Posted on March 06, 2012 in Sex Offenses

As a full time Maryland Criminal Lawyer and former Baltimore County Prosecutor practicing exclusively in the criminal arena for almost 20 years, I have handled more Sex Offense Cases (on both sides of the aisle) than I can recall. Recently we have seen an uptick in the number of Craig’s List initiated Solicitation of Minors for Sex cases being charged, particularly in Baltimore County. Most of us are familiar with this type of sting operation from the Chris Hanson “To Catch a Predator Series” on MSNBC. These are extremely serious cases that are prosecuted aggressively by both the State and Federal authorities. It is imperative that a person charged in one of these stings immediately retain the most experienced, aggressive and influential attorneys they can find.

My law partner former Federal Prosecutor Andrew C. White who directed the Child Sex Offense of the U.S. Attorney’s Office for over 7 years, and I have teamed up to successfully resolve dozens of these cases over the past decade or so when we first starting seeing these sting operations. It is imperative to have someone very experienced and influential in the federal system as there is dual federal and state jurisdiction to prosecute these cases. We were hired by someone caught up in one of these investigations just last week. I won’t go into the specifics of any of the cases for obvious privacy reasons, but here is an outline of a typical case such as this.

Typically police conduct these investigations by entering chat rooms or more recently by posting an ad on Craig’s List. The language in the ad will say something like “I have time” or “Let’s hang out” followed by 18. An unsuspecting person will then respond to the ad and will be contacted back by an undercover detective. Eventually pictures will be exchanged and then the conversation will turn to sex. At some point the detective will message that “she” is 13 or 15 years old and ask something like “are you cool with that”.

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 Posted on February 28, 2012 in Breathalyzer

As a Maryland DUI/DWI Attorney I am frequently asked by friends and acquaintences whether they should take the breathalyzer if they are stopped for suspicion of Driving Under the Influence . This question is almost invariably followed by the statement, “because I have always heard that you should never take it”.

I am not completely sure where this idea that one should never take the breathalyzer came from, although I suspect it is simply dated advice that is still being recirculated because in my view, under most circumstances, a person who is stopped by the police should take the breathalyzer if asked to do so. Here’s why:

As most people are aware, significant changes have been made to the law regarding Driving Under the Influence over the past 20 years. For instance, 20 years ago the legal limit was a BAC of .12 as opposed to .08 today for Driving Under the Influence. In those days judges were also far more likely to give a well represented defendant the benefit of the doubt in cases where there was no breathalyzer. The administrative sanctions imposed by the MVA for refusing the breathalyzer were also far less severe than they are today. The bottom line was in those days not taking the breathalyzer gave you a better shot at being found not guilty in criminal court and did not subject you to extreme administrative penalties. It may very well have been sound legal advice to advise people to never take the breathalyzer before these changes.

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 Posted on February 24, 2012 in Divorce

Bloomberg rated Maryland the 10th worst state in the country as far as obstacles one might face in obtaining a divorce as reported by msn.com on February 2, 2012. The rankings took into account filing fees, minimum separation period, minimum length of residency, minimum waiting period after filing for the divorce, and minimum number of days for the entire process (start to finish). Bloomberg’s reasoning for Maryland’s low ranking was the one year waiting period before filing for a no-fault divorce, the minimum processing time of 360 days and the $135 filing fee.

The waiting period to obtain a no-fault divorce in Maryland has been at hot topic among the legislature as proponents seek to reduce it to six months. As stated in our April 18, 2011 blog, the Maryland legislature passed a bill eliminating the two year waiting period, which took effect October 1, 2011.

For more information about getting a divorce in Maryland, contact Monica Scherer, Esq. at 410-625-4740

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 Posted on February 24, 2012 in Same-Sex Marriage

As the Baltimore Sun reports, Thursday night, February 23, 2012, the Maryland Senate passed Govern Martin O’Malleys’ bill to legalize same-sex marriage in Maryland. We blogged on June 28, 2011 that New York had passed the law allowing same sex couples to wed, making it the 6th state to do so. Maryland is now the 8th state to approve same sex marriages. While it is a victory for supporters of the bill, many believe that the law will likely be up to the voters in November. If the law is passed by the voters, it will be effective in January 2013.

