Sometimes It Pays to Be Good Rather Than Lucky

My client was charged with shoplifting.  The event occurred almost one year ago.  At the time of the event neither the store security nor the police apprehended the actual shoplifters in the act.  A video was taken of the perpetrators but they were unknown to store security.  In the interim an unknown informant claimed that they knew who the shoplifters were and accused my client.  Felony theft charges followed which were very disturbing to my client.

My client hired me and as is normal practice I requested discovery from the prosecution.  Discovery is certain information about the case that the prosecution must turn over to the defense.  Certain information must be turned over without request such as information which would tend to exculpate the defendant.  The prosecution cannot sit on information which shows the defendant to be innocent.  Other information is only turned over upon request.  I requested all possible information.

In the information provided there were police reports.  In the police reports there were descriptions of the various offenders.  They named my client and described my client.  What was interesting is that they describe my client with long hair braided in an intricate manner.  My client has had a shaved head since a long time before the alleged shoplifting.

The prosecution had no evidence that my client took the items, there was no confession from my client and the physical description did not match.  I pointed out these various problems to the prosecutor and the charges were finally dropped.

If you are charged with a crime, hire your attorney as early as you reasonably can.  That will give the attorney a chance to obtain the discovery and have enough time to carefully review the evidence that the prosecution possesses.  In this particular case the prosecution's evidence against my client was consistent with not guilty.

State Has an Obligation to Prosecute Violation of Probation in a Prompt Manner

My current client was put on 18 months of probation in May of 2007. (He was not my client in 2007 when he was charged and convicted of his crime and put on probation.) In November of 2007 allegations were filed with the court that he had violated his probation. Based on the allegations of violation filed in November of 2007 a warrant was issued for the arrest of my client.Although my client stopped going to probation he did still remain in the Montgomery County Maryland area. Further, he kept in occasional touch with his probation agent on an informal basis. Finally he had other court matters wherein he appeared in the Maryland court system. He was never served with the arrest warrant.

In the spring of 2013 he was stopped for a traffic matter and served with a warrant charging him with violation of probation in November of 2007.

The general rule in Maryland is that if the allegation of violation of probation occurred during the period of probation the state may file this at any time. It can be filed even after probation has ended. In this case the allegations were filed while probation was ongoing. The problem for the prosecution in this case is that they did not serve the warrant until about 5 1/2 years after the warrant was issued. Maryland appellate courts have held that a defendant is entitled to due process rights as guaranteed by the United States Constitution. The touchstone of due process is fundamental fairness. It is unfair to a defendant to let this type of charge linger for such a long time. Memories fade and witnesses disappear altogether. There is the burden of waiting for the other shoe to drop.

I was armed with my case law and ready to argue but it was unnecessary. I suspect the judge knew where I was going to be coming from and closed the probation in a satisfactory manner.

There is an old maxim in equity law, "he who sits on his rights loses them".

Sometimes Less Is More-Peace Orders

A temporary peace order was placed against my client. The petitioner was claiming that my client had harassed them as well as cause malicious destruction to their property.

My client gave me background information not only as to the event but significant back story regarding matters which were not directly related to the event.

On the trial date I approached the petitioners in an effort to resolve the case to everyone's satisfaction. They wanted the judge to resolve the matter and I let it go.

The case was called for trial and the judge inquired whether the respondent (that would be my client) would be willing to enter into a consent order agreeing not to have any unlawful contact with the petitioners. Even though there is always a risk of going forward with trial my client declined. Consenting to a peace order leaves a permanent record on public websites against you. Also, I have seen where the petitioner after obtaining a peace order fabricates events which then puts the respondent in jeopardy of not only contempt of court but a secondary criminal prosecution. In other words, the petitioner makes things up and all of a sudden my client is looking at jail time. You cannot get jail time for losing at the initial peace order hearing.

The judge began examining the two petitioners as to the basis for the request for a peace order. They told the judge that my client had been shouting at them, had been telling them to leave the premises, had sent rude e-mails and texts. Never did the petitioners bring up the subject of the alleged destruction of their property. Also, at the beginning of the questioning by the judge, he wanted the address of the petitioners. I immediately objected and advised the judge that we did not want to know the address of the petitioners because that was part of our defense. In a peace order hearing the petitioner must prove that past events which are grounds for the peace order are likely to occur in the future. If my client has no idea where the petitioner lives then that reduces the likelihood of such a violation.

When the judge was done, my client through counsel had an absolute right to cross-examine the petitioners as to this story. I declined to ask any questions.

At that point the judge wanted to ask my client questions about the case. Again I objected. My client has a Fifth Amendment right not to incriminate herself and that right trumps the courts right to ask questions. The judge sustained the objection and stopped the questioning of my client immediately. I did not offer any evidence in our case in chief.

When it came time for argument I was able to establish to the judge that no harassment has occurred. In order to prove harassment the petitioner needed to establish several facts including a reasonable request to stop the texts and/or e-mails. The record was completely silent on that matter. Further, the petitioners could not prove that this behavior was going to likely occur in the future.

The judge denied the request for the peace order which was the proper result.

I did not ask a single question and I did not put on any evidence. That is somewhat unusual because we lawyers like to talk. But in this case it was the right call.

Because the peace order petition was denied my client has a right to request that the matter be sealed or shielded. The court does not charge for this request and the court has a form which needs to be filled out. After the form is filled out and assuming that the respondent qualifies under the requirements of law, the court will have a hearing down the road to consider whether to shield the public record.

If you need help with a peace order case I would be happy to help you.

