Posted on October 26, 2015 in Criminal Defense

As an aggressive Criminal Defense Attorney, who is also a former Assistant State’s Attorney, I have helped numerous clients accused or charged with possession or distribution of child pornography. These serious charges can be prosecuted in State court or Federal court. Since State criminal charges are different than Federal criminal charges, which often carry far more severe punishment, I team up with my partner and former Federal Prosecutor Andrew White, who led the sex offense unit of the United States Attorney’s Office for more than 7 years. Over the years Andy has had tremendous success using his connections to have these cases prosecuted in State courts where there are no minimum mandatory sentences, as there are in the federal system. However, even in State court, these serious crimes may result in a felony conviction, extended prison sentences and the requirement to register as a sex offender.
Serious consequences In Maryland, a conviction even for Misdemeanor Possession of Child Porn mandates registration as a Tier I Sex Offender for 15 years. A conviction for Felony Distribution or Possession with the Intent to Distribute Child Porn mandates registration as a Tier II Sex Offender for 25 years. Additionally, a charge of possession for distribution of child pornography will likely impact every aspect of your life. From job prospects, to where you can live, to not being able to step on the property of your child’s school, to having the police notify your neighbors of your status, as well as inclusion on sex offender websites with your exact home address and picture.
I recently had a young man facing these daunting consequences. Here is what happened:

Facts of the case My client (I have changed or left out any identifying facts to protect my client’s privacy, otherwise the facts of the case are accurate) is a 21-year-old man raised in the suburbs of Washington D.C. with no prior criminal record. After graduating from high school he enrolled at a community college where he had earned nearly enough credits to obtain an associate degree. He then was going to transfer to a 4-year university to finish his education. To save money he was living at home and working at a restaurant to help pay for his tuition and living expense. In other words, he was a normal young guy living a normal life until early one morning last summer.
On this particular morning, his entire family was awakened at 5 AM by extremely loud banging on the door of their home accompanied by shouts of, "Police, we have a search warrant." Unlike many cases I have seen, in this instance the police allowed the client’s father enough time to get to the door to let them in, rather than breaking it dwon.
The police, now inside the home, read the warrant to my client, his parents, and younger siblings and each was Mirandized. The police informed my client and his family that the downloading, and according to the police, the distribution of child pornography had been traced to a computer in the home via the computer’s IP address. The police requested all computers and external storage devices in the home to be given to them. At this point, my client admitted he had downloaded child pornography, but denied any distribution of the material. He cooperated and led the police to his room where his computer and half a dozen external storage devices were located. He provided his password and the police were able to match the computer’s IP address to the one they were searching for.
My client asked that his family’s machines not be confiscated, but the police refused saying they had to do a thorough search of all computers in the home but promised to return all computers not found to contain illegal content quickly if they all provided their passwords. They all agreed. The police collected all computers and performed a thorough search of the house. After several hours the police left without arresting my client to his astonishment.
Retaining an Experienced Attorney
The next day, using a friend’s computer, my client searched for a criminal defense attorney experienced in handling these matters. He found Andy and me and we met that afternoon. He retained us that same day and immediately I informed the police of my law firm’s involvement in the case. I asked that if they charged my client, they do so with a criminal summons instead of a warrant. On the spot, they refused but said they would consider it depending on what they found. In any event, they agreed that they would contact me to arrange my client’s surrender if a warrant was issued.
Upon speaking to my client about the case, he admitted to downloading child pornography. Like most of the men I have represented in these cases, my client had started looking exclusively at adult pornography and had unintentionally downloaded child pornography through large file downloads using BitTorrent and similar peer-to-peer sharing programs. He did eventually begin searching for and downloading child pornography, but explained he NEVER distributed the material to anyone, and didn’t understand why the police claimed he had.
I explained to him that during the downloading process, peer-to-peer sharing programs make a user’s files available to others for download. In other words, the police probably accessed his files, while he was downloading material. My client was adamant he had turned off this feature after each download was complete-further showing he did not intentionally distribute any material. Despite being confident he would be found not guilty of doing so in trial, I cautioned him that often in these cases prosecutors use the threat of federal indictment, with more punitive consequences, to obtain a guilty plea to the felony count in State court. Based on the facts my client gave me, I advised him he would probably be charged, which he was.
On the misdemeanor possession counts, I advised him it would be difficult to defend this charge since he gave a Mirandized confession. My strategy was to attack the warrant hoping it contained a Constitutional defect. We had successfully attacked warrants in similar cases, but advised him that finding case dispositive defects is rare. While I worked on this strategy, I referred my client to a top doctor, whom I had used in other similar cases, to administer a psycho-sexual evaluation to help convince the court that my client was neither a predator nor a danger to the community.
Ultimately, the State indicted him on 3 counts of distribution of child pornography (for the two images and one video detectives had downloaded from his files in the manner that I had advised him they had done) and 50 counts of possession of child pornography, although over 300 images and videos were found on his computer and thumb drive. Unfortunately, we found the warrant was issued legally so there was no viable defense to the misdemeanor possession counts. The best option for my client was to convince the State to drop the felony counts, which would mean the case would have to be resolved by negotiation rather than trial.
Conclusion First we were successful in convincing the US Attorney’s Office to allow the case to remain in state court. Needless to say, this was a huge victory for the client.
We made it clear our client lacked intent and having no prior record he would never plead to the felony. The prosecutor relented and agreed to 6 counts of possession to child pornography, agreed to drop the other 44 counts of possession, and decided not to pursue felony charges.
We then convinced the court to grant probation before judgement (PBJ) so our client did not have to register as a sex offender or serve any jail time. The PBJ allows him to expunge the matter from his record in 3 years.
Since the client had given a confession, there was no defense to the misdemeanor charge. Therefore the resulting outcome which included no felony charges, no sex offender registration, and no jail was the best conceivable outcome for the client and is one that will allow him to put this behind him some day.

