Maryland Criminal Attorney Blog

Domestic Violence Case Illustrates the Importance of Choosing the Right Lawyer

September 20, 2010 | Brian G. Thompson

As a Baltimore Maryland Criminal Attorney I have written frequently about the critical importance choosing the right lawyer if you find yourself charged with a serious felony. As I have noted in the past there are many lawyers out there who are primarily domestic or accident lawyers or have other specialties who occasionally take on a criminal case very often with tragic results for the client. These bad results for the client are usually the result of inexperience and lack of expertise by lawyers who don’t regularly operate in the criminal realm. These lawyers should not take these cases but the simple fact is that they do.

I don’t mean to impugn the integrity of these lawyers as I’m sure that they have convinced themselves that they are in fact qualified to handle criminal cases and may even have successfully resolved the majority of the few criminal cases they have handled. But it only takes one mistake to have devastating consequences on your life if that mistake is made on your case. I handled a domestic violence assault and handgun case in Baltimore County Circuit Court recently that illustrates this reality in rather stark terms. Here are the facts:
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Domestic Violence Assault Successfully Defended in Baltimore County District Court

September 17, 2010 | Brian G. Thompson

https://www.silvermanthompson.com/lawyer-attorney-1300820.html Aggressive Maryland Criminal Attorneys handle a wide variety of criminal cases. Among the most common types of cases we see are domestic violence or family violence assaults. Prosecutors and Police categorize a case as domestic violence if it involves people who are involved in a romantic relationship whether or not they are married or children.

As noted, these cases are increasingly common in the District and Circuit courts primarily because the police and prosecutors have become increasingly aggressive over the past few years in investigating, charging and prosecuting these matters. In many cases by the time these matters make it to court the parties have reconciled and the alleged victim will not cooperate with the authorities in the prosecution of the case. In other cases the alleged victim exaggerates or even fabricates the incident entirely because of some other motivation such as child custody or simple revenge. I tried a case falling into this latter category this week in the District Court for Baltimore County. Here are the facts:
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Criminal Prosecution of Vulnerable Adults in Maryland

September 10, 2010 | Steven D. Silverman

Maryland criminal defense attorneys are seeing more prosecutions involving the exploitation of vulnerable adults. Section 8-801 of the Maryland Code Annotated, Criminal Law provides for a criminal action against a person who exploits a vulnerable adult. The elements are:

1. The victim is a vulnerable adult
a. A vulnerable adult, as defined in § 3-604 of the Criminal Law Article is an adult who lacks the physical or mental capacity to provide for the adult’s daily needs.
b. § 8-801(b)(2) prohibits exploitation of an individual who is “at least 68 years old” and does not appear to require the victim in this case to be classified as a “vulnerable adult”
2. The defendant knew or should have known that the victim was a vulnerable adult 3. The defendant knowingly and willfully obtained possession to the victim’s property by deception, intimidation, or undue influence, and a. Undue influence does not include the normal influence that one member of a family has over another member of the family, but means domination and influence amounting to force and coercion such that the vulnerable adult of individual over 68 years old was prevented from exercising free judgment and choice.
b. Deception is defined in § 7-101 and states that deception occurs when “a person knowingly either creates or confirms in another a false impression that the offender does not believe to be true or fails to correct a false impression that the offender previously has created or confirmed.
4. The defendant intended to deprive the victim of her property.

A person is guilty of conspiracy to exploit a vulnerable adult under Section 8-801 where the State can prove that:

a. An unlawful agreement was entered into by two or more persons,
b. To deprive a vulnerable adult of the vulnerable adult’s property by deception, intimidation, or undue influence.
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CDS Possession Case Successfully Defended

September 1, 2010 | Brian G. Thompson

https://www.silvermanthompson.com/lawyer-attorney-1300820.html Experienced Maryland Criminal Attorney’s probably handle more simple drug possession cases than just about any other kind of case in the system. On any given District Court Docket in any jurisdiction in Maryland, a large percentage of the cases will be simple possession cases. Although the majority of these cases so not result in incarceration of the defendant they nonetheless need to be taken seriously as a conviction for possession can result in a permanent criminal record even for first time offenders. Second or subsequent offenders are all but certain to end up with a permanent criminal record and possible jail time, as Maryland Law only allows a person to receive probation before judgment one time for a drug conviction whether it be possession of CDS or possession of CDS with the intent to distribute.

