Criminal Defense Lawyer Blog

Published on: July 5, 2016

Rough Times For Two Maryland Prosecutors

Two Maryland State’s Attorneys recently made headlines for the wrong reasons, and now both may be in jeopardy of losing their title as top prosecutor. Last week a law professor a George Washington University filed a complaint with the Attorney Grievance Commission against the Baltimore City State’s Attorney. The compliant requests that the city’s top criminal prosecutor be disbarred over her handling of the cases against five officers charged after the death of Freddie Gray. Criticisms of her actions over the last 16 months include rushing to charge the officers with insufficient evidence, and holding a highly opinionated and fiery press conference soon after that decision. The complaint also cites her decision to continue to prosecute the remaining three officers after two were found not guilty. The office has not yet commented on the complaint, citing a gag order issued by a circuit court judge last year.

Further north of Baltimore another elected State’s Attorney also finds himself in bit of hot water, and this situation could have criminal as well as professional consequences. Cecil County’s top prosecutor was recently arrested in Ocean City on charges of indecent exposure after he was allegedly seen naked on the balcony of his hotel room. Police later released the lawyer without charges after consulting the Worcester County State’s Attorney Office. While it originally appeared like a case where one colleague helped out another it certainly didn’t end that way; after a quick investigation Worcester County filed charges in the Snow Hill Circuit Court for disorderly conduct and indecent exposure. While disorderly conduct carries a lower maxim penalty than indecent exposure (60 days vs. 3 years) it is likely easier to prove, as it only requires proof that the actions of the lawyer caused a disturbance to the public. Public could mean as little as one witness, but in this case there are two civilian witnesses as evidenced by the filing of two counts of each offense.

The Cecil County prosecutor is almost definitely a first time offender, and is not likely to see the inside of the county jail. But he could face a possible criminal conviction, which would all but end his legal career. Worcester County is notorious for being tough on first offenders that tarnish the tourist town image of Ocean City. This arrest already has ended the charged lawyer’s hopes of being appointed judge, as the governor recently stated that he would no longer be considered. The prosecutor later formally withdrew his name from consideration in order to fully focus on his defense.

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Published on: June 23, 2016

State Police Announce Massive I95 Pot Bust

By Benjamin Herbst

The Maryland State Police recently announced one of the largest highway pot busts in years after two young men from Philadelphia were caught driving with over 900 pounds of marijuana. The bust began as a routine traffic stop of a U-Haul van for an alleged unsafe lane change on the northbound side of I95 near Elkton. As the trooper was conducting the traffic stop he apparently noticed suspicious signs of criminal activity, and then brought out his drug sniffing K9 to assist. The dog alerted the trooper to the presence of a controlled substance, which led to a search of the van. Considering the amount of pot that was recovered it probably didn’t take long for the trooper to locate the stash and then arrest the two unlucky travelers. As it stands now, both occupants of the van are charged with four separate criminal charges, three of which are felonies. To add insult to injury, the driver was also cited for a $90 moving violation for his alleged unsafe lane change.

The two men are charged with possession of marijuana, but this is undoubtedly the least of their troubles. Each also faces possession with intent to distribute, which carries a maximum penalty of 5 years in prison, and one count of large amount controlled dangerous substance possession. Upon conviction, this charge has a minimum sentence of 5 years, and no portion of the sentence can be suspended. While the Justice Reinvestment Act will soon phase out minimum mandatory sentences for many drug crimes, the 5-year large amount sentence will remain law. This statute includes almost every street drug, including cocaine, meth, and opioids such as heroin and oxycodone. The amount required for a “large amount” charge varies by drug, but for marijuana all that is required is 50 pounds or more.

