Posted on July 15, 2008 in Controlled Dangerous Substances (CDS)

Maryand Criminal Attorneys or Criminal Lawyers in Baltimore and around the State deal with a high volume of cases involving the possession of controlled dangerous substance (CDS) such as cocaine, heroin, marijuana, ecstasy, methamphetamine, etc., and cases dealing with possession with intent to distribute these substances. Confidential informants are one of the primary sources of information for narcotics detectives and are regularly utilized by them in narcotics investigations. In some instances the informants are registered and paid, in others they are facing charges themselves and are seeking leniency with the authorities also known as “working off their charge”. Other informants are simply concerned citizens who are reporting criminal activity but are unwilling to testify in open court. Typically in these investigations, narcotics detectives will use information provided by the confidential informant either to secure a search warrant for a particular place or to establish probable cause to stop a particular individual, usually in the context of a car stop. These warrantless encounters are more frequently litigated than are cases involving warrants. The reason for this is that searches based upon warrants that are duly signed by a judge or magistrate are afforded a presumption of reasonableness. In challenging a search warrant the defense attorney has to get over the additional hump that is the “Leon” good faith exception. The good faith exception basically states that even if the probable cause for a search warrant is found to be deficient or some of the information contained in the statement of probable cause is found to be incorrect, the court will still uphold the constitutional validity of the search so long as the police officers acted in good faith. In other words a defense attorney basically has to show that either the police intentionally lied in order to get the warrant or that the warrant application is so completely devoid of probable cause that no police officer acting in good faith could have believed it to be sufficient. Obviously, this is a very difficult standard.

Conversely, when dealing with warrantless stops or searches, as in the case that I am currently litigating and blogged about yesterday, there is no good faith exception. The defense attorney simply has to demonstrate to the court that the police officers lacked probable cause to stop and arrest or search the defendant and the evidence will be suppressed. (In some circumstances a lesser standard known as reasonable articulable suspicion is utilized for encounters with the police that do not quite rise to the level of an arrest but where the person stopped is clearly not free to leave. These stops, known as Terry Stops, are shorter in duration than a stop requiring probable cause lasting only long enough for the police officer to confirm or dispel his or her suspicion.) A difficult task in and of itself but nowhere nears a daunting as overcoming a presumtively valid search warrant.
To analyze warrantless stops and arrests prior to 1983, courts utilized a two pronged test called the Aguilar – Spinelli test after the two Supreme Court decision in which it was promulgated. The two prongs were that the information provided by the informant must be reliable, usually requiring a showing of the basis for the informant’s knowledge, and that the informant was credible. In order to survive a challenge to a search warrant or a warrantless stop by the police, the government was required to show that the informant provided some tangible information related to each prong. In Illinois v. Gates, the Supreme Court scrapped the two pronged test in favor of a “less hyper technical” approach in which the courts review the information provided by the informant under a “totality of the circumstances” standard.
Under this new approach a deficiency in one of the two prongs could be compensated for by a strong showing in the other. For example if a confidential informant had provided accurate information on previous occasions, the court may be less concerned about an affirmative showing that the particular information provided by this informant was reliable. Similarly, if the information provided by the informant lends itself to independent verification by the police, such as by accurately predicting future events, then it may not be necessary to show that the informant is credible.
In the case that I am currently litigating the facts contained in the statement of charges are very favorable to my client. Those facts basically just say that a confidential informant told them that drugs would be transported in a Acura with specific tag number over a very wide geographical area, “the E. Northern Parkway Corridor”, sometime during February or March. Based on this vague information, provided by an informant with unknown credibility, that doesn’t even identify my client, it would be difficult to imagine any court upholding the stop. Unfortunately, the State has recently provided me with additional facts that the court will allow to be presented. In a search warrant case, the government is limited to the facts contained in the application for the search warrant, the so called “four corners” rule. In a warrantless stop or search the courts will allow the State to supplement the information contained in the charging document.
Returning to my current case, according to the police, the informant was a registered informant. To make matters worse for my client the police claim that the informant had provided accurate information prior to my client’s case which led to the arrest of suspects and the recovery of narcotics. The police also claim that the informant called them the day of the arrest and advised them as to the location of the car, although apparently did not provide specific information related to illegal activity.
These facts make the case more difficult for my client but still give him a fighting chance unless the police further supplement the record on the stand either on direct or on cross examination. These types of cases are always difficult if not impossible to thoroughly analyze prior to the hearing on the motion to suppress because the factual basis for the stop or arrest is never complete until after the police testify and that is definitely true in my current case.

