Articles Posted in Uncategorized

Right to Remain Silent

Most people are familiar with Miranda warnings from TV police procedurals and movies: you have the right to remain silent, any statement you make may be used against you, and you have the right to an attorney. In practice however, many people don’t invoke their right to silence or to an attorney. They may think that refusing to speak to police makes them look guilty, or simply wish to assist law enforcement with their investigations. Additionally, police are allowed to lie about the evidence against you, and can withhold information that, if revealed, might cause the interviewee to invoke their right to remain silent. Thus, speaking to the police without an attorney creates a very real risk that a person, even an innocent person, may unwittingly make incriminating statements to police.

The recent news coverage of the October 2021 shooting on the “Rust” film illustrates this point. Alec Baldwin, a wealthy, A-list celebrity, presumably with access to world-class lawyers, waived his Miranda rights and spoke to police without an attorney just hours after the gun he was holding discharged, killing one person, and injuring another. Baldwin’s response makes sense – he had just witnessed a terrible accident, and he wanted to help police understand what happened. For approximately one hour Baldwin spoke to police without an attorney present, describing details of the incident and on set gun protocols. He was not informed until the end of the interview that one of the victims had died. With involuntary manslaughter charges against Baldwin announced just last week, it isn’t yet clear what, if any, role Baldwin’s statement will play in the prosecutor’s case. However, the admissions he made during his police interview will likely foreclose defense strategies that may have otherwise been available to his attorneys.

The Chief Judge of the Court of Appeals has issued an order allowing certain prisoners to be released if they meet certain guidelines. Below is a description of those guidelines.

Adults

Pursuant to Chief Judge of the Court of Appeals Order dated April 14, 2020, the Administrative Judges of the Circuit Courts and the District Administrative Judges of the District Court are granted to the authority to identify at risk incarcerated persons for potential release to protect the health of at-risk incarcerated persons during the COVID-19 pandemic crisis. The judges must consider:

On August 28, 2019, in a landmark decision, the Court of Appeals abrogated the long standing rule that a defendant could not be convicted based solely on the testimony of the defendant’s accomplices. (State v. Jones, No. 52, September Term, 2018). Jones was charged with the murder of Mr. Sandeep Bhulari. The investigation led to six suspects. Fingerprints discovered at the crime scene implicated four of the suspects. Jones was implicated solely by the accounts of three of the suspects. The trial, those three suspects testified pursuant to plea agreements. In addition to their testimony, the State presented testimony from detectives and forensic experts and offered physical evidence. None of the physical evidence directly implicated Jones. Jones was convicted of conspiracy to commit armed carjacking. Jones appealed.

The Court of Special Appeals held that the accomplices’ testimony was not independently corroborated by other evidence and that the accomplice corroboration rule had been violated. However, the panel of the Court of Special Appeals suggested that the Court of Appeals reconsider the accomplice corroboration rule.

The State filed a petition for writ of certiorari which was granted by the Court of Appeals. The Court of Appeals noted that the rule applies in only a minority of states and determined that it was grounded in outdated legal reasoning. The Court then abrogated the accomplice liability rule as it was previously structured. This decision now leaves exclusively to the jury to assess the credibility of accomplice testimony. In place of the rule, the Court of Appeals has instructed trial judges to give a cautionary instruction when the State chooses to introduce accomplice testimony. As the current Maryland Pattern jury instruction dealing with accomplices covers the now abrogated rule, the jury instruction must be modified.

I recently represented a young man in Harford County Circuit Court who was charged with Possession of Child Pornography.  I am former prosecutor and career full time criminal defense attorney practicing exclusively criminal law for 22 years.  I have defended scores of individuals charged with Possession and/or Distribution of Child Pornography and have blogged many times about the increasingly harsh penalties that are being sought by both state and federal prosecutors in these cases.  The granting of probation before judgment in these cases is almost unheard of in recent times.

