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https://www.silvermanthompson.com/lawyer-attorney-1300820.htmlAs a Maryland Criminal Lawyer/Attorney I often have cases that make me wonder what it is exactly that the police are attempting to accomplish. Are they really attempting to win the so called war on drugs or is their strategy (or lack thereof) more cynical than that? Is it just to make as many felony drug arrests as possible regardless of whether the people arrested are really involved in the actual distribution of narcotics in order to give the false impression of progress? I have had several cases recently that have reluctantly made me think that it is the latter.

I have had several cases recently that have followed a very similar pattern:
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As a Maryland Criminal Attorney I am often confronted with cases in which a white police officer stops an African American (usally a man). In many, if not most, of these cases the person stopped believes that he was racially profiled or that at the very least, his race played a part in the officer’s decision to stop and/or arrest him.

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https://www.silvermanthompson.com/lawyer-attorney-1300820.htmlAs a Maryland Criminal Attorney I am often hired by people who have made the very big mistake of trying to represent themselves in a criminal case. I have blogged about this topic in the past but I had a case today that vividly illustrates the peril one places oneself in by appearing in criminal court without an experienced, aggressive criminal defense attorney.

My client is a 53 year old mother and grandmother with absolutely no criminal record. She is the mother of another one of my clients so I had met her several times in the past. She was charged with witness intimidation by her estranged daughter in law and the ex-girlfriend of her son. In fact, the alleged witness intimidation occurred during the trial in which I successfully defended her son against assault charges filed by the ex-girlfriend. Essentially, she was accused of making a phone call in which she threatened the victim telling her that she better not come to court. She was also accused of standing in her way as she tried to enter the court house on the day of trial and nudging her as she walked by.
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The tremendous and unfair disparity between crack and powder cocaine in the Federal Sentencing Guidelines is no more! For many years, the Federal Sentencing Guidelines for offenses involving the possession or sale of crack cocaine were exponentially more severe than the guidelines for offenses involving only powder cocaine. For example, a defendant with no prior criminal record who possessed a kilo of crack cocaine would face a guidelines sentence of between 15 – 20 years without parole. That same defendant would face a sentencing range of between 5 – 6 years if he possessed a kilo of cocaine powder.

For years, criminal defense attorneys, interest groups, and even many federal judges objected to the disparity, noting that there was no rational basis to treat crack cocaine differently from powder cocaine. Statistics revealed that the disparity adversely affected African Americans, who were most often charged with offenses involving the crack cocaine guidelines.

On December 12, 2007, the United States Sentencing Commission announced that it was retroactively reducing the sentencing guidelines for crack cocaine offenses. While there was still a substantial disparity between crack and powder cocaine, the Sentencing Commission’s actions were promising and were the first official recognition that the disparity between crack and powder cocaine was a problem that needed to be resolved.

On May 1, 2009, the Department of Justice (DOJ) did just that. In a memorandum to all United States Attorney’s offices across the country, the DOJ instructed all federal prosecutors to “inform courts that the Administration believes Congress and the U.S. Sentencing Commission should eliminate the crack powder disparity . . .” That is, federal prosecutors are now instructed to inform sentencing courts that they agree that the disparity between crack and powder cocaine should be eliminated. The impact of this new policy is going to be dramatic.
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Maryland Criminal Attorneys who represent defendants who are charged with possession of a controlled dangerous substance need to have a solid understanding of what types of conduct by the police will lead to the application of the exclusionary rule. The exclusionary rule states that in circumstances in which the police violate a person’s Constitutional Rights, any evidence collected by the police will be excluded from use at trial.

The most common situation in which the exclusionary rule is applied is in the context of a car stop. In order for the police to lawfully stop a motorist, the police officer must either witness a violation of the rules of the road such as speeding or running a stop sign, or the officer must have reasonable articulable suspicion (RAS) that the operator of the vehicle is committing a crime. If it is determined by the court that the officer neither witnessed a violation of the traffic laws or had RAS to believe a crime was being committed, all evidence that is gathered as a result of the illegal stop will be suppressed. That is exactly what happened in my case today in Essex District Court, in Baltimore County. Here are the facts:
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To be a successful Maryland DUI/DWI Attorney, it is necessary to have a thorough knowledge of what constitutes a legal or illegal stop of a motor vehicle by the police. Very often, the only plausible way to defend a DUI/DWI in Maryland is to attack the basis for the stop. The reason for this is that over the last decade or so the State Legislature has passed laws that make most DUI/DWI cases, in the words of former CIA Director George Tenant, “a slam dunk” for the prosecutor, once the prosecutor establishes that the police lawfully stopped the defendant.

This is especially true if the defendant took the breathalyzer and registered a reading of .08 or greater. This is because in Maryland, a person who is proven to have been operating a motor vehicle while having a blood alcohol content of .08 or greater is “per se” guilty of driving under the influence of alcohol. Even if the defendant didn’t take the breathalyzer, however, most police officers write thorough enough reports detailing their observations of the defendant’s performance on the field sobriety tests and conduct throughout the booking process, for the State to secure a conviction at least as to driving while impaired if not to driving while under the influence. We successfully defended a case in Howard County last month that presented this exact situation. Here are the facts:
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As a Maryland DUI/DWI Attorney who is in court on a daily basis, I am in a position fairly regularly to witness attorneys handling DUI/DWI cases who are clearly not qualified to do so. I am also regularly surprised that the clients that I meet with rarely ask me about my experience and background to determine my qualifications before agreeing to hire me. As a regular part of my initial consultation, I volunteer the information that I am a former Assistant State’s Attorney and that I am a 100% full time Maryland Criminal Attorney, but again, people rarely ask me these basic questions. This is a serious mistake that can have very serious consequences.

