Maryland Criminal Attorney Blog

STSW WINS RARE MOTION TO DISMISS FELONY INDICMENT

June 30, 2011 | Steven D. Silverman

This week, a judge sitting in the Circuit Court for Harford County, Maryland ruled after a lengthy motion’s hearing that the prosecutor violated my client’s due process rights. The result was that all charges including attempted murder and first degree assault were dismissed. This case involved some unique facts and circumstances that if appealed, may garner some attention by the appellate courts.

Pertinent Facts:

On May 22, 2009, a district court charging document was issued by the Harford County police charging the Defendant with assaulting his wife on May 20, 2009 and charging him with the attempted murder of his brother in law on May 21, 2009. The Defendant was held without bail from May 22, 2009 until June 10, 2009 when bail was set at $25,000. The Defendant paid a bondsman and was released. On that date, the charges with respect to the incident with his brother-in-law were dismissed. At that time, the State dismissed the charges because the brother-in-law was on active duty and soon to be deployed out of the country. Thereafter, in October, 2009, the Defendant’s wife invoked her marital privilege and the Defendant was found not guilty of assaulting her.

Sixteen months passed and the Defendant had no other criminal arrests. Despite the fact that the Defendant had no further contacts with law enforcement, at the time of the filing of the indictment in the above captioned matter, the prosecutor requested a no bail warrant. The Defendant was arrested on October 7, 2010 and held without bail. On October 13, 2010, a bail review was held and his bond was set at $250,000. The Defendant paid a bondsman a second time and was released.
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Domestic Violence Defendant Found Not Guilty

June 21, 2011 | Brian G. Thompson

As an Aggressive Maryland Criminal Defense Attorney, I have represented hundreds of people over the last 15 years who were charged with domestic violence assaults. Before that, I prosecuted hundreds more as an Assistant State’s Attorney. These cases are among the most difficult cases criminal defense lawyershandle because prosecutors are under tremendous pressure to prosecute these cases aggressively. There is simply no quicker way for a prosecutor to find him or herself out of a job than failing to prosecute one of cases only to have the defendant assault the victim again.

For this reason, even seemingly minor cases resulting in little or no injury are often prioritized by Assistant State’s Attorneys for aggressive prosecution. I had a case falling into this category last week in the District Court in Baltimore County. Here are the facts:
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CASTLE DOCTRINE – Invited Guests vs. Uninvited Trespassers

June 20, 2011 | Steven D. Silverman

Maryland criminal lawyers, both defense attorneys and prosecutors, have a difficult time understanding the application of the Castle Doctrine. The answer is simple: A person’s status as an invited guest or uninvited trespasser does not impact an occupant’s right to reasonably defend their property. Under the Castle Doctrine, “a man faced with the danger of an attack upon his dwelling need not retreat from his home to escape the danger, but instead may stand his ground and, if necessary to repel the attack, may kill the attacker.” Regardless of whether the attacker is an uninvited trespasser, or an invited guest-turned aggressor, the law protects an occupant’s right to use force reasonably necessary to prevent or terminate an intruder’s entry into the home.

With respect trespassers and other uninvited aggressors, “Castle Doctrine” jurisdictions uniformly hold that a person unlawfully attacked by an uninvited intruder may stand their ground and use whatever force is reasonably necessary to repel the intruder.
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Spousal Privilege in the Context of a Maryland Criminal Case

June 20, 2011 | Steven D. Silverman

The “spousal privilege” under Maryland criminal law precludes a person from being compelled to testify against their spouse who is charged with a crime. Even if the two are estranged at the time of trial, the privilege remains applicable until the marriage is officially annulled or dissolved. The only exceptions, where a person can be compelled to testify against their spouse, are when: 1) the defendant/spouse is charged with abuse of a child under 18; and 2) the defendant/spouse is charged with assault of the other spouse and, in a previous trial of the same nature, the other spouse invoked the spousal privilege and refused to testify.

