Monday, March 11, 2013

Speedy Trial and Drunk Driving

A defendant in a drunk driving case enjoys speedy trial protections from both United States Constitution and article 21 of the Maryland declaration of rights. In this particular case the defendant was charged with drunk driving in August of 2011. His case first came to court in November of 2012. At that time I moved to dismiss the charges against him based on the state's violation of his speedy trial rights. The District Court judge denied that request and we went to trial in the District Court and he was convicted of driving while impaired and acquitted of driving while under the influence of alcohol (the more serious charge).

Rather than accept probation before judgment which would have stricken the conviction we appealed to the Circuit Court for Montgomery County.

In the Circuit Court we again made the argument that his speedy trial rights were violated. Maryland's High Court has decided a case which was almost identical to the facts in my client's case.

In the case of Divver versus state, decided by the Court of Appeals in 1999, the defendant was charged with drunk driving. It took just over one year from the date of arrest until the first trial date for the case to be heard. The defendant argued that his speedy trial rights were violated and at the District Court level and that the Circuit Court level the court found against him. At the highest level, however, in the Court of Appeals, they sided with that defendant. They looked at four factors to determine whether the defendant speedy trial rights were violated:

1. The length of the delay
2. The reason for the delay
3. Prejudice to the defendant
4. Assertion of the speedy trial right

In my client's case the delay was over 15 months. In the appellate case noted above the delay was just over 12 months. In my client's case the reason for the delay was unknown but it certainly wasn't the fault of the defendant. In the appellate case above the reason for the delay was overcrowding of the court docket. In both cases there was no actual prejudice that was obvious to either defendant; neither one was incarcerated, neither one lost the ability to effectively defend themselves (witnesses moving or dying or becoming otherwise unavailable). In both cases the defendant asserted their speedy trial rights. In my client's case I asserted his speedy trial rights before the court had even notified him of a trial date. I asserted his speedy trial right in the District Court, in the Circuit Court at the pretrial and then again at the motions hearing.

The judge in my client's case looked at the various factors, I ask the court to follow established precedent (the cases were almost identical) and the judge dismissed the drunk driving charges against my client because his speedy trial rights were violated.

Whether you are facing a drunk driving charge, shoplifting, possession of controlled dangerous substance or other misdemeanor or sexual offense, drug distribution, first-degree assault or other felony, speedy trial should always be considered in analyzing your case.

Wednesday, March 6, 2013

Car Accident and Montgomery County Juries

I just finished a three day jury trial in a fairly normal car accident case with some unfortunate twists.  My client was involved in a car accident in September of 2008.  The other driver made a left turn in front of him and my client broadsided the car.  The other driver was clearly at fault assuming you are reasonably intelligent and not an insurance company.  My client suffered some injuries to his neck and later on they spread down to his back.  His wife was a passenger in the vehicle and she also suffered some injuries.

Both of them went to the emergency room later that evening complaining of injuries to their neck.  They were referred to see their own doctors if the problems continued.  Both of them went on to see their own doctors for follow-up therapy.  Both were basically diagnosed with whiplash type injuries affecting their neck and back.  They went to conservative treatment which was basically physical therapy.  My client did not resolve after approximately 8 months of conservative treatment.  His doctor, who treats several thousand people annually, did the normal, conservative and intelligent thing and ordered an MRI.  The MRI showed that my middle-aged client had significant degenerative changes to his spine.  His doctor recommended that my client see a pain management specialist.  The pain management specialist gave my client epidural injections over the next year which helped somewhat.

I received the case from another attorney sometime after the lawsuit was filed and seven months before trial.  I found my client to be a decent person and sympathetic if not somewhat forgetful.

His forgetfulness I believe cost him somewhat in the case.  After a lawsuit is filed the parties conduct discovery where they learn about the other party's case.  In this case the insurance company requested that my client answer interrogatories which are formal questions under oath.  My client did so.  Some of the interrogatories somewhat asked if he had prior injuries.  My client did not reveal prior injuries.  Also during discovery depositions are taken.  My client was asked point-blank if he had any prior injuries to his neck or back and he replied he did not remember.  Also during discovery the insurance company tends to subpoena the medical records for approximately the past 10 years from the client's slick medical providers.  I received documentation which seemed to indicate my client had pre-existing injuries.  I asked my client about this but he truly could not remember.  Finally I received actual records showing that my client was in physical therapy with his treating Dr. just five months before this accident of September 2008.  I truly believe my client did not remember that he had been seeing his doctor earlier but it did not look very good in front of the jury.

