officer cannot rule out the possibility that the object is some miniaturized, deadly weapon of a type as yet unknown to him. Since the officer had no reason to believe that the small box-shaped object he felt under appellant's clothing was a weapon that posed a threat to him, he had no lawful justification for its seizure. The court erred in denying appellant's suppression motion.
Id. at 698-99.
The Court further noted:
We may not let appellant's established guilt influence an assessment of his constitutional rights. Judge Orth, writing for the Court of Appeals in Riddick v. State, 319 Md. 180 (1990), quoted from Arizona v. Hicks, 480 U.S. 321, 329 (1987), in which Justice Scalia pointed out that there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.
Id. at 700.
In this case, the item that was recovered was a zip lock baggie containing 1.1 ounces of narcotics. This could not have been mistaken as a weapon. The officer had no basis to believe that this object was a weapon which would pose a threat to his life or safety during the ensuing investigatory interrogation.
It is also important to note that the Statement of Probable Cause states that because the Defendant started to pull his hands away from the officer, the Defendant was handcuffed. The video demonstrates that the Defendant flinched because of the intrusive nature of the “pat-down.” The search in this case is more equated with a strip search. This type of intrusive search was discussed in Paulino v. State, 399 Md. 341 (2007). In that case, the defendant argued that the search of his person after his arrest constituted an impermissible strip search. The defendant was wearing his pants below his butt, the police lifted his shorts and cocaine was discovered between his butt cheeks. Id. at 352. The State argued that it was not a strip search because the search was conducted without removing any of the defendant’s clothing. Id. The Court of Appeals noted that the search of the defendant was highly intrusive, stating:
Searches that entail the inspection of the anal and/or genital areas have been accurately described as demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one’s personal privacy.
Id. at 356. Further, the Court noted that the search was conducted in a parking lot of a carwash which was very public. Id. at 359. Therefore, the Court held that the search was impermissible.
Similarly, the search conducted in this case was essentially a strip search conducted on a very public highway. As the pat-down was clearly not for officer safety, and the manner in which it was conducted was impermissible, the contraband must be suppressed.
C. There is insufficient evidence to support the charge of possession with the intent to distribute.
The amount of heroin that was seized was 34 grams, approximately 1.1 ounces. There is
clearly insufficient evidence that this small amount of narcotics was possessed with the
Defendant with the intent to distribute it, rather than for his personal use. Though there is no
case on point, other cases rejecting the personal use argument are instructive. For example, in
Johnson v. State, 75 Md.App. 621 (1988), the Court of Special Appeals rejected a defendant’s
claim that the evidence was insufficient to prove an intent to distribute because there were 95
capsules of cut cocaine seized. Further in Hippler v. State, 83 Md.App. 325 (1990), the Court of
Special Appeals rejected a personal use argument because there was enough PCP found to make
160 joints. It is evident that this is not the situation in the present case.
CONCLUSION
For the aforegoing reasons, the Defendant respectfully requests that this Honorable Court
grants his Motion to Suppress.
Respectfully submitted,
_____________________________________
Brian G. Thompson
The case is set for trial in March. I will update this blog once the case is concluded.
]]>I had a case this week in Baltimore County that clearly demonstrates this fact and also identifies one of the major benefits to being represented by an experienced and aggressive private criminal attorney as opposed to a public defender. The facts of the case were as follows:
]]> 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.
]]>As I have noted in the past, it is important in most cases to ensure that the attorney is both experienced in criminal matters and that the attorney appears regularly in the jurisdiction in which the person is charged. This information is easy to acquire simply by reviewing the attorney's case load on Maryland Judiciary Case Search. http://casesearch.courts.state.md.us/inquiry/processDisclaimer.jis. Most mistakes that criminal defendants' make when selecting an attorney involve the first parameter - that is, not ensuring that the attorney is experienced in criminal matters- but the second parameter - experience in the jurisdiction in which a person is charged - can be equally important. I resolved a case last week that illustrates the importance of this second and oft overlooked component of an attorney's qualification to handle a particular case. The facts in a moment but first some more general discussion about attorney qualifications.
]]> Sometimes an attorney's experience level can appear impressive at first blush but upon closer inspection, be lacking. For instance, I took a case late last year on appeal for an individual who was told by her attorney that he was "highly qualified" to handle her case as he had been "practicing criminal law for over 20 years" and that "most of the criminal cases (he) handled" were in the jurisdiction in which the person was charged. Well it turns out that the attorney had in fact been practicing criminal law, along with several other areas, for over 20 years and had handled approximately 200 criminal cases throughout that period. This record may seem impressive at first glance but a closer inspection will reveal that it is woefully inadequate.If you do the math, 200 cases in 20 years comes out to fewer that one criminal case per month. Moreover the person in this situation was charged with first degree assault as well as a third degree sex offense - both serious felonies. An even closer review of the record of this attorney further reveals that only about 40 of the 200 criminal cases that he handled over the past 20 years were felony cases. This means that he has only handled an average of two felonies per year! Most full time criminal attorneys, including me, handle more than 300 criminal cases per year including scores of felonies. Upon closer inspection, most would agree that this attorney's record simply did not back up his claim of being "highly qualified" to handle this case. Too make a long story short, the attorney botched the case beyond measure and the client is now serving six years in prison when she would not have served a day had she been properly represented. (For more on this case see my 10/30/09 blog).
As I wrote early, while general criminal experience is a very important component of a decision as to the qualifications of a given attorney, it is equally important to ensure that the attorney has substantial experience in the particular jurisdiction in which the person is charged. The case that I that I resolved last week is an excellent example of this fact. This client discharged her original attorney because she belatedly determined that he did not have experience in the jurisdiction in which she was charged. She ultimatelyretained me and, at the risk of sounding immodest, it was a very good thing for her that she did. Here are the facts of the case:
The case had very unusual and frankly quite serious facts. The client is a 27 year old single mother of an 8 year old daughter. She got involved with a 15 year old boy in her neighborhood who allegedly had ties to gang activity The relationship began as a friendship but the boy claims that it soon became sexual. The client denies this and maintains that the relationship was at all times platonic. Regardless of the nature of the relationship, it is undisputed that the relationship got out of control and threats were made by the boy to my client.
