Criminal Defense Lawyer Blog

Published on: April 8, 2020

Citizens Arrested For Executive Order Violations

It has been a little over one month since the governor declared a state of emergency in Maryland due to the outbreak of COVID-19, and multiple executive orders have followed. The most recent order reaffirmed the governor’s decision to close non-essential businesses such as fitness centers, bars, theaters, malls, tanning and hair salons, and recreational establishments such as campgrounds and golf courses. The order also prohibits large gatherings of more than 10 people and essentially requires citizens to stay at home unless they are performing an essential task such as working, shopping for essentials items or taking care of people or pets. This executive order is not a suggestion, and provides criminal sanctions for non-compliance. Police have the authority to arrest and charge anyone who they witness to be in direct violation of the executive order, and it didn’t take long for the first arrests to be reported.

As of yesterday, 14 people had been arrested for violating the executive order, which is a first-degree misdemeanor that carries up to one year in jail and a $5,000 fine. The actual criminal offense is listed in the section 14-3A-08 of the Maryland Public Safety Code. The public safety code is best known for its laws prohibiting firearm possession by certain individuals, but it also deals with the rarely used Governor’s Health Emergency Powers. A violation of this statue must be knowing and willful, and it cannot be assumed a person was aware of the executive order. While must people have been glued to the news for the past few weeks, the current situation is still being underestimated by some. This probably means that most or all of the individuals who were arrested were warned by police before they were taken into custody.

Based on what we have seen in various news outlets, it seems like most of the arrests stemmed from parties where individuals were violating the provision of the order banning gatherings of more than 10 people. Two Salisbury men were recently arrested under this circumstance, and one was found to have a weapon after being searched incident to arrest. Both were also charged with failure to obey a law enforcement officer, which is a 60-day misdemeanor similar to disorderly conduct. These two individuals are scheduled to appear in Wicomico County District Court on June 5, though it is still up in the air whether court will be in session at that time. As of now, courts are closed to the public until May 4, and all trials scheduled for April will be postponed.

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Published on: March 30, 2020

Maryland Court Closure Extended

By Benjamin Herbst

Last week the Chief Judge of the Court of Appeals issued an order extending the closure of all state courts to the public through May 1, 2020. Anyone who had a criminal trial set in the Month of April will have their case automatically reset to a later date, likely in June or beyond. This applies to circuit and district court trials, and any motions that require witness testimony. Judges and court staff will still be working at courthouses around the state, and will be ruling on motions that do not require witness testimony or the introduction of evidence. This includes motions to recall bench warrants and arrest warrants. Anyone who has a warrant for a failure to appear or for a violation of probation should write to the judge or contact a lawyer to file a motion to recall that warrant. This is not the time to be picked up on an outstanding warrant and taken to jail.

If a person happens arrested on a district court bench warrant, he or she will be taken before a court commissioner, who hopefully will order release on recognizance. Defendants that are not released by the commissioner will be taken before a district court judge the next business day. The defense lawyer and a prosecutor will be the only non-staff members to be permitted into the building for the bail review hearing. Family members and witnesses will not be permitted to enter and attend the hearing. Anyone arrested on a circuit court bench warrant will not see the commissioner, and be taken directly before a circuit court judge on the next business day. The same rules apply in the circuit court regarding who may attend the hearing. Maryland circuit courts will also conduct habeas corpus bail review hearings as normal, and in many cases the hearings will be set sooner than normal due to the circumstances.

In addition to bail reviews, the district court judges will also continue to handle body attachments and emergency evaluation petitions. District court judges will also preside over new quarantine and isolation violations that the governor put in place. District court commissioners will hear protective order petitions, and if granted they will remain in place as temporary protective orders until court is back in session. District court commissioners will also hear bench warrant satisfactions, which means that if a motion to recall bench warrant is denied the defendant may report to a commissioner to take care of the warrant. Any defendant who turns him or herself in with the commissioner may have an attorney present at the hearing.

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Published on: March 22, 2020

Baltimore Dismissing Certain New Criminal Cases

By Benjamin Herbst

Last week the Baltimore City State’s Attorney made headlines for publicly directing her prosecutors to dismiss numerous non-violent cases. The cases that will be dismissed involve defendants who are arrested on new charges in Baltimore City during these extremely unique times. The charges specifically mentioned by the State’s Attorney include CDS drug possession, prostitution, trespassing, attempted distribution of CDS, open container, traffic citations, rogue and vagabond and urinating in public. It is important to understand that anyone who has already been charged with these offenses will not simply get a pass when their case eventually is scheduled for trial. The directive only applies to the prosecutors that are working in the Central Booking jail facility, which means only defendants taken to jail will have their cases dropped.