The fourth and final charge that the two young men are facing falls under a seldom used law that makes it illegal to import certain controlled substances into the state. This offense makes it a felony punishable by up to 25 years in prison to bring large amounts of drugs into Maryland. The cutoff for marijuana is oddly 45 kilograms, which is about twice the amount required under the large amount statute. Importing between 5 and 45 kilograms of pot triggers a lower maximum jail sentence of ten years. This offense is relatively rare for state court because multi state drug trafficking cases are often handled by federal law enforcement such as the DEA. In this specific case though there was no ongoing investigation, but rather the trooper basically just stumbled upon this mega stash of pot. This offense can also create issues for the prosecution, as it is an essential element of the charge to actually prove the defendants brought drugs in from beyond the border. In this case the state will need to prove more than just the fact that the defendants are from Pennsylvania, or that the van was rented in another state.

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Published on: June 15, 2016

Narcotic Overdoses Spike In 2015

By Benjamin Herbst

The Maryland Department of Health and Mental Hygiene recently released its report on drug and alcohol related intoxication deaths for 2015, and the data shows multiple alarming trends. Last year was the deadliest year on record with regard to state drug and alcohol overdoses. A total of 1,259 people succumbed to high levels of intoxication in 2015, which represents a 20 percent increase from 2014 and the fifth year in a row that the number has increased. One of the most alarming trends is the high number of fentanyl related deaths that are quickly becoming a major concern across the country. Fentanyl is a powerful narcotic that became popular for treating severe localized pain through adhesive patches that are placed directly on the skin. These patches are slow acting and provide long-lasting pain relief without an intense narcotic effect. Recreational drug users have little use for the patches as intended, but have found numerous ways to extract the narcotic and combine it with other drugs such as heroin. Illicit use of fentanyl produces an intense high that can be many times more powerful than heroin, and often times more deadly. From 2007 to 2012 there were about 30 fentanyl related overdoses a year in Maryland, but the last three years have seen a dramatic increase. In 2013 and 2014 there were 58 and 186, and last year there were a shocking 340 fentanyl related deaths in the state.

Politicians and other public officials have placed more emphasis than ever on combating the heroin epidemic, and the data supports their cause. Heroin related overdose deaths once again rose dramatically in 2015, with 748 cases reported statewide. This is more than double the average number of overdoses from 2007 to 2012. In contrast, the number of prescription opioid overdose deaths from drugs such as oxycodone has remained relatively the same since 2007, especially when factoring in population increases. The same can be said for cocaine related deaths, which were actually lower last year than in 2007. Benzodiazepine overdoses from drugs such as alprazolam (Xanax) and diazepam (Valium) have risen steadily over the last 8 years, but the 91 deaths in 2015 pale in comparison to heroin and fentanyl.

Readers of the DHMH report will notice that marijuana is nowhere to be seen in any of the overdose data, yet alcohol is high up on the list of killers. Alcohol is so ingrained in our country’s culture that it continually receives a pass despite its deadly consequences. There were 309 alcohol related overdose deaths last year in Maryland, and thousands more injuries, incidents of violence, and auto accidents that were caused by alcohol intoxication. Alcohol is available on every street corner yet it’s taking our state years to formulate highly restrictive regulations on where one can grow and sell medical marijuana. While this is a bit of a tangent, it continues to baffle the Blog.

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Published on: June 8, 2016

Teenagers Charged With Theft Of Taxi

By Benjamin Herbst

Anne Arundel County Police have reported that five teenagers were arrested for attempting to steal a taxi cab in Pasadena just before midnight this past Monday. Officers responded to a call for help after a cab driver reported he was involved in a verbal dispute with the five juveniles. The argument escalated after one of the teens took the driver’s cell phone. As the cabbie attempted to take back the phone, another teen jumped into the driver’s seat of the cab and attempted to take off. The cabbie then shifted his focus from the stolen phone to the car, and was able wrestle control of the wheel away from the juvenile offender. The five teens, all ages 15 or 16, then fled the scene in different directions with the cabbie’s phone. Several police officers arrived on scene, including two Ann Arundel County Police K9 units and one Maryland State Police K9 unit, to investigate and locate the suspects. All five were later found hiding in the surrounding area and were arrested. Four of the juveniles were from Pasadena and one was from Baltimore.