I successfully defended a case in Baltimore County District Court this week in which my client was in this exact position. He was charged with simple possession of marijuana having been caught by the police with just a few grams of the banned substance. Unfortunately for him, he had received probation before judgment for a possession charge a few years ago and was therefore barred by law from receiving this disposition a second time. Here are the facts:
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Bail Review Habeus Corpus Petition

September 1, 2010 | Brian G. Thompson

As a Baltimore Maryalnd Criminal Attorney I am often hired to try to secure a defendants’ release on bail. Generally speaking, when a person is arrested by the police and charged with a criminal offense in Maryland, the law requires that the person be brought before a court commissioner within 24 hours. The commissioner will conduct a hearing in which he or she will explain to the person what they are charged with, what the maximum penalties are and their right to an attorney. The commissioner will then set the conditions of the person’s pre-trial release to include bail.

Many people make the mistake of not hiring counsel at this point to advise them as to how the bail can be posted at this point or whether the person should wait to see a Judge at a bail review hearing. These hearings are required to take place on the the next day in which the courts are open so very often it is only a matter of hours until this hearing. The reason I say it is a mistake not have the advice of an experienced criminal attorney at this point is that the commissioners, who are not attorneys much less judges and generally speaking have little or no legal training, very often set bails that are much higher or much lower than the amount at which a judge is likely to set in the case. Many people are unaware that in Maryland a judge may not only lower the defendant’s bail at the bail review hearing but can also raise it. An experienced and aggressive attorney may even be able to determine which judge will be handling the bail review and know what that judge’s tendencies are. Sometimes the advice may be to bail the person out before the hearing. In other circumstances it may be to wait for the hearing if the attorney knows who the judge is and is confident that the bail will be lowered if the person is properly represented at the hearing.
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Is Hearsay is Still Admissible in Maryland if the Identify of the Declarant is Unknown?

August 30, 2010 | Steven D. Silverman

This criminal defense issue arises in situations where an unknown person makes a 911 call and the prosecutor tries to use the tape against a criminal defendant at trial. In State v. Parker, 365 Md. 299 (2001), the Maryland Court of Appeals confronted the issue of whether the statements of two unidentified declarants to a police officer following a shooting were admissible. In determining whether the statements of the unidentified declarants were properly admitted by the trial court under the excited utterance hearsay exception, the appellate court observed that:

Where the identity of the hearsay declarant is unknown, the courts hold that the party seeking to introduce the excited utterance carries a heavy burden to prove the requisite indicia of reliability. It is held that the burden of the proponent is heightened, primarily because it is more difficult to establish personal observation and spontaneity where the declarant is unknown. Id. at 314.

The court analogized the facts of that case to a Third Circuit case involving unknown declarants at the scene of a car accident. In the Third Circuit case, the court found that the proponent of the hearsay statement had not satisfied the heavy burden of admissibility because “the record…was void of any circumstances from which it could be inferred that the declarant personally observed the accident and that the declarant was excited when he spoke.” Id.