It’s important to note that invocation of the spousal privilege does not require the exclusion of an otherwise admissible out-of-court statement by that spouse. Even if wife invokes the privilege and refuses to testify, her out-of-court statements may nonetheless be deemed admissible if the State can successfully argue that they fall under a particular hearsay exception.

In a situation where the wife has previously inked her privilege as a victim, affect her ability to invoke the privilege and refuse to testify against husband in the trial when she is not a victim but rather is called as a witness against her husband.
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Sex Offender Facing Five Year Sentence Gets Four Weekends

April 21, 2011 | Brian G. Thompson

As an Aggressive and Experienced Maryland Criminal Defense Attorney, I have represented dozens of people who have been charged with Sexual Solicitation of a Minor. In most of these cases, the defendant is caught in a sting operation conducted by state of federal law enforcement.

I represented a client in one such case this week in Baltimore County Circuit Court. The State was seeking a sentence of 10 years in the Division of Corrections with all but 5 years to be suspended. I was able to get him a sentence of just 4 weekends to be served in the Baltimore County Detention Center. This, in spite of the fact that we ended up in front of a judge who is widely regarded as a very tough sentencing judge and the fact that we literally had no defense. How did this happen? The answer is we put together a compelling presentation of mitigating facts and circumstances to argue for a sentence much less than the State was demanding.

It may surprise some to know, that in many criminal cases there really is no plausible defense to the charges. In street parlance these cases are known as “dead up” or “slam dunk” cases. The fact of the matter is that in many if not most cases, the police do their job correctly and gather enough evidence to make conviction a virtual certainty. In these matters, it is vital that the criminal defense attorney have the requisite experience and judgment to first recognize the fact that the case is indefensible and then the integrity to break the bad news to the client. In these cases it is always in the client’s interest to accept that conviction is inevitable and concentrate on doing what is necessary to limit the damage. In other words, work on mitigation. All too often, I see inexperienced or ineffective attorneys pursuing unrealistic defenses in court that result in their clients to be punished more harshly by the courts either because the client didn’t get the benefit of accepting responsibility for his or her actions, because the court believes that the client lied on the stand, or simply because the judge imposes a trial penalty. Another way to say that is that the court doesn’t give the defendant the benefit he would have received in a plea bargain. Here are the facts of the case I had this week.
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Defendant Charged with Assault on Police Officer Found Not Guilty

March 12, 2011 | Brian G. Thompson

As an Aggressive Baltimore Maryland Criminal Attorney, I have successfully defended hundreds of individuals who have been charged with assaulting police officers. The garden variety assault on a police officer case usually involves a defendant who is being arrested for another reason and the police officer claims that the defendant resisted that arrest and assaulted the officer in the process. These cases are usually relatively easy to deal with so long as the police officer was not seriously injured as most judges are aware of the tendency to exaggerate these incidents by the police.

I successfully defended a client who has charged in a not so typical assault on a police officer in the Circuit Court for Baltimore City this past week. The client was found not guilty in spite of the fact that my client had in fact punched a police officer who was sitting on a bar stool in a bar and the fact that the entire incident was caught on the establishment’s security video system.https://www.silvermanthompson.com/lawyer-attorney-1300820.html Here are the facts:
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Baltimore City DUI/DWI Defendant Successfully Defended in Trial

March 12, 2011 | Brian G. Thompson

As a Baltimore Maryland Criminal and DUI Attorney, I defend people charged with DUI and DWI almost every day. It takes many years of experience to determine which cases should be taken to trial and which cases should be plea bargained. I had a case falling into the former category last week in the District Court for Baltimore City.

My client was found not guilty after I attacked the credibility of the MDTA Police Officer’s depiction of my client’s performance on the field sobriety tests and perhaps more importantly, pointed out the court what he left out of his report. Here are the facts:
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What type of “insider trading” is prohibited by the CFTC within the commodities and futures markets?

