Posted on January 07, 2009 in Excessive Force

Rarely does a day go by during which I don’t have one of my clients or potential clients complain of police brutality or excessive force by the police. In fact, the opposite is almost true. That is it is rare these days when clients tell me that the police effected their arrests in a professional and respectful manner and without resorting to the use of unnecessary excessive force.

So it came as no surprise to me to read in today’s edition of USA Today a survey of 315 emergency room physicians found that an astounding 98% percent of them believed that some of their patients had been the victims of excessive force at the hands of the police. Think about that – 98%? You can’t get 98% of people in a survey to agree that the Earth is round and here we have almost unanimity amongst a large group of emergency physicians across the country that the police use and more often than not, get away with using, excessive force.

Of course the police deny that excessive force is widespread and actually challenge whether the doctors could know if excessive force was used without having witnessed the encounters. I don’t know, but I’m going to guess that emergency room doctors have seen enough injuries working day in and day out in the emergency room to be able to tell the difference.

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 Posted on January 06, 2009 in Theft

Theft is one of the most common crimes, if not the most common, charged in Maryland and tried by Maryland Criminal Attorneys. Excluding complicated fraud and white collar thefts, most of these cases are run of the mill in terms of the facts, the law and the outcome and rarely pose much of an intellectual challenge for the attorneys handling the case. I had a theft case this morning, however, in Baltimore City Circuit Court that had a rather unique issue that posed a bit of a challenge and made the case much more interesting that the average theft case. First the law.

There are only two elements to the crime of theft and they are both simple and logical. The elements are that property must be taken from another and that it must be taken with the intent to permanently deprive the owner of that property. The issue in the case went to element number two, whether or not my client intended to permanently deprive the owner of the property in question. The specific issue involved, and was ultimately resolved upon, a somewhat arcane legal concept known as asportation. Essentially what it means is that there must be an attempt by a would be thief to carry the property away from the area where the property was originally taken in order to complete the crime of theft. In other words it is not sufficient for the State to prove that the alleged thief merely took possession of the property that did not belong to him without the permission of the owner; there is the additional requirement that the State prove that the alleged thief moved the property from its original location or at least made an attempt to do so. More on the law in a moment but first, here are the facts of the case:

On July 3rd, 2008 my client was out with 3 friends, one male and two female, in the Canton area of Baltimore City. It was after 2:00pm when my client and his friends encountered the alleged victim and her friends on Boston Street. For unknown reasons a verbal altercation began between the female members of the two parties. In short order the verbal altercation became physical between the women. The men in both parties entered the scuffle and a few punches were thrown between them resulting in no real injury to anyone. At some point during the scuffle the alleged victim dropped her purse to the ground. My client picked the purse up and said something to the effect of ” I should take your s*#!” or “I’m gonna take your s*#!”. At this point two of the alleged victim’s male friends took the purse back from my client and that essentially ended the altercation.

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 Posted on December 11, 2008 in Infection Malpractice

A federal judge in a federal tort claims act case involving medical malpractice has ordered the U.S. government to pay $8.6 million in damages due to an air force base doctor’s misdiagnosis of flesh-eating bacteria. In 2002, the woman went to the base emergency room for pain and swelling in her right arm. Court documents say that the doctor believed the woman was an addict looking for prescription drugs and told her to go home and take Motrin. Weeks later, the woman was diagnosed with necrotizing fasciitis or flesh-eating bacteria. A bench trial was held in August. In a decision late last month, the judge faulted the doctor and wrote that the woman suffers continuous, debilitating pain. A copy of an article regarding the case can be found here.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Baltimore and other counties in Maryland involving a failure to timely diagnose and treat infections. Cases against the U.S. government are always more difficult because they must be brought under the Federal Tort Claims Act, which means that they get tried before a judge and not a jury.

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 Posted on December 09, 2008 in Sexual Offender Registration

Many people with certain “old” convictions in other states often ask if he/she has a legal requirement to register in Maryland under the current sexual offender registration laws. As former prosecutors and current defense attorneys, we are very familiar with the issue. Often times persons who were required to register in other states are not required to register in Maryland.

Criminal Procedure Subtitle 7 Registration of Certain Offenders provides that citizens of Maryland do not have to register for offenses committed before July 1, 1997. This is also confirmed by case law. The statute specifically holds that out of state offenders who committed their offense before July 1, 1997 must still register. This provision treats out of state offenders differently then in state offenders violating Article IV, Section 2 of the Constitution. The Interstate Privilege and Immunities Clause.

If he had committed this act in the State of Maryland he would not have to register. This is discussed in the editors note to Criminal Procedure § 11-704.

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 Posted on December 09, 2008 in North Carolina Law

The medical malpractice lawyers at Silverman, Thompson, Slutkin & White, LLC handle medical malpractice cases throughout the mid-Atlantic region. As a service to our colleagues who are considering filing a plaintiff’s action in North Carolina, we are publishing the following on key areas of the law:

A. Statute of Limitations:
Medical malpractice suits must be brought within three years from the date of the last act of the defendant giving rise to the cause of action or within one year of the date when the injury was or should have been discovered, but not more than four years from the date of the last act of defendant giving rise to the cause of action. N.C. Gen. Stat. §§ 1-15 and 1-52(16) (1996). Foreign object cases must be brought within one year from the date of discovery, but no longer than ten years from the date of the occurrence. N.C. Gen. Stat. § 1-15 (1996). Wrongful death actions based on alleged medical malpractice must be brought within the foregoing period or within two years from death, whichever is shorter. N.C. Gen. Stat. § 1-53 (1996).

