Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219


That is a phrase my former partner used years ago when he set a fee and the potential client said he or she knew a cheaper lawyer.  I started writing this a couple months ago but thought I would finish it today.  The particular case that generates this was an Ex Parte involving an allegation of Child Abuse.  The mother filed it in Somerset County as that is where it allegedly occurred.  The mother lives in Howard County.  The judge found no abuse and dismissed the Petition.  The statute allows ONLY for an appeal to be filed in the County where the original Petition was heard.  You cannot  file a valid new Petition elsewhere, only Somerset County has jurisdiction- it is in black and white in the statute.  The mother files a NEW Petition in the Circuit Court for Somerset County and it is heard and Dismissed by the trail judge as only an Appeal is allowed.  The mother then files an Appeal.  The Appeal will the be heard in Circuit Court, unless you have paid peanuts.

The mother now files a new Petition in Howard County. The mother also hires a lawyer in Howard County.   Instead of dismissing the improperly filed Howard County Petition (that is virtually verbatim of the Somerset County Petition) and taking his lazy ass to Somerset County to try the Appeal which is de novo ( meaning a new trial), he dismisses the Somerset County Appeal.   I emailed the lawyer the night before and explained the law to him and he emails back stating he did not need me to educate him.  Apparently he did.  I wanted to save my people from driving all the way from Somerset to Ellicott City. We show up and the judge dismisses the Howard County petition because she has no jurisdiction to hear it- jurisdiction is in Somerset County for the Appeal only that he dismissed! 

It gets worse, we walk out of courtroom and try to make arrangements for the return of the child, and the lawyer says he is filing a NEW PETITION based on newly discovered evidence.  Well we come back a week later and not only is there no newly discovered evidence, the evidence he claims he had was bizarre and unbelievable.  Before I could move for dismissal, he does.  All he had to do was go to Somerset County and he could have retried the Appeal with the original evidence and anything else he thought he might have.  My guess is he did not want to drive there.  He is one of the low fee advertising lawyers.  I took him to task years ago for not doing his own work and relying on the list serve to save his clients.  He even called me at home incredulous that I had given him a public spanking.  He deserved it then and deserves it now, but I will not use his name.  Just remember my former partner's admonition.   


You may be surprised to learn that when you are drinking you don't remember much of what went on in your interaction with the police. You knew it at the time, but recollecting it in my office is a different story.  That is why the Body Cam is invaluable.  Now if you pay peanuts, you get a monkey, meaning you get a lawyer who is going to do the least amount of work possible- sometimes none except to show up and plead you guilty to whatever the State wants.  The Body Cam is not being sent automatically and you have to follow up and ask.  Sometimes you win the case because of it, or sometimes you suppress the breath test.  Suppression was what happened last week.

My client could not believe what I told the client I was watching.  The client reacted to the police behavior at the time, but did not remember it later.  First of all NO ONE watched the client for the full 20 minutes preceding the test. The client was left on her own part of the time.  Worse, while the officer was doing his paperwork with his back to her, a second officer walked over to her and told her the judge would go easier if she took the test!!!  Absolutely results in suppression.  I gave the judge an opening statement, and after rolling her eyes she said she thought she should view the video now to see if we could deal with the breath test suppression up front.  I also gave her the email I sent to the prosecutor two nights before after I finished watching it.  The email outlined the exact times on the video that the police did something wrong. I did not go home until I watched it and sent the email, criminal defense is not a 9 to 5 profession.  The judge watch where I told her and returned and threw the breath test out.  The case was resolved for the lesser offense of DWI.  That was a win.

I have once again been fortunate to make the lists.  As I wrote in the past, it does not mean anything unless you do the work for each client.

I just returned from court after a Not Guilty verdict in a DUI.  There were 14 Body Cams but only one that was diapositive.  That Body Cam showed my client at his car and the subsequent field sobriety testing.  The officer's report was 100% accurate, but there is a difference in how you visualize the written word as compared to what you actually see.  Small "failures" are not really failures.  

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In the past few months I have had 3 DUI cases dropped by the State.  All were flawed as a result of the poor policing in the cases.  The most recent had a video showing the officer did not do what was in the police report.  Prior to his having a video camera, I had used his KGA Broadcast to get another of his DUI arrests dismissed.  The one two weeks ago had no basis for the stop, and but for my client's notoriety, he would not have been arrested, must less charged with resisting arrest.

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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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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.

I watched a disaster today in Carroll County District Court.  A Pennsylvania resident with a PA driver's license got a DUI and blew a .10.  Instead of requesting a Hearing and getting a 6 month restricted license that would allow her to drive to her Maryland job, her lawyer told her to get the Interlock installed.  NO!  Under our regulations, that I believe are unconstitutional, YOU MUST HAVE A MARYLAND DRIVER'S LICENSE TO BE ON THE INTERLOCK PROGRAM.  The woman in this case put it on her car and is driving in MD.  The judge announced to her and her lawyer that she has been suspended by the MVA for 6 months according to her driving record  The glazed look in their eyes was sickening to see.  I told the lawyer to wait for me in the hallway so I could try to help.

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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.  

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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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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