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 Posted on October 23, 2015 in Medical Malpractice

Last week, a Minnesota jury awarded $9.1 to a then-51 year old man who suffered paralysis during surgery to repair a perforated bowel. The verdict is believed to be the third-largest verdict or settlement in the state’s history. A copy of the article regarding the case can be found here. The gentleman presented to an area hospital with flu-like symptoms and was given fluids for dehydration until his doctors determined that he was suffering from a perforated bowel. In preparing him for surgery, his doctors stopped the administration of fluids for his dehydration. As a result, his blood pressure dropped dramatically which prevented his spinal cord from receiving adequate blood flow, resulting in permanent spinal cord damage.

His lawyers argued to the jury that the standards of acceptable medical care require that a patient who is severely dehydrated be rehydrated prior to surgery. As is evident from this case, the failure to rehydrate the patient and get his blood flowing properly again had catastrophic consequences. According to the plaintiff’s attorney, the central argument of the defense was "we don’t know how this happened but it couldn’t have happened during surgery."

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 Posted on October 16, 2015 in Medical Malpractice

As experienced medical malpractice attorneys in Maryland, we frequently receive calls from people who believe an ambulance company, paramedic or some other type of emergency first-responder made a medical mistake that caused them needless injury. Of course, the question becomes: can such emergency personnel be held responsible for medical negligence through a medical malpractice lawsuit? The answer to this question, like so many others under the law, is "it depends."

Maryland statutory law provides immunity to members of "any State, county, municipal, or volunteer fire department, ambulance and rescue squad, or law enforcement agency" if the member meets certain requirements, such as having completed a first aid course and holding a license or certification from the State as an emergency medical services provider. A copy of the statute can be found here. This law is formally titled "Emergency medical care" and has been referred to by Maryland courts as the "Good Samaritan Act." Importantly, the Good Samaritan Act only provides immunity for ordinary negligence and not for acts of "gross negligence" or willful misconduct.

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 Posted on October 13, 2015 in Appeals - State & Federal

Have you obtained a judgment for recovery of money? Lucky you! Is that judgment unsecured? Ouch.