According to my client, the boy threatened to shoot both her and her daughter. The client says that she was scared for her life and the life of her child. She called the police who told her that there was nothing that they could do to the boy given that thus far he had only made threats. Feeling that she had no other options, she then made the impulsive decision to go to his house to "try to scare him" into leaving her and her child alone.
She was driven there by a friend who was charged as an accessory and ultimately chose to cooperate with the authorities against my client. She took a shotgun with her and fired a round at the back window of the house. She missed the window and the slug lodged into the outside wall just above that window. There is no evidence that the boy or anyone else was near the window when the shot was fired and no one was hurt. The police investigated the matter and ultimately charged the client with first and second degree assault and a third degree sexual offense based on the age of the boy and his allegation that they had sexual relations. When the client was confronted by the police she surrendered the shotgun and ultimately gave a mirandized confession to firing the shotgun at the house. She vehemently denied any sexual relationship with the boy.
Unlike most people who are charged with a criminal offense for the first time, this client did do some research into the background of the first attorney that she hired. The client correctly determined that the attorney did have substantial criminal experience and was in fact a full time criminal attorney. But her research ended there and did not delve into the particular jurisdictions in which this attorney practices. She advised me that the attorney seemed very knowledgeable and she was impressed by him in the initial consultation. She hired him on the spot.
As the case progressed, however, she began to sense that he didn't seem familiar with the court or the court personnel so she researched him further. She ultimately found that although he was an experienced criminal attorney, he had never appeared in the Circuit Court in the county in which she was charged for a felony case in his career - Not Once!!! In fact, he had only represented a handful of clients in the jurisdiction all of whose cases were misdemeanors. After representing the client in this case for six months, the attorney told her the best plea offer he could get for her was a plea to first degree assault and third degree sex offense. This would mean that she would be subjected to sentencing guidelines of 3 to 5 years in prison as well as a requirement to register as a sex offender. The attorney told her she would be unlikely to prevail in trial and recommended that she take the offer. At this point she decided to speak to some other attorneys.
When she first came in to see me I advised her of my unwritten rule in these cases which is that I am very reluctant to take over a case from another attorney this late in the process unless I truly believe that I can achieve a better result than that which has been promised by the existing attorney. Indeed, I turn down the overwhelming majority of cases in this posture and send them back to their existing attorneys with my opinion that they are being competently represented.
In this case, however, I was almost immediately convinced that I could do far better than the offer that had been extended to her attorney. The reason for this is that while the fact that the client had fired a shotgun at the back window of the defendant's apartment was very easily provable by the State, (as noted above, the State had a cooperating co-defendant and written confession by the defendant), in my view there was no evidence that would support an assault charge and the evidence of the sex offense was also not, in my view, particular strong. It was my opinion that the attorney was incorrect in his evaluation of the case and that with some aggressive negotiating with the prosecutor that I would likely receive a much more favorable offer. Otherwise, my recommendation would be to take the case to a jury where I was confident that I would prevail on the assault charge and more likely than not, the sex offense.
I agreed to take the case and the client chose me over several other attorneys with whom she had met. After several months of negotiations with the State's Attorney wi which I made my position clear that I would never plead her to assault or 3rd degree sex offense, the State's Attorney finally acquiesced and accepted my counter offer which was a plea to reckless endangerment and an Alfred or "no contest" plea to 4th degree sex offense which are both misdemeanors and would not require registration as a sex offender.
I also advised the prosecutor that I would only agree to the offer if the Judge agreed that my client would not be incarcerated and would instead receive probation. We set the case in for motions and trial on two different dates. This is a common tactic that I use as it is the preferrd practice in the jurisdiction and even in case in which motions are not argued, it affords the client two opportunities to appear before a favorable judge instead of just one. In this case it was crucial that we schedule the case this way because the motions hearing was docketed in front of the most State oriented judge on the bench who is known for imposing draconian sentences often exceeding the recommendation of the State. Needless to say we did not proceed with the plea in front of this judge and instead passed the case to the trial date.
On the trial date the next week we were docketed in front of a judge whom I believed to be a bit unpredictable. As a result I convinced the prosecutor to present the case to the judge in chambers to see what he/she was inclined to do. Ultimately, the judge rejected the prosecutor's request for jail and agreed to a suspended sentence and probation. The judge even agreed to revisit the case at the end of the period of probation to consider granting probation before judgment which would allow the client to eventually have the entire matter expunged from her record.
I can't really explain why this other attorney, who again was an experienced and competent criminal defense attorney, was unable to convince the prosecutor of the weakness of his case at least with regard to the assault and sex offense counts. Perhaps he simply improperly evaluated the case or was unable to convince the prosecutor that he would defeat him in trial. I can only say that I have seen this happen many times and it invariably seems to happen when the attorney in question is either inexperienced in criminal matters generally or lacks experience in the jurisdiction in which the case is charged. Fortunately for this client, she was one of the few who recognized the problem before it was too late.
]]>In Maryland, in cases where a person is charged with distribution of or possession with intent to distribute narcotics such as cocaine, heroin or prescription drugs, a second offender will be subject to 10 years in prison without the possibility of parole. A third offender is subject to a mandatory 25 year sentence without parole and a person with 4 or more convictions faces 40 years. However, in cases involving second offenders, a defendant who is convicted may be eligible for a modification of that sentence if the person is found to be in need of drug treatment by the Department of Health and Mental Hygene and to be sufficiently motivated to take advantage of the opportunity to receive treatment.
]]> For a Maryland Criminal Attorney to put his client in a position to have his mandatory sentence modified, the attorney must file two motions within 90 days of the imposition of the sentence. The first is a motion for modification of sentence. The purpose of this motion is to allow the court to maintain jurisdiction over the case beyond the 90 day period. The second motion is a motion under section 8-505 of the Health General Article.In the case that I handled last week, the client had been caught on a wiretap conducted by the Baltimore County Police. The wire was active for over a month and during that time the police recording my client engaging in several highly incriminating conversations regarding the distribution of cocaine. In addition to this evidence the prosecution had secured the cooperation of two individuals who had been federally indicted. Each of these individuals was prepared to testify that they had purchased cocaine from my client on multiple occasions including several transactions that had been picked up on the wire.