At first glance the press release makes it seem like the Baltimore City prosecutor is softening up on non-violent crime in these trying times, but in reality the purpose of the directive seems to be aimed at reducing the population at central booking. Police officers are now on notice that if they arrest a defendant for certain non-violent offenses, their work will be in vain. But arresting a suspect for a non-violent crime is hardly the norm these days, nor should it be. Police in Baltimore City can still detain individuals for drug possession, trespassing, prostitution and for breaking into cars (rogue and vagabond), but they will have to charge those suspects by issuing a citation or a summons to appear in court. For the time being in Baltimore City, it will be catch and release for most non-violent offenders.

This press release came a few months after the State’s Attorney had already directed her prosecutors to dismiss all marijuana possession cases. She has received pushback for ignoring the legislative process by choosing not to prosecute certain laws, so it’s easy to see why the critics might be jumping up and down about this news. A Baltimore mayoral candidate called the directive a PR stunt and insinuated that the prosecutor is abusing her power. In a less direct criticism, the Carroll County State’s Attorney publicly stated that his office would continue to enforce all Maryland laws, and that no suspect would be given a free pass. He also went on to state that his office will continue to prosecute any violations of the governor’s temporary executive orders, which among other things closed down gyms, restaurants for dining in, bars and prohibits gatherings of more than 10 people. Any violation of these and potential future executive orders could result in a jail sentence of up to 1 year and a $5,000 fine.

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Published on: March 14, 2020

Bail Reviews Heard During Maryland Court Closure

By Benjamin Herbst

On Friday the Chief Judge of Maryland’s highest court signed an administrative order closing all state courthouses to the public for at least the next three weeks. The announcement may have initially been a surprise, but as the impact of the coronavirus continued to unfold it was clear the judiciary had no other option. It is important to know that the closure only applies to the public and not judiciary employees. The district and circuit courthouses will continue to operate, and judges will continue to issue rulings on motions. All criminal trials and most other hearings will be postponed. One of the main exceptions is that bail reviews will still proceed as normal. Defendants arrested during the next three weeks will still see the district court commissioner within 24 hours to determine whether bail, pre-trial supervision or recognizance is appropriate. If release is denied by the commissioner, defendants will then see a district court judge at a video bail review the next business day. In Baltimore City it could take two business days to see the judge, and as many as 3 or 4 total days if the arrest occurred on a Friday. Defendants arrested on circuit court arrest warrants will be taken before a circuit court judge the next business day, and those with preset bails will be permitted have bail bondsmen post. It is unclear at this point whether family members will be permitted to attend bail review hearings. The most likely scenario is that attendance will be limited to the defendant’s lawyer.

In addition to bail reviews proceeding as normal, habeas corpus motions will also be heard in the circuit courts. Habeas corpus motions are filed when a district court judge denies bail, and are typically the fastest and sometimes only way to have a defendant released prior to trial. Habeas motions are popular in larger jurisdictions such as Baltimore County, where the turnaround time of 10 days to 2 weeks will likely speed up due to the postponement of most other hearings. Habeas motions are often successful due to the circuit court judges having the experience and knowledge required to make the unpopular decision to release a defendant who is facing serious charges. It is safe to say at least some district court judges are known for not abiding by the principal of using the least restrictive means to assure the public’s safety and the defendant’s return to court.

Other district and circuit court hearings that will proceed normally include peace order and protective order petitions, arraignments, initial appearances, extradition hearings, and various juvenile hearings such as shelter hearings and juvenile detention hearings. Contempt hearings and appeals from district court peace orders will also be held in the circuit court. The judge also included text in the order to allow the courts to conduct quarantine and isolation hearings should they be placed into effect during this extraordinary time. We obviously hope these lines prove to be merely a precautionary measure.

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Published on: March 9, 2020

Lawmakers Propose Automatic Expungements

By Benjamin Herbst

As the Maryland criminal code continues to evolve with the times there is an increasing need to address the issue of expungement. Maryland has a fair and user-friendly expungement process, and in most cases, there is no fee to apply. Lawmakers already did away with the $30 application fee for all criminal cases where there was a dismissal, nolle prosequi, STET or PBJ. The one problem with the expungement process though is that most lay people do not realize they are eligible to apply. This is especially true for defendants who were found guilty of offenses that are no longer crimes (such as possession of less than 10 grams of marijuana), defendants with older cases and those who live in other states. This year the legislature is taking steps to assure uninformed defendants can still reap the benefits of the Maryland expungement process. Or better stated, to assure uniformed defendants do not continue to suffer collateral consequences such as difficulty finding employment due to prior criminal charges.

