The officer, only six months out of field training, responded to a call about two men fighting. When he arrived on the scene, he found one individual lying on the ground incapacitated and another individual sitting in his truck nearby. As the officer investigated, the individual in the truck walked over to the individual on the ground and kicked him in the head. Although an internal police investigation found that the officer had done nothing wrong, the State prosecuted him for reckless endangerment on the theory that he had a duty to prevent the kick. The trial court found the officer guilty, and the Appellate Court of Maryland affirmed. 

Silverman Thompson appellate specialist Todd Hesel petitioned the Supreme Court of Maryland to take the case, arguing that the officer had no legal duty to prevent the unexpected assault and that the State failed to prove the officer’s inaction was a “gross departure” from what a reasonable, similarly situated police officer would have done.

The Supreme Court granted the petition and reversed. The majority opinion, authored by Justice Booth, agreed with the Silverman Thompson appellate team that the officer had no legal duty to prevent the kick. 

First, the court concluded that a duty to prevent a spontaneous and unforeseeable assault by one member of the public on another was not among the common law duties traditionally imposed upon law enforcement officers. 

Next, the court found that the police department policy statements relied upon by the prosecution reflected only general goals and did not impose a specific duty to act in the circumstances presented.

Finally, there was no “special relationship” giving rise to duty to protect, as the State argued, because the incapacitated individual was not in the officer’s custody at the time of the kick.

Read the Supreme Court of Maryland’s opinion here:  https://www.mdcourts.gov/data/opinions/coa/2025/13a24.pdf

Contact Our Appellate Specialist

If you need assistance with an appellate matter, Todd Hesel can be reached at thesel@silvermanthompson.com or 443-895-4195.

Our client was tried by jury in September 2022 with murder and other charges related to an alleged shooting.  After several days of deliberations, the jury told the court that it was unanimous on one count but unable to agree on others.  The court, at the State’s request, accepted the partial verdict.

Background on the Initial Trial

In open court, the foreperson announced a verdict of not guilty on second-degree murder, which was then confirmed by all twelve jurors in a poll.  The State then argued that the verdict was inconsistent with the directions on the verdict sheet and asked that the jury be sent back to resume deliberations.  The trial court agreed to the request, and after further deliberations failed to yield any verdict, the court granted the State’s request for a mistrial on all counts.

When the State sought to re-prosecute Silverman Thompson’s client, trial counsel Creston Smith moved to dismiss the murder charges as barred by double jeopardy, arguing that the jury had returned a valid acquittal on second-degree murder and that the verdict further required an acquittal on first-degree murder.  The trial court denied the motion, leading Mr. Smith’s team to file an interlocutory appeal.

Appealing the Mistrial

On appeal, Mr. Smith teamed with his colleague Todd Hesel, an appellate specialist, to argue that the foreperson’s announcement of an acquittal on second-degree murder, coupled with the confirmation of that verdict by polling all 12 jurors, constituted a final verdict that the trial judge had no discretion to reject. Thus, there was no valid basis for the trial court to declare a mistrial on the second-degree murder charge. 

Additionally, because the jury could not have acquitted our client of second-degree murder without necessarily finding that he was not guilty of first-degree murder, our client could not be retried on that charge either. 

The Appellate Court agreed in full with Creston Smith and Todd Hesel’s arguments and held that the Fifth Amendment’s Double Jeopardy Clause barred their client from being retried for first- or second-degree murder.

Read the opinion here: https://www.mdcourts.gov/sites/default/files/unreported-opinions/1689s23.pdf 

Contact Our Appeals and Criminal Defense Teams

For assistance with an appellate matter, contact Todd Hesel at thesel@silvermanthompson.com or 443-895-4195

For assistance with a criminal matter, contact Creston Smith at csmith@silvermanthompson.com or 410-385-9100

This recognition honors the top legal professionals in the field of Maryland criminal law who demonstrate exceptional expertise, leadership, and dedication to the justice system.

The Criminal Law Power List awards Maryland attorneys who have made significant contributions to criminal law, and whose work continues to shape the legal landscape. Mr. Smith’s inclusion in this distinguished list is a testament to his outstanding career in criminal defense law and his reputation for providing exceptional representation to his clients.

A former Baltimore public defender, Creston P. Smith has been a prominent figure in Maryland’s legal community for over two decades. His deep knowledge of criminal law, combined with his commitment to defending the rights of individuals, has earned him widespread recognition among colleagues, clients, and the judiciary.

Creson Smith’s ability to navigate the most challenging and intricate criminal cases is what sets him apart. Mr. Smith is known for his tireless advocacy and his ability to find innovative solutions to legal challenges.

“Creston Smith is one of the most impressive and accomplished criminal defense attorneys in Maryland. He has an encyclopedic memory for the law and the common sense to apply it to the facts of even the most complex cases. Over the last three years, he has won seven consecutive murder jury trials.  It would hard to find someone who is this equal to, much less better than, him.” –Senior Partner Brian G. Thompson

Throughout his career, Creston Smith has consistently been praised for his professionalism, integrity, and unwavering dedication to his clients. “I try to treat each client and their family with dignity and respect, I try to get to know my client as a person before I address any of the legal issues of a particular case,” says Mr. Smith.