As expected the church has voiced their disapproval of the bill’s passing. The Maryland Daily Record reports that Baltimore’s Cardinal O’Brien states that the bill “threatens families.” He has pledged that the Baltimore Archdiocese will work to overturn the law and likely will be a key proponent in making sure the voters have a say in November.

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 Posted on February 13, 2012 in Appeals

Experienced Maryland Criminal Attorneys do not generally make it a practice to advertise cases we lose but I had one the other day that I think merits discussion, the outcome not withstanding, both because it was an interesting case and because it offers an opportunity to discuss the ” de novo” appeal process in the District Courts of Maryland. In English, that means that if a person who is convicted in the District Court is dissatisfied with either the verdict or the sentence, he has the right to a brand new trial in the Circuit Court. That’s right, the appeal is not “on the record” such as it is in cases that are appealed from the Circuit Court to the Court of Special Appeals. Instead, the case starts all over again in the Circuit Court.

This may sound incredibly inefficient to someone who is not acquainted with the system as it sounds as if every case has to be tried twice. In practice, the exact opposite is true. Indeed, it is the very fact that we have de novo appeals that affords litigants the opportunity to take a shot in the District Court, even if the posture of the case or the judge is not ideal. If you win the case, it is obviously over but even if you lose you get another shot at it in Circuit Court. Not only that, a record now exists of exactly what the State’s witnesses will say. This is an invaluable tool in a State where criminal depositions are almost never done. In practice, most litigants accept the decision of the District Court as even the majority of those who are convicted are not sent to prison. The result of all of this is that most of the cases docketed in District Court are resolved there instead of ending up in Circuit Court. I had a case in the District Court for Baltimore County last week that, for reasons I am confident will become clear to the reader, I decided to take a shot with even though the situation was not ideal. Here are the facts.

My client was charged with making a false statement to a police officer. He initially contacted the police and reported that he was beaten and robbed by two men. Specifically, he claimed that he was walking down the street when someone struck him from behind in the head causing him to fall to the ground. He described his assailants as one black male and one Hispanic male. He provided relatively detailed physical descriptions of each but advised the officers that he did not know either man. He claimed that after being struck from behind the black male went into his pockets and stole approximately $200.

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 Posted on February 10, 2012 in Hospital Malpractice

Research conducted by Johns Hopkins doctors has found that an estimated forty percent of hospital websites advertise the use of robotic surgery as superior to conventional surgery. However, there is a no evidence to suggest these statements are true. In particular, hospitals often exaggerate the benefits associated with robotic surgery while ignoring the risks.

Johns Hopkins researchers warn that the lack of candor in promotional materials is potentially dangerous for various reasons. Much of the positive advertisement is provided by the surgical robots’ manufacturers, as opposed to independent analysis by doctors or hospitals. This is a concern because the general public relies on hospitals, including their websites, to provide honest and complete information. Essentially, many would consider the material on a hospital’s website to be as if it was coming directly from a physician.

The study conducted by Johns Hopkins researches yielded startling results. Of the sample of hospital websites studied, forty-one percent described the availability of robotic surgery. Of those, eighty-nine percent (89%) indicated that robotic surgery is clinically superior over conventional surgery. Specifically, eighty-five percent (85%) said there would be less pain, eighty-six percent (86%) said there would be a shorter recovery, eighty percent (80%) said there would be less scarring and seventy-eight percent (78%) said there would be less blood loss. Shockingly, none of the websites mentioned any risks associated with robotic surgery at all.

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 Posted on February 03, 2012 in Surgery Malpractice

In 2007, an active lieutenant with his local Sheriff’s Department made the decision to undergo weight-loss surgery. At 6-foot-1 and 375 pounds, the risk of a routine laparoscopic gastric bypass surgery seemed slight compared to his many weight-related health risks. Then suddenly, the day after the procedure, he went into respiratory failure and had to be placed in critical care. For over a week, he showed signs of complications but doctors did not take him back into surgery to repair the problem for eight days. This was a serious medical error, even based on the testimony of the hospital’s own experts who admitted that most bariatric doctors would have performed the surgery as soon as the patient exhibited the symptoms, but certainly no later than six days after.

As a result of the delay in treatment, the patient’s blood pressure dropped and he experienced a “low-flow stroke,’ meaning his brain was not getting enough blood, causing him to remain comatose for two weeks following the surgery. Then, in another shocking medical mistake, doctors failed to give him eye drops while he remained on a respirator which resulted in a permanent loss of his eyesight. This avoidable complication was a clear breach of the standard of care.

