Gary Bernstein

Inmate Running The Asylum

noplea — Mon, 08 Apr 2013 19:42:14 +0000

This is a an off-spring of the treatment nightmare post. I had a young client who is a junkie-plain and simple. Like all heroin addicts he wanted everything his way and he wanted it now. He decided he needed to be in a $40,000.00 28-day program because it will look good in court. Aftercare? An afterthought, actually no thought at all. However this $40,000.0 waste of money might look good and get his charges dropped, which he also demands. He is in a 7-day detox when he hatches this idea. He is out of detox and using the day he gets out of detox when he tells his adult parents this is what has to be done. They wanted to go along with this "plan." It is in a nicer neighborhood than the program that will require 6 months of treatment and still cost less, but the neighborhood is very very important. I had to argue against this nonsense and explain to everyone that he needed to get his addiciton and other issues treated. He is inside, not wandering around the neighborhood. They inspected the facilities and he and his parents agreed to admit him to treatment, and of course, another detox. I understand the parents were at their wits end, but that does not mean they turn the decision making over to a nitwit. They wanted a clean and healthy son, and by then they should have known that he is not the one to make the best decisions as to how that will happen.

Federal DUI- Not Guilty

noplea — Fri, 29 Mar 2013 19:39:47 +0000

Had a good time in Federal Magistrate’s Court. The new JAG Officer told me he wanted to learn from me so he wanted to try the case. Fine with me. He had his questions scripted as a new lawyer does, but that causes any lawyer a problem when the witness does not answer the question that was posed. The police officer in this case had his own script about how he wanted to present his testimony. The 2 scripts collided at some points and some of the scripted answers were inadmissible. The officer seemed aggravated at our having a trial and seemed like he did not know it was his lawyer who did not suggest discussing a plea. He was more aggravated when he could not say exactly what he wanted to say. When the officer finished testifying the prosecutor looked at me in anticipation of my cross and the learning experience. I had no questions. The breath test operator brought documents that were not authenticated and the test never came in. I introduced the SFST Manual and began to go through all the mistakes made by the officer. At one point the prosecutor conceded that the exercises were not done according to NHTSA, but that it did not matter. I interrupted and joked that he’d be sorry he said that and then read the portion of the manual that is in large bold print stating that if you do not administer them correctly they are worthless. The fact that my client did well under the circumstances was highlighted by the Magistrate Judge. The verdict was not guilty. Bottom line, my client had completed treatment and would have received an unsupervised probation, so there was no downside risk for either side in going to trial. A prosecutor cannot learn how to be a trial lawyer by just working out guilty pleas. When I started as a prosecutor in the District Court, I would try one case a day to hone my skills. It made 2 of my judges nuts that I messed with their lunch time. I told them both that when I got promoted to the Circuit Court and went to try a felony case it would be too late then to learn how to question a witness. The Jag Officer picked the right case. He learned the factual issues in administering SFSTs and will probably sit down and tutor the police officers at the base on how they are to be administered. If so, I bet he’ll want to try the next case as well to show me what he learned and what he taught. I look forward to it.

Treatment Nightmare

noplea — Mon, 18 Mar 2013 19:49:38 +0000

No sooner had I posted the previous post when I get a call from a 24 year old who was just charged with a 3rd DUI. The caller is on probation for the 2nd. I asked about the treatment for the second DUI and the caller did a weekend at a program. The caller then chose the 26 week Aftercare instead of the 48 week Aftercare. I had a problem with this same program allowing the clients to chose how little treatment they wanted to do, and it was understood that my clients did the 48 week Aftercare that judges expected. A patient with cancer does not dictate how many radiation treatments he or she takes. The doctor determines that based on his medical school training and protocol, but this treatment program abdicated its responsibility to the client. No wonder the caller just violated probation. It is also another reason I do not refer anyone to this program, but have to allow existing clients to finish. The caller was advised to speak to her family about attending a 28-day in-patient at Gaudenzia and living in the halfway house thereafter. The caller is just a kid and already has a 3rd DUI. She did not take her problem seriously and the treatment program did not either, nor did it care.

Treatment Programs

noplea — Mon, 18 Mar 2013 17:09:07 +0000

Maryland law requires that the client receive treatment in a “certified” program. Some programs offer more than what they are certified to do. Some do not have the proper counselors teaching the “certified” program so that the treatment does not meet the “certification” standard. The State Department of Health and Mental Hygiene is in the process of trying to educate the judiciary, so that the programs they or the defense lawyers refer clients to are appropriate.

A certified counselor has met the State’s educational requirements and licensing requirements . Just like a lawyer has to meet the requirements of the State before he or she can practice. An unlicensed counselor conducting a meeting is an AA meeting. The program can charge want they want, but it is just an AA meeting. A 28-day in-patient program in a “non-certified” facility is a Sober Living House. It is not certfiied although it may provide therapy. I have used that type of facility after a client has gone a certified program and the court uses the Sober Living facility as an alternative to jail.

