Wednesday, August 31, 2011
Maryland recently increased the amount in controversy from $10,000 to $15,000 in the District Court. Specifically, if the plaintiff demands up to $15,000 as damages in their car accident case or personal injury case or bicycle accident case or motorcycle accident case the defendant cannot demand a jury trial. Only if the amount in controversy exceeds $15,000 can the defendant request a jury trial. This is a huge benefit to people who are injured but whose cases are not particularly large. Insurance companies usually like to get their cases in front of juries. Juries are historically defense oriented. Juries often side with defendants and even if they side with the plaintiff give low awards. By increasing the jurisdictional amount, a plaintiff can have a fairly quick trial in the District Court, save significant amounts of money for medical experts and avoid the hazard of a jury trial.
Friday, August 26, 2011
My client represented himself in a protective order hearing. The charges were very serious. His wife claimed in her petition for the protective order that my client sexually abused her teenage son. At the protective order the mother testified as to what the son had told her. The son never got on the stand to testify as to what had happened. The judge listened to the mother's hearsay testimony and used it as evidence to find that my client did indeed sexually abuse the teenage boy. Had any minimally competent attorney been there he or she would've objected to this hearsay testimony and it would have been excluded. But this evidence came into the record and the judge believed it and was appropriately disgusted at my client's behavior.
He was kicked out of the marital home and ordered to stay away and ordered to make some payments to the household.
Over one month later his wife asked the court to hold my client in contempt for violating the protective order and also requested emergency family maintenance for the bills in the house. At this point he hired me.
I interviewed my client and his witnesses. I tried to speak to the teenage boy but my efforts were blocked. The wife claimed that my client broke into the marital home and took a shower and stole various items. She also claimed that he came up to the front door and rang the doorbell and ran away.
At the hearing the wife testified and I was able to discredit her testimony completely about breaking into the house and taking a shower. There was no evidence that my client came into the home and the judge agreed with that. As to the ringing of the doorbell she testified as did her daughter that they saw my client come up to the house ring the doorbell and then drive away in the car. I was able to somewhat successfully discredit his wife but I was not able to really touch the daughter. She had no obvious motive to lie about this. The judge did find that my client violated the protective order but he was not locked up, he was warned not to do that again.
The wife additionally requested emergency family maintenance which included the water bill, the electric bill, the gas bill and the cable bill. Prior to the hearing I went through my client's finances and he was upside down. He earned less than he spent every month and he was living a very frugal lifestyle. At the hearing the wife testified and submitted the various bills that she had including a $400 cable bill. The law in Maryland requires emergency family maintenance for necessary items. The judge was rather shocked at the $400 cable bill. On cross-examination it became clear to the court that the wife had not worked in years, that in her petition for divorce she stated under oath that "I am self-supporting" and do not need money support. My client presented his pay stubs and his lease and his financial statement clearly showing that he was "upside down" in terms of income. The judge found for my client and did not order any family maintenance.
Had my client hired an attorney prior to the initial hearing it likely never would've even gotten to the point of a protective order. There is some truth to the saying spend a little now save a lot later.
Wednesday, August 24, 2011
After shooting his cousin in the neck and a stranger in the back in Gaithersburg, Maryland I was able to generate enough evidence to reduce attempted murder charges down to the misdemeanors reckless endangerment. At the time of the guilty plea my client was given no jail time but was given 18 months of probation in front of a very tough judge. Any violation of his probation conditions would lead to the two years of backup time. This the judge promised.
My client generally did well on probation. He had a job, he was obtaining his GED, he was in counseling and he was very active in his baby's life. Unfortunately, my client felt that he needed to use marijuana. He was missing many of his urine tests but the probation officer let that slide. Finally, the police were conducting a raid at a home for a different person and my client happened to be there and he happened to have six small bags of marijuana in his pockets. He was charged with possession with intent to distribute marijuana and this would be a violation of his probation.
I was able to beat the marijuana charges using a constitutional argument.
The original sentencing judge did not care. He issued a warrant for my client's arrest. My client turned himself in. I appeared with my client at the initial bond hearing. At the bond hearing the judge was already trying the violation of probation case. He was already finding my client in violation of his probation. I argued this was obviously not proper and we were here merely to set his bond. The judge revoked his bond. I asked for a probation hearing to be set in the near future.
Despite the fact that he was acquitted on the possession of marijuana the judge insisted on going forward with the violation of probation. Frankly, that is the state of the law in Maryland. The burden of proof in a criminal case is beyond a reasonable doubt. The burden of proof in a violation of probation case is by a preponderance of the evidence and the quality of the evidence is much less substantial. Nonetheless, I was able to research case law and found that in Maryland normally hearsay evidence is not permitted at a violation of probation hearing. At the first hearing for violation of probation the prosecution did not have its officers to prove the case. The prosecutor, the probation agent were both pushing to have probation continued and if my client did well on probation to withdraw the hearing. This judge would have none of that. He ordered the prosecutor to get a transcript of the marijuana trial and use that as evidence at the next violation of probation hearing.
At the next violation of probation hearing the prosecutor had the transcript but did not have the chemist for the drugs. I argued that the transcript would violate my clients constitutional right to confront witnesses and cited the Maryland cases which supported this position. The judge accepted that and the prosecutor was able to get some of the officers to come to court that day. We had a trial but at the end of the trial the judge postponed the case because the chemist was unavailable.
On the next trial date the chemist was late. I put on five witnesses to establish everything my client had been doing well while on probation. One witness was particularly effective. He works at the Upper County Youth Center. He testified that my client was at the youth center three to four times a week for three to four hours a day studying for his GED. He was also receiving counseling from this witness. The judge was paying close attention.
Finally the chemist showed up and was able to prove that the marijuana in the bags was indeed marijuana. The judge was convinced that my client was guilty of possession of marijuana and violating probation.
The judge was ready to give my client the full backup time. I was able to successfully argue that it would be unfair. My client had spent most of his time on probation doing the right thing-working, getting counseling, getting a GED, trying to get his driver's license. The judge finally relented and instead of giving the full backup time gave 18 months of local time with a consideration for the work release Center in Montgomery County which would allow my client to spend his days working rather than being locked up. This was very unusual for this judge.
Although I did not prevail for my client I appeared five times in court on the violation of probation (there was an initial appearance before another judge regarding a bond hearing), I had law to support my client's position and I had fact witnesses to help in mitigation of sentencing. I fought the state's tooth and nail and at least was able to achieve two things. My client did not get the full backup time. My client is eligible for work release.