Defendant Charged in Handgun Case Avoids Five Year Sentence after Switching Lawyers.

I have often written about the perils of hiring unqualified. Perhaps it is due to the current economic conditions, but I am increasingly seeing attorneys whom I know are NOT criminal specialists handling criminal cases, including serious felonies in the Circuit Court. I think that people who are not experienced in dealing with attorneys think that a lawyer is a lawyer. Nothing could be further from the truth. Like doctors, many lawyers specialize in various areas of the law including criminal defense. It seems like a pretty obvious point that the lawyer specializes in one area is going to develop more expertise in that area than a so called “general practitioner” who often handle cases in as many as a dozen separate areas of the law.

I have in many instances throughout my career been hired by people who have belatedly figured out that their attorney simply did not know what he or she was doing. Sometimes that realization comes before any real damage has been done and sometime only after. Here is a specific case involving domestic violence and handgun offenses that I took over from another lawyer who was in over his head:

My client and his girlfriend got into a very heated argument while driving down the road one day. They pulled the car over and they both got out of the car to continue the argument. During the argument my client’s girlfriend hit him in the head with a hard object causing a laceration to his head and substantial bleeding. Shortly after this occurred, a Maryland State Police Officer pulled up behind the car to investigate why it was stopped on the side of a busy highway in Baltimore County. The police officer saw was my client bleeding rather profusely from the head wound but he did not witness the assault or any other illegal conduct.
In spite of the fact that he did not witness my client assault his girlfriend and the fact that it was he, and not she, that was bleeding, he trooper told my client to turn around and placed him in handcuffs for, as he noted in his report, “officer safety”. He then searched the car and recovered a loaded handgun. Only then did he ask the alleged victim what had occurred and at that point she claimed that he had struck her in the face with an open hand. She did not have a red mark or other injury and there was no other evidence of this alleged assault. The Trooper charged my client with domestic violence assault and illegal possession of a regulated firearm. My client was facing a mandatory jail sentence of five years without the possibility of parole because he was previously convicted of a crime of violence, namely second degree assault. Obviously the stakes were very high for this particular client.

The client was originally represented by another attorney who had been practicing for a very long time but was primarily a civil attorney without much experience in felony criminal cases. He advised my client that he had no defense and that he would have to accept the plea offer to serve five years without parole. He advised the client that going to trial would be futile and that would expose him to even more jail time with no meaningful possibility of winning being found not guilty.

The client came to me just a few days before trial. I was stunned when he told me what his attorney had advised him given what I saw as a glaringly obvious Constitutional violation committed by the Trooper. As I saw it, the trooper simply had no reasonable articulable suspicion to believe my client was armed and dangerous (much less probable cause to arrest him) at the time he handcuffed my client and searched the vehicle because as noted, he did not witness the assault. Without legal justification to search the vehicle, the search would be deemed illegal and, under the fruit of the poisonous tree doctrine, the evidence would be suppressed.
The only possible argument that the State could make to justify the search would be that this case somehow fell under the domestic violence exception. The general rule is that a police officer cannot arrest for a misdemeanor that he did not witness without a warrant. However, under certain circumstances in domestic violence cases, the police can arrest without actually witnessing the assault. But even this argument was sure to fail as the officer did not establish the necessary predicates to apply this exception which are that the couple is currnently living together and that there is evidence of recent injury on the victim, not the defendant!

The client hired me and the case proceeded to trial. I moved to suppress the evidence in the case including the gun arguing an illegal search by the Trooper. In what turned out to be one of the shortest hearings I have ever been involved in for such a serious case, the court agreed with my argument stating on the record that it “wasn’t even close”. It took just about 15 minutes and my client was acquitted of all charges. Had he not taken it upon himself to get a second opinion he would be in jail as I write this blog serving a minimum sentence of five years without the possibility of parole.

Unfortunately, this sort of thing happens all too often in the criminal courts around this state. Too often, attorneys take on serious criminal cases that they are simply not qualified to handle. The good news is that these situations are easily avoidable. Had this client spent five minutes on Maryland Judiciary Case Search or the attorney’s own website, prior to hiring him, the client would have very likely determined that the attorney was not a criminal specialist and could have saved himself thousands of dollars and months of angst thinking about serving five years. And he was one of the lucky ones. Many defendants don’t find out that they are being represented by an unqualified lawyer until after the case is over and they are shipped off to jail.

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