Furthermore, under Crawford v. Washington, some of the statements made by the 911 caller were testimonial. These statements “were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. 36, 52 (2004). In further defining the nature of testimonial statements, the Supreme Court in Davis v. Washington concluded that statements made to a 911 operator that are not related to assisting in an ongoing emergency are testimonial. 547 U.S. 813, 827-28 (2006).
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Double Counting and the Federal Sentencing Guidlines

August 30, 2010 | Steven D. Silverman

Federal criminal defense lawyers are often faced with the issue of “double counting” when dealing with white-collar crimes sentencing. Double counting occurs when “one part of the [Sentencing] Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the [Sentencing] Guidelines.” U.S. v. Pena, 339 F.3d 715, 719 (8th Cir. 2003) (quoting U.S. v. Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)). However, a trial court does not double count for purposes of the Sentencing Guidelines by enhancing an offense level for two or more reasons when those reasons “address conceptually separate sentencing notions.” U.S. v. Phillips, 506 F.3d 685, 688 (8th Cir. 2007).

Loss is broadly defined as the greater of actual loss or intended loss. U.S.S.G. § 2B1.1 commentary 3(A). Actual loss is “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. Intended loss is (1) “the pecuniary harm that was intended to result from the offense” and (2) “includes intended pecuniary harm that would have been impossible or unlikely to occur.” Id.

The commentary to U.S.S.G. § 2B1.1 defines “gross receipts from the offense” to include all property, real or personal, tangible or intangible, which is obtained directly or indirectly as a result of such offense. See 18 U.S.C. § 982(a)(4) which defines “gross receipts from the offense” in the context of criminal forfeiture. The commentary also explains that “for purposes of subsection (b)(14)(A), the defendant shall be considered to have derived more than $1,000,000 in gross receipts if the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000.” Specifically, the defendant is only liable for gross receipts that the defendant, himself, received as a result of the criminal activity.
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Maryland Administrative Hearings Also Follow a DUI Arrest

August 30, 2010 | Steven D. Silverman

Many defendants charged with DUI in Maryland are dismayed to find out that not only do they have to go to court and face criminal charges, but they must also fight the MVA in a separate proceeding. Even if the criminal defendant is found “not guilty” of all charges in criminal court, the MVA may still suspend the defendant’s driver’s license on separate grounds.

The Maryland Court of Special Appeals ruled in Johnson v. State (1991) that this DOES NOT amount to double jeopardy. The bases of the MVA administrative hearing is to determine if the driver “broke his agreement” with the state when he was issued his license and agreed not to “drink and drive.”
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It Does Not Always Pay to Cooperate With Police!

August 28, 2010 | Steven D. Silverman

I recently had two similar DUI cases with very different results. Each case involved a drunk driver who was involved in a one car accident. One driver ran into a parked train and the other driver hit a tree. In each case the driver was alone and there were no witnesses to the accident.

The drunk driver of the vehicle that hit the train stayed at the scene long enough for the police arrive. He told the police when asked that he was driving and he agreed to submit to field sobriety tests. He was found to be intoxicated, went to court and was convicted based upon his admission to the police and the subsequent field sobriety tests.

In the case of the defendant who hit a tree, left the scene and his car behind, jumped in a cab and went home to sleep it off. The next day when the police tracked him down by his license plate, he refused to talk to them without a lawyer present. He did not admit to driving, causing the accident, or to drinking. He was charged with leaving the scene of an accident involving property damage, but not DUI. When he went to court, the State could not prove he was driving that night and the defendant was acquitted. His only repercussion was the costs to get his car out of the Baltimore City yard.
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Summary of Dillard v. State Decided by the Maryland Court of Appeals on August 25, 2010

August 28, 2010 | Steven D. Silverman

In this Maryland criminal case, Defendant Dillard was charged with possession with the intent to distribute cocaine and related offenses. Detective Smith was the State’s primary witness. During trial, it was brought to the court’s attention that during a lunch break two jurors walked by Detective Smith, patted him on the back and said “good job.” The defense attorney moved for a mistrial. The State asserted a mistrial was not necessary because the jurors had not made a specific comment about their opinions of Dillard’s guilt. The trial judge denied the motion for mistrial and refused to replace one of the jurors with an alternate. The jury convicted Dillard. Dillard appealed to the Court of Special Appeals which affirmed the trial judge. The Court of Appeals reversed Dillard’s conviction. The Court of Appeals held that the trial court’s failure to conduct a voir dire examination of the jurors to determine whether the jurors had reached a premature conclusion as to Dillard’s guilt or formed fixed opinions constituted an abuse of discretion.