I discussed with my client that in my estimation, the State had a strong but not airtight case against him. I advised him that we should take the case to trial unless we could secure a guarantee that a Health General 8-505 motion would be granted within a reasonable period of time.
My client was fortunate in that we drew an extremely favorable judge for this case. After several months of negotiation with the State in which I pointed out to the prosecutor the weaknesses in his case, we reached an agreement that the judge would grant the 8-505 motion after my client had served approximately one year of his 10 year mandatory sentence. At this point I advised my client that he would be crazy to risk a conviction which would have subject him to a mandatory 10 year non-parolable sentence in this matter given the relative strength of the State's case, particularly given that he received a guarantee from the judge that he would grant the motion after just one year.
We did run into one hiccup in that in the original report the evaluator found that while my client was clearly a long time drug abuser who could benefit from drug treatment, he lack sufficient motivation to take advantage of an opportunity to receive treatment. Fortunately I had him re-evaluated last month and the evaluator found that, not surprisingly, a year in the Division of Corrections had provided my client with the motivation that she had found that he previously lacked.
We appeared before the judge on the motion last week and he granted the it committing my client to the Department of Health and Mental Hygene for drug treatment. My client will be transferred to the Guadenzia program where he will complete a 60 day inpatient treatment program at which point he will be allowed to return home to his family. The total time he will serve including the treatment program will be just a few days over 15 months. This was not the perfect result in the case but 15 months is a far cry better than 10 years by any measure.
]]>My client's are a married couple whom I will refer to as John and Jane in this blog to protect their privacy. John is in his early forties and Jane, who never took his last name, is in her mid fifties. Neither has ever been in any trouble with the law in their lives. John is in the printing business and Jane has been a school teacher for 30 years. They have been happily married for about 15 years.
]]> One evening they decided to go out for a little entertainment to "spice up" their love life. To that end they went to a local strip club where they each had a single drink and spent about an hour watching the performers. When they got out to their car they began to kiss and one thing led to another..... At about the same time a couple of undercover vice detectives arrived on the scene just in time to see John and Jane exit the nightclub and get into their car. Within a few minutes on John was visible in the car although Jane had not exited it ( I will leave it up to your imagination what was transpiring). At this point the police approached the car and rapped on the window identifying themselves, at least according to them, as Baltimore County Police Detectives. According to John they did not so identify themselves and were not in uniform or displaying badges or anything else identifying them as police officers. Fearing that he was about to be robbed or worse he started the vehicle and pealed out of the parking lot. One of the detectives was struck by the back end of the vehicle throwing him off balance but he was not knocked to the ground and was not injured.The detectives put out a call and my clients were stopped about a mile down the road by a marked police unit. My client's stopped their car immediately and were cooperative in every way with the investigation. John and Jane explained to the detectives that they were married and that they did not hear them identify themselves as police officers. The detectives did not believe that they were married as they did not have the same last name, although their ID's both listed the same home address. They charged them both with perverted practice and charged John with both first and second degree assault.
The case was set for trial this week in Essex District Court. The prosecutor who was assigned to the case was persuaded by seeing the couple's marriage license to drop the perverted practice charge against both but indicated her intention to prosecute the assault count against John. I advised her that I believed she had an intent issue given that my clients would both testify that the police did not identify themselves and the undisputed fact that they were not in uniform but she refused to budge. Ultimately, I convinced the prosecutor to agree to drop the charge if I could get the cop to agree which is a tactic I employ regularly. I have always tried and I believe succeeded, to maintain a good rapport with the police, at least in part for these situations. There are many criminal attorneys who have such a bad relationship with the police that the officers won't even speak to them much less do them a favor. My philosophy is that a good criminal defense attorney must be able to do his job without creating bad blood with the police or the prosecutors because if you do so they will be much more willing to do you a favor, particularly in a minor case like this one, than if you do not. After proving to the officer that my clients were indeed married and explaining their misunderstanding as to the identity of the police, he agreed to drop the charges. I still believe that I would have been successful in securing an acquittal had the case gone to trial but there is always risk when you take a case to trial. Sometimes, as in this case, a little diplomacy with the State's Attorney and the police can shield the client from that risk.
]]>As many have now heard Baltimore Mayor Sheila Dixon was convicted by a jury today of count four of the indictment that she was facing. This count was Embezzlement - Fraudulent Misappropriation by Fiduciary is a Misdemeanor although one that carries a maximum prison term of Five years in prison. The jury apparently acquitted her of all other counts including count one - Felony Theft which is a felony that carries a maximum penalty of fifteen years in prison. So what conduct constitutes Embezzlement - Fraudulent Misappropriation by Fiduciary?
]]> Pursuant to Maryland Criminal Laws Annotated, Criminal Law Section 7-113 - A fiduciary may not:1) Fraudulently and willfully appropriate money or a thing of value that the fiduciary holds in a fiduciary capacity contrary to the requirements of the fiduciary's trust responsibility: Or
2) Secrete money or a thing of value that the fiduciary holds in a fiduciary capacity with a fraudulent intent to use the money or thing of value contrary to the requirements of the fiduciary's trust responsibility.
The penalty section states that "on conviction (the defendant) is subject to imprisonment for not less than 1 year and not exceeding 5 years. On first blush this would seem to indicate that Ms. Dixon will be sentenced to serve at least a year in prison. However, because the statute does not prohibit the court from suspending any or all of the minimum sentence, it really has no teeth. It is my opinion that the judge does indeed have the authority to suspend the minimum sentence in its entirety should he choose to do so. Whether he chooses to do so is another matter.
]]>Few things can be more intimidating than the prospect of fighting the United States Government regarding your security clearance. Contractors and federal employees who work for Government agencies depend on their security clearances for their livelihood. Loss of a clearance – or refusal to grant one in the first instance – can be a devastating and life-altering event. For most people, the prospect of taking on a federal agency about the revocation of a security clearance is a daunting one. Many believe that because an agency has revoked or denied a clearance, there is nothing they can do to fight back. After all, the agency knows best . . . right? WRONG!
