Posted on February 13, 2009 in Criminal Defense

One of the most difficult areas of the law facing criminal trial lawyers is handling eyewitness identifications, both in and out of the courtroom. There is no doubt that eyewitness identifications are often one of the most powerful pieces of evidence against a criminal defendant. They are also extremely unreliable, especially when the identification is the result of a police "show-up" — a procedure where a single criminal suspect is paraded before a witness who is then asked to make an identification. More often than not, the witness is brought by police to see the single criminal suspect being held by the police and under circumstances suggesting that the police have captured the right man. There is often a palpable pressure on the victim to identify the suspect simply because it will please the police.

Unfortunately, Maryland courts have made it extremely difficult for defendants to suppress bad eyewitness identifications. In 2006, the Maryland Court of Appeals in Jones v. State, 395 Md. 97 (2006) ruled that judges must evaluate eyewitness identifications in two stages. The first is whether the police procedures used in the identification were "impermissibly suggestive." If it is not, then judges must end the inquiry and cannot consider whether the identification itself was reliable. The burden lies with the defendant to establish a "prima facie" case that the procedures were police procedures were fatally flawed. If the defense can show that the police procedures were inappropriate, then the burden shifts to the prosecutor to show by clear and convincing evidence that the identification was reliable.

Continue Reading ››

 Posted on February 13, 2009 in Personal Injury

Motions in limine are filled by a party to prevent the jury from hearing any mention of potentially prejudicial information that the moving party believes is not admissible at trial. Because juries often decide cases like beauty pageants and award damages on like-ability issues, a good trial lawyer will recognize these issues and attack them in a Motion in Limine.

In such a motion, the party must argue that the evidence should be excluded because it is incompetent, irrelevant, immaterial, privileged, or otherwise inadmissible.

We often file such a motion before trial to keep out unfavorable facts we believe defense counsel will raise. Such examples may include our client’s prior injury, criminal record, or other prejudicial matters.

The most common way to attack the introduction of unfavorable evidence before trial is the relevance argument. Maryland Rule 5-401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Continue Reading ››

 Posted on February 13, 2009 in Personal Injury

When a minor (under 18 years of age) brings suit in Maryland for a personal injury, the lawyer will bring the suit under the "next friend". This person is either the parent or the guardian of the minor.

Specifically, Md. Rule 2-202 (2006) provides that a parent has the exclusive authority to sue on behalf of his/her minor child for the period of one year of the accrual of the cause of action. After the period of one year and person "interested in the minor" shall have the right to institute suit on behalf of the minor.

While the parent as "next friend" is often the named Plaintiff in the case they are considered a non-party in the eyes of the court. Parker v. Housing Authority of Baltimore City, 129 Md. App. 482 (1999) ("The [next friend] is, in contemplation of law, admitted by the court to prosecute for the infant; though, according to the practice of our courts, never by any actual order passed for that purpose….Maryland Rule 2-423 does not authorize the circuit court to order an examination of a non-party next friend.").

Continue Reading ››

 Posted on February 13, 2009 in Driving Under the Influence

As a Former Maryland DUI/DWI Prosecutor, I represent people charged with DUI/DWI at their bail review hearings on a regular basis. Many people don’t realize that at a bail review hearing the judge can raise the bail, not just lower it. This is why it is so important for a person who is charged with DUI/DWI to immediately contact an aggressive and experienced DUI/DWI Attorney.
Case in point: I was hired by a man who was charged in Baltimore City with his first DUI/DWI offense. After being arrested and charged he was taken to the Court Commissioner for his initial appearance. In spite of the fact that this arrest constituted his first DUI/DWI offense and that he had strong ties to the community, to include having a family, a steady job and owning his home, the Court Commissioner set his bail at a very high $27,000. The client rightly believed that this was an abnormally high bail and decided not to post the bail and instead to attend his bail review hearing the next day. The client chose not to consult an attorney at this point believing that the worst thing that could possibly happen at the bail review would be that the judge would refuse to reduce the bail, and that in all likelihood would substantially reduce it if not release him on his personal recognizance. Under most circumstances the client would have been correct; in this situation his decision turned out to be a very costly mistake that could have been avoided had he or one of his family members contacted an attorney immediately upon being arrested.

The client attended the bail review the next morning at the Central Booking Intake Facility courtroom. He was represented by the Public Defender who explained the client’s substantial ties to the community and lack of prior DUI’s. Unfortunately for him, the judge who was handling the bail reviews that day is known to be basically irrational when it comes to DUI’s. This judge routinely sets ridiculously high bails or even holds DUI defendants without bail. (I blogged last year about a case that I handled in which this judge held a second DUI offender without bail.)

Continue Reading ››

 Posted on February 10, 2009 in Criminal Defense

According to a Fox News report, eight people have been arrested today in South Carolina in connection with the Michael Phelps bong photo. It is being reported that seven of the people are being charged with possession of marijuana and one for dealing. One of the arrests includes a suspect who was trying to sell the infamous bong on Ebay for $100,000.00.

Apparently, the marijuana was smoked at a University of South Carolina party in November of last year. Putting aside my personal feelings on whether this is a prudent use of our law enforcement resources, from a legal standpoint, this case is a disaster that can never survive in court.

