Posted on May 01, 2015 in Freddie Gray

Now that all police officers involved in the death of Freddie Gray have been charged by the Baltimore State’s Attorney, I will lay out what to expect in the next 30 days.

Charged by Criminal Information:

There are two ways to charge a felony in Maryland, one way is by Criminal Information and the other way is by Indictment. The Gray defendants have been charged by Criminal Information. Criminal Information means that the State’s Attorney believes their is probable cause the officers have committed one or more felonies. Under Maryland law, there must now be a judicial “rubber stamp” or independent finding of probable cause.

As of now, these defendants will automatically have a preliminary hearing scheduled within 30 days. At the preliminary hearing, a judge will listen to the evidence and make a determination if there is some link between the defendants and the felonies alleged. This is known as probable cause hearing. Most preliminary hearings involve a police officer simply taking the stand and reading the police report into the record . Defense counsel can ask limited questions as the questions relate to probable cause. In cases such as this, it is rare for a district court judge not to find probable cause that a felony has been committed. Upon the judicial finding of probable cause, the case is then forwarded to Circuit Court for trial.

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 Posted on April 22, 2015 in Appellate

As the appellant in the Maryland appellate courts, when should you file your brief? Currently, it’s within 40 days after the clerk notifies you that the court has filed the record. Sounds easy enough, except the current Maryland Rules don’t actually require the clerk to send such a notice. In fixing that little problem, however, the Rules Committee is considering working in a smidge more time for practitioners to get their briefs in.

Current practice of the appellate court clerks is to, after the record has been filed, issue notice to the parties with a date before which the appellant should file the brief. Proposed changes to Md. Rule 8-412(c) would codify this custom, providing that, “Upon receipt and docketing of the record by the Clerk of the appellate court, the Clerk shall send a notice to the parties stating (1) the date the record was received and docketed and (2) the date by which an appellant other than a cross-appellant shall file a brief conforming with 8-503.” However, while the current version of Rule 8-503 requires the appellant to file its brief “[w]ithin 40 days after the clerk sends notice of the filing of the record,” the tweak to Rule 8-412(c) would make that deadline sometime after 40 days: “Unless otherwise ordered by the appellate court, the date by which the appellant’s brief must be filed shall be no earlier than 40 days after the date the Clerk sends the notice” (emphasis added).

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 Posted on April 03, 2015 in Constitution

Maryland attorneys are eminently familiar with the State’s Local Government Tort Claims Act (LGTCA), which imposes a limitation on liability for the local government entity of $200,000 for each individual claim ($500,000 aggregate for claims that arise from the same occurrence). This limitation on liability operates to strictly limit damages recoverable from the local government entity regardless of the extent of harm experienced by the plaintiff. And now, with today’s Court of Appeals’ decision in Espina v. Jackson (No. 35, Sept. Term 2014), that damages cap applies even in the face of egregious constitutional violations because such “constitutional torts” fall within the LGTCA’s “tortious acts or omissions” terminology.

Espina involved survival and wrongful death actions filed against Prince George’s County and its police officer employee, Steven Jackson. Espina’s surviving spouse and son sued PG County and Officer Jackson, alleging assault and battery, wrongful death, and violations of Espina’s and the son’s constitutional rights. Following 3 days of deliberation, the jury returned a verdict in favor of plaintiffs and awarded compensatory damages totaling $11,505,000. No punitive damages were awarded.

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 Posted on March 30, 2015 in Corporations

Silverman|Thompson|Slutkin|White real estate litigation attorneys succeeded in obtaining summary judgment on behalf of the private owner of a project-based Section 8 housing project in a breach of lease action pending in the Circuit Court for Baltimore City. The case involved a determination of whether projects funded by the Department of Housing and Urban Development may proceed with eviction upon a showing that drug-related criminal activity had occurred. Maryland law previously required that, after adducing evidence that a tenant had breached their lease by engaging in drug-related criminal activity, the landlord also prove that the breach was material, substantial and warranted eviction, thereby allowing a judge or jury to countermand the landlord’s decision to evict. The ruling by the Honorable Laurence P. Fletcher-Hill, which has wide implications for all federally-funded housing projects, held that Maryland law is preempted by federal law to the extent it would permit a judge or jury to review a HUD-assisted landlord’s decision to proceed with the eviction of a tenant who has committed drug-related criminal activity. As a result, if a federally-assisted landlord can prove by undisputed fact that a tenant has engaged in drug-related criminal activity in or near the leased premises, the landlord has established grounds for eviction as a matter of law and is entitled to terminate the lease.

Avery Strachan, a partner in the firm’s real estate litigation department, represented the firm’s client along with Kerri Smith, an associate in the real estate litigation department. Partner Bill Sinclair argued the Motion for Summary Judgment before Judge Fletcher-Hill. They can be reached at (410) 385-2225 or at astrachan@silvermanthompson.com; ksmith@silvermanthompson.com; or bsinclair@silvermanthompson.com.