The truth is that the decision to revoke or deny a security clearance is almost always made by persons who may be influenced by “workplace politics,” and personal issues or problems with an applicant. In some cases, decisions to revoke or deny a clearance have been based on an employee’s desire to disqualify a particular contractor because the employee does not like working with the contractor’s employees. The power vested in those making security clearance decisions is tremendous, and all too often the power is exercised for the wrong reasons, and having little to do with the established criteria governing these decisions.
Here’s what you need to know:
Decisions regarding security clearances are tremendously important and must be based on a fair, impartial, and commonsense review of all relevant information about an applicant. Instead of focusing on one perceived problem, a decision must be based on what has been termed the “whole person” concept. This review encompasses numerous factors that must be addressed by the government in making a decision regarding a clearance. The factors include such things as 1) the nature and seriousness of the alleged conduct, 2) the circumstances surrounding the conduct and the extent that such conduct was purposeful or intentional, 3) the timing of the conduct – was it recent? Did it happen more than once? 4) whether the applicant has taken rehabilitative steps to address underlying issues (such as drug use or accumulation of large debt), 5) the potential for exploitation or coercion in the future, and 6) the likelihood of recurrence.
Even if the government satisfies its burden and produces sufficient evidence to back up the decision to revoke or deny a clearance, a person still has the ability to refute the case and to produce his/her own evidence in mitigation. This evidence can include: efforts at rehabilitation and making permanent changes in one’s life; evidence of bias or improper motive on the part of deciding officials; evidence that the decision to revoke or deny was based on impermissible considerations such as race, age, gender, sexual preference, or other irrelevant information; evidence of animus against the person by the deciding official or other employees at the affected agency; has the government been consistent with its process? Has the government granted clearance to the applicant or others in similar situations in the past?
The bottom line is that the denial or revocation of a national security clearance is too important to take lightly. Persons who have been denied a clearance or have had a clearance revoked should immediately speak with a qualified maryland security clearance lawyer and take all available measures to make sure that the government is playing by the rules. The security clearance lawyers at STSW can advise you with respect to your security clearance situation. Our lawyers are experienced at all phases of litigation – including administrative appeals and appeal hearings. Our lawyers include former military officers as well as former federal and state prosecutors. Many of our attorneys have been recognized by our peers as “Super Lawyers.” In fact, two STSW lawyers have been recognized as being in the “Top 50” lawyers in the State of Maryland.
If you have had your federal security clearance revoked or have been denied a clearance, call a security clearance lawyer at STSW. Make sure your rights are protected.
First, the facts of the case.
The client is a 60 year old naturalized American citizen from the Caribbean. She has lived in this country for over 40 years and prior to this situation had never been charged, much less convicted, with anything more serious than a parking ticket in her life. She has always worked, paid her taxes and raised a family. In other words, she is a solid a citizen as any criminal defense attorney could hope to represent.
]]> In 2007 she opened her home up to foster children as she had done many times throughout her life. She accepted two young boys and tried to raise them in a positive and loving environment. Unfortunately, one of the boys had extreme behavior problems. He would yell and scream and at times even become physically threatening to my client. On one such occasion in the summer of 2008, my client admittedly lost her temper. They were outside working in the garden and the boy misbehaved to the point where she became so frustrated that she overreacted and hit him repeatedly in the back with a garden hose. My client had no intention whatsoever of hurting the boy but the metal end of the hose left significant bruises on the boys' back. These bruises were observed by other adults and ultimately child protective services and the police got involved.The police investigated the matter and eventually arrested her. She was later indicted into the Circuit Court on two counts of second degree child abuse, each count carrying a maximum penalty of 15 years, and one count of second degree assault, carrying 10 years. She hired an attorney, apparently without doing any research on him to determine whether or not he was truly qualified to handle a serious felony criminal case such as this.
The attorney apparently decided early on that he would pursue a self defense strategy and stuck to that strategy throughout more than a year of delays and postponements. On its face, I find this strategy decision peculiar as I have never seen self defense asserted in any child abuse case in my career. Even more troubling is the fact that the prosecutor had made an offer to plead the case out to a suspended sentence with probation, and that offer was open right up until the final trial date. This offer was consistently rejected throughout the process. On the final trial date, as luck would have it, they drew one of the strictest judges in Baltimore County. This is particularly unfortunate given the fact that the case had been scheduled before several of the most lenient judges on earlier trial dates that were postponed by the defense.
The attorney then compounded the mistake of not accepting the probation offer by telling the client to select a judge trial instead of a jury trial thereby placing his client's fate entirely in the hands of Baltimore County's own "Hangin Judge". Then, to seal the client's fate, after the ASA had called all of her witnesses excepting the alleged victim, the client's original attorney approached the ASA and entered anew into plea negotiations. It was ultimately agreed upon that in exchange for a guilty plea that the State would agree to request that the court sentence the defendant to a sentence within the guidelines of 1-6 years and that the Court would agree to bind itself to not exceed those guidelines. (It is unclear whether the attorney even requested that the original plea offer of a suspended sentence be reinstated which may very well have been on the table given that the victim had not yet testified and that the primary motivation of the ASA in agreeing to probation was that she did not want to further traumatize the child by making him testify).
The judge ordered a presentence investigation which came back recommending probation. But true to form, the judge sentenced the client to serve six years in the Division of Corrections. A truly shocking result for a 60 year old woman with a spotless record who was repeatedly offered a suspended sentence with probation by the ASA. I was hired a few days later to try to clean up the mess but I am not at all certain that I will be able to do so. I have filed a motion for a new trial citing the incredibly deficient legal representation that she received and asked for the sentence to be reviewed by a three judge panel; but the simple fact is that it will be far more difficult for me to reverse the damage that it would have been to prevent it from happening in the first place.