My client was just 18 years old when he was charged in this case.  He was caught up in the typical investigation that we see in these cases.  Undercover police officers identify a computer that shares child pornography on file sharing programs such as bitTorrent and watch it until a computer with an IP address within their jurisdiction connects to it and downloads Child Pornography.  The police will then subpeona the user data for that IP address and execute a search and seizure warrant looking for the device or devices that were used to download the illegal material.

The case against my client on first review appeared quite strong.  The police confiscated his phone and on that phone were hundreds of images of Child Pornography.  My client did not admit to downloading child pornography but he did admit to exclusive use of the phone.  When interviewing my client he advised that he could not understand why there would be images on his computer because he  never intentionally downloaded this material.  He advised that he did in fact use BitTorrent to download legal pornography and that in the event that the download included Child Pornography,  he always erased that material immediately.

A few weeks ago I defended Baltimore County Police Officer Christopher Spivey in a use of force assault case.  After listening to 3 days of testimony and evidence, the jury took less than 30 minutes to find him not guilty of all charges.  Then at least six members of the  jury waited around to shake Officer Spivey’s hand and thank him for his 10 years of service to the community as a police

officer.  http://www.baltimoresun.com/news/maryland/crime/bs-md-co-spivey-verdict-20170914-story.html

A few days later the Editors of the Sun wrote what I view as an outrageous editorial in which they dismissed the juries’ verdict and all but lamented the fact that there were no demonstrations of social unrest as a result of the acquittal.  Below is a link to the editorial as well as the response that I sent to the paper.  Not surprisingly the editors lacked the journalistic integrity to print my response.

Representation in cases involving Possession and Distribution of Child Pornography require expertise that only an Aggressive Criminal Law Specialist can provide.  I am a full time Maryland Criminal Attorney and former Baltimore County Assistant State’s Attorney with more than 20 years of experience.  Throughout my career as a prosecutor and full time criminal defense attorney,  I have handled hundreds of cases involving the Possession and/or Distribution of Child Pornography in Baltimore County and across the State.  Over the last 20 years I am aware of no other criminal attorney in the state who has handled more of these cases than I have along with my partner, Former Assistant United State’s Attorney and Chief of the Sex Offense Unit,  Andrew C. White.   As I have written before on this blog, these cases are prosecuted extremely aggressively and often result in substantial state and federal prison sentences.  This is why is is so imperative to hire attorneys who specialize in these types of cases.

Unfortunately, there are many lawyers who advertise for these cases who simply do not possess the necessary experience and expertise to effectively represent people who are charged with these offenses.  I strongly suggest that anyone who is considering hiring a criminal attorney for a case involving child pornography possession or distribution  (or any criminal case for that matter) , research all prospective attorneys on Maryland Case Search.  This is the official court record for all cases filed in Maryland and it does not allow for exaggeration of an attorney’s experience or credentials.

Today, the typical Child Pornography case involves the use of peer to peer,  (P2P) networks such as, Bit Torrent, Shareaza, Gnutella, eDonkey2000 and Kademlia  (commonly referred to as Kad) which allow people using P2P software to download and share files with other people on the network.  A Detective named Reese handles all of these investigations in Baltimore County and he is very good at his job.   In the typical case, the detectives will conduct online investigations using law enforcement investigative software.  When an IP address located in Maryland become associated with a device known to be of investigative interest to child pornography, they will link up with that computer and simultaneously download the material from the Maryland IP address as it is downloading it from the device known to contain child pornography.  Once they have this material, they will research the IP address and draft an application and affidavit for search and seizure warrant.