When the case came to trial I explained to the jury immediately that my client had prior injuries before the accident.  I explained that my client just did not remember this.  I also explained that 2 1/2 years after the accident he had another accident also injuring his neck and back.  My client had $22,000 in medical expenses and was pretty miserable from the time of the accident until the time of the second accident (I was not asking for compensation after the second accident because the doctor could not cleanly differentiate the adverse effect of each accident).

His wife's case was also tried at the same time by a colleague.  She had $16,000 in medical expenses.

Other than forgetting I think my client testified fairly well.  His employer did not like him because he was not able to do his job very well but he couldn't do his job very well because of the injury.  My client's doctor testified quite well.

The defendant testified how the accident happened.

The insurance company for the defendant hired their own medical doctor to review my client's medical records and examine my client.  Of course he would claim that my client injuries were either not related or were fairly minimal.  I subpoenaed that doctor's financial records including his 1099 forms for the past five years and his income taxes.  I was able to show the jury that this doctor received easily $500,000 from insurance companies to testify on their behalf.

At the end of the case I asked that the judge find that the defendant driver was liable as a matter of law for the accident.  The judge granted that request based on the evidence.  The jury was only required to determine the extent of each party's injuries.

The jury awarded $10,000 in medical expenses to my client and $200 in pain and suffering.  For his wife she received $16,000 in medical expenses and only $600 in pain and suffering.

Unfortunately, this result is not unusual and Montgomery County.  I tried to avoid trying the case in Montgomery County in front of a jury but could not.  Everybody lived in Montgomery County and the accident occurred in Montgomery County.  The insurance company knew what Montgomery County juries do and refused to arbitrate the case.  On the morning of trial I asked if they would let the case be tried by a judge but they declined that also.

There is no lesson here.  It is simply worth noting that Montgomery County juries are not usually generous when it comes to whiplash/ soft tissue injuries.

Rape and immigration consequences

I recently resolved a case where the stakes were rather high: incarceration and then deportation.

My client was a lawful United States resident and has been here for many years.  He has an American child.  His girlfriend and mother of the child accused him of raping her.  He was arrested, charged with second-degree rape which is a felony in Maryland and locked up.  Not long after that his girlfriend recanted her story and basically claimed that she accused him of rape because she was jealous that she thought he was seeing someone else.

One might think the case would go away on its own.  Unfortunately my client did not invoke his right to an attorney and the police interrogated him.  The prosecution kept claiming that my client confessed to the rape.  I watched the alleged confession.  If it was a confession it was pretty slim.  Nowhere in the confession did he say "I forced myself upon her" or "I know that I raped her".  At best it was my emotions overcame me.

The physical evidence of rape was also equivocal.  There was some mild injury to the vaginal area which could be consistent with rape or merely rough sex.

The prosecution had a problem.  The victim had recanted and their physical evidence was not particularly strong.  The defendant had a problem, if he was convicted of rape not only would he be a felon, not only would he likely have substantial incarceration, he would thereafter be deported and lose everything he earned in the United States.  I should point out that he has worked here legally for many years at the same job and pays his taxes.

The prosecution wanted a conviction, my client wanted to remain in this country and avoid lengthy incarceration.  The state and the defense were able to resolve this case through a guilty plea to the misdemeanor of second-degree assault.  There needed to be some careful legal maneuvering.  The rape could not simply be amended to second-degree assault.  A brand-new count of assault needed to be added separately so that negative immigration consequences could be avoided.

I am pleased to report that the case resolved, my client is again working and this difficult matter is behind him.  Assuming he lives his life as he always has lived it, within the bounds of the law, there is a possibility that we can even get the misdemeanor assault conviction stricken.

If the client is not a United States citizen and is facing criminal charges, he needs an attorney who can pay attention to the details and provide a vigorous defense so as to minimize not only incarceration but immigration consequences.