I saw a District Court judge deny another lawyer’s client a PBJ on a first offense, no horrible facts DUI because the lawyer presented a letter from a “non-certified” program. Since the lawyer should be making the decision as to which program the client attends, the client needs to be aware that the use of a popular but “non-certified” program may result in a horrible disposition of the case.

The only three “certified” residential treatment programs in this area, are Gaudenzia in Owings Mills, Phoenix Recovery in Edgewood, MD, and Father Martin’s Ashley in Cecil County. They are taught by certified counsellors and have State approval. A criminal defense lawyer must always prepare for a disaster, and if the lawyer rols the dice on a treatment program, disaster is waiting and likely to happen.

Maryland Super Lawyers 2013 and Best Lawyers in America 2013

noplea — Wed, 14 Nov 2012 23:45:21 +0000

Listed again in both publications.

“You hired a really good lawyer”

noplea — Wed, 14 Nov 2012 23:39:26 +0000

I had a trooper today who now operates a non-video car. My last case was when he had a video and the charges were dismissed after reviewing the video. When the prosecutor told him I wanted a trial he was visibly displeased. Unlike his previous aggressive roadside behavior, he was quiet and calm on the witness stand. My client did very well on the SFSTs. The trooper gave the wrong instructions, meaning my client did even better than expected. Verdict was not guilty on all except speeding. While my client was in the hallway after the trial, the trooper came up to him and said “you hired a real good lawyer.” I appreciate the compliment, but my clients expect me to be a really good lawyer. In fact, one of the State Police breath technicians took my card a few weeks ago after a NG. Another nice compliment.

Super Lawyer 2013

admin — Fri, 09 Nov 2012 16:49:04 +0000

Update to What Did I Do With My Magic Wand?

noplea — Wed, 24 Oct 2012 20:05:48 +0000

The lawyer he hired lost his magic wand as well. Just checked and saw the guy got 30 days.

NG Driving Under The Influence of Drugs

noplea — Wed, 24 Oct 2012 19:54:50 +0000

One of the basic rules of prosecution is that you need some evidence in order to convict. Unfortunately there are times when because of the client’s record, the State decides to take a shot. It is arguable whether this is correct, but having been a young prosecutor once, I know the pressure you feel when it is a recidivist, and the reluctance to just let it go. So today we tried a case just about devoid of any inculpatory evidence. My client has an accident and his prescription bottle of pills is found. No evidence he took any. He was coming from a methadone clinic, but said he had not taken any methadone (as the judge pointed out he may have worked there). He broke the windshield with his head and the police officer and the EMS people forced him to go to the hospital. No SFSTSs because……. he was too injured to take them according to the trooper. Now the medical records from the hospital……no hospital records, not a page. What was he on (if anything) and was it enough to impair him? Who knows. The case against my client was tossed out a few moments after the 3rd State’s witness uttered his last breath on the witness stand and the State rested. I explained to my client why this prosecutor had to try the case and he understood. It was a waste of the court’s time and forced another trial into the afternoon, but sometimes even when you have a slam dunk, you don’t get a dismissal.

NG- Judge Never Heard of This Defense in His16 Years on the Bench

noplea — Mon, 20 Aug 2012 20:23:40 +0000

And he was not happy about it at all!!!!! He gave my client a thorough lecture on his conduct, told him he might have put him in jail, but instead had to send him on his way. Very simple case. Client strikes his neighbors fence. Neighbor in the house and hears it. Client drives away. The issues that justifiably angered the judge are not relevant to the guilt or innocence of the charges. The client was charged with leaving the scene of an “unattended” property damage accident. Was the fence unattended? The owner was right there inside her house and heard the crash. Unattended is not defined in the Code. The only reference in the Code to “unattended” is getting on a bus without a driver and failing to pay a fare or entering a bus facility where no one at the entrance. The State argued that section defined the term unattended, the judge disagreed, and I did not have to respond that the owner of the house was present at the entrance of the house, so that bus section actually supported my contention. I brought the dictionary definitions of “attended” and it includes being present and hearing the sound of in this case the crash.

The judge has his law clerk bring him some cases and do some research. I opined the State should have done this prior to trial. As the books stacked up on the Judge’s bench and his demeanor remained perturbed, I knew he was going to find him Not Guilty. After giving the State another chance to convince him, he rendered the Not Guilty verdict. He told my client he was fortunate to have me as his lawyer. We went upstairs and filed for the Expungement. The client had apologized to the neighbor and the damage to the fence was minimal and repaired. No harm in the long run.