February 28, 2011 | Steven D. Silverman

Generally, regulation of the U.S. financial markets is divided between the Securities and Exchange Commission (“SEC”), with authority over securities, and the Commodity and Futures Trading Commission (“CFTC”), with authority over futures/derivatives. See Gary Rubin, CFTC Regulation 1.59 Fails to Adequately Regulate Insider Trading, Note, 53 N.Y.L. SCH. L. REV. 599, 606 (2008-09). The Commodity Exchange Act (“CEA”) of 1936 was the first major congressional initiative aimed at regulating derivatives. See Commodity Exchange Act of 1936, ch. 545, 49 Stat. 1491 (1936) (codified as amended at 7 U.S.C. § 1 (2006)); see also id. at 604. Generally, the CEA expanded upon prior acts by increasing the Secretary of Agriculture’s authority and making it “unlawful to engage in commodity brokering without first registering with the secretary.” Rubin, supra, 53 N.Y.L. SCH. L. REV. at 605 (citing CEA § 5, 49 Stat. at 1492-97).

The CFTC was established by the Commodity Futures Trading Commission Act (“CFTCA”) of 1974, which granted the CFTC the exclusive authority to regulate futures contracts. See 7 U.S.C. § 2(a)(2). The CFTC is a federal regulatory body that regulates the entire commodities futures industry. In its mission statement, the CFTC describes its main purposes as preventing fraud and promoting competition, stating, “[t]he CFTC’s mission is to protect market users and the public from fraud, manipulation, and abusive practices related to the sale of commodity and financial futures and options, and to foster open, competitive, and financially sound futures and option markets.” CFTC, About the CFTC, http://www.cftc.gov/About/MissionResponsibilities/index.htm.

Prior to the enactment of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or “the Act”), the CFTC was viewed as “a regulatory agency with a small bark and even less bite.” Peter J. Henning, C.F.T.C. Is Set to Get Tougher on Fraud, New York Times, Dealbook, available at http://dealbook.nytimes.com/2010/11/01/c-f-t-c-is-set-to-get-tougher-on-fraud/. However, with the enactment of the Dodd-Frank Act, the CFTC has gained new authority to regulate derivatives, credit default swaps and the exchanges that will trade these contracts.
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Child Abuse Defendant Railroaded into Plea by Outrageous Bail Ruling

December 17, 2010 | Brian G. Thompson

https://www.silvermanthompson.com/lawyer-attorney-1300820.html Baltimore Maryland Criminal Attorneys have witnessed a troubling trend in Baltimore City pretrial bail rulings for criminal defendants over the past year or two. Both District Court and Circuit Judges have seemingly been locked in a competition with one another to out “tough” one another on bail rulings and the result has been a many fold increase in the bail amounts that has put the city way out of the mainstream on this issue. I’m not just referring to defendants who are charged with murder or rape or defendants with long and violent criminal records. I’m talking about first offenders in misdemeanor cases or garden variety felony cases such as burglary or parental discipline type physical child abuse cases (this was known as a spanking when I was a kid) being held without bail or on bails set so high that they are the functional equivalent of no bail.

Every day in Baltimore City courts, defendants who would be released on their own recognizance or on five or ten thousand dollar bails in any other jurisdiction in the State are held on six figure bails or on my personal favorite, “cash only by defendant only” bails that no virtually no defendant can make. It is clear to many of us in the legal community that the judges who set these particular bails are not anywhere near as interested in fulfilling the stated purposes of the bail statute which is to “ensure that the defendant will not flee or pose a danger to another person or the community” as they are in punishing the hated bail bond industry.

I actually had a conversation with a District Court judge about this issue recently in a bail review hearing in which I tried to point out to the judge that if the person actually were able to make the cash only bail, was released and then failed to appear in court, that there would be no one with an incentive to go out and find him and bring him in. In other words the cash only bail defeats the very purpose of the statute. The judge responded with a dismissive wave of her hand and stated that she “didn’t care about that”. I was literally speechless.

These bail rulings routinely cause defendants whom everyone knows will never be convicted or even if they are convicted will never serve a day in jail on the conviction, to remain incarcerated for weeks or months waiting for the opportunity to exonerate themselves at trial or plead guilty for probation. I may be old fashioned but I still believe that except in extreme cases the government ought not deprive a citizen of his liberty without first proving that he has violated the law.