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 Posted on July 15, 2008 in Controlled Dangerous Substances (CDS)

For a Maryland Criminal Attorney it is imperative to understand the law regarding the use of confidential informants by police and prosecutors. There are generally two issues when dealing with confidential informants: The first issue is does the confidential informant provide sufficiently detailed information about which he or she can demonstrate a basis of knowledge to justify probable cause for a search or at least reasonable articulable suspicion for an investigatory stop. The second issue is whether or not the government must disclose the identity of the informant. I will discuss this second issue in this blog and leave the first issue for another day. The issue of whether or not the government must disclose the identity of the confidential informant issue turns on whether the informant is a “mere tipster” or an actually participant in the transaction. I have a case that I am currently working on where I intend to request the disclosure of the identity of the confidential informant. Here is my memorandum of law in support of that motion. I have deleted the last names and other identifying information of the participants including my client for privacy reasons.

MOTION TO DISCLOSE CONFIDENTIAL INFORMANT
The Defendant, Troy , through his attorney, Brian G. Thompson and Silverman, Thompson, Slutkin and White, LLC., hereby files this Motion to Disclose Confidential Informant, and in support thereof, states:
INTRODUCTION Detectives allege that they were contacted by a registered confidential informant “during the month of February 8, March 8” and advised that “large sums of illegal narcotics were being transported and sold along the Northern Parkway corridor.” The registered informant allegedly further advised that a “2dr. Acura Legend bearing a Virginia #*#@$% was transporting illegal narcotics in this vehicle.” On March 4, 2008 Detectives allege that they spotted this vehicle traveling in the 5500 block of Laurelton Avenue. Acting solely on the tip of the Confidential Informant the detectives initiated a traffic stop. The driver of the vehicle was identified as Lamont and the passenger was identified as the defendant, Troy. The detectives claim that upon approaching the vehicle they smelled an odor of “freshly burnt marijuana” coming from the vehicle. The detectives also claim to have seen a zip lock bag containing marijuana in plain view on the center console. Based on these observations the detectives ordered the occupants from the vehicle and allegedly advised them of their Miranda rights. The driver was asked if he had anything illegal on his person and the detectives allege that he stated “yes some weed”. He was then searched and recovered from his pocket was approximately 15 grams of marijuana. Troy was then allegedly asked the same question to which he allegedly responded “”I don’t have anything on me, you can check”. Troy denies making this statement. The detectives then searched Troy and allegedly recovered $1415.00 dollars in U.S. currency. The detectives then called in a K-9 Unit and allege that the K-9 alerted on the truck area of the automobile. Recovered from the trunk was approximately 3 pounds of marijuana. The detectives then allege that Troy made the unsolicited statement, “the 3 pounds of marijuana, belonged to me”. ” I get the marijuana from one person and sell it to another person for about $200 profit”. Troy denies making this statement. Troy was arrested. Lamont was not arrested.
ARGUMENT
The Defendant seeks disclosure of the confidential informant. In Edwards v. State, 350 Md. 433, 713 A.2d 342 (1998), Judge Wilner traced the modern law governing the disclosure of the identity of confidential informants deriving from Roviaro v. United States, 353 U.S. 53, 1 L.Ed. 639, 77 S.Ct. 623 (1957), and observed the distinction between disclosure of the identity of an informant who had participated in the criminal activity and a tipster. “[T]he privilege ordinarily applies where the informer is a mere ‘tipster,’ who supplies a lead to law enforcement officers but is not present at the crime, while disclosure is usually required when the informer is a participant in the actual crime.” Id. at 442, 713 A.2d at 347 (emphasis added). Lastly, Judge Wilner commented:
When the defense does rest on a showing that critical evidence was obtained in the absence of probable cause, however, and the determination of that issue depends principally on the reliability of an informant or the veracity of an affiant’s assertions of what an informant said or did, the balance [for disclosure of an informant’s identity] may have to be struck in favor of disclosure.