Each of the juveniles was charged via citation with three criminal offenses including theft, 2^nd degree assault, and unlawful taking of a motor vehicle. They were released to their parents after the booking process concluded. The five teenagers will now be brought through the juvenile criminal justice system, which will begin with an intake hearing with an officer from the Department of Juvenile Services. These intake hearings occur in the various offices of DJS, and are not held in court. An intake hearing is an informal setting where one of three outcomes is possible. After speaking with the juvenile, the parents and the juvenile’s attorney, the DJS officer can close the case and issue a warning, which is the best possible outcome for the juvenile. If the officer feels the facts of the case are too serious for a simple warning, he or she can choose to keep the case open and place the juvenile on informal supervision for 90 days. This option allows DJS to maintain some sort of authority over the juvenile without sending the case to court. The third option is for the DJS officer to recommend that the case be handled in the circuit court where the offense is occurred. The state’s attorney’s office would then take control of the case and file a petition for delinquency with the juvenile clerk.

The decisions of the intake officer are not always final. The victim, which in this case would be the cab driver, could appeal if for example he is unsatisfied that the case was not forwarded to the state’s attorney. The state’s attorney’s office could also choose to file a petition with the circuit court if they feel informal supervision is inadequate. Typically felony charges end up in the circuit court, so it is likely that at least one of the five juveniles will have their case heard in an Annapolis courtroom. Unlawful taking of a motor vehicle is a felony, as is theft over $1,000. All juvenile cases are under seal and not available to the public, so the Blog will not be able to post a follow-up on these cases, but keep checking back for criminal law news around Maryland.

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Published on: June 1, 2016

Two Arrested For Baltimore County Package Thefts

By Benjamin Herbst

The Baltimore County Police have reported the arrest of two men in connection with a string of package thefts in a single family home development in Pikesville. Residents in the area of Smith Avenue and Greenspring Avenue have been noticing missing packages for the last couple of weeks, but many never suspected wrongdoing. Some residents even took notice of a suspicious vehicle driving slowly through the new construction development, but did not make the connection to missing packages. Eventually the area residents and the county police caught wind of the ongoing conspiracy and went on high alert, and their vigilance paid off. Two suspicious men in reflective vests were reportedly seen removing packages from the front porches of houses, and then leaving in a dark colored SUV. Information about the dark SUV spread quickly, and when the men returned a neighbor followed them to get a closer look at the license plates. Armed with the license plate information it was only a matter of time before county police found and arrested their suspects.

The two suspects were charged with seven counts of fourth degree burglary and seven counts of theft less than $1,000. The 25-year old defendant was released on a $25,000 bail, while the 47-year old defendant is still being held on a $20,000 bail. Each count of burglary likely matches up with a corresponding theft count to represent one act, so it appears that there were seven individual crimes. Under state law a defendant can be convicted of burglary and theft at the same time for one criminal act. Theft less than $1,000 is a misdemeanor with an 18-month maximum sentence while 4^th degree burglary under section 6-205 is a misdemeanor with a 3-year maximum jail sentence. Fourth degree burglary is the catchall burglary charge in Maryland, which means there are wide ranges of factual scenarios that fall under the statute. It includes breaking and entering a house or any type of building, and also entering the property of another with the intent to commit a theft. Unfortunately for the two suspects, property of another includes the yard, garden and porch.

If the facts of the these package thefts turn out as they were reported by police then prosecutors will have little trouble proving the burglary charges. Some of the theft charges may have to be reduced to less than $100, especially considering one alleged victim reported that all that was taken from her was a box of coffee. But with a total of seven different incidents to choose from it seems like these defendants are headed toward a plea, as the state basically has seven shots at a conviction. As with any burglary case though, identity is always the key issue. The best way for a lawyer to defend the case at trial would be to challenge the state’s ability to prove who actually took the packages. There is little chance that any of the alleged victims know the defendants personally, and they were not caught in the act. The state’s case would then come down to in-court identifications plus any circumstantial evidence that police have gathered. The Blog will follow these cases, and may post an article about their resolution in the future.