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 Posted on March 27, 2015 in Driving While Impaired

Defendants in DUI cases who have commercial driver’s license pose a unique set of challenges and considerations for Maryland DUI Attorneys. I have blogged often about the importance of selecting an attorney who specializes in DUI/DWI defense. Unfortunately, all too often we see attorneys with little or no experience with these types of cases appearing in court on these cases. Because of their lack of experience, these attorneys often make mistakes that can have serious consequences for their clients.

Often these attorneys make simple mistakes that no experienced DUI/DWI attorney would ever make. I was representing a client in the District Court of Baltimore County a few days ago. While waiting for my case to be called I witnessed an attorney whom I had never seen representing a client in a DUI case at all much less one involving a defendant with a commercial driver’s license. I found out later that this attorney was a so called “general practitioner” who spends the majority of his time handling divorce and personal injury matters. In other words, he was NOT a DUI/DWI specialist. As the reader may have guessed, it did not go well for the defendant. Here are the facts:https://criminal.silvermanthompson.com/brian-g-thompson.html

The client did possess a commercial driver’s license but when he was pulled over for exceeding the speed limit by 15 miles per hour, he was operating his personal vehicle. When the Trooper approached the defendant he smelled of alcohol, had a flushed face and had slurred speech. The Trooper asked him to step out of the vehicle to perform field sobriety tests. In the opinion of the officer, his performance on the field sobriety tests indicated that he was impaired by alcohol. He was taken into custody and once back at the barracks, agreed to take the breathalyzer. The test result was .11 grams of alcohol per 210 milliliters of breath.

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 Posted on March 02, 2015 in Corporations

Civil litigators know that the impending bankruptcy of an opponent is bad news for any lawsuit that’s ongoing or in the works: Bankruptcy operates as an automatic stay of any state-court litigation against the debtor until the bankruptcy gets resolved. Oddly, however, the precise effect of such a stay was an open question in Maryland up until last month. With Kochhar v. Bansal, Md. Ct. Spec. App., Sept. Term 2014, No. 435 (Feb. 27, 2015), the state now joins the majority of other jurisdictions in deeming any and all proceedings and filings after a bankruptcy stay as void, and not merely voidable.

In Kochhar, after Baljit Kochhar and her daughter Sonia filed bankruptcy petitions, four members of the Bansal family – who previously obtained judgments against Baljit for defaulted loans – filed a lawsuit in the Circuit Court for Montgomery County against them, alleging that Baljit had fraudulently conveyed property to Sonia to avoid the judgments. The next month, the Kochhars’ bankruptcy case was dismissed and the automatic stay was lifted. Sonia thereafter moved to dismiss the circuit court case on the grounds that, because of the bankruptcy stay, it was a nullity at the time it was filed. An order of default was entered against Baljit.
The Bansals opposed, arguing that the filing of the complaint during the bankruptcy stay was merely voidable, and could be pursued now that the stay had been lifted and no further action had occurred in the case during the stay period. The court denied the motion and later entered default against Sonia as well. Based on the defaults, the court found that the conveyances had been fraudulent, set them aside, and entered judgment against the Kochhars jointly and severally for more than $15,000 in attorneys’ fees.
Sonia appealed, contending again that the entire circuit court case was void at the time it was filed. Turns out, this issue has come up fairly regularly before in a number of jurisdictions elsewhere, so it was up to the Court of Special Appeals to pick a side – void (the majority view, including in federal courts, and the view taken by the U.S. Bankruptcy Court for the District of Maryland), or voidable (the minority view). The Court of Special Appeals first tried to glean the answer from the Court of Appeals’ decision in Klass v. Klass, 377 MD. 13, 22 (2003), a divorce matter in which a default judgment was entered against the husband after he had filed for bankruptcy.
There, the Court of Appeals found that – in accord with the prevailing treatment by federal bankruptcy courts – a divorce case involves some exceptions to an automatic stay, including fixing alimony and child support, awarding attorneys’ fees to the wife and the guardian ad litem, dissolving the marriage, and establishing custody and visitation. However, the Court held, the monetary award, reduction of the award to judgment, entry of an order directing payments to the wife, and giving the wife use and possession of the couple’s car were all subject to the stay and improperly based upon unanswered discovery requests that, because of the stay, were also void when they were propounded. The Court of Special Appeals believed this consistent with the majority view that the state court loses jurisdiction over the property of a debtor when the petition is filed, meaning that (absent some exception) any later proceedings are void ab initio.
As applied to the Bansals’ complaint, the bankruptcy stay took away the circuit court’s jurisdiction, making the filing of the lawsuit a nullity at the time it was brought. The lift of the stay didn’t permit the Bansals to resume litigating the complaint, because the complaint was never legally operable in the first place. (Note, however, that a bankruptcy court can also annul a stay rather than terminate it, which has the effect of making all of the bankruptcy proceedings a nullity, such that the stay would have never been effective in the first place. That didn’t happen here; if it had, the Bansals could have picked up their litigation because the stay would have been treated as if it hadn’t actually occurred.) In the end, Kochhar highlights just another reason why civil litigators are wise to keep themselves informed as to when adverse or liable parties sink too close to financial rock bottom.
For further information, please contact Chris Mincher at cmincher@silvermanthompson.com or at (410) 385-2225.