Well, at least you have some protection should your opponent decide to appeal: Under the Maryland Rules (and unless the parties agree otherwise), the appellant has to file a supersedeas bond covering the whole amount of the judgment that remains unsatisfied, plus interest. Of course, the court can always reduce the bond amount, but it can still be a pretty big deterrent to weak or frivolous appeals that just delay payment and increase the chance that some other creditor will snatch up the debtor’s funds in the meantime. As proposed in the 188th Report of the Maryland Standing Committee on Rules of Practice and Procedure, however, the bond isn’t without limits.

If a bond always had to cover the full amount of an unsecured money judgment, losers at the trial level who owe big bucks to the winners would, as a practical matter, often be unable to afford the opportunity to exercise their right to seek review. The new Report would change Rule 8-423(b), which provides for the bond in an appeal from an unsecured money judgment, to clarify that it is still subject to Md. Code, Cts. & Jud. Proc. Art. § 12-301.1. Pursuant to that statute, a supersedeas bond can’t exceed $100,000 unless the appellant has diverted or dissipated assets outside the course of normal business or is in the process of doing so.

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 Posted on October 09, 2015 in Medical Malpractice

In order to encourage finality of potential claims – and to discourage the filing of claims after evidence has been lost and memories have faded – all states have enacted a "statute of limitations." A statute of limitations is a law that sets forth the amount of time that a potential plaintiff has in which to file his or her case after the incident giving rise to the case occurs. If the case is not filed by the deadline, the plaintiff will forever be prohibited from bringing that claim. Accordingly, the importance of understanding the statute of limitations and keeping track of the deadline cannot be overstated.

Each state has its own statute of limitations. Additionally, in many states, a statute of limitations for one type of claim may be different than the statute of limitations for another type of claim. For example, a negligence case could have a three-year statute of limitations while a defamation case could have a one-year statute of limitations.

Maryland Medical Malpractice claims have their own statute of limitations, which is set forth in Courts & Judicial Proceedings § 5-109 of the Maryland Annotated Code. A copy of the Maryland medical malpractice statute of limitations provision can be found here. Under Maryland law – and with some limited exceptions – a potential medical malpractice plaintiff must file their lawsuit within the earlier of five years of the time of the injury or three years of the date the injury was discovered. This means that, conceivably, your medical malpractice claim could be extinguished before you ever realize you have one, i.e., if it takes you more than five years to realize that you have been injured by a medical mistake.

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 Posted on October 02, 2015 in Medical Malpractice

This week, a North Carolina jury awarded $7.5 million to a gentleman whose botched colon surgery left him with severe and debilitating complications. In June of 2010, the patient underwent surgery to remove a portion of his colon due to a potentially cancerous mass that had been found. It was alleged that when the surgeon connected the new ends of the colon together, there was a leak. The patient in this case became extremely ill following the surgery. He suffered from a prolonged period of low blood pressure as well as kidney failure, infection and internal bleeding. He also underwent two additional surgeries during which his physicians were unable to locate the source of the infection. A colonoscopy later that same year revealed a leak in the area where a portion of the colon had been resected. A fourth surgery was then performed to repair the leak and mitigate the resulting internal damage.

When a perforation occurs in the gastrointestinal tract, substances such as fecal matter, food and bacteria can leak in to the abdominal cavity which can cause infection, organ damage and even death. Perforations of the colon can happen on their own but, more commonly, occur during surgeries in the abdomen. Symptoms of a colon injury include fever, pain, increased heartbeat, increased respiratory rate and distension of the abdomen. Generally speaking, a perforated colon can be diagnosed using the CT Scan technology that is available today.

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 Posted on September 23, 2015 in Medical Malpractice

Lithium is an often-prescribed psychiatric medication used to treat select health conditions such as bipolar disorder and depression. Doctors have long understood that extended lithium intake can have long-term side effects most often effecting the kidneys and thyroid gland. Specifically, lithium can reduce the ability of the kidneys to concentrate urine, leading to dilution and polyuria (excessive urination). Lithium is not metabolized and is excreted almost exclusively through the kidneys. Monitoring kidney function is therefore an essential component of ongoing lithium therapy.