By way of example, and I could offer many others, I was in Baltimore County District Court recently when I witnessed the shocking mishandling of a DUI/DWI case. The client was a second offender so the stakes were a little higher than for a first offender but the case was still very manageable if handled correctly. The attorney that handled the case, whom I will not name, was an attorney whom I know to be primarily a domestic and civil attorney. I watched in disbelief as he mishandled the case from beginning to end.
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Aggressive Maryland criminal defense attorneys know that the best way to attack a search warrant is by attacking the affidavit in support of the warrant. This is commonly referred to as a Franks Hearing.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant”, and thus created a rule of “limited scope”.

The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof.

In addition to showing that the affidavit contains false information, a defendant must show that the false information is essential to the probable cause determination. That is, if a court finds that “when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.”
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Although our federal criminal defense attorneys practice nationally, the majority of our cases are in the mid-Atlantic which falls into the Federal Fourth Circuit. Historically known as a conservative Circuit, the Court, which sits in Richmond, Virginia has directed the District Judges on a specific procedure they want followed in all post Booker federal sentencing
The Fourth Circuit has prescribed the steps the District Court must follow in imposing a sentence. First, the Court should calculate the proper guideline range after making appropriate findings of fact. United States v. Pauley, 511 F.3d 468 (4th Cir. 2007)(citing Gall, 128 S. Ct. at 596); see also Hughes, 401 F.3d at 546. “After calculating the Guidelines range, the sentencing court must give both the government and the defendant an opportunity to argue for whatever sentence they deem appropriate.” Id. The Court should then consider all of the § 3553(a) factors to determine whether they support the requested sentence. Id. If the guideline range does not serve the factors set forth in § 3553(a), then the Court may impose a non-guideline or “variance” sentence. United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006); United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). The Court must articulate reasons for the sentence it imposes, particularly a variance sentence, by reference to the § 3553(a) factors and its factual findings. Id.
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The federal criminal sentencing has changed dramatically since the landmark case of United States v. Booker in 2005. Federal criminal defense attorneys have significantly more room for creativity and advocacy. Federal Judges are no longer handcuffed by the Federal Sentencing Guidelines. For decades decades the power in sentencing, and most federal prosecutions, rested with the prosecutor. Booker has shifted the stables-somewhat, in favor of the criminal defense lawyer and given Federal Judges a more “human” role at sentencing.

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Ever since the OJ Simpson verdict (the first one) Maryland Criminal Attorneys and criminal attorneys across the nation have seen a steady increase in the number of domestic violence cases charged as well as substantial increase in the vigor with which these cases are prosecuted. It seems that no prosecutor or judge wants to be asked “why didn’t you do something when you had a chance?” after an alleged domestic violence victim is killed in a subsequent incident.

Not only are prosecutors pursuing these cases with ever increasing vigor, they are also charging many of what used to be considered routine or garden variety misdemeanor cases as first degree felony assaults or even as attempted first degree murder cases. Many of these cases are charged this way based simply on the allegations of the complaining witness are without any medical evidence to corroborate the allegations. An allegation that a victim was choked or strangled can cause a case such as this to be charged as a felony. I have had three such cases in the last year, two are which are still pending.
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Maryland Criminal Attorneys are often called upon to represent represent women charged with prostitution. Today, I defended a young women who was charged with solicitation for the purpose of prostitution after a police officer answered the advertisement that she had posted on Craigslist. Ordinarily I wouldn’t blog about such a common and unremarkable case, but the case took on added significance to me in light of the Craigslist murder case in Boston that is receiving national and international attention.

The Boston Craigslist murder case reminded all of us who work in the legal profession just how much risk these girls undertake when they agree to have sex with strangers for money whether they advertise on the internet or stand on the street corner. Indeed the judge today commented at length on that issue during the sentencing phase of the case and specifically referenced the Boston murder case.
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As a Maryland Criminal Attorney, I often represent people charged with Internet crimes such as solicitation of a minor for the purpose of engaging in sexual activity. I was recently retained in such a case in Baltimore County Circuit Court wherein my client is charged not with soliciting a minor on the Internet, but instead with soliciting an undercover detective posing as a minor. These types of cases have become priorities for state and federal authorities in recent years and are taken very seriously. My client has been offered a plea bargain wherein the state would seek five years in prison. My client has been advised that if he fails to accept this plea agreement he will be indicted federally where he will face a mandatory 10 year, non-parolable sentence if convicted. To further complicate matters, my client is a foreign national who is married to an American citizen and has two American born children. Although he does have a green card, he never bothered to become an American citizen and is thus subject to deportation should he be convicted.

This is certainly not the first time I’ve ever had a case like this but I recall that the first time I did have such a case that my first thought were that defenses of impossibility and/or entrapment may very well apply. Well, according to the Maryland Court of Appeals, the impossibility defense does not apply in this cases and entrapment will be difficult to prove. More on the law shortly but first, here are the facts of the case:
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As a Maryland criminal defense lawyer, I am often asked by parents whether they can be held financially responsible for the crimes of their children. The answer is YES. MAryland Juvenile Courts have the authority to order up to $10,000.00 in restitution to victims as part of any disposition. If the court finds, for example, that a person’s property was damaged, stolen or destroyed because of a minors delinquent act, the minor and the parents can be held on the hook for up to $10,000.00. This award may include other types of restitution such as the victim’s medical bills in an assault or battery case, or even funeral expenses.

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