As a former Assistant State’s Attorney and full time criminal attorney for over 20 years, I have both prosecuted and defended hundreds of individuals who have been charged with Sex Offenses.  Many, indeed virtually all, people who are convicted with one of these offenses are required to register as a sex offender.   The statute controlling sexual offender registry is complicated and, in recent years, has been amended several times.  I have recently been retained by 3 separate clients who have had their Sexual Offender Registration Requirements retroactively changed as a result of these amendments.  One was not required to register at all as a result of his conviction but is now being told he must, and two others who have had their registration terms changed from 10 years to life.   We believe that these changes are in clear violation of the Ex post Facto Clause contained in Article 17 of the Maryland Declaration of Rights.  We are filing what is called a Declaratory Judgment action in the Circuit Court in each one of these cases to request that the court issue and Order to the Department of Public Safety to remove these individuals from registry.  Here is a brief synopsis of the law:

In 2009, the General Assembly passed a new law, effective October 1, 2009 changing the registration requirements.  The new statute said an offender who committed an offense prior to October 1, 1995, but was convicted after, and had not previously been required to register, now had to register.   In 2010, the statute was again amended changing the registration term for Tier III sex offenders from 10 years to lifetime registration.

In 2013 the Court of Appeal heard the case of Doe v. Department of Public Safety.    In this case, Doe  filed a civil proceeding, seeking declaratory judgment seeking removal of his name from the registry.  That relief was denied by the Circuit Court and Doe appealed to the Court of Special Appeals.  On appeal, he argued that requiring him to register violated his plea agreement and raised an ex post facto argument.  The Court of Special Appeals affirmed the trial court.  The Court of Appeals took certiorari.

In July I finally resolved a murder case that I have been working on for the better part of 3 years. I received a not guilty on the case in spite of the fact that my client gave a recorded “confession” to the crime.  I am convinced that in spite of his confession, he was indeed an innocent man – and 12 jurors agreed in just over 4 hours of deliberation that he was.  Here are the facts – as I often do I will leave out specific names and locations to protect the privacy of those involved:

In the early morning hours of one day in March of 2013 the police were called to the scene of a single car accident in Baltimore City. Once on the scene, they found an unresponsive adult male slumped over the steering wheel.  They removed him from the vehicle and quickly determined that he had suffered from a single gunshot to the back.  The paramedics worked on him at the scene but  were unable to revive him and he was pronounced dead at the scene.

The police inventoried the contents of the vehicle and found $1200 in cash (mostly in $20 bills) a gold watch, a half consumed bottle of soda and a few other items. The vehicle in question was a 10 year old Mercedes Benz.  It was determined in the initial stages of the investigation that the victim was unemployed and had been for some time.  It was also determined that he had been involved in the distribution of narcotics.  In fact this information was confirmed by his girlfriend.  Finally, a bulletin was very recently circulated to the officers and detectives working this part of the city, that there was a significant uptick in gang related activity (in particular Crip activity) in the area.  I will let the reader draw your own conclusions about the likely circumstances of this shooting but it look fairly obvious to me that it was drug related.