The most common early symptoms of lithium toxicity are abdominal pain, loss of urinary control, constipation, weakness and tremors. Symptoms associated with moderate to severe lithium toxicity include an altered mental status associated with dysarthria (motor speech disorder affecting muscles in the mouth/face), ataxia (lack of muscle coordination affecting speech/walking/eye movements), diarrhea, nausea, shaking or trembling and impaired cognitive function. Chronic lithium users also are at a heightened risk for developing nephrogenic diabetes insipidus (NDI), a form of diabetes characterized by excessive or uncontrolled urination. NDI is considered the most severe complication of lithium toxicity and patients with NDI must be closely monitored for dehydration due to their excretion of extraordinarily large volumes of urine. The combination of increasing levels of lithium and severe dehydration will, if not timely treated, result in acute toxicity of the kidney. Unfortunately, even after the acute toxicity is resolved, a significant number of patients suffer permanent neurologic damage.

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 Posted on September 18, 2015 in Medical Malpractice

One of the most shockingly common types of medical malpractice occurs when a surgeon and his or her surgical team concludes a procedure without removing all of the foreign objects used on the patient during the surgery. Such objects may include sponges, clamps, gauze, surgical instruments and even needles. If a foreign object is left in the body after the surgery is completed, life-threatening conditions can – and often do – ensue. These objects can cause severe pain and often result in, among other things, significant infections and organ damage which can lead to death if not timely and appropriately recognized and removed. Of course, at a minimum, the negligent failure to remove all foreign objects from the body before closing the incision necessitates an additional painful surgery to remove the object which means additional hospitalization, increased medical bills and, sometimes, unnecessary lost wages.

Experienced medical malpractice attorneys understand that often the best way to pursue these types of cases is to show that the surgeon violated his or her own hospital’s policies, guidelines and procedures. Most hospitals and surgery centers have written policies that govern how to avoid leaving a foreign object inside the body, such as tracking the objects that go in and counting the objects as they are removed to ensure that none are left before the incision is closed. The pre and post-surgery count also should be documented in the patient’s medical records.

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 Posted on September 11, 2015 in Medical Malpractice

At the conclusion of a three-week trial, a Baltimore City jury last week awarded $28 million to a 47 year-old man whose perforated ulcer went undiagnosed, resulting in significant complications and life-altering deteriorations in his health. The man had a history of Crohn’s disease, a chronic inflammatory condition of the gastrointestinal tract. However, his Chron’s had not caused him any significant trouble since a surgical procedure in 2000.

In May of 2011, the patient presented to an area hospital with severe, burning left-sided pain radiating to his chest. Rather than rule out an upper gastrointestinal illness, the treating physician treated him for a flare-up of his Chron’s and discharged the patient thereafter. Some eight days later, the patient returned to the hospital with nearly identical symptoms and, again, the treating physicians failed to consider an upper gastrointestinal illness. As the result of the misdiagnosis, a duodenal ulcer was perforated. An ulcer is an open sore or lesion, usually found on the skin or mucous membrane areas of the body. A duodenal ulcer is a sore or lesion that occurs in the upper area of the small intestine.

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 Posted on September 04, 2015 in Medical Malpractice

Earlier this year, a Detroit jury awarded $21 million to the family of a woman who died following a brain surgery that she was never supposed to undergo. A copy of the article regarding the case can be found here. The 81 year-old presented to the hospital in January of 2012 for treatment of her bilateral jaw displacement (dislocated jaw). Unfortunately, upon her admission, hospital staff mixed up her CT Scan results with those of another patient, causing the doctors to believe that this woman had bleeding on her brain requiring emergency surgery.

Doctors immediately took her to the operating room where they drilled five holes into her head and remove the right side of her skull. Upon surgically reaching the woman’s brain, no bleed was found. Because of the woman’s age and health, she was unable to recover from the brain surgery and died after 60 days on life support. There also was an allegation in the lawsuit that the hospital attempted to cover up its mistake. The plaintiffs’ attorney was quoted in the article as saying that this procedure was "something that can be done in a dentist chair [but that] instead they took off the right side of her head, and killed her." Interestingly, the jury at one point during deliberations sent a note to the judge asking whether they could demand that the hospital apologize for its "wrongful and outrageous conduct." The hospital vowed to appeal.

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