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Published on: May 25, 2016

More Delays For Medical Marijuana

By Benjamin Herbst

Maryland is quickly approaching the notorious distinction of slowest state to implement legalized medical marijuana, and after two years we are still nowhere close seeing the first state dispensaries open their doors. The lawmakers who supported medical marijuana are frustrated, the investment groups who have millions tied up are frustrated, and most importantly the patients who need treatment are frustrated. And to make matters worse, the commission that was established to oversee the program has offered little public explanation for the delays. Back in December we published an article about the commission being overwhelmed by the number of grower and distributor applications, which doomed the January 2016 target date for awarding licenses. The commission, which went without a leader for four months after the executive director resigned in December, did not offer a revised date last winter and they are not offering one now. The only thing we do know is that the firm who is evaluating and ranking the grower and distributor licenses has been retained for an extra four months, and will be paid more than $2 million when it’s all said and done. The firm is supposed to finish ranking the estimated 900 applications by this July, but then the commission must still debate over who will actually receive the licenses.

With so much riding on the application rankings and the ultimate decisions by the commission, there is bound to be heated disputes over the process. The experts hired to review the applications have been kept secret, and have signed affidavits denying any relation to the prospective growers and distributors whose names have been redacted from the applications. But despite these precautions there have still been allegations of secret meetings between state officials and applicants, which has prompted other applicants to call for the process to be more transparent. There are fears that those investors whose applications are denied will file suit and challenge the commission’s decisions in court, thus further delaying the process. With all the money at stake and the mounting frustration it seems like multiple lawsuits over the selection process are inevitable.

In addition to the selection process being under scrutiny, there was also a recent controversial decision by the commission to limit the number of processor applications to 15. There was already a cap of 15 on grower licenses, but there was no such limitation on who could be licensed to process the plant material into other forms such as edibles and oils. This decision was apparently reached with little debate, and once again there was no detailed explanation made available to the public. Now some growers may face the additional expense of outsourcing for their processing needs, and the product may be harder to track after an additional party is involved in production.

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Published on: May 19, 2016

Police Announce Large Howard County Marijuana Bust

By Benjamin Herbst

Howard County may not be known for high volume drug trafficking, but a recent marijuana bust near Columbia captured state headlines last week for its shear size. Police are reporting that the 600 pot plants found in a four bedroom Glenelg home set the record for the county’s largest illegal marijuana grow operation, and two suspects were arrested and charged with multiple felonies. The male and female defendants were apparently renting the home, which was auctioned off last month. Upon visiting the recently acquired property, the new owner saw a suspicious van in the driveway and called police. Cops then allegedly smelled a strong odor of marijuana and observed other suspicious signs at the property, and they applied for a search warrant. In addition to the plants, the search revealed a sophisticated growing operation with ventilation, hydroponics and lighting systems. Police also found 8 pounds of packaged marijuana, THC wax, $75,000 cash, heroin, prescription pills, cocaine and a firearm. The estimated street value of the seized plants was over $270,000.

The female defendant was found in the home at the time of the search, and was arrested that day. She was charged with two felonies including manufacturing CDS and possession with the intent to deliver. Each of these charges carries a five-year maximum jail sentence because the drug at issue was marijuana, and not a narcotic such as heroin. The female defendant is also charged with two counts of possession, most likely for the heroin, pills or cocaine that was found. These charges are misdemeanors that carry a four-year maximum sentence. Currently the female’s case is set for a preliminary hearing on June 3^rd in the Ellicott City District Court, but the case will likely be indicted and sent straight to the Circuit Court for Howard County.

