Posted on May 27, 2009 in Personal Injury

As an experienced Maryland trial lawyer, I have handled a number of cases when a store clerk has attacked a customer. One case involved a male cashier attacking a pregnant women. Another case involved a cashier arguing over price with an elderly lady and jumping the counter and beating her. Under these circumstances, personal injury lawyers struggle over who to sue and who pays? Although the law is complex, I have found that when properly pled, most of the time the company or employer can be found responsible.

Under Maryland law, “an employer is ordinarily responsible for the tortuous conduct of [an] employee committed while the servant was acting within the scope of the employment relationship.” An employer is responsible for willful and reckless wrongful employee acts if that act is performed within the scope of employment and in furtherance of the employer’s business. The Maryland courts have held that “[A]n act may be within the scope of employment, even though forbidden or done in a forbidden manner…, or consciously… tortious (sic).”

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 Posted on May 27, 2009 in Federal Crimes & White Collar Crimes

Aggressive Maryland criminal defense attorneys know that the best way to attack a search warrant is by attacking the affidavit in support of the warrant. This is commonly referred to as a Franks Hearing.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant”, and thus created a rule of “limited scope”.

The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof.

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 Posted on May 26, 2009 in Personal Injury

Maryland plaintiff’s lawyers and defense lawyers are always fighting over venue. Venue in Maryland simply refers to the physical location of the trial. Although it may not seem just, different cases have different values depending on where the lawsuit is brought. Some areas of Maryland have a jury pool which is very conservative while others have a more liberal jury pool. The value of the lawsuit, as opposed to the loss, is drastically affected by venue. The differential in lawsuit value, based upon venue, holds truest in personal injury case. The same case, with the same facts and injuries, is worth substantially less on the Maryland Eastern Shore versus Prince George’s County, for example. We know this because we can track jury verdicts over time and determine a pattern.

A sharp Maryland personal injury lawyer will recognize the importance of venue, recognize the best venue for his client, and file the lawsuit in the best venue for his client. The hard part is often keeping the case in the plaintiff’s venue of choice. Often times a good defense attorney will ask the Judge to move the case to a different venue or court because of inconvenience to the witnesses. This is called a motion for forum non conveniens. I recently had a case involving the wrongful death of a minor which occurred in Carroll County, Maryland. Venue was also proper in Baltimore City because one of several defendants conducted business in Baltimore City. I filled suit in Baltimore City and the defense attorney immediately moved to transfer the case to Carroll County arguing that the trial in Baltimore City would be inconvenient to the witnesses. We won and the value of our lawsuit rose dramatically, even though the facts of the case had not changed.

In that case, the defendants filed their Motion to Transfer Venue pursuant to Maryland Rule 2-327(c), claiming that the appropriate forum is in Carroll County, Maryland under the doctrine of forum non conveniens. The Defendants alleged in support of their motion that (1) the Circuit Court for Carroll County would be the most convenient forum for the trial of this case; (2) an evaluation of private interests suggest conducting the trial in Carroll County would be “easy, expeditious and inexpensive”; and (3) “public interests weigh in favor of transferring the matter the Circuit Court for Carroll County[,]” including court congestion, burdens on jury duty, and that the “citizens of Baltimore City have few if any ties to the circumstances surrounding the death.”

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 Posted on May 26, 2009 in Federal Crimes & White Collar Crimes

Although our federal criminal defense attorneys practice nationally, the majority of our cases are in the mid-Atlantic which falls into the Federal Fourth Circuit. Historically known as a conservative Circuit, the Court, which sits in Richmond, Virginia has directed the District Judges on a specific procedure they want followed in all post Booker federal sentencing
The Fourth Circuit has prescribed the steps the District Court must follow in imposing a sentence. First, the Court should calculate the proper guideline range after making appropriate findings of fact. United States v. Pauley, 511 F.3d 468 (4th Cir. 2007)(citing Gall, 128 S. Ct. at 596); see also Hughes, 401 F.3d at 546. “After calculating the Guidelines range, the sentencing court must give both the government and the defendant an opportunity to argue for whatever sentence they deem appropriate.” Id. The Court should then consider all of the § 3553(a) factors to determine whether they support the requested sentence. Id. If the guideline range does not serve the factors set forth in § 3553(a), then the Court may impose a non-guideline or “variance” sentence. United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006); United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). The Court must articulate reasons for the sentence it imposes, particularly a variance sentence, by reference to the § 3553(a) factors and its factual findings. Id.