The Criminal Law Power List serves as a platform to highlight the accomplishments of legal professionals who excel in their fields. Mr. Smith’s inclusion is the latest in a long line of accolades recognizing his commitment to justice and his legal expertise. Over the years, Mr. Smith has received numerous awards and honors, including recognition from local bar associations and national legal publications.

For more information about Creston P. Smith and Silverman Thompson’s criminal defense practice, you can contact him directly at csmith@silvermanthompson.com or 410-385-9100.

Read the Baltimore Banner’s reporting here

Jenkins’ nightmare started in May 2022, when three ATF agents dropped in to interview him – unexpectedly and while surreptitiously recording the hour-long conversation with the Sheriff. The agents demanded to see the Sheriff who was out of the office at the time. They were rude and unprofessional towards the staff of the Frederick County Sheriff’s Office. The Sheriff returned to the office, and while under no obligation to speak with the agents, answered all their questions. He had nothing to hide and had no idea why the agents were there. 

The agents explained that the ATF was investigating smalltown police chiefs and sheriffs across the country who were taking kick-backs from gun dealers in return for letters on law enforcement letterhead requesting demonstrations of highly restricted machine guns, permitting the gun dealers to be able to obtain the guns and earn income by renting them to members of the public to be used on the dealer’s gun range. The crime was that the law enforcement agencies never had any real interest in purchasing machine guns but wrote the letters in return for cash ($1,000 -2,000 per letter), and for a percentage of the rental income of each machine gun. To convict a Sheriff or police chief of this crime, the government had to prove that the chief knew writing the letters was a crime. In those cases across the country, when kickbacks and percentages are being paid, the required proof of criminal intent is satisfied. 

In the year following the interview prior to the return of the indictment in April 2023, ATF subpoenaed the sheriff’s emails, his campaign records, and records from the Frederick County government. There was no evidence of any quid pro quo flowing to Sheriff Jenkins and no evidence that the Sheriff had any inkling that providing such a letter to a local business was running afoul of the law.  In fact, over the years, Jenkins had provided similar letters to other gun dealers in addition to Robert Krop, as early as 2013.  In each instance, the ATF approved the letters.  The ATF also issued written guidance to gun dealers across the United States advising them what the requirements were for these letters from law enforcement. ATF issued this guidance in 1999, 2002, 2006, and in 2023.  None of this information was ever disseminated by the ATF to law enforcement agencies. Between no guidance from the ATF, and ATFs repeated approval of the letters that Jenkins did write, there was no reason for him to know that there was anything wrong, improper or illegal in doing so.  There was never any evidence that Sheriff Jenkins acted with the intent to violate the law, nor that he and Robert Krop were in a criminal conspiracy together.

After the May 2022 interview by the three ATF agents by Jenkins, his counsel, Silverman Thompson attorney Andrea Smith, offered to bring him in to speak with the prosecutors. They declined to speak with Jenkins. 

Smith, formerly a prosecutor for 36 years (26 of those years in the very same U.S. Attorney’s Office investigating Sheriff Jenkins), knew at that moment, that the prosecutors and agents had already made up their minds that the Sheriff was guilty. They could not have been more wrong. The emotional and financial burden on the Sheriff has been overwhelming. Sheriff Jenkins maintained his innocence from the moment he was made aware of this investigation. Two and a half years later, he was finally vindicated. 

At a press conference at the Federick Law Enforcement Center at 3 p.m. EDT on Tuesday, Ms. Smith said,

Sheriff Jenkins offered to come speak with the prosecutors. They were not interested. I have never heard of a prosecutor that did not jump at the chance to speak to someone they were investigating.  It told me they had already made up their minds. As a prosecutor, it’s not about winning. It’s about getting to the truth. You don’t decide the outcome, and then go looking for the evidence to support it. You follow the evidence wherever it takes you. That is what justice looks like.

Contact Andrea Smith and the Silverman Thompson Criminal Defense Team

Baltimore criminal defense attorney Andrea Smith served as a Baltimore City Prosecutor from 1981 to 1990, and at the United States Attorney for the District of Maryland from 1990 to 2016, when she retired.  Most of her career involved investigating and prosecuting violent drug gangs. A detailed description can be found here.  She joined Silverman Thompson in January 2017 and has spent the last eight years defending criminal matters.

To learn more about the criminal defense team at Silverman Thompson, call us toll-free at 800-385-2243 for a free consultation, or contact Andrea Smith at asmith@silvermanthompson.com or Andrew C. White at awhite@silvermanthompson.com.

Mr. Nachtman, a highly respected trial attorney with nearly two decades of legal experience, will bolster the firm’s capabilities in personal injury, civil litigation, and white-collar criminal defense.

At Silverman Thompson, Mr. Nachtman will practice across the personal injury, criminal defense, and business litigation practice groups, where he will continue to provide sophisticated and results-driven advocacy for the firm’s clients. His unique blend of experience, skill, and client-centered focus make him a valuable asset to the team.

