MARYLAND Criminal Defense

Fewer than one in twenty criminal cases proceeds to trial. The rest end with a plea of guilt or an “agreed statement of facts”.

Defending criminal charges requires an experienced, skilled Maryland criminal defense lawyer. Many people have opinions, but you must find a criminal defense lawyer who is an experienced trial attorney.

FIND AN EXPERIENCED TRIAL ATTORNEY

An experienced criminal defense trial attorney can greatly improve your chance to avoid imprisonment. The trial lawyer knows to gain a detailed knowledge of the evidence. Criminal defense requires an evaluation of the evidence and the rules governing the admissibility of the evidence.

Read about Constitutional Issues in Criminal Defense.

A healthy distrust of the prosecution and police and 35 years in criminal courtrooms generate ideas about the evidence that form a strategy.

MATT LAVINE’S PRACTICE

For my clients, I focus on developing ways to win the case. From the first consultation, I focus on how to challenge the evidence that the State intends to present. First, I review the charges with my client. Next, I obtain the State’s records and gather facts that support the defense.

My attorney-client privileged communications include the following questions:

What happened in your first interaction with the police?
What statements did you make to the police?
Did you hear anyone else make any statements to the police?
Did the police retrieve any physical evidence?

Having a Maryland criminal defense lawyer who knows the importance of these questions is critical to your defense.

Maryland Criminal Procedure

In 1976, Matt Lavine received a U.S. Patent on a board game designed to teach criminal procedure. Like many board games, criminal procedure contains a series of optional routes.

Step One: Detention, Arrest, Citation, Warrant

From the perspective of the defendant, the criminal process begins in one of three ways:

(1) a civilian makes a statement to a judicial officer who then issues a citation. The defendant receives notice by delivery or mail;
(2) a police officer stops a person. The officer hands the defendant one or more citations – or the officer arrests the defendant;
(3) a police officer obtains an arrest warrant from a judge. The police, with the warrant, arrest the defendant.

Step Two: Detention, Bail, Release

When charging an individual with a lesser offense, a police officer may permit the individual to return home after the arrest. In all other cases, Maryland law requires that police officers take their prisoner to a judicial officer. A commissioner’s job is to advise defendants of the charges and of their rights. At that time, the commissioner makes the initial decision whether to release the accused or set bail.

The idea of bail is to guarantee that the defendant will appear for court. Bail does not have to be money; it can be a deed to a house or a title to a car. Judges too often set bail too high for most people to afford.

As a result, bail bondsmen are the only option. Under the agreement with the bail bondsmen, the defendant pays a fee, typically 11% of the bail. This fee goes to the bail bondsmen. The bail bondsmen has a deal with the court that the defendant will appear or the bondsmen will pay the bail to the court.

Misdemeanors

In Maryland, there are two kinds of trial courts. The original trial court, dating back two hundred years, is the Circuit Court. The lower trial court, the District Court, was created about fifty years ago. The purpose of the District Court is to handle smaller civil cases, traffic matters, and less serious criminal cases.

Defendants facing minor offenses, called misdemeanors, typically receive a notice in the mail to appear for trial in the District Court.

Step Three: Indictment, Information, Preliminary Hearing

If you are charged with a serious felony, then you will be given a date for a Preliminary Hearing in the District Court. At a Preliminary Hearing, a prosecutor will present evidence, and a District Court judge will determine whether the evidence is sufficient to permit the felony charge to proceed. You have the right to be present, with an attorney, at your Preliminary Hearing.

Rarely do prosecutors proceed to a preliminary hearing. Instead, they seek a Grand Jury Indictment. This process is performed in secret and rarely involves more than an investigating officer reading a police report to the citizens serving on the grand jury.

Under Maryland law, the prosecutor also has the option of filing an Information. This pleading, like a civil complaint, alleges the facts that, if proved, would establish that the defendant committed the crime charged.

Step Four: Discovery and the Exclusion of Evidence

In 1963, the US Supreme Court ruled that the Fourteenth Amendment’s Due Process Clause required prosecutors to provide criminal defendants with all evidence that might exonerate the defendant. As a result, the law expanded to require the prosecution to present the defense with all evidence.

Before any decision can be made about the case, the defense must know what evidence the State intends to present. For a trial lawyer, gathering this information is essential in the preparation and analysis of the case. Only after reviewing all of the State’s evidence can a Maryland criminal defense lawyer properly advise the client.

Step Five: Bench Trial, Jury Trial

Most felony cases proceed in the Circuit Court. Ultimately, the defendant chooses between a trial by jury or a trial with only a judge. In a jury trial, the judge rules on the admissibility of the evidence. The jury renders the verdict. The alternative is a bench trial, in which the judge makes all of the decisions.