For more information on federal criminal matters and appeals in the Fourth Circuit, please contact us for a complimentary consultation.

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 Posted on May 26, 2009 in Federal Crimes & White Collar Crimes

The federal criminal sentencing has changed dramatically since the landmark case of United States v. Booker in 2005. Federal criminal defense attorneys have significantly more room for creativity and advocacy. Federal Judges are no longer handcuffed by the Federal Sentencing Guidelines. For decades decades the power in sentencing, and most federal prosecutions, rested with the prosecutor. Booker has shifted the stables-somewhat, in favor of the criminal defense lawyer and given Federal Judges a more “human” role at sentencing.

18 U.S.C. § 3553(a) in light of United States v. Booker, 543 U.S. 220 (2005) requires the Court to fashion a sentence “sufficient but not greater than necessary” to achieve the statutory purposes of punishment. In Booker, the Supreme Court restored this Court’s ability to fashion a sentence tailored to the unique circumstances of each case and each criminal defendant by requiring courts to consider factors other than the sentencing range prescribed by the United States Sentencing Guidelines. Thus, although the Federal Judge still must take the Sentencing Guidelines into account, Booker rendered the Sentencing Guidelines advisory. See Gall v. United States, 128 S. Ct. 586, 594 (2007); United States v. Pauley, 511 F.3d 468 (4th Cir. 2007). The sentencing guideline range is not binding on the Court, but is only one of several factors in §3553 (a) to be considered in determining the sentence. Booker, 543 U.S. at 258-60.

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 Posted on May 11, 2009 in Criminal Defense

As a Baltimore Maryland Criminal Attorney, I receive inquiries on a daily basis by people who want to have their criminal records expunged. Unfortunately, most of the people who contact me for this purpose are dissapointed to hear that they cannot have their records expunged. The rules in Maryland are relatively straightforward although they have been modified slightly a few times in recent years.

The first thing that everyone who is considering expungement needs to understand is that if the case at issue resulted in a criminal conviction, whether it be for a misdemeanor or a felony, that conviction is permanent and cannot be expunged from that person’s record without a pardon from the Governor. As I said, many people are extremely surprised and dissapointed to hear that they do not qualify for expungement even in cases in which the conviction was for a misdemeanor and occurred 15 or 20 years in the past, but that in fact, is the law in Maryland.

In Maryland, There are 6 possible dispositions of a criminal case that will entitle a person to have his record expunged either immediately or after a period of 3 years.

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 Posted on May 06, 2009 in Criminal Defense

Ever since the OJ Simpson verdict (the first one) Maryland Criminal Attorneys and criminal attorneys across the nation have seen a steady increase in the number of domestic violence cases charged as well as substantial increase in the vigor with which these cases are prosecuted. It seems that no prosecutor or judge wants to be asked "why didn’t you do something when you had a chance?" after an alleged domestic violence victim is killed in a subsequent incident.

Not only are prosecutors pursuing these cases with ever increasing vigor, they are also charging many of what used to be considered routine or garden variety misdemeanor cases as first degree felony assaults or even as attempted first degree murder cases. Many of these cases are charged this way based simply on the allegations of the complaining witness are without any medical evidence to corroborate the allegations. An allegation that a victim was choked or strangled can cause a case such as this to be charged as a felony. I have had three such cases in the last year, two are which are still pending.