“Kurt is an exceptional trial lawyer with an impeccable reputation among both the bench and the bar,” says Managing Partner Steve Silverman. “His skills and experience make him a valuable addition to our firm, and we are confident that he will greatly benefit our clients. We’re excited to have him as a colleague!”

Mr. Nachtman joins the firm following a successful tenure as the founder and managing partner at Eldridge, Nachtman and Crandell, LLC, where he built a diverse practice focused on civil and criminal litigation. His trial acumen and strategic thinking have been demonstrated in numerous high-profile cases across disciplines.

“I’m excited to join such a skilled group of litigators and passionate advocates,” says Mr. Nachtman. “Silverman Thompson is a great mix of skill, advocacy, and people who deeply care for their clients.”

Read more about Kurt E. Nachtman’s career here.

Mr. Nachtman’s legal career is marked by both leadership and results. A 2006 graduate of the University of Baltimore School of Law, he earned his Juris Doctor degree cum laude and distinguished himself as a member of the National Appellate Advocacy Moot Court Team. While at law school, he served as President of the Criminal Law Association and held various leadership roles in student organizations.

Since then, Mr. Nachtman has earned accolades for his outstanding work. He has been recognized by Maryland Super Lawyers for the last decade. His accomplishments have earned him a perfect Avvo rating, reflecting his commitment to providing top-tier representation and client service.

Mr. Nachtman has frequently shared his expertise as a lecturer on legal ethics for the National Business Institute and as a commentator on major media outlets such as CNN, Fox News, and the Baltimore Sun. His leadership and insight have made him a sought-after voice in the legal community and beyond. He is also the co-host of the podcast Lawyers on the Rocks.

The subject had a lengthy criminal history involving serious, violent offenses, including past convictions for armed robbery and armed carjacking. When arrested, the subject advised the arresting officer that he had been shot in the hand and arm a few weeks prior and was scheduled to have surgery at Johns Hopkins Hospital later that day. The police agreed to transport him to the hospital and, once at Hopkins, the subject managed to distract the officer who was guarding him, break the steel chain on his leg shackles, and escape from custody.

Read the Baltimore Banner’s reporting here

Read the Baltimore Sun’s reporting here

Following a multi-jurisdictional manhunt, the subject was apprehended a short time later by the Baltimore City Police. Our client was one of the first officers to arrive on the scene and took custody of the subject. Soon, several other County Officers arrived and joined the multiple City Officers who remained on the scene. Our client remained the ranking County Officer, but there was a City Sergeant on the scene making him the ranking officer overall. The subject was at first cooperative but as our client attempted to place him into the back of a county police cruiser, that was running with the air conditioning on, the subject blocked the door from being shut with his knee. Our client repeatedly warned the subject not to resist and physically pushed his knee out of the path of the door.

Within 45 seconds of being in the back of the car, the subject began screaming that he couldn’t breathe and banging on the window. As indicated, the car was running and the temperature that day was 68 degrees Fahrenheit, so every officer on the scene knew that the subject was lying about not being able to breathe. 

At this point, our client opened the door and, using very stern language and tone, warned the subject again, that if he continued to kick the window and door, he was going to spray him with OC spray, commonly referred to as “pepper spray.” Our client then attempted to close the door three separate times and each time the subject blocked the door with his elbow, preventing it from closing. At this point, our client announced that he was going to spray the subject to warn the other officers and deployed the spray into the subject’s face in a manner consistent with his training. This action allowed officers to secure the subject in the vehicle for transport. However, a short time later, the subject reacted by kicking the door and window even harder. It would obviously not be safe to transport the subject while he was engaging in this behavior, so they removed him from the vehicle to place him in the “recovery position”—which consists of lying the subject on the ground on his side. Officers are trained to place subjects who have been sprayed in this position to help them recover from the effects of the spray.

The subject again refused to cooperate, first dropping limply to his knees and then resisting attempts to be placed in the recovery position. Our client, acting in real time, grabbed him by his hair to control him and force his compliance. He held his hair for exactly 28 seconds and released it immediately upon the subject relaxing his body and submitting to his control. The subject was not injured in any way—a fact that he confirmed on video once he was interviewed back at the station. 

Despite the lack of injury, our client was indicted by the Baltimore City State’s Attorney’s Office of violating the newly enacted Use of Force Statute, as well as Second Degree Assault, Reckless Endangerment, and Misconduct in Office. Three other Baltimore County Officers were also indicted for failing to intervene, which is a requirement under the new statute if the officer perceives that excessive force is being utilized by another officer. Interestingly, no Baltimore City Officers were charged, even though many remained on the scene throughout our client’s interaction with the subject. 

The trial lasted seven days, after which the Court acquitted our client of all charges, concluding correctly that the officer had not used excessive force in dealing with a violent criminal who had already escaped custody once. 

In Mr. Thompson’s closing argument, he argued that not only had the Corporal not violated the law, but that this was a “textbook application of force” because he managed to subdue a violently resisting subject and get him into custody without injuring him in any way.

For more information or a free consultation, call Brian Thompson at 410-659-9930.