Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219

Category: Criminal Defense

Upcoming Violation of Probation for a New Client Another Lawyer Plead Guilty And Who was Innocent

Sometimes the deal is SOOO good that a defendant who is innocent accepts it, but the deal has to good if the downside of being convicted at a trial is much worse.  It is called an Alford plea and is based on a Supreme Court decision in Alford v. North Carolina. The Supreme Court held that an innocent person can plead guilty in order to accept a favorable plea bargain.  But what if it makes NO SENSE.

I just came from the jail where I interviewed a prospective client who has two Violations of Probation pending.  The first VOP is for an Assault where he can receive up to 18 months, and that VOP is based upon a new conviction for Auto Theft and a DUI arising out of the same incident. The facts of the Assault case were not in dispute.  The problem is the second case.  He was guilty of a DUI and Leaving the Scene where he hit a number of parked cars, but what about the Auto Theft?  He got a year for the DUI and did not turn himself in on a delayed report date so he violated probation.  When he plead guilty to Auto Theft and the DUI he received a 5 year suspended sentence for the Auto Theft- the maximum, and 5 years probation- also the maximum.  If he had gone to trial and lost on all counts he could have received 6 years.  Now he is facing the 5 years for the Auto Theft for violating probation by not turning himself in on the DUI portion of the sentence, and obviously never reporting to probation.

Whose car did he steal?  No ones!!!  He was driving his friend's car when he created all the carnage.  His friend did not want his insurance canceled so they decided to say the car was taken without permission.  Everyone who knows the defendant and his friend knew the story.  The defendant tells his lawyer this when he hires him a week before trial.  Without discussing the absolute defense to the Auto Theft charge, on the day of trial the lawyer tells him to wait in the hallway.  The lawyer returns and tells him he has worked out a probation and to plead guilty to Auto Theft and DUI.  If he goes to trial and wins the Auto Theft he is facing the year for the DUI.  The prospective client tells me he just did what the lawyer told him to do and never thought about the future consequences or discussed the downside of just losing the DUI and the Leaving the Scenes.

He tells me maybe he should hire the original lawyer for the Auto Theft/DUI VOP so the lawyer can tell the judge he was really innocent and took the plea because he did not know any better.  I asked if he thought the lawyer would "confess."  The prospective client's family wants him sentenced to in-patient treatment for drug addiction and the court knew of his addiction.  It is unlikely his story is going to be believed and that the Court is going to say "never mind" when it comes to the 5 years for Auto Theft.

I also ask him why he thinks the original lawyer, who he says screwed him, would suddenly throw himself under the bus?  He gives me a blank stare.  I ask him if he went to a restaurant and got food poisoning, would he go back and eat there again? He say "No" to that.  That example got through to him.  There is the possibility of a Post Conviction but it sadly becomes a credibility battle between the lawyer and the defendant.  The owner of the crime is not coming forward to admit insurance fraud, although at the time of the trial it would have been easy for him and others who knew the truth to be summonsed for trial.  Now it just sounds like sour grapes from a defendant who does not want a 5 year sentence.

If the family can retain me, I need to get the 2 VOP judges to agree to an evaluation for substance abuse and being bi-polar, so that he can serve his time in in-patient treatment.  If he does not go to residential treatment, he will be no better the day he is released from serving these sentences.  He understands that and wants the help, but he should not be facing all the time he may get.  Obviously the deal was NOT SOOO good.  

Harford County DUI Dismissal

Friday afternoon I finally said to the prosecutor, as we discussed for the second straight day the DUI case against my client, that we had talked about this case longer than the jury will be out before finding my client not guilty.  He laughed and agreed so this morning the DUI was dismissed.  Why did a case that originated in August take until April to get resolved with a dismissal?  It is because of the process and policy.  My client was asleep on a parking lot when the police woke him up.  There was a six pack of beer in the vehicle.  There was an empty bottle outside the driver's door and an empty in the six pack.  There were 4 unopened beers.  My client refused the breath test because his union newspaper (which I had) advised against taking a test.  I had evidence that I shared with the State to show that he drank at the parking lot ONLY, and was not drinking before he got there.

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Justice Gorsuch and the Fourth Amendment

I have copied and pasted an Article for the ScotusBlog about our newest Supreme Court Associate Justice and his Search and Seizure rulings.  Most people who are not familiar with the judicial philosophy of "originalists" think that rule against criminal defendants all the time.  Nothing could be further from the truth.  The late Justice Scalia resurrected the Confrontation Clause which now results in previously admissible hearsay being ruled inadmissible in court.  Domestic Violence prosecutions rely upon 911 tapes that were always admissible and now are not automaticaly so. The same applies to sentencing enhancements whose applications  may now require a jury to determine instead of the judge at sentencing.  The conservatism that liberals fear on social issues does not apply to protections contained in the Bill of Rights for those accused of crime.  The article below is technical in some respects but interesting.  For the people charged with an offense who are reading this Blog, Justice Gorsuch insists that your rights as a citizen not be violated no matter what the offense.  His appointment to the Supreme Court insures that there are not two standards for the Bill of Rights that would depend upon whether or not you are charged with a crime.

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Justice Department to Aggressively Pursue Marihuana and Mandatory Penalties

It is no secret that Attorney General Sessions is opposed to the use of marijuana for any purpose, including medicinally. He has appointed a former United State's Attorney from Tennessee to help implement the change.  There has been a growing movement by CONSERVATIVES in this country to reduce federal mandatory penalties. Senator Mitch McConnell and Speaker of the House Paul Ryan supported such legislation.  As a Senator, Sessions prevented the bill from being voted on even when there were over 70 Senators in favor because he politicized it as a vote to go soft on crime.  

Now as Attorney General, Mr. Sessions has ordered that every tool be used in the prosecution of any drug offense.  Discretion regarding pleas to lesser quantities in order to insure fairness may be limited.  Quantity alone should not determine the sentence.  Prosecutors and judges in State court where mandatory sentences are not required understand this and view the defendant as a whole. Federal prosecutors and federal judges have been doing this since the Sentencing Guidelines were ruled no longer mandatory.  However if the only charges pursued are the ones carrying mandatory penalties then discretion will be lost.  The next 4 years will see a change in federal prosecution tactics.  Those states that have liberalized marijuana use may find some of their participants charged under federal law with manufacturing marihuana. The federal prison beds of the drug offenders pardoned by President Obama are going to be filled.  

My Criminal Defense Practice

Most of my website focuses on my DUI practice.  If you are contacting me for a DUI through the website you have probably just returned home from the police station and are looking for a lawyer.  I have decided to add some information on the Home Page about my non DUI cases. My criminal practice includes the defense of all drug cases in State and Federal Court.  These cases have a terrible impact on your future, and you have to fight to keep this type of charge from destroying your future.  If you have a substance abuse problem, I deal with it immediately.   I handle all felony and misdemeanor cases from petty theft to murder.  Everyone is entitled to aggressive representation no matter how heinous the offense is viewed.  

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Contact Information

  • 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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