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 Posted on July 14, 2008 in Personal Injury

In Maryland, it is possible to admit medical bills and records at trial without calling a doctor or other health care provider to testify. Section 10-104 of the Courts and Judicial Proceedings Article of the Maryland Code sets forth the requirements for introducing medical bills and records without the support of witness testimony at trial. This provision can save a client the added expense of having to pay a doctor to testify at trial or in a deposition. In some cases, the cost of such testimony can be considerable. In many personal injury lawsuits or automobile accident cases, particularly in Maryland’s District Courts, it may be more cost-effective to introduce medical bills pursuant to section 10-104. Doing so may actually increase a client’s net recovery because it reduces certain litigation expenses.

Section 10-104 sets forth several technical requirements that must be satisfied in order to present medical bills and reports without testimony. Section 10-104 may be used in any personal injury action in the District Court or in any such action in the Circuit Court in which the amount in controversy does not exceed $30,000.00. Medical bills and reports introduced under section 10-104 are not required to contain a statement as to the fairness or reasonableness of the treatment or associated cost. In order to gain the benefits under 10-104, a party must give advance notice of his or her intention to introduce writings and records without the support of testimony. A party does this by filing a notice with the Court at least 60 days before trial and serving it on all other parties to the action. The notice must list the name of the health care provider for each writing or record, as well as the date of each report or treatment.

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 Posted on July 10, 2008 in Cancer Malpractice

The family of a New York woman who died of a breast tumor in 2004 has been awarded more than $9 million in a medical malpractice case. The jury found that a surgeon failed to properly diagnose the mother of two, allowing her breast tumor to grow and kill her.

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 breast cancer and other cancers. Some of the cases I have handled involved a failure to properly read mammograms (negligent reading of mammograms). Other cases have involved a failure to properly read pathology such as tissue samples on slides from a biopsy.

I have even handled a case involving negligent failure to properly treat cancer, in a medical malpractice case against Kaiser. In that particular case, a woman (who happened to be a judge) was properly diagnosed with lymphoma. She eventually started chemotherapy, which lowered the ability of her immune system to fight infection. After the chemo, but while her immune system still was weakened, she developed a rash from her chemotherapy, for which her doctor negligently prescribed steroids. The problem with prescribing the steroids was that steroids tend to further reduce the immune system’s ability to fight infection and, because they act as strong anti-inflammatories, they reduce fever and make you feel better when you are sick, thereby masking infection. Unfortunately, no one ever told this to the patient, so she did not take precautions against infection (which she had been doing while on chemo). Not surprisingly, she developed an infection and never knew it. Her blood work showed it, but the doctor did not tell her about it. Sadly, one night, she became overwhelmed with meningitis and died before being able to summon help. The jury in that case awarded $2.5M to the woman’s estate and her son.

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 Posted on July 10, 2008 in Controlled Dangerous Substances (CDS)

An Aggressive Maryland Criminal Attorney will always review all criminal cases for Constitutional Violations such as Speedy Trial, Illegal Search and Seizure, Illegal Confessions in violation of a person’s Miranda Rights and, Illegal Traffic Stops. I have a case scheduled for next week in the District Court of Maryland for Baltimore City at the North Avenue location that involves a significant Speedy Trial issue that I believe will result in the dismissal of all charges.