The tragedy of the situation, and I sincerely hope the lesson that others will learn from it, is that this result could in all liklihood have been avoided had the client simply done a few minutes of research into the background and qualifications of the attorney before hiring him. Had this client done just a few minutes of research on the Internet, she would have easily determined that this attorney was woefully under qualified to handle a serious felony case such as this one. Had she simply run his name through the web site Maryland Judiciary Case Search, she would have found that he had handled under 200 criminal cases throughout his 20 year career which comes out to less than one case per month. More specifically he has handled fewer than 30 felony cases in the Circuit Court for Baltimore County throughout that same period - In other words, he only handles one or two felony cases in Baltimore County per year. The search would also have revealed that this attorney spends far more time handling civil matters and in particular real estate and business cases. This attorney is certainly not a criminal law neophyte but he is hardly a specialist.
A similar search under my name would demonstrate that I handle over 200 criminal cases per year to include scores of felony cases in the Circuit Court for Baltimore County. As I noted at the beginning of this blog it never ceases to amaze me how few people make the effort to research the background and experience of an attorney before hiring him to represent them in what is undoubtedly the most serious matter most have ever been involved in. This is particularly troubling given how readily available this information is in this era of the Internet.
This is because under Maryland Law and Federal Law there are minimum mandatory sentences that must be served without the possibility of parole associated with trafficking narcotics with a firearm - even for first offenders. Perhaps more surprisingly, these laws apply to the possession of any firearm and not simply handguns or regulated firearms such as assault weapons. So while a convicted felon may be in possession of a shotgun without violating Maryland Law (shotgun possession by a convicted felon is a violation of Federal Law) a person with no record who is caught trafficking narcotics with a shotgun would be in violation of these laws and face the mandatory penalties just the same as if he were caught with a handgun or an assault weapon; and the penalty is a stiff one indeed. Any person in Maryland who is convicted of trafficking narcotics with a firearm faces a maximum penalty of twenty years in prison but the real meat in the statute is that the convicted defendant faces a mandatory minimum sentence of five years in prison without the possibility of parole. I currently represent a person who finds himself in this exact predicament. I will explain the facts and then get into what exactly the State must prove to convict my client or any other similarly situated defendant of this charge.
]]> My client came under surveillance by the police as a result of a tip provided by a confidential informant. The police watched him engage in what they believed to be behavior indicative of street level distribution of narcotics over a period of several days. During this time they also watched him go in at night and out in the morning a certain address in West Baltimore. Importantly, the police never witnessed any suspicious activity on or around this address. In spite of this fact, the detectives applied for and received a search and seizure warrant for that address.The Detectives executed the warrant and recovered more than an ounce of crack cocaine packaged in a manner consistent with the street level distribution of narcotics. These narcotics were recovered from inside the drop ceiling of the bedroom that he shared with his girlfriend. In the closet of that same bedroom was recovered a loaded twelve gauge shotgun. The police charged both my client and his girlfriend with possession with the intent to distribute narcotics and trafficking narcotics while in possession of a firearm. This is a common tactic by the police. They will very often threaten the target of the investigation that if he doesn't admit that the drugs are his then they will charge his girlfriend/wife/mother or any other unrelated person who happens to be present at the time. The Assistant State's Attorney will then often use the unrelated person as a bargaining chip, making dismissal of the charges against that person contingent upon the defendant accepting a harsher than normal plea bargain. True to form the police officers told him that if he did not admit that the guns and drugs were his that they would also arrest his girlfriend. He refused and they were both arrested.
The State has offered my client a plea to the trafficking narcotics with a firearm count and a five year sentence to be served without parole. In exchange the ASA has agreed to drop charges against his girlfriend. My client has rejected the plea and it is scheduled for trial early next year. So what exactly must the State prove in order to gain a guilty verdict against my client on this count that will require him to serve five years without the possibility of parole?
According to the Maryland Pattern Jury Instructions the State has to prove a little bit more than a mere proximity between the guns and drugs. That State first must secure a conviction on a felony drug offense such as distribution of narcotics or possession with the intent to distribute. The jury will be instructed to only consider the trafficking with a firearm count if they find the defendant guilty of the underlying felony drug offense. The State then must prove that the defendant possessed a firearm during, and in relation to, the crime AND that there was a connection between the defendant's possession of the firearm and the crime.
In order to reach that determination, the judge will instruct the jury that they may consider factors such as the proximity of the firearm to the drugs or the defendant, whether the firearm increased the likelihood of success of the crime, and whether the firearm was within easy reach and available to the defendant, during the commission of the crime. My client will have no choice but to admit that the drugs were his in order to spare his girlfriend (who is also the mother of his 2 year old son) the possibility of prison - but the guidelines on possession with intent are only 6 months to 18 months with parole and straight probation would be a definite possibility. The dispute in the case will come down to whether or not he used the shotgun to further his illegal drug activities.
My argument will be that if the jury fairly considers these factors, they will come to conclusion that my client did not possess the weapon during the commission of the crime. As evidence, I will point to the fact that according the police themselves, they saw no activity consistent with street level drug distribution on or around the property where the weapon found. Indeed, they surveilled him for days and saw him engage in this type of activity only after leaving the house and in fact the neighborhood. Moreover, there is no evidence that he ever took the weapon with him when he left the home to ply his trade so to speak and it would have been virtually impossible for him to have done so while under the surveillance of the police. Finally, I will argue that my client lives in a crime ridden neighborhood and he, like many other folks, bought the shotgun purely for home protection and self defense.
I believe that we have a very good chance of prevailing with this argument and will update this blog after the trial. Total victory is really not a possibility in this case but both my client and I will consider avoiding the five year no parole sentence a big victory, even if it means serving a few months on the drug conviction.
In a nutshell, a criminal defendant is considered a Career Offender if he is currently charged with a violent crime or controlled substance offense and has previously been convicted twice of “a felony that is either a crime of violence or a controlled substance offense.” It is basically the federal version of a “third strike” rule. The consequences of being labeled as a career offender are disastrous. First, a defendant’s criminal history category is automatically raised to Category VI—the most serious category in federal law. Second, the offense level for the current charge is also automatically inflated to some of the highest in the guidelines system. In most cases, the level is raised to 37. To give some perspective, level 43 is the highest designation in the sentencing guidelines, and applies to crimes such as 1st degree murder!