George Hugely’s Emails Have Significant Evidentiary Value

August 25, 2010 | Steven D. Silverman

It has become apparent from recent Freedom of Information Act disclosures that George Hugely had sent threatening emails shortly before his former girlfriend, Yeardley Love, was found murdered. After the incident, Hugely’s lawyer tried to characterize Love’s death as an “accident.” Hugely, of course, is facing first degree murder charges.

DUI Subsequent Offender Receives Probation

July 22, 2010 | Brian G. Thompson

As a Baltimore Maryland DUI/DWI Attorney I often represent people in DUI/DWI cases who have previously been convicted of a DUI or DWI in the past. These defendants are known as repeat or subsequent offenders in courthouse vernacular. Over the past few years prosecutors have begun to seek and judges have started to impose, harsher and harsher penalties including incarceration, even for defendants with only one prior offense. It is now pretty common for second offenders to receive 30 days or more and defendants with two or more prior convictions to serve sentences of six months or longer.

I blogged about a case a few weeks ago that I got involved after the sentence had been imposed and tried unsuccessfully to reverse the damage. In that case the defendant did not get into an accident, blew a .16 and had only one prior occurring 11 years prior to the second. He received a sentence of 4 months to serve in the Baltimore City Jail after the case was badly mishandled by his attorney. I represented a similarly situated second offender in the exact same court last week with a completely different outcome. Here are the facts.
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DUI Second Offender Sentenced to Four Months in Baltimore City

July 19, 2010 | Brian G. Thompson

As a Baltimore Maryland DUI/DWI Lawyer I handle DUI’s almost every day in the District Courts of Baltimore City and Baltimore County. Because I am always in court I am often in a position to watch other attorneys handle, and in many cases mishandle, DUI cases. I have blogged many times in the past about these cases usually positing the question, “are you being represented by the right lawyer”.

I recently got involved in a DUI case that was badly mishandled by another attorney in Baltimore City Circuit Court. Here are the facts:
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Federal Drug Case Motion to Suppress

June 24, 2010 | Brian G. Thompson

As a Former Assistant United State’s Attorney and current Maryland Federal Criminal Attorney I have handled hundreds of Federal Drug Cases. Before as a prosecutor and now as a defense attorney I am often amazed at how quickly and often lawyers plead their client’s guiilty in highly defensible cases.

I take the opposite approach and employ a scorched earth policy of fighting every case on every level before even considering a plea to include attacking the validity of search warrants which many attorneys never even consider. Here is a written motion to suppress we filed in a case recently attacking the warrant and moving to suppress the evidence.
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On Appeal, Firm Frees Defendant Serving 10 Year Sentence

May 26, 2010 | Steven D. Silverman

Today in the case of State v. Campbell, Silverman, Thompson, Slutkin and White’s criminal appeals lawyers convinced the Maryland Court of Special Appeals to reverse a Circuit Court for Baltimore County Judge thereby winning the freedom of a client serving a ten year sentence-without parole. The firm did not represent the client at the trial, but after the bad result, was retained to handle the appeal.

The Facts:

Baltimore County police see a drug transaction conducted from a Lincoln navigator. The police stop the buyer who says he bought drugs from the vehicle. The police lose sight of the vehicle. Four hours later, the police stop the car with guns drawn. The defense argued there was no probable cause to stop the vehicle four hours later because the police had no description of the sellers of narcotics four hours before. Judge Dana Levitz of the Circuit Court for Baltimore County said there was probable cause and sentenced the defendant to ten years without parole.

The Court of Special Appeals vacated the conviction and agreed that there was no probable cause to arrest the occupants of the vehicle when there was no reason to believe that the same persons who operated the vehicle earlier were occupying the vehicle at the time of the arrest.
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