Police did not arrest the male defendant at the grow house, but found and arrested him shortly thereafter. He was charged with the same two felony counts plus an additional felony count for possession of a firearm in a drug trafficking crime. This charge carries a mandatory minimum prison sentence of five years and a maximum sentence of 20 years, and in this case was likely filed due to police finding a shotgun at the house that they traced back to male defendant. Section 5.621 of the Maryland criminal code applies to anyone who possesses a firearm during the commission of a drug felony. It serves as an enhancement, and is part of the state’s concerted effort to jail defendants that commit crimes with guns. Unfortunately police officers and even prosecutors often wrongfully incorporate this particular statute. The appellate courts have repeatedly said that the firearm at issue must have some sort of nexus or connection to the drug felony. In other words the government must prove that the gun served a purpose in furthering the crimes, which in this case were manufacturing and possession with intent. If the defendant was not dealing marijuana out of the rental house, and the gun was simply there with his other possessions then there would be no nexus to the drug crimes. On the other hand, if the defendant kept the gun as protection during his illicit transactions then there would be a nexus.

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Published on: May 13, 2016

Man Convicted Of Manslaughter For Distributing Heroin

By Benjamin Herbst

This past November Worcester County Police responded to a residence in Berlin to assist EMS with an apparent drug overdose. Medical professionals were unable to revive the 50 year-old man, but for the police officers their work was just beginning. Within hours officers were able to locate a suspect who had supplied the lethal heroin to the deceased, and fully blown investigation ensued. Officers first discovered the suspect after searching the recent call list of the deceased’s cell phone, and actually had a conversation with he suspect that same night. According to police records a 26 year-old man from Berlin first admitted to driving the deceased to Delaware to purchase the heroin, but further investigation revealed that the young Eastern Shore man actually delivered the drugs to the home of the deceased, and witnessed him overdose. This information was uncovered though an executed search warrant of the suspect’s phone that revealed text message conversations with the deceased, and the suspect was arrested shortly thereafter on charges of narcotics distribution and possession not marijuana.

While distribution of narcotics is a serious felony with a 20-year maximum jail sentence, prosecutors were not satisfied that this charge fully accounted for the defendant’s conduct. The State’s Attorney sought additional charges of manslaughter and reckless endangerment to incorporate criminal responsibility for the defendant in the death of the 50 year-old man. A grand jury agreed and returned an indictment for these two counts plus the original two drug counts. No plea agreement was reached, and the defendant gave up his right to a jury trial in favor of bench trial the Snow Hill Circuit Court. It didn’t take long for the judge to find the defendant guilty on all counts, and now he awaits sentencing in July. In addition to the 20-year max for distribution, the defendant also faces a 10-year sentence for manslaughter, 5 years for reckless endangerment and 4 years for possession. The defendant has multiple prior convictions for assault, which the judge will surely take into account at the sentencing hearing.

Charging an alleged drug dealer for manslaughter when a buyer overdoses is not a new concept nationwide or in Maryland, but that is not to say it is a common practice. Some states have specific statutes that enhance drug crimes when a buyer is injured or dies, but it is still rare to see a manslaughter conviction in a drug case. In this case though, police and prosecutors had ample evidence (most provided by the defendant himself) that the defendant directly supplied the heroin to the deceased and that he remained with the deceased while he took the deadly dose. To sustain a conviction for manslaughter in Maryland the state must prove the defendant committed an unlawful act that killed someone during the course of that act. The cell phone evidence gathered by police combined with the statements all but sealed the defendant’s fate.