But perhaps the most insidious consequence of these bail rulings is that defendants very often choose to plead guilty to crimes that they did not commit because the State’s Attorney or the Judge will offer them a sentence of the time they have already served and probation to do so. Defendants in Baltimore City routinely accept these offers because they know that the Circuit Court Docket is so backlogged that it will take 6 months or even a year before they will be able have their day in court. Most people in this situation would plead guilty to the Lindberg baby kidnapping rather than sit in the city jail for another year.

I had a case that amounted to a particularly vivid example of this common occurrence in the Circuit Court for Baltimore City just this week. Here are the facts:
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Felony CDS Defendant Ineligible for Probation Before Judgment

November 30, 2010 | Brian G. Thompson

As an Experienced Baltimore Maryland Criminal Defense Attorney I have often written about the mistakes that are made by inexperienced attorneys when representing people in criminal cases. I often pose the question, “did you hire the right lawyer to represent you?”. In many of my previous postings I have written about cases in which the criminal defendant has hired an attorney who was in reality a domestic (divorce/child custody) attorney, an accident attorney or a general practitioner, who had claimed to be experienced in criminal defense. Upon closer inspection of his or her case history, these claims turned out to be false.

Recently I have become aware of several instances of poor representation in cases where the criminal defendant hires an attorney who sends him an unsolicited letter shortly after they are charged in a criminal case. These “letter lawyers” as they are known, very often offer legal services at well below the customary fee charged by experienced criminal lawyers. The reason for this in most instances is that the attorneys sending these letters are inexperienced (many are just out of law school) and are unable to attract criminal clients any other way. Truly experienced criminal defense attorneys are able to get most of their clients from referrals from past satisfied clients or from people who do the necessary research to find a qualified lawyer to represent them. And as the old adage goes, “you get what you pay for”, as very often these inexperienced attorneys do what one would expect from an inexperienced attorney and that is, they make mistakes.

I have written in this blog about many instances where the mistakes made by “letter lawyers” or other inexperienced lawyers are immediately apparent – usually because the defendant ended up in jail on a case where he wouldn’t have had he been properly represented by a criminal defense specialist. In other cases the mistake may not become apparent for many months or even many years after the case is mishandled. I was recently hired by a client who falls into this latter category. Here are the facts:
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Habeas Corpus Bail Reviews

November 10, 2010 | Brian G. Thompson

As a Baltimore Maryland Criminal Attorney, I often represent people in Bail Review Hearings both in the District and in the Circuit Court. Very often when someone gets arrested, friends or family members fail to act quickly enough to get an experienced criminal defense attorney involved in the case prior to the initial bail review in the District Court which typically takes place on the next business day.

It is understandable given how quickly these events transpire that attorneys are often not contacted until after the person’s bail review has occurred. It is also often a very big mistake. In many cases the absence of effective representation at the bail review can be the difference between the defendant going home or remaining incarcerated. The District Court Judge often sets the bail much higher than he or she otherwise would have had the person had an advocate there on their behalf. This is the point when many people pick up the phone to call an attorney for the first time. I had two cases where the events unfolded in this manner this past week in Baltimore County Circuit Court. Here is what happened:
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DUI/DWI Repeat Offender Successfully Defended

November 4, 2010 | Brian G. Thompson

As an Aggressive Baltimore Maryland DUI/DWI Attorney I have represented hundreds of people who were charged with their second, third or even fourth DUI or DWI. These individuals are known in the legal system as repeat DUI/DWI offenders. These are very serious matters in which the defendant faces the very real possibility of incarceration even for a second offense. For instance, I wrote about a case in Baltimore City recently where a defendant, who was represented by an attorney who does not appear in criminal court on a daily basis, received a sentence of four months in jail for a second offense. And this was a case in which there was no accident and the defendant’s prior conviction occurred more than 10 years prior to this case.