The District Court has jurisdiction over criminal cases involving lesser charges. Because the District Court has no authority for jury trials, all cases are decided by a judge.

If any of the charges has a potential maximum punishment of more than 90 days in jail you have the right to a trial by jury. When you timely inform the District Court of your demand for a jury trial, your case will be transferred to the Circuit Court. The rules of the circuit court control, including the right to proceed with a bench trial.

ELEMENTS OF CRIMES

To a Maryland criminal defense lawyer, all crimes have the same elements. The prosecution must prove, beyond a reasonable doubt, that the defendant had the mental capacity and intention to commit the alleged criminal act. Also, the prosecution must prove that the defendant committed, or attempted to commit, the criminal act.

Possession of an unlawful item (contraband)

Certain crimes prohibit the possession of an object. For example, it is illegal, under certain circumstances, to possess a gun or a drug. The law does not require that the accused was seen in physical contact with the object. Some believe that possession requires proof that the defendant was physically holding the item. In reality, the law, because of the concept of “constructive possession”, actually provides greater protection to the person holding the object.

The prosecution must prove that the defendant knew the location of the object and had control over the object. For example, Maryland law sets forth several factors in determining whether a defendant was in possession of drugs, including the defendant’s proximity to the drugs; whether the drugs were in plain view of the defendant; whether it appeared that defendant used the drugs; and whether the defendant owned or rented the car or place where the police discovered the drugs.

Proof of the object’s unlawfulness

Maryland law requires that the prosecution prove that the object was illegal for the defendant to possess. In a theft case, this element requires that the owner of the property testify that the defendant had no right to possess the object. In some weapons charges, the prosecution must prove that the weapon functions to fire a bullet. Cases alleging possession of an illegal substance require a test by a chemist. The courts require the prosecution to provide defendants with the laboratory notes of the person who performed any tests on the object.

The prosecution must establish that the item tested was in the defendant’s possession. The police prepare a statement showing the “chain of physical custody”. The State’s failure to produce the witnesses in the “chain” can render inadmissible the object or the test results.

Drug Charges

Maryland law does not excuse the person who wrongly believed the substance was an illegal drug.

As of October 1, 2014, the possession of under 10 grams of marijuana ceases to be a criminal offense. Otherwise, the threat of imprisonment continues for all other drug charges.

Maryland Criminal Code § 5-601 makes it illegal to possess, or attempt to procure, a “controlled dangerous substance”. A person convicted of this statute can be sentenced to imprisonment up to four years.

Maryland Criminal Code § 5-602 makes it illegal to distribute “CDS” or to possess a quantity to indicate an intent to distribute. Conviction can result in imprisonment up to five years. For a Schedule I or Schedule II narcotic drug, the length of imprisonment can be up to twenty years. Schedule I drugs include heroin. Cocaine is listed under Schedule II.

Pleas and Agreements

On the Internet, you can find websites of lawyers claiming that they never plead their clients guilty. The possibility of never accepting a plea offer is beyond comprehension. In some situations, the benefit of a plea agreement vastly outweighs the risk of a trial on more serious charges.

In the alternative, “always working out a deal” does not assure the accused of a better result. If the defendant loses on the charge in the plea offer, a judge can justify added punishment only if the trial presents evidence not part of the pleas deal.

For a defendant facing multiple charges, the safest course may be a plea agreement that dismisses the more serious charges. For example, a prosecutor might offer to dismiss a felony in exchange for admitting guilt on a misdemeanor. Unless the judge is part of the plea agreement, the defendant still risks going to jail. The judge, not the prosecutor, controls the sentence.

The “Agreed Statement of Charges”

Some criminal defense lawyers engage in a legal fiction. They act as if an “agreed statement of facts” is different than a plea. They stipulate to all the evidence. No witnesses appear. In reality, it is the same as a plea.

In fact, Maryland’s appellate courts view an agreement to the facts as the same as an agreement to plead guilty. Before the correction by the appellate courts, defendants stipulated to facts without any warning that they were surrendering their trial rights.

There may be good reasons for recommending a plea to a client. I do not claim that I try every case or that I win every case. However, I do believe that, in almost every case, a trial is the best option.

The Ethics of Pleas

The obligation of a Maryland criminal defense lawyer includes making clear the benefits of rejecting a plea agreement. Ethics prohibit a Maryland criminal defense lawyer to be the only beneficiary of a plea.

For more than a generation, criminal defense lawyers have participated in a criminal justice system that does not require lawyers to have any trial skills. Defense lawyers plead their clients guilty 95% of the time. More than forty years ago, the U.S. Supreme Court noted that the ability to negotiate a plea was becoming more important to prosecutors and criminal defense lawyers that the ability to cross-examine a witness. I disagree.


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