Moreover, federal courts have adopted a very wide “strike zone” in determining what constitutes a “controlled substance felony.” While most logical thinkers understand that a controlled substance felony means drug distribution or dealing, federal courts have ruled that a state drug possession conviction can qualify as long as the offense carries a maximum possible punishment of greater than one year. In Maryland, possession of cocaine carries a maximum possible punishment of four years, making it a “felony” for federal purposes, even though the crime is classified as a misdemeanor under state law. So an individual in Maryland who has been twice convicted of cocaine possession will be treated as a career offender if he thereafter is charged in federal court with drug dealing or conspiracy to deal drugs. The results are significant.
A defendant classified as a career offender in a federal drug case will typically face a sentencing range of 30 years – life! Facing such a monstrous guideline range forces many defendants to accept guilty pleas in defensible cases as well as cases where the defendant is actually innocent! http://www.ussc.gov/2004guid/4b1_1.htm
1) the defendant had not served any significant jail time in his prior convictions;
2) the defendant was young at the time of the prior convictions;
3) the defendant’s prior convictions involved only a small amount of drugs;
4) the defendant had gotten married and fathered children since his last conviction;
5) the defendant did not play a “major role” in the prior offenses;
6) the defendant’s prior convictions were old and occurred in a short time span;
7) The defendant had gotten married and was raising a family.
Most importantly, Judges now can ignore the Career Offender provisions if they find that they conflict with the mandate in 18 U.S.C. 3553 to impose a “reasonable” sentence. That is, a Judge can impose any sentence that he or she believes is “reasonable” – regardless of the sentence suggested by the Career Offender guidelines. It is now incumbent on federal criminal defense attorneys to highlight every possible positive aspect of a client’s life and background to defeat the draconian career offender guidelines.
A defense attorney’s skill in the federal courtroom can literally save a client’s life.
I have had many cases where I have successfully convinced federal judges in Maryland and other federal districts not to apply the Career Offender provisions of the federal sentencing guidelines. The result for our clients is priceless.
The federal criminal defense attorneys at STSW have extensive courtroom experience and have gained significant positive results for our clients for almost a decade. We have handled almost every conceivable situation and issue in federal criminal practice. http://www.mdattorney.com/lawyer-attorney-1300753.html Please contact me if you would like to consult with us about your case or the case of a friend or loved one. http://www.mdattorney.com/lawyer-attorney-1301200.html We are always available and ready to assist.
I had a case like this in Carroll County earlier this week. The facts were that our client was riding his motorcycle and he got caught behind a slow moving tractor trailer. He rode behind the truck for between 2 to 3 miles and a line of cars developed behind my client. Although there were several places where the driver of the truck could have moved partially onto the shoulder to allow our client and the other cars to pass, he never did so. Needless to say, our client began to get impatient.
]]> According to the client, they came upon a part of the road that was slightly wider than what they had previously travelled and the truck was hugging the double yellow line dividing traffic. My client decided to make his move so he accelerated and began to pass the truck on the right hand side on the shoulder, admittedly not the smartest decision. At this point the trucker swerved back to the right in what my client believed was a deliberate act and struck his motorcycle causing him to go completely off the roadway and crash into a field. My client was bumped and bruised but luckily he was not seriously injured.To my client's great surprise the trucker stopped his vehicle at the scene. Understandably angry, my client jumped up on the cab and was yelling at the driver to exit the vehicle. The driver refused to do so. Ultimately, my client grabbed a flashlight and smashed the driver's side window of the truck (again, not the smartest decision he ever made). The driver was showered with glass but he was not struck or injured in any way.
In this case my client lost the race to the courthouse but not in the way it normally happens that I described above. As I said, the police are only allowed to arrest for misdemeanors that occur in their presence, which was clearly not the case in this situation. Unfortunately, not all police officers understand the law. The police in this case did not, so in spite of the fact that only misdemeanors were alleged to have been committed by my client, they arrested him. He was charged with second degree assault and malicious destruction of property, both misdemeanors.
Still, he was in the same situation as he would have been had the police just written a report and the truck driver had charged him. The other interesting fact is that even though he was illegally arrested and charged in this case, this is not grounds for dismissal of charges. The remedy for being illegally arrested is suppression of any evidence that was recovered as a result of the illegal arrest. If for instance my client had made a statement or had drugs in his pocket at the time of his arrest (he didn't), this evidence would not be allowed to be introduced against him at his trial but the illegal arrest does not nullify the charges.
Prior to appearing in court we attempted to contact the two witnesses who were listed in the police report. We were able to reach just one of the two and when we asked her what happened she told almost verbatim the same story that our client told to include that the trucker had intentionally run him off the road. Ordinarily, we would have immediately instructed the client to go ahead and charge the trucker with both misdemeanor and felony theft or even attempted murder if the commissioner would issue the charge, as he easily could have been killed by the trucker's act of intentionally running him off of the road. Two factors weighed against doing that in this instance. The first factor was that our client waited until just a few days prior to the first trial date to contact us. The second was that the trucker was from Indiana and was therefore likely not to appear in court. Also, my client really wanted to just put this behind him and would have been happy to simply have the case dismissed.
When we got to court we learned that the trucker was present. I introduced the prosecutor to the independent witness whom she (the prosecutor) had never bothered to contact. In spite of the fact that the witness confirmed that it appeared to her that the trucker had intentionally ran my client off the road the prosecutor stated her intention to not only prosecute my client but to recommend jail!! I pointed out that my client could have been killed by the trucker's action and that this was, in my opinion, far more serious than a broken window. True to form though, the young and inexperienced prosecutor told me that she "believed her victim" and was not swayed by the independent witness.
At this point we were left with no choice but to postpone the case (actually we had to remove it to the Circuit Court). My client went straight to the commissioner's office to charge the trucker. Hopefully we will get a more experienced prosecutor on the next trial date who will be able to look past the fact that the trucker earned the designation "victim" first and more objectively evaluate the facts in their totality but this case does indeed demonstrate the need to win the race to the courthouse.
I will update this blog when this case is resolved.