There are two bills in Annapolis that are currently up for debate that would establish procedure for the courts to automatically seal or expunge cases without requiring the defendant to apply. The bill that is currently in the Senate calls for the courts to automatically expunge all older cases involving only the possession of marijuana by October of 2022. The bill would also require expungement of all new marijuana cases to commence 4 years of the disposition date. In cases where there are other criminal counts, expungement of the marijuana counts must be completed by October of 2028. This particular bill has received push back from the Chief Judge of the District Court as well as the Baltimore County State’s Attorney, who have argued that automatic expungement would be too large a burden for the courts and prosecutors to handle. The expungement process requires an answer from the state and multiple orders to be signed and sent to the various organizations that keep records of criminal cases. This includes police departments and the district court clerk’s office, who must then file certificates of compliance after the files are destroyed. Automatic expungement would certainly cause an immense amount of work at one time should this bill become law.

The House of Delegates bill proposes a solution that would require exponentially less paperwork for government offices. This proposal would require the courts to automatically seal prior marijuana cases from public view after an enumerated time frame. The process of sealing would be a matter of simply blocking the case from appearing on the popular Maryland Judiciary Case Search web site. This process is similar to what occurs with older payable traffic citations and civil marijuana citations. The supporters of the bill argue that the main purpose of preventing prejudice against defendants with marijuana cases would be addressed through the sealing process.

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Published on: March 2, 2020

Former Mayor Sentenced to Prison

By Benjamin Herbst

The notorious former mayor of Baltimore City learned her fate last week in federal court, and will now have to serve three years in prison followed by three years of supervised release. The 69-year old must also pay over $400,000 in restitution to victims of her crimes, and forfeit almost $670,000 in assets including property that was purchased with illegally gained funds. The sentence was announced by the United States Attorney’s Office for the District of Maryland, the FBI and the IRS. The former mayor will likely surrender to the Federal Bureau of Prisons within the next couple of months, and be assigned to a minimum-security facility or prison camp. Since there is no parole under federal law, the former mayor could serve a little more than 30 months in prison, with the potential for an earlier release to a halfway house.

The former mayor was sentenced on four separate criminal counts including conspiracy to commit wire fraud, conspiracy to defraud the United States and two counts of tax evasion. All four offenses are classified as felonies under federal law, and the mayor will now live the rest of her life as a convicted felon. According to the facts stipulated in the guilty plea that took place a few months ago, the former mayor conspired with her 38-year old legislative aide to carry out a complex web of frauds over the course a nearly decade long business relationship. The major fraud scheme was related to the mayor’s three-part children’s book series, which was created in 2011. The defendant and her aide contracted with the University of Maryland Medical System to deliver 20,000 books in each series for $5 per copy. This $300,000 contract stipulated in part that the books would be delivered to Baltimore City schools, but the former mayor instead resold the books to other charities to generate more profits.

Defrauding the University of Maryland and other non-profits was only half of the scheme, as the former mayor did not report any of these illegal profits to the IRS. Rather, the two co-conspirators funneled the money to straw donors, fictitious citizens who donated money to the mayor’s reelection campaigns. The mayor also issued checks to her former legislative aide for services that were never rendered. The money was either turned into untraceable cash or money orders, or used to pay credit card bills and legal fees. The legislative aide faced charges for violating Maryland election laws in 2017, and it was likely that UM and other non-profits paid for his legal fees. The aide was ultimately convicted for violating election laws and had his nomination to serve as a state delegate taken away by the governor.