The client did possess a commercial driver’s license but when he was pulled over for exceeding the speed limit by 15 miles per hour, he was operating his personal vehicle. When the Trooper approached the defendant he smelled of alcohol, had a flushed face and had slurred speech. The Trooper asked him to step out of the vehicle to perform field sobriety tests. In the opinion of the officer, his performance on the field sobriety tests indicated that he was impaired by alcohol. He was taken into custody and once back at the barracks, agreed to take the breathalyzer. The test result was .11 grams of alcohol per 210 milliliters of breath. The case against the defendant was strong to be sure. The Trooper clearly had probable cause to pull him over as he was exceeding the speed limit by 15 miles per hour. Based on the smell of alcohol, his performance on the field sobriety tests and the Trooper’s other observations, it was also quite clear that the Trooper had probable cause to take him into custody and request that he take a breathalyzer. He blew a .11 which is above the legal limit of .08. The attorney pled his client guilty to the DUI “per se” charge under 21-902A2 of the Motor Vehicle Code. In mitigation, he explained his client’s circumstances to include that he was the father of 3 and the sole breadwinner for the family. He advised that he was a truck driver with a commercial driver’s license. The attorney then requested probation before judgment so that his client “would be able to maintain his CDL and his employment”. The judge granted the request, stuck the guilty verdict and entered probation before judgment. Both the client and the attorney walked out of the courtroom with looks of relief and satisfaction. But did the attorney really do a good job for his client? The answer is no because, presumably due to his lack of experience, he didn’t understand the law. What the inexperienced apparently didn’t understand is that under Maryland Vehicle Law 16-803, even a probation before judgment on 21-902A violation, Driving Under the Influence of Alcohol, violation results in the mandatory revocation of a person’s commercial driver’s license for a year for the first offense and a permanent revocation for a second or subsequent offense. The fact that he received probation before judgment does not prevent the MVA from suspending his commercial driver’s license as the attorney apparently believed. The appropriate way to handle a case like this would have been to either try to convince the prosecutor to allow the client to plead to the lesser offense of 21-902(B). Under this subsection the defendant would not be subject to having his commercial license revoked. I have convinced prosecutors to do this in these types of cases many times simply because it is more often than not the right thing to do. If the State’s Attorney were unwilling to accommodate, as they usually are in these types of cases, then the case must be taken to trial. The attorney should have moved to suppress the test result and argued to the court that the evidence was sufficient only for the 21902B violation, but not the 21902A violation. These arguments are successfully made on a variety of grounds every day in the district courts of this state. Because this was not done, this client is going to have a rude awakening when he is notified by the MVA that his commercial license and therefore his livelihood will be taken away for a year. Had this client taken the time to do a little research and hired a DUI/DWI specialist, it is highly unlikely that this would have occurred.As an Aggressive and Experienced DUI Attorney, I have represented dozens of Defendants in DUI cases who have commercial driver’s license. These cases pose a unique set of challenges and considerations for Maryland DUI Attorneys as the administrative sanctions associated with commercial driver’s licenses are far different than the sanctions associated with standard Class C driver’s licenses. I have blogged often about the importance of selecting an attorney who specializes in DUI/DWI Defense when charged with this serious offense and this advice is even more applicable to cases involving commercial driver’s licenses. Unfortunately, all too often we see attorneys with little or no experience with these types of cases appearing in court to represent clients. Because of their lack of experience, these attorneys often make mistakes that can have serious consequences for their clients.
Often these attorneys make simple mistakes that no experienced DUI/DWI attorney would ever make. I was representing a client in the District Court of Baltimore County a few days ago. While waiting for my case to be called I witnessed an attorney whom I know not to be a Criminal/DUI Specialist representing a client in a DUI case involving a defendant with a commercial driver’s license. I found out later that this attorney was a so called “general practitioner who spends the majority of his time handle divorce and personal injury matters. In other words, he was NOT a DUI/DWI specialist. Here are the facts.
Continue reading ›

As a former Assistant State’s Attorney and current Aggressive Criminal Defense Attorney with decades of experience, I have handled scores of cases involving the illegal Possession and Distribution of Child Pornography. These cases can be charged in state court or in federal court where the penalties are far more severe. For this reason, I always team up with my partner Andrew White to work these cases as Andy is a former Federal Prosecutor who headed up the sex offense unit for 7 years. He has been very successful over the years at convincing his former colleagues to defer prosecution in these matters to the state courts. Even in State court, however, These are serious crimes that carry the possibility of a felony conviction and extended prison sentences. It may come as a surprise to some to learn that a even a conviction for Misdemeanor Possession of Child Pornography requires mandatory registration as a Tier I Sex Offender for 15 years. A conviction for Felony Distribution or Possession with the Intent to Distribute Child Pornography requires registration as a Tier II Sex Offender for 25 years.

For many people the prospect of having to register as a Sex Offender can be even more daunting than going to prison. Most people are aware of the terrible society limitations and stigma such a designation can carry including but not limited to: Limitations on where one can live, prohibition from even stepping on the property of their children’s schools, notification of neighbors by the police and inclusion on web sites that includes their pictures and exact locations of their homes. I recently represented a 21 year old man who found himself facing all of these daunting consequences. Here are the facts – as always in these types of cases, I have changed or left out enough identifying facts to protect my client’s anonymity but the facts of the case are completely accurate:
Continue reading ›