]]>My case last week in Prince Georges' County Maryland involved an incident between my client and his 14 year old son at a restaurant. The facts were that my client's son was graduating from middle school this past June. Originally the ceremony was scheduled to take place at 3:00pm. However a change in the time was made by the school a few weeks prior to the scheduled date. The time was moved up to 1:00pm. My client's estranged wife, with whom my he is currently entrenched in a bitter custody dispute, decided not to pass this information on to my client and as a result he missed the graduation.
]]> He showed up at the school at 3:00pm with his mother whom he had flown in from out of town to attend the ceremony only to find out that the ceremony had concluded about an hour before he arrived. Needless to say, he was quite angry and immediately called his ex-wife on the phone. She played dumb and claimed to have thought that she passed the time change on to him and to express how sorry she was that they had missed the graduation. She informed him that they were at a restaurant and invited them to come to their location so they could at least take pictures.When he arrived he had unpleasant words with his ex-wife and then began inquiring of his son why he (his son) had not informed him of the time change. His ex-wife tried to intervene in this conversation so my client took his son by the arm and led him to the men's room to continue the discussion outside the presence of his ex-wife. It is an unfortunate reality that very often in custody disputes one parent or the other (usually the wife in all honesty) will accuse the other of child abuse whether it be sexual or physical. When these allegations are false or at least exaggerated to the point where a mere disagreement involving minor non-injurious contact is elevated to the level of a criminal assault, it is an obvious attempt to gain leverage in the custody battle. That is exactly what happened in this case. The ex-wife filed criminal charges against my client describing the incident using words like "grabbed and "yanked" and "pulled" and other language intended to make the situation sound like a vicious attack when nothing could have been further from the truth.
In this case the good news was that the court commissioner whom his ex-wife appeared before to swear out the charges, charged the case only as second degree assault which is a misdemeanor instead of charging child abuse which is a felony. Typically, the commissioner will also charge at least second degree child abuse even in cases in which there is no injury. As a result of the fact that only a second degree assault was charged, the case was set in for trial in the Prince Georges' County District Court. In my view, there were two defenses to this case. First, that the contact between my client and his son did not result in any injury and was so minor that it did not rise to the level of a criminal assault regardless of the relationship between the parties. The law in Maryland has long recognized that there will be situations in which there is some minor physical contact between parties in public places that although unwanted, does not rise to the level of a criminal assault. The second argument is that even if the contact between my client and his son would be considered an assault if the parties were not parent and child, because they are, the contact is protected by the parental discipline privilege.
Anglo American Law has long recognized the so called parental discipline privilege as a defense to the charge of child abuse. Essentially what the privilege means is that a parent of a minor child may use a reasonable amount of force upon a child for the purpose of safeguarding or promoting the child's well being. In 1978 the Court of Appeals in Bowers v. State, made its most comprehensive attempt to date to explain exactly what is permissible discipline by a parent. The court first made clear that in order to violate the statue, the conduct must be intentional and may not be accidental regardless of the extent of the injury. After making that obvious point the court went on to describe child abuse as such conduct which exceeds that which is properly required for disciplinary purposes. Said another way the punishment may not exceed the justification or it destroys the privilege. The conduct must be malicious, cruel and outrageous treatment that is either not for the purpose of discipline at all or exceeds the bounds of moderation. In layman's terms I think that means that the punishment must fit the crime and in any event may not be cruel and outrageous. If it does not it will be deemed to be malicious. And if the child sustains a physical injury as a result of that malice, the parent will be subject to prosecution for second degree assault.
The State first called my client's ex-wife who repeated the story she wrote in the application for statement of charges again describing a vicious attack. The State next called my client's son who told a very different version of the events that occurred that day. The boy testified that his father had taken him by the arm and led him to the bathroom. He agreed that my client was very angry and that he had applied some pressure to his arm. However, he testified that the incident had caused him no pain and had not resulted in any injury to him.
Upon the conclusion of his testimony the State rested. I had originally intended to call my client as well as his mother and brother to testify but because of the weakness of the State's case I opted to rest without calling any witnesses. I then made the above arguments. The judge in the case ruled that, as I had argued, there are some "touchings" that are going to occur in public places that are so insignificant that they do not rise to the level of a criminal assault irrespective of whether the person wanted to be so touched. He found that given the testimony of the alleged victim that he was not harmed in any way, this case was an example of a touching that is not a criminal assault and found my client not guilty.
Very often in domestic violence cases the alleged victim refuses to cooperate with the prosecution. Alleged victims will often recant their allegations, evade service of process and refuse to appear in court or, if the couple is married, invoke the marital privilege and refuse to testify. There are many reasons why alleged victims do this including that the couple has reconciled their relationship, the defendant is the primary breadwinner in the family and his incarceration would cause economic hardship for the family, or that the charges were fabricated in the first place which, believe it or not, happens quite often and, I believe, it is what happened in the case I had this week in the District Court for Baltimore County.
A case involving a recanting victim or a victim who refuses to testify, leaves the prosecutor in a position where he or she has to decide whether to drop the case or to try to prove it without the testimony of the alleged victim. Occasionally in these cases there are independent witnesses that the prosecutor can call to prove their case but this is relatively rare as most domestic violence incidents occur behind closed doors. If there are no independent witnesses, prosecutors sometimes attempt to prove their cases by trying to introduce out of court statements made by the alleged victim or the defendant at or near the time of the event, in conjunction with testimony and/or photographs taken by the crime lab of the scene and injuries to the alleged victim.
Out of court statements made by the defendant are not hearsay but out of court statements made by the alleged victim obviously are, so the State has to argue that they are admissible notwithstanding the fact that they are hearsay, because they fall into one the recognized exceptions to the introduction of hearsay evidence. The two exceptions that the prosecutors typically rely on are known as "excited utterances" and "present sense impressions".
Statements that fall into the latter category are relatively straightforward to understand. They are statements that are made as the events are unfolding. These statements most often have been overheard by a witness or bystander or were made to a 911 operator as the person is actually experiencing the event. Excited utterances, which are far more commonly introduced (or at least attempted to be) by prosecutors, are statements made by a witness after a "startling event" but while the person is still under the influence of that event. These statements must be made very close in time to the startling event and must not be the product of interrogation for testimonial purposes.