As a criminal lawyer that has been involved in the prosecution of over 3000 drug cases, I have yet to see a charge, let alone a conviction, on possession of a controlled dangerous substance based upon a photograph of someone allegedly ingesting a controlled substance.

The way it always works is the police seize a drug, the drug is tested by a crime lab, the analysis is submitted in court as evidence. No chance of a conviction here, period, based upon the information reported.

Continue Reading ››

 Posted on February 10, 2009 in Medical Malpractice

Every year in the United States, approximately 5% of patients admitted to hospitals develop hospital acquired infections (Staph, MRSA, etc.). A hospital acquired infection is one that is caused by just being in the hospital. Such infections double the rate of mortality for admitted patients, and it a leading cause of death in this country.

There has been a lot of talk lately about efforts to reduce the number of hospital acquired infections, which generally start in the tubes and catheters inserted into the body. Today, there was a great article in the Washington Post about one doctor’s initial skepticism that these infections could be prevented, and his eventual realization that these infections can largely be prevented. This doctor was skeptical when his hospital joined the quality improvement initiative led by the Institute for Healthcare Improvement, a nonprofit founded by Harvard pediatrician Donald Berwick. By looking at the process, measuring the results, providing feedback to key people and developing strategies to improve the care of their patients, they made checklists to ensure that certain procedures were followed to prevent hospital acquired infections. These were procedures similar to what intensive care units in Michigan did to reduce bloodstream infections to nearly zero.

Continue Reading ››

 Posted on February 10, 2009 in Personal Injury

A jury in Howard County, Maryland recently awarded a woman $188,000.00 for injuries she sustained as a car accident victim traveling in a co-workers vehicle, according to an article appearing in todays Dailty Record. Experienced Maryland Accident Attorneys can help victims injured in automobile accidents recover for their injuries. If you are having trouble dealing with your or the other drivers insurance company, an experienced attorney can help you navigate the judicial process to maximize your recovery.

After a two-day damages trial, Sandra Jenkins, a 45-year-old network analyst for Verizon Wireless, won $48,000 for medical expenses due to her neck injury, $8,000 for loss of income for the more than three months she could not work, and $132,000 for pain and suffering. The Jury ultimately awarded Ms. Jenkins $188,000.00 after the Insurance company made a lowball offer of $32,000.00.

Oftentimes, insurance companies refuse to pay accident victims the true value of their claims. This is where an experienced accident attorneycan help injured Maryland car accident victims receive a large settlement or jury verdict.

Continue Reading ››

 Posted on February 09, 2009 in Business Counseling, Litigation & Transactions

As a trial lawyer, I have successfully handled several copyright infringement cases representing both the plaintiff and the defendant. Although these types of cases involve an area of the law that most people and lawyers are not familiar with, it really is not that complicated once you sink your teeth into them.

Generally, copyright protects the original works of authorship fixed in any tangible medium of expression, including: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

Copyright protection of an original work of authorship does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. The term "literary works" is not meant to suggest any criterion of literary merit or qualitative value, rather the term has been broadened to include catalogs, directories, and similar factual, reference, or instructional works and compilations of data. It also includes computer data bases, and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves. Also, "Advertisement Copy" is considered "Literary Works."

To establish copyright infringement, plaintiff would have to prove both the ownership of a valid copyright and copying by the defendant. In order for Winn’s to be copyrightable, the mailer must be deemed "original," or as elaborated by the Supreme Court: "[o]riginal, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity."

Continue Reading ››

 Posted on February 08, 2009 in Personal Injury

The Baltimore Sun is reporting very sad news coming out of Westminster this morning. Apparently a driver of a Ford pickup truck slammed into the rear of a Chevrolet Cavalier that was full of McDaniel College students around 11:00pm yesterday. The 19 year old student, Thomas Rouleau, of Gilboa, N.Y., died at the scene. Four other students were in the car, three of which were taken to University of Maryland-Shock Trauma. Fortunately those injuries were not life threatening and they were released.

Our hearts go out to the family and friends of Mr. Rouleau, who apparently was not responsible for this accident. It is reported that this was the second accident in a matter of minutes the driver of the Ford pickup had caused and fled. Sadly in these situations, experience shows that their is a strong possibility the hit and run driver may have been under the influence of alcohol or drugs. Hopefully the police will find the driver today and bring him/her to justice. Just by leaving the scene of an accident involving death, the fleeing driver is subject to a penalty of up to ten years in jail. Additional charges may be warranted.

Continue Reading ››

 Posted on February 07, 2009 in Personal Injury

In a shocking revelation, the FDA confirmed yesterday that the Georgia peanut company linked to the salmonella outbreak knowingly shipped products it knew were laced with the contamination. Apparently the company had confirmed contamination as far back as 2007, according to an AP article appearing in today’s Baltimore Sun.

From a legal standpoint, this revelation may open the door to the recovery of punitive damages against the Georgia company and its officers. In addition, criminal charges are likely to be closely examined. The Justice Department has confirmed opening a criminal investigation. The salmonella outbreak has been blamed for at least eight deaths and 575 illnesses in 43 states.

Problems at the plant date back to 2001 when FDA inspectors found that products potentially were exposed to insecticides, "one of several violations uncovered during the last visit federal officials made before the current food-poisoning scare, according to a report obtained by The Associated Press" the Baltimore Sun reports.

Continue Reading ››