The client allegedly had a domestic violence incident involving his girlfriend at the time, way back in March of 2006. The ex-girlfriend went to the court commissioner and swore out a warrant against him alleging that he had assaulted her in the second degree and repeatedly harassed her and committed telephone misuse by repeatedly calling her with the intent to harass her. The warrant was issued that day but there was apparently never any attempt to serve this warrant on my client until April of this year, over two years after the warrant was issued. This obviously puts the issue of Speedy Trial in play. Speedy Trial is an issue that comes up often in serious felony cases in the Circuit Court, particularly in Baltimore City. In felony cases that are charged in Circuit Court, either by way of indictment or criminal information, Speedy Trial commences upon the filing of that formal charge, not when the original warrant is issued. That is because the original warrant in the majority of circuit court cases is issued by way of a District Court charging document, known as a Statement of Charges, a charging document upon which the defendant cannot be tried.

Once the person is picked up on the warrant charging the person with a serious felony, the case will be set in for a preliminary hearing, usually 30 days or so after the warrant is served. During this time the State’s Attorney’s Office will conduct a felony review to determine whether or not they wish to file charges against the person in circuit court by way of a grand jury indictment or the filing of an information after a preliminary hearing is held or waived by the defendant. The State’s Attorney may also choose to reduce the case to a misdemeanor or dismiss it altogether which will usually occur at the preliminary hearing. The Speedy Trial calculation for these types of cases begins upon the filing of the indictment or information by the State’s Attorney. It matters not how long the case is in warrant status without being served. The reason for this as laid out by the Court of Appeals in State v. Gee is that the if a person is charged with a matter where exlusive jurisdiction is vested in the circuit court on a warrant statement of charges (examples include murder, robbery, rape, burglary, sex offenses and other serious felonies), the warrant statement of charges is not a formal charge that would activate the person’s speedy trial right because the person cannot be tried on that document. In order to be tried the State must file and indictment or information in the circuit court and it is the filing of this formal charge that activates the person’s Speedy Trial right.

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 Posted on July 08, 2008 in Automobile Accident

Sometimes, individuals that do not carry automobile insurance coverage (because they do not drive) are injured by an uninsured motorist or “phantom vehicle.” The Maryland legislature has created a special fund to compensate these victims. In certain circumstances, it may be possible to make a claim against this government-managed fund when a person has been injured (or his or her property has been damaged) by the negligent act or omission of an uninsured motorist or a motorist that has fled the scene of the collision and cannot be identified.

When someone is struck by a “phantom vehicle,” the injured person must demonstrate that he or she has made all “reasonable efforts” to ascertain the identity of the motor vehicle and the owner/operator of the motor vehicle that stuck him or her, but was unsuccessful. What constitutes “reasonable efforts” is determined on a case by case basis, but Maryland courts have historically applied a much heightened standard. Generally speaking, “reasonable efforts” are the same efforts that one would expect an injured person to make if he or she knew there would be zero recovery unless he or she actually located the driver of the phantom vehicle. These efforts may include, but certainly are not limited to, interviewing all available witnesses, searching the surrounding area for the vehicle, publishing a notice in a local paper and/or hiring a private investigator.

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 Posted on July 07, 2008 in Infection Malpractice

A $1.25 million settlement has been reached in an Indiana medical malpractice case in which the parents of a deceased eighteen-month-old claimed that a doctor failed to timely diagnose and treat the child’s meningitis by negligently diagnosing a stomach problem. An antibiotic treatment and brain surgery failed to cure the child, and he died. The parents alleged that the doctor should have done a spinal tap and administered antibiotics earlier. A copy of the article regarding the case can be found here.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases involving a failure to timely diagnosis and treat meningitis. The key to these cases is carefully looking for the signs and symptoms of meningitis (fever; headache; vomiting or nausea with headache; confusion, or difficulty concentrating – in the very young, this may appear as inability to maintain eye contact; seizures; sleepiness or difficulty waking up; stiff neck; sensitivity to light; lack of interest in drinking and eating; skin rash in some cases, such as in viral or meningococcal meningitis) both in the medical records and through speaking with family members.