After the OJ Simpson verdict (the first one) virtually every District Attorney or State’s Attorney’s Office in the country started special domestic violence units to screen and prosecute these cases. Prior to this shift what would typically occur is that a police officer would respond to a domestic incident and either make an arrest or provide the alleged victim with a police report number as well as a document detailing the procedure for filing a criminal complaint. It would in the second instance be up to the alleged victim to go to the court commissioner to file charges. In the absence of very serious injury (which is, of course, what the felony assault statute requires or in the alternative, an attempt to cause serious injury) these cases would be charged in the District Court as misdemeanors.

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 Posted on April 21, 2009 in Criminal Defense

Maryland Criminal Attorneys are often called upon to represent represent women charged with prostitution. Today, I defended a young women who was charged with solicitation for the purpose of prostitution after a police officer answered the advertisement that she had posted on Craigslist. Ordinarily I wouldn’t blog about such a common and unremarkable case, but the case took on added significance to me in light of the Craigslist murder case in Boston that is receiving national and international attention.

The Boston Craigslist murder case reminded all of us who work in the legal profession just how much risk these girls undertake when they agree to have sex with strangers for money whether they advertise on the internet or stand on the street corner. Indeed the judge today commented at length on that issue during the sentencing phase of the case and specifically referenced the Boston murder case.

As I said, the case I had today was a garden variety prostitution case. My client posted an advertisement on Craigslist stating that she was "19 looking for safe fun..it’s 150 for one time 250 for 2 times". A Baltimore County Police Detective contacted the cell number that was provided in the ad posing as a customer or a "John". My client wouldn’t talk over the phone but invited him to her apartment to discuss and carry out the arrangement. About an hour later the detective arrived at her apartment and produced $250 in departmental funds. Prior to giving my client the money he asked her if she would do "anal" and she said no. She told him she would perform oral sex on him for the money and he agreed and handed her the money. At that point he signaled for the arrest team who came into the apartment and placed her under arrest.

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 Posted on April 14, 2009 in Criminal Defense

As a Maryland Criminal Attorney, I often represent people charged with Internet crimes such as solicitation of a minor for the purpose of engaging in sexual activity. I was recently retained in such a case in Baltimore County Circuit Court wherein my client is charged not with soliciting a minor on the Internet, but instead with soliciting an undercover detective posing as a minor. These types of cases have become priorities for state and federal authorities in recent years and are taken very seriously. My client has been offered a plea bargain wherein the state would seek five years in prison. My client has been advised that if he fails to accept this plea agreement he will be indicted federally where he will face a mandatory 10 year, non-parolable sentence if convicted. To further complicate matters, my client is a foreign national who is married to an American citizen and has two American born children. Although he does have a green card, he never bothered to become an American citizen and is thus subject to deportation should he be convicted.

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 Posted on March 26, 2009 in Personal Injury

When representing a client who my have a potential claim for personal injury against the State of Maryland, Maryland personal Injury lawyers must place the state on proper notice within six months of the incident. Failure to do so could bar any recovery under Maryland law.

Although the doctrine of sovereign immunity generally precludes an action for damages against the State of Maryland, its agencies, or officials, the Maryland Tort Claims Act (MTCA) provides for waiver of that immunity in cases of “tortuous acts or omissions committed within the scope of the public duties of state personnel, and committed without malice or gross negligence.”

The MTCA requires that the injured individual “may not institute an action . . . unless: (1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to the person . . . ; (2) the Treasurer or designee denies the claim finally; and (3) the action is filed within 3 years after the cause of action arises.” MD. CODE ANN., STATE GOV’T § 12-102
In addition, the notice requirement provides the State with early notice of a potential claim, which allows the Treasurer, upon receipt of timely notice, to . . . consider[] the fiscal consequences of the claim, and then decide[] which of several options to pursue. As a result of the early notice required under the MTCA, the Treasurer also has “the opportunity to investigate the claims while the facts are fresh and memories vivid, and, where appropriate, settle them at the earliest possible time.

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