The courts have ruled that this does not mean that any statement made in response to a question such as "what happened" is per se inadmissible, but the purpose of the interrogator must be to resolve an emergency situation and not to preserve statements for future introduction as evidence against the defendant. The reason for this is that introduction of these statements violate a defendant's right to confront and cross examine his or her accusers that is guaranteed in the Sixth Amendment to the United States Constitution.
In my case this week, the State attempted to introduce both the 911 tape and the statements that the alleged victim made to the police officer. I argued that the statements were inadmissible for two reasons. First, I argued that the statements were not excited utterances. The statements were made at least 15 minutes after the conclusion of the "startling event" which if it really occurred the way she described, would be upsetting to be sure, but was hardly the type of event that would cause one to be so overwhelmed as to be unable to think clearly enough to contemplate or to scheme to fabricate evidence such as watching the murder of a loved one or personlly sustaining life threatening injuries. Moreover, I argued, while she could clearly be heard to be crying on the tape, she was not hysterical, was able to follow the 911 operator's instructions, safely operate a motor vehicle and seemed coherent and rational.
Second, even if the court ruled that the statements could be properly admitted as an excited utterance, the statements were clearly testimonial in nature and therefore violated the standard set out by the Supreme Court in Crawford v. Washington. The statements in this case were made to state agents (the 911 operator and a police officer), one of the statements was recorded, they were made more than 15 minutes after the fact and it was clear that the emergency situation (if there ever was one) had passed and she was no longer in danger. The statements were made, I concluded, in response to multiple questions by these state agents and were clearly designed to elicit statements for use at a trial later and not to resolve a current emergency situation as one no longer existed.
The Judge agreed. In fact, he lectured the prosecutor on the fact that the right to cross examine and confront one's accusers is one of the fundamental liberties upon which this nation was founded and scolded her that this case was, "not even close". Obviously, the evidence was suppressed and my client was found not guilty.
]]>Additionally special domestic violence police units and prosecution teams were created throughout the country and new laws were enacted to allow the police and prosecutor to more aggressively pursue perpetrators of domestic violence. For instance in Maryland, new laws were enacted to allow for the warrant-less arrest of those suspected of domestic assaults under certain circumstances - even when the defendant is only suspected of committing a misdemeanor. Unfortunately, some people have taken advantage of these new laws and the new tactics of the police and prosecutors to have others falsely arrested. I had just such a case in Baltimore County Circuit Court this week.
The police showed up at his door in January and placed him under arrest for domestic assault. His ex-girlfriend claimed that two nights earlier he had come over to her house in violation of a protective order and that they had gotten into an argument. She claimed that my client shoved her to the ground and repeatedly kicked and hit her about the head and body. She did not go to the hospital for medical treatment and the police did not see any injuries to corroborate her claims. My client was not present when the police responded.
My client was placed under arrest and held in lieu of $75,000 bail, this in spite of a spotless record and lifelong residence in Maryland. The case first appeared in District Court in May. We elected a jury trial and the case was transferred to the Circuit Court for Baltimore County. The alleged victim failed to appear in court both in June when the State was granted a postponement and again last week. The State's request for postponement was denied this time leaving the State's Attorney no choice but to dismiss the case. Apparently this young women was not willing to take the further step of appearing in court and repeating her lies under oath and subject to the penalty of perjury. I had a similar case earlier this year in which the alleged victim had no such fear. I will discuss that case in my next blog.
]]>The new DOJ memorandum gives federal criminal defense lawyers a powerful new tool to fight the draconian sentences that clients have faced for federal crack cocaine offenses.
Most recently, I convinced a federal judge in Maryland that the new DOJ Memo not only reduced the sentencing “regular” 2D1.1 guidelines for crack cocaine offenses, but it also reduced the Career Offender Guidelines under section 4B1.1. I argued that the DOJ Memo applied across the board to all disparity between crack and powder cocaine. Because my client was charged with conspiracy to distribute more than 50 grams of crack, the maximum possible punishment for the offense was life under 18 U.S.C. §841(b)(1)(A). The maximum possible penalty, however, for a similar offense involving powder cocaine was only 20 years under §841(b)(1)(C). This difference caused the career offender guidelines to drop from level 37, to level 32 because the career offender guidelines are keyed directly to maximum possible sentence for the charged offense.
The DOJ Memo also allowed me to credibly argue that the federal sentencing Judge should disregard even the reduced the career offender guidelines because of the disparity between the career offender guidelines and the “regular” powder sentencing guidelines for this offense. In my case, the sentencing guidelines for a powder cocaine offense involving 54 grams of cocaine was level 13 after an adjustment for acceptance of responsibility, and my client’s guideline range was 30-37 months.
The federal Judge agreed with my argument that the 10-year difference between the career offender guidelines and the regular drug guidelines was so significant, it warranted a variance under 18 U.S.C. §3553. In my case, the federal Judge sentenced my client to 84 months incarceration. This was a far cry from the guideline range of 262-327 months determined as applicable in the PSR.
My client saved over 20 years of his life because I was able to convince the federal judge that the new DOJ policy regarding crack cocaine offenses applied to reduce all phases of the federal sentencing guidelines.
Federal criminal defense lawyers need to be keenly familiar with the change in sentencing policies for crack offenses. If your defense attorney is not familiar with these new changes, the client can pay an astronomical price for the mistake.
STSW attorneys are expert in federal criminal cases. http://www.mdattorney.com/lawyer-attorney-1289794.html Our lawyers are experienced in all phases of federal criminal cases, including, trials, appeals, and pleas. We achieve tremendous results for our clients because we are innovative and aggressive in our representation. There is not an issue that we have not handled in federal courts.
If you have questions, feel free to contact STSW partner Andrew C. White http://www.mdattorney.com/lawyer-attorney-1301200.html at (410) 576-2200. Initial consultations are free of charge. Life is too precious to trust to trust to anyone except an experienced federal criminal defense attorney.
]]>