Needless to say, repeat DUI/DWI offenders need to take these matters very seriously and make sure that they are represented by an attorney who specializes in these matters. There is a very easy way to do this and that is by checking your attorney out on Maryland Judiciary Case search. http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp. On this web site an attorney’s court record can be researched to determine whether or not that attorney regularly handles these cases.

I represented a repeat offender in Baltimore County District Court this week who had been to a previous attorney didn’t have very much experience. That attorney told my client that he would have to plead guilty and was likely to do some jail time although he believed that he could get him weekend incarceration. I reviewed the case and immediately recognized that there was a substantial issue surrounding the probable cause, or in this case the lack there of, for the stop. Here are the facts:
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Juvenile Rehabilitation v. Adult Punishment: A Real Life Case Study

October 29, 2010 | Steven D. Silverman

I have a current case that highlights the significant fork in the criminal justice road when juveniles are charged as adults. Zachary Watson (17) and Emmanuel Miller (16) are the 2 juveniles who were with alleged Neo-Nazi Calvin Lockner when he attacked an elderly black fisherman in Baltimore city this year. It was reported widely in the national media as a hate crime. Lockner, age 28, has already pled to 31 years in adult court.

Probation Before Judgment in DUI and DWI Cases

October 29, 2010 | Brian G. Thompson

Experienced Baltimore Maryland DUI/DWI Attorney discusses Probation Before Judgment under Maryland Law. For those who are not familiar with the term “probation before judgment” or PBJ, it is a sentencing alternative that the trial judge may utilize in DUI and DWI cases, typically in cases where a person is a first offender. Probation Before Judgment is found in the Criminal Procedure Article (Sect. 6-220) and allows a judge who has found a defendant guilty of a crime, in this case DUI or DWI, to strike that guilty finding and allow a person to serve a period of probation without the conviction on his or her record.

So long as the person does not violate his or her probation the conviction will never go on their record. This disposition is particularly valuable in DUI cases as it spares the defendant the 8 or 12 points that would accrue on the person’s record as a result of the conviction which invariable leads to action, including possible suspension or revocation of a person’s driver’s license, by the Motor Vehicle Administration.
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Maryland Sexual Offenders Registration Law Changes Causing Retroactive Reporting Requirements – Is this Legal?

October 26, 2010 | Brian G. Thompson

Changes in the Maryland Sex Offender Registration laws are, as a Maryland Criminal Defense Attorney something I have to be aware of. I have represented many defendants over the years who have been charged with sex offenses. In these cases the defendant faces not only the prospect of criminal punishment of his conduct but also the possibility of being required to register as a sex offender. On October 1, 2010 the Maryland Sex Offender Registration Statute, (Criminal Procedure Code Ann, Section 11-704) which was rewritten to bring in line with the comparable Federal Statute, went into effect. The new rules now require those convicted of fourth degree sex offenses to register. The issue and the reason for this blog is that the new statute was specifically designed to apply retroactively.

This retroactive application is legally problematic and possibly Unconstitutional in my view in certain instances. The Court of Appeals has already approved retroactive increases in the term of registration in the case of Young v. State. The Court ruled that sexual offender registration did not expose the defendant to to a greater penalty but was instead a remedial requirement for the protection of the public.

The real questionable application of the new law, that in my view can be differentiated from a mere increase in the term of registration, is the imposition of a retroactive requirement to register on people who were convicted of fourth degree sex offense and were not originally ordered to register as a result of their conviction. ( Prior to the change in the law it was left to the discretion of the trial court as to whether to require registration for fourth degree sex offenses and it was rarely ordered).

In particular I think this application becomes even more problematic when retroactive registration is applied to a defendant who pled guilty to a fourth degree sex offense when a specific component of the guilty plea was that he or she would not be required to register. This application I believe deprives the defendant of the benefit of the bargain that he or she reached with the State and therefore renders the guilty plea retroactively involuntary. I have a client who is in this situation right now based on a plea she entered last year. Here are the facts:
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