Gary S. Bernstein, P.A.

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Locally at: 410-415-9219

Posts Tagged ‘Bel Air Criminal Defense’

Body Cam Reveals Drugs Not In Plain View

A drug charge was dismissed today because the search of the car that found the drugs was not conducted properly.  There was one Body Cams.  The first officer picked up the box with the drugs and placed it back in the car.  The second officer did not have a Body Cam and claimed he found the drugs in "plain view."  He was unaware of the Body Cam.

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Bail in 2017

The criteria for bail has been changed because Attorney General Frosh found that the system of cash bail is unfair to minorities and the poor.  Our Attorney General has been a champion for those in the State who are without power and who areb unfairly targeted, wither by the courts or big pharma, or big business.  His work to revise this system is to be commended, and as a result the Chief Judge of the District Court set forth a set of rules to be used to set bail.  The Court of Appeals followed that up with a Rule where cash is no longer king, and is a last resort.  By cash I mean having to pay a bondsman up to 10% of the bail amount.

Interestingly, there was a comfort for judges to set a high bail for serious crimes.  Telephone number size bails seemed to assuage the bench and the public.  Unless you were charged with murder or rape, you were likely to have a bail set.  If your family was fortunate to own real estate in Maryland, part or all of the bail could be posted by pledging the property.

Now that is not the case.  The way the new Rule is practiced by the bench, it is an all or nothing proposition for release.  Since if you are "entitled" to bail the least onerous conditions are to be set, Pre-Trial Release is the preferred method.  It requires monitoring by the Pre-Trial Release Division and they or the prosecutor can apply to have the release revoked for good cause.  However, if you are deemed a danger to public safety you are denied bail.  No longer is a $250,000.00 or $500,000.00 bail set to try to keep you in jail while still honoring the 8th Amendment prohibition on excessive bail.  No bail is as excessive as you can get as you cannot get out of jail.

No bail is now the rule rather than the exception.  The other day at District Court Bail Review, if the accused's crime presented a "danger" the accused was denied bail.  No matter how intrinsically shallow the evidence was in the Statement of Probable Cause, if there was a "threat to Public safety", then there was no bail.  One judge has remarked to me that either you get released on your own recognizance or you are denied bail.  There does not seem to be a middle ground.  

The change that was first advocated by the Attorney General and adopted by the Court of Appeals was and is the right thing to do.  Unfortunately it has resulted in cases of injustice because it is easier to justify keeping someone in jail as opposed to setting terms of release.

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.  

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.  

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  • Gary S. Bernstein, P.A.
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  • Towson, Maryland 21204
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