Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219

Category: Criminal Defense

Baltimore City NG

Well I got out while the sun was still shining.  The Court was so accommodating.  All the cases in the morning and afternoon except trials were moved to other judges.  They do this elsewhere and I don't think I have ever seen it done in Baltimore City before. It allowed me to get started before lunch and finish in the afternoon, not the evening.  It also took the cooperation of the State's Attorney's Office to bring in help to handle the other courtrooms.  This has been a common practice FOREVER in every county.  I can remember judges in the City refusing to take cases from another courtroom because they were from another courtroom.  No more!  Having been a prosecutor in Baltimore City and practicing there for years, it was really nice to watch this happen.  It takes the pressure off the trial judge, who can now focus on the trial and not on the other 18 cases that were moved this morning and the other 15 moved this afternoon. 

This was the 5th trial date.  Although I know lawyers who add an "appearance" fee for each postponement, I won't do it.  It penalizes people who hire a "real" lawyer, and who expect a trial when there are legitimate issue.  I like trying cases so I just don't care if I have to come back.  I just reschedule my conflicts, and the courts never deny me a postponement because I ask for the postponement as soon as I get a trial notice that is a conflict.  They can move the case back a week or sometimes to the same week.  You want to screw around with the "system" and try to get postponements at the last minute,  the judges are going to make you be in 2 places at the same time; and then the client gets rolled over on a guilty plea because the lawyer has to be elsewhere, or they pray a jury trial when it is totally unnecessary (and I am sure they want to charge more money for that).  Judges know who these "scofflaws" are and they don't get any respect during a trial either.  Now to the case:

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Triple Teamed in Anne Arundel County and Still a NG

Well, I wound up with three prosecutors today.  The 2 new and the Division Chief.  It was fair because the new prosecutors were not familiar with all the legal issues that could be raised to support their side.  This was a non-video stop with a trooper who tried to volunteer every opinion he could muster.  I had a recently appointed judge who had been a prosecutor and criminal defense attorney and knew the law.  In fact, she left the bench after argument to read some cases.  As another attorney remarked to me, "she is a breath of fresh air," although this county's District Court judges are a great group to try cases with.  The Division Chief did not jump in until  the end of the probable cause testimony.

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Chico Marx: “Are You Going To Believe Me, Or Believe Your Own Eyes?”

It is not often you get to quote the Marx Brothers in a courtroom.  A few weeks ago, I had used Joe Pesci's "Grits" remarks from "My Cousin Vinnie" when comparing how long it took two breath technicians to perform the same actions.  It was pretty funny except for the second "grits" cook.  But back to the case at hand.  Another video that will show my client staggered to the rear of the car and swayed, etc…  Well not according to what I see on the video.  The explanation from the MDTA officer is you cannot see the slight body movement from the camera angle.  We watch it multiple times, but we just cannot see it!  He also fails to give the correct instructions on the walk and turn, which we can hear.

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The Trainer Was The Breath Tech

If you read my previous post about the lying rookie and his trainer, you understand what the title means.  The other day, I return to the same courtroom, but this time the MDTA officer was experienced and the trainer was the breath tech.  Another good video that did not jive with the written report.  My client looked great.  No SFSTs because of physical injuries.  No bad driving because he pulled over, as the law requires, and was on his cell phone.  

The prosecutor, who is very smart and very good, asked if I was going to school her in DUI as we talked about all the problems in her case.  When the MDTA duo arrived she told them she wanted to speak to them after checking everyone in.  Meanwhile, she had heard about the last case as had the supervisor who got involved in this case.  While they were waiting to speak to her, the arresting officer looked around the room, and asked if I was "Bernstein" or "Mr. Bernstein."  I stared at him and nodded yes.  He did not seem comfortable.  The ASA asks if there is a middle ground and I say Negligent Driving, even though he was stopped on the shoulder.  That does not fly and an hour later we discuss Reckless, which is 6 points here, and I am not sure of the points in the State my client is licensed in. He wants the DUI charges gone and expunged.  He takes public transportation to work and wants to be able to get into Canada with minimal problems.  We did a seminar on difficulties getting into Canada with a DUI, even a PBJ. Too ridiculously complicated to discuss here.  I tell him no, but he is the client and he says yes.  I tell the judge, the plea is over my vigorous objection, and he laughs and gives him a $100.00 fine.  Everyone is happy, except me, because I wanted to try the case.  I waited 2 days to see if my feelings changed before I wrote this, and they have not.  The officers got let off the hook.  The trainer's bad habits will never change, and I now have a breath test report to use when we get to try a case.  Pretty soon my truck will have 60 instead of 50 pounds of law, and the additional weight will be MDTA videos and reports.