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 Posted on January 24, 2012 in Pediatric (child) Medical Malpractice

A Hartford, Connecticut boy’s family has filed a medical malpractice suit against his pediatrician, alleging that the doctor’s failure to timely diagnose the child’s bacterial meningitis lead to the 7-year-old losing his eyesight.

The boy went to his pediatrician complaining of severe headaches. However, this symptom went unnoticed and he was diagnosed with an ear infection, the first of several medical errors. He returned to the doctor when his condition did not improve but was sent away by a receptionist who said there was nothing more the office could do for him. When the child was finally sent for a CT scan, he was only diagnosed with a migraine. This was yet another medical mistake in the young boy’s care. This several day delay in diagnosis allowed the condition to worsen, and the infection to spread.

Bacterial meningitis is a potentially fatal condition where the membranes that cover the brain and spinal cord become inflamed as result of a bacterial infection. The CDC has stated that early diagnosis is critical to the successful treatment of bacterial meningitis.

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 Posted on January 23, 2012 in Search and Seizure

Maryland Criminal Attorney -The Supreme Court today in a rare showing of unity among its liberal and conservative members, ruled that the police may not secretly place a GPS monitoring device on a suspect’s vehicle to track his movements without first obtaining a search and seizure warrant. The Roberts Court which has come to be defined in many people’s views by controversial 5-4 decisions ruled unanimously today that a person’s automobile is covered under the Fourth Amendment’s protection against unreasonable searches of a person’s right to be secure in their houses, papers and “effects”. Here are details:

The government obtained a search and seizure warrant to put GPS on Jones wife’s vehicle. The warrant authorized an install of the device in the District of Columbia within 10 days. The agents installed the tracking device in Maryland on the 11th day after the warrant was issued. They then tracked the vehicle for 28 days and secured information resulting in an indictment of Jones and others on conspiracy and drug trafficking charges. The DC court suppressed the data obtained while the vehicle was parked at Jones residence but not while the vehicle was on public streets- stating that Jones had no reasonable expectation of privacy. The DC circuit reversed concluding that the admission of evidence obtained by warrantless use violated the Fourth Amendment. The Supreme Court agreed- citing the Fourth Amendment’s protection of a persons right to be secure in their persons, houses, papers and effects.” The Court held the Government’s physical intrusion on an “effect” for the purpose of obtaining information constituted a search.

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 Posted on January 13, 2012 in Controlled Dangerous Substances (CDS)

Can the Police search your car without a warrant? As a Criminal Defense Attorney, this is one of the questions that I am asked most often. The answer to the question is generally speaking yes so long as the police have probable cause. This is an exception to the warrant requirement in the Constitution known as the Automobile Exception. The rationale is that unlike a person’s home for instance, automobiles are by their very nature movable objects creating a sort of inherent exigency that justifies allowing police to search without requiring them to leave the scene to obtain a warrant.

While the automobile exception is certainly a long recognized exception to the warrant requirement, it does not mean that the police can search a person’s car without a warrant in every situation. As I said, the police must have probable cause or some other basis upon which to rely to search the vehicle. One common situation in which police search a person’s vehicle without probable cause is the so called “search incident to arrest”. However, the Supreme Court recently changed the rules regarding searches incident to arrest in a very significant way in a case called Arizona v. Gant. Prior to Gant the police would routinely search a person’s car after affecting a lawful arrest, even if the arrest was for relatively minor traffic offenses such as driving while on a suspended license. In the Gant case, the Court limited the searches incident to arrest to situations in which the person arrested was within reaching distance of the passenger compartment a the time of the search and it was reasonable to believe that the vehicle contained evidence of the offense for which the person was being arrested. I successfully defended a client charged with Possession with the Intent to Distribute Marijuana utilizing this new case in Baltimore City Circuit Court last week. Here are the facts:

My client was operating his vehicle in a lawful manner in Baltimore City one day last fall. A police officer did a random check of his license plate through MVA and found that the registered owner of the vehicle’s license was suspended for failing to pay child support and that he also had a warrant for his arrest for not paying child support. The officer looked up the description of the individual in the MVA computer and found that it very closely matched the operator of the vehicle. He conducted a traffic stop and quickly confirmed that the operator was in fact the registered owner. He immediately place my client under arrest for the outstanding warrant and placed him in the back of his police cruiser.

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