Persistence Pays off

I have a client charged with assault among other things in the District Court.  On the trial date he was locked up and I had received the case one day earlier.  I did not want to postpone the case because he was locked up on this case.  I had as much information as I needed for the trial.  The odds weren't good but he was on probation in another matter so the guilty plea was out of the question.  At the trial the victim testified that my client had assaulted her.  An independent witness was extremely unhelpful to my client.  She was close enough to see what was going on, have good vision, had no interest in the outcome of the case.  At the end of the case my client was convicted.  The judge gave a surprisingly high sentence for the activity involved.  There were no weapons.  Nobody needed medical attention.  It was more of a fracas.  Despite the fairly small nature of the assault the judge sentenced by clients to 10 years in prison with all but two years suspended.

We appealed the case requesting a jury trial.  Between the time of the conviction in District Court and the time that the case came to trial in the Circuit Court the victim apparently became homeless and lost interest in pursuing the case.  All charges were dropped.  Instead of a 10 year sentence was all but two years suspended, my client had the charges dropped against him.

If you need a lawyer who is persistent and always tries to get the best result for you, please call me.

Bicycle equipment failure leads to significant settlement

My client was riding his bicycle in the countryside when his seatpost bolt snapped, the saddle fell off and he fell off his bicycle badly breaking his leg.

He had purchased his bicycle new several years earlier. He had taken good care of his bicycle. He had not abused his bicycle. His bicycle was properly maintained.

As an avid bicyclist and former mechanic I do not like making product liability claims without good reason. In this case there was a good reason. A part as important as a bolt holding on the seat should not fail. It is such a critical part. If it fails, the seat must fall off. If the seat must fall off there is a reasonable likelihood that the cyclist will follow. In this case, the cyclist did follow and broke his leg.

Years ago I worked in a law firm that defended automobile manufacturers such as BMW from product liability suits. I had the bicycle mechanical background to analyze the situation. I had the legal background to prosecute the situation. I had an expert metallurgist available to examine the bolt. My client was very sympathetic and credible. His injuries were very real. Combining all of these factors led to a favorable settlement for my client.

Shielding a Protective Order

The state of Maryland has a powerful, far-reaching and very public website.  It basically includes a great majority of the court cases filed in Maryland.  It includes civil, criminal, traffic, special proceedings and many other forms of cases.  It is a well-known and widely used website.  Employers use it for background checks, I use it to look for people or check on witnesses.  Some of those records stay on for years.  If you Google "Maryland Judiciary case search" it will get you write to that website.

Recently I had a high-profile client who some years ago had a protective order issued against him.  That protective order was dismissed but when I was doing some research for my client I found that he was still listed on the Maryland website.  There was his name and his address and a spurious claim that was dismissed by agreement.  I told my high-profile client about this rather public aspect of a long past incident.  He was justifiably upset.  I told him that there is a mechanism in Maryland whereby a protective order that is dismissed or where the petitioner loses at trial and their claim is denied can be shielded or sealed from public scrutiny.

It is not particularly difficult.  We petitioned the court for relief.  The court granted a hearing.  The "victim" would be notified of the hearing and could present their own evidence as to why the matter should not be shielded.  Assuming the victim did not meet that burden of proof the court would shield the record.  That is exactly what happened in this case and my high-profile client can enjoy his anonymity on this website.  In other words, if you go looking for him on this website you will not find him.

If you need help shielding or sealing your record please contact me.

When Is a Theft Not a Theft

Recently a client came to me accused of theft.  It seems that he and his longtime "friend" had come to an agreement regarding borrowing a truck.  The longtime "friend" agreed to rent the client the truck for one month for $500.  Money exchanged hands and my client put his tools into it and all was good.  At the end of the month my client advises that he agreed to purchase the truck for an additional $1000 (the truck was rather old and used).

The "friend" claims no such agreement took place and preferred theft charges against my client.  My client did not know this until he was stopped by the police during a felony stop.  If you don't know it, a felony stop in Maryland involves police with their guns out ordering you around.  My client was quite surprised and extremely compliant.  During the course of the investigation my client produced the written lease agreement.

The police called the "friend" who did not tell them anything about the lease and claimed that my client was a stranger.

Prior to trial I presented the lease evidence to the prosecutor.  Despite this evidence of a lease, even though the lease was expired by one week when my client was pulled over and arrested for theft, it did not persuade the prosecutor to drop the charges.

My client was charged with theft in violation of criminal law 7-104, theft of a motor vehicle in violation of Maryland criminal law 7-105, and unauthorized use of property.  At trial during cross examination the "friend" testified that he only knew my client through a third person and that my client was somewhat of a stranger.  The officer testified that the "friend" never mentioned anything about a lease or about knowing the client.

When the state rested their case I asked the judge to acquit my client of all of the criminal charges.  I argued that under Maryland law the commission of the theft (the actual taking of the item) must coincide with the criminal intent to take the item.  In other words, when you are stealing something you need to know at that time that you are stealing something.  Clearly, in this case that was not the situation.  My client received the truck with the permission of the "friend".  I had case law to back up my argument.  Despite this argument the judge at that point acquitted my client on only one of the charges.

We needed to put on a defense.  My client took the stand.  My client testified that he knew the "friend" for 17 years and the "friend" had been at the client's home on many occasions.  My client also testified that he had made an agreement to purchase the truck and paid an additional $500 after the lease expired.

At the conclusion of the case the judge acquitted my client of all of the criminal charges.

I told my client that in the future he should get receipts for his cash payments.  A receipt for that purchase payment may have avoided the charges altogether.