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Published on: February 26, 2020

Governor and Lawmakers Spar Over Crime Bills

By Benjamin Herbst

The Maryland governor has not been shy about his strong desire to do whatever is necessary to curb gun violence in Baltimore City, and he recently called out state lawmakers for dragging their feet on enacting stricter gun legislation. Since the 2020 legislative session began in January there have been over 100 shootings in Baltimore City, and each incident is a constant reminder that efforts to reverse the alarming crime rate have been largely ineffective. In response to the violence, three new criminal justice bills were introduced with the unwavering support from the governor himself. The first bill, entitled The Violent Firearms Offenders Act, was designed to increase punishments for certain firearms offenses, and includes brand new mandatory prison sentences for certain crimes. The next bill, The Judicial Transparency Act, was introduced as a measure to hold Circuit Court judges accountable for their sentences in certain violent offenses such as robbery, carjacking, sexual assault, kidnapping, arson and first-degree assault by establishing a database for all sentences handed down in theses cases. The third bill, The Witness Intimidation Prevention Act, was introduced to increase penalties for witness tampering and witness intimidation. All three of these bills allegedly have received overwhelming support from the Baltimore City residents and Maryland residents alike, but all three appear to be going nowhere in Annapolis.

The governor recently expressed his displeasure with the legislature for not jumping at the opportunity to push these bills toward his desk for a signature, but he should understand that not all bills designed to punish criminals are beneficial. It is easy for the public to stand behind a bill that increases punishment for gun offenders, but when minimum mandatory sentences are involved the cost can outweigh the benefit. The Violent Firearms Offenders Act increases the penalty for using a firearm in a crime of violence and adds possession of a firearm as a non-technical probation violation. Both of these provisions seem reasonable, and are not likely causing the legislature to second guess the bill. In our opinion the holdup appears to be related to the establishment of new mandatory sentences for theft of a firearm and for transferring a firearm to a prohibited individual. The bill seeks to add a 2-year mandatory sentence for theft of a firearm and unlawful transfer of a firearm for all defendants, including first-time offenders. These mandatory sentences will not allow the judge to consider all factors such as the defendant’s background, lack of intent to commit a violent crime and age. In essence the mandatory penalty groups all defendants and their cases together, which does not promote a just sentence.

The Judicial Transparency Act takes a degree of autonomy away from judges, and flies in the face of separation of powers. Judges should not have to worry about how their particular sentence would look in a database. They are entrusted with the responsibility to hand down a just sentence based on the facts of the case and the characteristics of the defendant. A database, especially one that will become highly political, will undermine the autonomy of the bench and should not be established. As for the Witness Intimidation Act, we believe this bill will be eventually approved by the General Assembly, though its effectiveness as a deterrent is arguable. The current witness intimidation laws already provide strict punishments.

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Published on: February 18, 2020

Second Baltimore Robbery Defendant Sentenced

By Benjamin Herbst

The second of two defendants who committed a 2018 armed robbery in Baltimore City was sentenced last week to 9 years in federal prison. The 29-year old defendant was originally charged in state court with, but about 7 months after the robbery the Baltimore City State’s Attorney’s Office entered the charges nolle prosequi, which meant they declined to prosecute the case. While a nolle pros. is usually a cause for celebration, in this case it was the opposite, as the case was dismissed in state court after federal prosecutors decided to take over.

As detailed in guilty plea, in February of 2018 the defendant and another Baltimore City man walked into a restaurant brandishing a firearm and demanded money from the cash register. In addition to taking cash from the register and the tip jar, the defendants also took personal belongings at gunpoint from patrons at the restaurant. After the defendants left the restaurant a 911 call to the Baltimore Police was placed and officers arrived on scene shortly thereafter. One officer was canvassing the area of the robbery, and located two suspects in an alley counting cash up against a brick wall. The suspects matched the description in the 911 call, and the counting money in an alleyway was certainly another cause for concern. Both suspects were detained and searched, and police found $272 in cash, a bag of change, two masks, two bandannas, two cell phones that belonged to victims and a receipt from the restaurant. Police also found a loaded handgun in the vicinity that matched the description a victim gave of the gun used in the robbery.

There was little question that police had detained and arrested the right suspects, and a show-up identification by the victims confirmed what police already knew. The only questions remaining were who would prosecute the case, and how much time the defendants would receive. Initially the case began as a Baltimore City District Court case, and a month after the incident the State filed a 25-count indictment in the Circuit Court for Baltimore City, which included charges for first and second degree assault, armed robbery, robbery, use of a firearm in a crime of violence and firearm possession by a convicted felon. The charges regarding firearm use in a violent crime and possession by a convicted felon both carry 5-year mandatory minimum sentences upon conviction. Either way the defendants were likely going to serve at least 5 years, but ultimately the feds decided they would prosecute the case.