MDTA Liar

There are really not that many police who you catch in a lie.  Most are honest and let the chips fall where they may.  The ones who do lie are cynics who have become disillusioned and just want everyone they suspect of a crime convicted.  When you are this way on what might be your FIRST case, there is a major problem.  When you are accompanied by a veteran officer who is training you, it is a bigger problem.  According to the police report, my 285 pound client is stopped for crossing the shoulder line 4 times.  When the rookie officer, hereinafter referred to as "rookie" comes to the car he smells a strong odor of an alcoholic beverage.  My client's speech is slurred and once out of the vehicle he is staggering and swaying.  All of it is bullshit!

On the first trial date the rookie brings a video that was not given to the State.  We postpone the case.  I get the video, and then the top of my head nearly explodes.  My guy is close to the line and maybe on it, so I attribute the crossing the line to semantics.  After the rookie returns to the police car with my client's license and registration, he is asked by the "trainer" what he detected at the car.  The response:  he told me he had 2 beers, " I DID NOT SMELL IT ON HIM."  Now I had a witness about the 2 beers being consumed around 4-6, and my client visiting with his parents from 6 to midnight (no beer there).  After he lumbers out of the car, he stands perfectly still during the HGN, no swaying nor staggering.  He is able to do the SFSTs but had to raise his arms because he is the size of an offensive lineman.  He even spoke to the officer about his size and trying to do these.  NO SLURRED SPEECH.  Total under penalty of perjury lies.

I debate calling and finding out who the new trial ASA is going to be and telling him about this, or just trying the case and blowing this asshole up.  No surprise I opt for the latter.  I get to Court and I am the only one there when the ASA shows up.  He is a really good and fair guy.  I have a retired Judge who was a former ASA to hear the case and know he is going to be pissed.  I walk up and tell the ASA it is a trial.  He looks at me with a "Huh" look and asks why.  I ask him if he saw the video.  He says he did not watch it and sees the look on my face and says maybe I should have.  He asks if I will play it for him and show him what is wrong.  I tell him the cop is a liar and he and his trainer should be off the force. I have him look at the police report and compare it to the video.  He looks at me like he is sickened by it and tells me to wait.  Meanwhile the line is now out the door and the liar is about 5 people back.  When he comes up, he is so young that you think you can smell Desitin as he passes by.  The prosecutor talks to him for a minute and he walks back with the look of a moron on his face.  Just before the docket starts the "trainer" rolls in.  He gets to sit next to the ASA while he "splains" it to him (i.e. Rcky Ricardo splaining to Lucy).  The "trainer" claims that at some time after the arrest they went over things with the rookie.  I didn't see anything in writing from the rookie or the "trainer" that a perjured Statement of Probable cause was filed.  There was no correction by either of them.   Perhaps the trainer thought the defense lawyer was going to be one of the advertising letter writing pall bearers who would not ask for nor look at the video, and just roll in and plead the client guilty and beg for a PBJ.  Are you f…..g kidding me, that he was that arrogant to think he and his trainee could get away with it.  

The client got a nol pros and I should have held out for the two "fine" MDTA officers paying the $30.00 expungement cost.  I told the ASA the video was staying on my IPAD and the perjured police report in the 50 pounds of law in my trunk, for the next time this rookie locks up somebody I represent.  I do not know if he intends to report it, or prosecute it.  If these guys want to be old-time "toll police" put them in a booth.  However, you better have exact change when they stick their hands out.  Meanwhile they better be carrying a Depends and a tube of Desitin the next time they have a case with me, because it is going to be a bit uncomfortable.

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  • Gary S. Bernstein, P.A.
  • 29 W. Susquehanna Avenue, Suite 700
  • Towson, Maryland 21204
  • Toll Free: 866-435-2795
  • Locally: 410-415-9219
  • Fax: 410-823-0610

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