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 Posted on July 02, 2008 in Automobile Accident

A Cheyenne, Wyoming jury awarded a husband and wife more than $18 million in a personal injury lawsuit arising out of a tractor-trailer collision. The driver of the tractor-trailer and the trucking company that employed her were found to be negligent in causing the crash. The defendants claimed that the husband, who was very seriously injured and sustained severe brain damage as a result of the crash, was negligent in causing the collision. The jury disagreed. A copy of the article regarding the case can be found here.

Trucking cases can be very difficult and complex cases to handle and it is very important to be represented by an experienced trial attorney who is familiar with the statutes, rules and regulations that are applicable to truck drivers and trucking companies. These statutes, rules and regulations may add another layer of complexity to an otherwise typical automobile accident case. There are certain records that a trucking company is required by law to maintain. These records can be critical to the outcome of trucking case where a party has sustained serious personal injuries. For instance, Department of Transportation regulations govern the inspection and maintenance responsibilities of most motor carriers and truck drivers that conduct interstate operations. These regulations have been adopted by the Maryland legislature and apply with equal force to intrastate motor carriers that conduct business entirely within the State of Maryland.

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 Posted on July 02, 2008 in Pulmonary Embolism Malpractice

A Plaintiff recently lost a medical malpractice case in which it was alleged that there was a failure to properly place a patient on anti-coagulants after orthopedic surgery, which caused blood clots to form and kill the patient (pulmonary embolism). Apparently, a 54-year-old former pastor died three weeks after undergoing surgery on his leg. He developed difficulty breathing that day and was taken to a hospital where he died. An autopsy found that his death was caused by a blood clot in his lungs that originated in his leg. The patient claimed in the suit that the doctor should have prescribed medications to reduce the chance of blood clots after the surgery to repair a torn Achilles tendon. A copy of the article regarding the case can be found here.

I have handled approximately five pulmonary embolism medical malpractice cases in the Baltimore, Maryland / Washington area, and have been highly successful in each one. The standard of care in these cases is very clear. Whenever a patient has certain risk factors, such as certain medical conditions like obesity, advanced age, surgery lasting more then two hours, etc., the surgeon must ensure that certain preventive measures are taken, such as tight stockings (commonly called Ted Stockings; to keep blood from pooling in the legs), sequential compression devices (inflatable leg sleeves that keep the blood moving in the legs), and/or a blood thinner (coumadin, lovinox, etc.).

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 Posted on June 30, 2008 in Hospital Malpractice

A Florida jury has awarded $12 million for the death of a premature baby caused by medical malpractice. The parents contended in their suit that the hospital negligently accepted a transfer of the baby from another hospital, but did not have the appropriate specialists on its staff to deal with their baby’s infection. A copy of the article regarding the case can be found here.

In Maryland and the District of Columbia, most hospitals can be classified as academic medical centers (like the Johns Hopkins Hospital, the University of Maryland Medical Center, George Washington University Medical Center or Georgetown University Hospital, etc.) or community hospitals (like Sinai Hospital, Harbor Hospital, Shady Grove Adventist, etc.). Maryland and District of Columbia hospitals also are labeled according to what type of trauma center they are.

The concept of a trauma center was developed at the University of Maryland Medical Center in the 1960s and 1970s by heart surgeon and shock researcher R Adams Cowley, who founded what became the Shock Trauma Center. Trauma centers in the United States are ranked by the American College of Surgeons (ACS), from level I (comprehensive service) to level III (limited-care). The different levels refer to the type of resources available in a trauma center and the number of patients admitted yearly.

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