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 Posted on February 24, 2015 in Handgun Offenses

As an Aggressive and Experienced Criminal Defense Attorney, I have handled hundreds of cases involving the illegal possession of regulated firearms by disqualified persons. These are very serious offenses that can carry mandatory 5 year prison sentences depending upon why the person is disqualified. Over the past few years, detectives from the Baltimore County Police have been investigating people who have frequented Continental and Freestate gun ranges to see if the have criminal records that disqualify them from possessing handguns or other regulated firearms.

For those who are unaware, when a person goes to a gun range in Maryland, they are required to fill out a form that asks a number of questions. One of those questions asks if the person has ever been convicted of a crime that carries more than two years of imprisonment. The detectives procure these forms from the gun range and then run criminal background checks on everyone who frequented the range, including those who simply rented firearms as opposed to bringing one in with them. Those who have read my blog over the years know that I have been trying to warn people about these cynical and misguided cases for many years. These investigations are thinly veiled statistic building exercises that do nothing to advance the basic goals of law enforcement. Indeed they are, in my opinion, counterproductive to those goals as they cause people who live in the community that they are supposed to serve to become distrustful of the police and therefore less likely to assist them in legitimate criminal investigations. The police then compound the damage to the relationship between them and the community by these cases by utilizing a so called “ruse” technique to ensnare the targets of their investigation. I was recently retained in one of these cases by a boyfriend and girlfriend who shot at Continental. Here are the facts:

My clients are boyfriend and girlfriend who moved to Maryland a few years ago. I will refer to them as John and Jane Doe in this blog. Both John and Jane have minor criminal records. John has a “felony driving under the influence” charge from another State as well a misdemeanor assault charge that was classified by that State as “non-violent and non-repetitive”. Jane had only a possession of CDS charge for which she was granted probation. She had been recently robbed at knife point in her neighborhood and became very fearful, even when in their home. John had been the victim of a vicious assault a number of years ago that left him in a medically induced coma for over 3 months.

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 Posted on February 20, 2015 in Child Pornography

As a former Assistant State’s Attorney and current Aggressive Criminal Defense Attorney with decades of experience, I have handled scores of cases involving the illegal Possession and Distribution of Child Pornography. These cases can be charged in state court or in federal court where the penalties are far more severe. For this reason, I always team up with my partner Andrew White to work these cases as Andy is a former Federal Prosecutor who headed up the sex offense unit for 7 years. He has been very successful over the years at convincing his former colleagues to defer prosecution in these matters to the state courts. Even in State court, however, These are serious crimes that carry the possibility of a felony conviction and extended prison sentences. It may come as a surprise to some to learn that a even a conviction for Misdemeanor Possession of Child Pornography requires mandatory registration as a Tier I Sex Offender for 15 years. A conviction for Felony Distribution or Possession with the Intent to Distribute Child Pornography requires registration as a Tier II Sex Offender for 25 years.

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 Posted on February 13, 2015 in Witnesses

The Maryland Insurance Administration, or the MIA, is charged with regulating the insurance industry in Maryland. Its responsibilities include issuing licenses to insurance professionals, developing policy, and drafting regulations.

The MIA is also charged with investigating alleged violations of Maryland’s laws and regulations governing insurance. As part of this delegated authority, Section 2-206 of Maryland’s Insurance Article grants the MIA the power to “examine the accounts, records, documents, and transactions that relate to the insurance affairs or proposed insurance affairs” of insurance agents, insurance producers, adjusters, public adjusters, and surplus line brokers, among others. Frequently, the MIA will exercise this authority in the form of certain Orders, such as an Order to Produce Documents (similar to a subpoena) or an Order to Respond in writing to a specific inquiry received by the MIA, or perhaps both.

So, what should you do if you receive one of these Orders?

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 Posted on February 07, 2015 in Corporations

Toward the end of last year, I attended a discovery conference in D.C. Throughout the panel discussions of the proposed changes to the Federal Rules of Civil Procedure and various electronic discovery resources, I found myself thinking about the practical application to my current cases and future client representation. In other words, I was wondering how it applied to my legal practice and my clients.

“Discovery” is when the parties to a litigation exchange information related to the case. Unfortunately, the discovery process can be complicated, leading to both parties and their attorneys getting in trouble with the court. While outright discovery abuse is rare – though not unheard of – problems more often arise because the attorney does not sufficiently understand his client’s business and its functionalities.

Take, for example, the recent case of Brown v. Tellermate Holdings Ltd. in the United States District Court for the Southern District of Ohio. In this employment matter, Tellermate Holdings failed to produce to the Browns certain information that should have been turned over in discovery. This discovery failure stemmed from the attorney’s own failure to understand Tellermate’s business and how it worked. More specifically, Tellermate’s counsel did not uncover the existence of both an entire database of relevant and discoverable information and other relevant documents regarding a related employment dispute until long after Tellermate and its counsel had made untrue sworn statements to both the Browns and the court. Ultimately, the court imposed sanctions, prohibiting Tellermate from being able to use certain evidence that would have been a complete defense to the Browns’ lawsuit and ordering both the company and the attorneys to pay the Browns’ attorney’s fees related to the discovery failure.

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