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 Posted on December 05, 2008 in Hospital Malpractice

Los Angeles County has finally acknowledged for the first time in a medical malpractice case that a woman who died shortly after writhing in pain for nearly an hour on the waiting room floor of a county hospital been saved if she had been properly treated. The woman was captured on security videotape as a janitor mopped around her and a triage nurse dismissed her complaints early one morning in May 2007. The woman’s death helped precipitate the closure of the hospital’s emergency room and inpatient care after federal regulators determined that staffers had failed to deliver a minimum standard of care.

The woman’s boyfriend, who had accompanied her to the emergency room and called 911 from a nearby pay phone after no one would help, recently was offered a $250,000 settlement by county supervisors. A separate lawsuit against the county filed by her adult children could potentially prove far more costly and is considered more likely to go to trial. The children have asked for $1 million for each minute she was denied treatment — $45 million in all.

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 Posted on December 05, 2008 in Maryland State Crimes

Trademark Counterfeiting is usually seen by Maryland Criminal Attorneys in Baltimore and throughout the State in the form of counterfeited movies and compact discs. Many people are surprised to hear that it is not only a serious criminal offense but can even be a felony depending upon the total retail value of the counterfeited merchandise possessed by the defendant.

I have a new client who was recently charged with possession of counterfeited movies in Baltimore County Maryland. He is a resident of Connecticut and was merely passing through Maryland when he was profiled by a Maryland Transportation Authority Police Officer just prior to entering the Harbor Tunnel. The client, who is a young African American man, acknowledges that he was speeding as alleged by the police officer but everyone knows that he wasn’t really pulled over for travelling 62 in a 55.

The MTA officer approached the car and in yet another example of a troubling pattern by Maryland law enforcement officers, claimed that he smelled the odor of burning marijuana. I have blogged about this issue several times but it really is getting to the point where it is almost a reflexive action for these cops to claim they smell marijuana to give them probable cause to search any vehicle they want – and the judges by and large let them get away with it. One would hope that sooner or later the judges are going to tire of hearing this testimony by police officers in cases where no burning marijuana was ever found.

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 Posted on December 04, 2008 in Controlled Dangerous Substances (CDS)

Maryland Criminal Attorney What exactly does it mean to be in “constructive possession” of contraband such as drugs or illegal weapons in Maryland? I was faced with this fairly common legal issue in a case in the District Court for Baltimore County in Catonsville this week. The facts of the case were as follows:

My client was operating a motor vehicle in the Catonsville area of Baltimore County one day this past summer. The police noted in their report that the car caught their attention because the operator was not wearing his seat belt. (I’m sure that the fact that he was a young black male had nothing to do with it). The officer’s turned around and followed the vehicle and made several other observations such as speeding and frequent lane changes. They pulled the vehicle over and identified my client as the driver and sole occupant of the vehicle. My client produced a valid driver’s license as well as the registration which confirmed that the car was registered to his father.

The officer’s then claim that they smelled the odor of burning marijuana coming from the car. The Court of Appeals ruled long ago that the smell of burning marijuana alone constitutes probable cause to search a motor vehicle. Coincidentally, of course, the instances of police officer’s claiming to smell burning marijuana increased exponentially after that decision by the Court. It has always been curious to me that in many of these cases, including this one, the police officers never find any burning marijuana nor do they even claim that the driver was under the influence of marijuana.

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 Posted on December 02, 2008 in Illegal Search And Seizure

Maryland Criminal Attorney I had this issue in a case in the District Court in Baltimore City today. (The case was ultimately postponed so I will have to update the blog regarding the disposition of case). The facts of the case are that a police officer was travelling behind my client in her marked patrol unit. As my client approached a red light the officer noticed that the center brake light did not illuminate when the other two did. She activated her emergency equipment and pulled my client over for the purpose, according to her report, of issuing a repair order. She also ran my client’s license through the MVA computer and determined that his license was suspended at which time she placed him under arrest. Was this a legal stop?

The problem with the stop as I see it, is that under Maryland law, all motor vehicles are required to have TWO operating brake lights, not three. So the question is, does an officer have probable cause to pull someone over because the vehicle that that person is operating has an non-functioning but clearly optional equipment. In my view the answer is no. Unfortunately, the Court of Appeals has not ruled yet on this precise issue but we can learn something about how they may rule by their rulings on some similar cases.

In a case called James Muse v. State, the Court of Appeals took up the similar situation of whether or not the police could pull a person over for operating a vehicle with a cracked windshield. The Court essentially said that even though there was no moving violation or other violation of the code committed by the driver, there was a safety issue and therefore the officer “was enititled to stop appellant’s vehicle to investigate the crack in his windshield and for the purpose of writing an equipment order”.

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 Posted on December 01, 2008 in Infection Malpractice

There is a log of buzz in Maryland about medical malpractice cases against hospitals due to hospital infections, after an article in Maryland’s legal newspaper, The Daily Record, published an article that such lawsuits are on the rise. According to the article:

* On Nov. 6, a jury awarded $13.5 million in a medical malpractice case to the family of a Massachusetts woman who died of an infection caused by flesh-eating bacteria that she contracted during cancer treatment.

* On Nov. 14, a Utah woman reached a confidential settlement in a $16 million medical malpractice suit she filed, alleging that a hospital failed to detect necrotizing fasciitis, a flesh-eating bacteria, before and after she gave birth, causing her to lose three limbs and several organs.

* In July, a Missouri couple was awarded $2.58 million in a medical malpractice case after the husband contracted a potentially deadly type of staph infection, known as Methicillin-Resistant Staph Aureus (MRSA), when doctors inserted a pacemaker. As a result of the infection, the patient lost a kidney, and a leg and a foot had to be amputated.

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