Assault/Sex Offense Sex Successfully Resolved

As a Baltimore Maryland Criminal Attorney/Lawyer I have blogged many times on the issue of choosing the right lawyer for a given case. In criminal matters, it is particularly important to research the background of an attorney before hiring him or her to represent you given the high stakes that are generally involved in criminal cases. Unfortunately, many if not most people do not do any research into the background or experience level of an attorney before hiring him and this can often lead to catastrophic results for the client.

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. 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.

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