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Published on: February 10, 2020

Former Baltimore Officer Sentenced for Lying to Grand Jury

By Benjamin Herbst

Last week a former Baltimore police detective was sentenced to 18 months in prison followed by 2 years of supervised release for making false statements to a federal grand jury. The statements were regarding an incident that happened in the spring of 2014, when another BPD officer ran over an arrestee in Baltimore City. That officer, who was not named in the U.S. Attorney’s press release, apparently called the former detective’s sergeant to inform him of the car accident involving a suspect. The sergeant then asked the former detective if he had a BB gun that they could use to plant at the scene, in an ill-conceived effort to provide justification for suspect being hit with a vehicle. The former detective told his sergeant that he did not own a BB gun, but then called his partner, who did own a BB gun. The sergeant and former detective then drove to the partner’s home to retrieve the BB gun and then went back to the scene of the auto accident, where the sergeant planted the gun. The former detective apparently stayed by the car and did not assist in planting the BB gun at the scene.

The suspect who was run over by the officer’s car was arrested that night and charged with numerous drug crimes in addition to discharging a BB gun, which we now know was completely fabricated. The suspect was held in custody for several days, and prosecutors eventually dismissed all charges about 10 months later. The officer who ran the suspect over was indicted with several other Baltimore Police officers who were members of the notorious Gun Trace Task Force or GTTF. The incident regarding the planted BB gun came up in one of the federal GTTF investigations, and the former detective was subpoenaed to provide his testimony on what happened. The former detective told the grand jury that his sergeant requested that he call his partner to inquire about the BB gun, but the partner said he did not have one. The detective then insinuated that while at the scene of the accident the sergeant went to the trunk of his vehicle to retrieve an unknown object.

Many of the former GTTF officers provided substantial assistance to the government in consideration for lighter sentences, and information on what actually transpired the night of the accident appears to have come from one of those proffer sessions. Federal law enforcement learned that the detective and his sergeant arranged a secret meeting by communicating on their wives’ cell phones. They actually met in a swimming pool to assure that neither was wearing a wire, a scene right out of the movie Traffic. At the secret meeting both officers discussed their concerns over the GTTF indictments, and then the sergeant apparently told the former detective to lie about why they went back to the scene of the accident. The sergeant told the detective to tell federal authorities that the sergeant retrieved the BB gun himself and that the former detective had played no part in obtaining it. Unfortunately for the detective, federal authorities were able to prove that these statements were made with the intent to deceive the grand jury, and a stiff sentence followed from this poor decision.

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Published on: February 3, 2020

Mail Carrier Charged with Theft

By Benjamin Herbst

Montgomery County Police have charged a 32-year old mail carrier with multiple counts of theft for stealing numerous pieces of mail including a package containing rare coins worth close to $3,000. The Greenbelt man has likely worked his last shift as a federal employee after allegedly confessing to the crime. In addition to the confession, U.S. Postal Police Agents searched the defendant’s home and found other pieces of stolen mail from his delivery route in Silver Spring. The mail carrier now faces six charges in the Montgomery County District Court, including two felonies for theft over $1,500 but less than $25,000. He is also charged with theft scheme, and conspiracy to commit theft over $1,500, for allegedly working with another person to sell the stolen goods. Trial is currently set for February 25, 2020 in the Silver Spring courthouse. Online court records show the man is represented by the Public Defender, though his income as a federal employee may bar their continued representation.

Like many theft defendants, the mail carrier may have sealed fate by trying to flip the stolen coins for cash too soon, and in the same general location as the theft. It seems as if the defendant conspired with another person to sell the goods to a coin shop in downtown Silver Spring, in an effort to conceal his own identity. Unbeknownst to the co-conspirator, the coin shop, and other coin shops in the area, had already been tipped off about the possibility of these specific rare coins potentially being stolen. An email was apparently circulated to pawn shops in the region. The Silver Spring coin shop refused to engage in a transaction, and contacted law enforcement to inform them of the development. The investigation led officers to the mail carrier in Greenbelt, and upon being questioned he apparently admitted to everything.

The mail carrier likely does not have a criminal record, as the requirements to work for the USPS include strict background checks. The strict requirements are consistent with the mail carrier’s important responsibility of safeguarding private and potentially valuable pieces of mail. In an age where we are shipping more things of value than ever before, USPS mail carriers have remained reliable and trustworthy. By far the main concern with shipping packages in modern times is porch piracy, or the act of stealing delivered packages off a person’s property. Having a mail carrier actually steal your mail is the last thing we expect or can imagine, so an incident like this is definitely disconcerting.

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