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Published on: May 7, 2016

Carjackings On The Rise In Baltimore

By Benjamin Herbst

The Baltimore Police Department is warning motorists of the rising threat of armed carjackings presently occurring throughout the city. These incidents have taken place in record numbers in areas such as Homewood near John’s Hopkins and in the Brooklyn and Cherry Hill areas of south Baltimore. Most of the cases appear to be carried out by two or more individuals who initiate a minor fender bender on city streets. As the unsuspecting driver exits his or her car, one of the individuals from the accident-initiating car exits and confronts the driver. Many times the co-conspirators have used physical force to neutralize the driver before stealing his or her vehicle. Other times the robbers have used the threat of force such as brandishing a weapon to prevent the driver from resisting. Either way these incidents have caught the eye of city police officers, and have prompted the department to issue media warnings to motorists.

Police spokesmen have advised anyone involved in a minor traffic accident to stay in their vehicle with the doors locks and to call 911 immediately. The main message from police is that personal safety is far more important than properly exchanging insurance information for a claim. If handled correctly the thieves likely will either abort their criminal plan or flee the scene. Through the first four months of 2016 city law enforcement has documented 110 carjacking robberies compared to 75 during the first four months of last year. Standard automobile thefts are also up almost 20 percent so far this year, with 1,359 being reported as of April 30. The use of any type of physical force during the act of stealing a car will trigger charges for carjacking, which is a serious violent felony that carries a 30-year maximum jail sentence under section 3-405 of the Maryland Code. If a firearm is used the defendant faces an additional mandatory 5-year sentence. Just as in any robbery case, even the threat of force is enough to trigger a felony charge over a standard theft charge. This is true regardless of whether the culprit has the ability to actually carry out the threat, as all that matters is whether the victim reasonably believed the robber could follow through.

Advancements in anti theft technology in most new cars have resulted in a steady trend of decreasing automobile theft cases. In 2003 there were over 8,000 incidents, but in the last few years this number has been between 4,000 and 5,000. It appears that this year the number of car thefts will break 5,000 though, so hopefully this does not signal a shift in the recent trend. Motor vehicle theft falls under 7-105 of the Maryland Code, and is a felony with a 5-year maximum penalty.

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Published on: May 1, 2016

Baltimore And D.C. Causing Increased National Murder Rate

By Benjamin Herbst

During the early and mid nineties violent crime within the city limits of Baltimore and Washington reached unprecedented critical levels. In 1990 there were 474 murders in D.C., which led to the capital city taking on the notorious title of our nation’s murder capital as well. One year later a record 479 homicides were documented. Thirty miles north Baltimore was experiencing the same type of violent crime spike, with a record 353 murders taking place in 1993. Those who have studied crime in the early 90’s have often attributed the murder spike to the proliferation of crack cocaine as a big business street drug. With the lucrative business came turf wars between well-funded and well-armed gangs, who would kill for much less than preserving their profitable racket.

As law enforcement became more sophisticated and local governments began focusing on cracking down on the crack epidemic, these two troubled cities witnessed a dramatic decrease in their murder rates. By 2011 there were 196 murders in Baltimore, and in 2012 there were 92 total murders in Washington, which was the lowest total since the early 1960’s. These numbers, although nothing to be proud of, have remained fairly consistent over the past decade until last year, when troubling data came from both cities. Baltimore reported a staggering 344 homicides in 2015, which factoring in the city’s population decrease actually translated into a higher per capita murder rate than the record year of 1993. This was a 63 percent increase from 2014, and Washington wasn’t much better after reporting a 51 percent jump in homicides from 2014 to 2015. These increases were so significant that they almost single handedly caused the national murder rate to spike 13.3 percent last year. Chicago is also partially responsible, but their rate increased by a much lower 13 percent.

It is almost impossible to pinpoint an exact cause for the rise in murders and other violent crimes. In Baltimore though at least some of the spike can be attributed to the unsettled atmosphere following the spring riots, which also led to some western district police precincts decreasing their normal crime fighting tactics and deliberately becoming less of a presence. The spike in Washington is more of an enigma, though the some of the same factors could have contributed to the violence in D.C. Urban police officers in the entire country were undoubtedly hesitant to be proactive while on duty last spring and summer, as the whole world was watching with a microscope.

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