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Articles Posted in Court Rulings

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1010760_dna_1DNA collection and preservation by law enforcement has been one of the more hotly contested privacy issues of the last decade. The presence of a defendant’s DNA at a crime scene is often the most compelling state’s evidence at trial, while the lack of DNA at the scene can be equally as strong for the defense. Maryland law gives police the right to take a suspect’s DNA sample in certain arrests, and this procedure is usually done with a minimally evasive cheek swab. No warrant is required to take the swab pursuant to a federal court decision from two years, which established that DNA triggers similar privacy rights to a booking photo or a fingerprint. Additionally submitting to a DNA sample is not testimony, and therefore a defendant does not have the right to consult with an attorney prior to opening up for the swab. There’s no denying the power of DNA evidence in open law enforcement investigations, as both the defense and prosecution have hung their hat on it thousands of times. But controversy arises when DNA collected for an entirely different reason is used to solve a cold case, or a criminal case with no leads. Recently, The Maryland Court of Appeals handed down a decision that may once again spark the nationwide DNA debate.

Three years ago an Anne Arundel County man voluntarily submitted to a law enforcement DNA swab after he was suspected of being involved in a rape. The sample didn’t match and the man was cleared of any wrongdoing in the rape, but just one year later he was indicted on a burglary charge that had actually occurred five years prior. Police had kept his voluntarily submitted sample and plugged it into a database for the cold case burglary. When the sample matched the man felt he had no defense, and pled guilty to a four year suspended sentence. The defense appealed stating that keeping and using the man’s DNA for another purpose than the rape case amounted to an illegal search and seizure that violated the Fourth Amendment. The Maryland high court judges disagreed, and ruled that once police lawfully obtain a person’s DNA they are free to keep it and use it for any law enforcement purpose. Once they have it, they get to keep it.

The decision by the Court of Appeals is hardly groundbreaking. Police have been holding on to fingerprints for decades. But that’s not even the most compelling argument for the government. The protections of the Fourth Amendment prevent law enforcement from illegally infringing on our right to live as private citizens. When cops overstep their boundaries to obtain evidence then it is a judge’s duty to suppress everything that flows from the illegal intrusion. But when law enforcement conducts a legal search or seizure any other unexpected pieces of evidence they recover are fair game. If cops execute a search warrant looking for drugs and instead find illegal firearms and stolen property, then the defendant will be charged accordingly. All the evidence will be admissible. It’s the same principal with DNA collection; if law enforcement lawfully takes a sample for one investigation, they are free to use it if it matches on another investigation. This decision is not one that will please defense attorneys, but it’s hardly the most surprising one to come out of Annapolis.

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DUI4.jpgDrunk driving has become the most hotly debated and visible crime in the entire country. The amount of media attention and lobbyist money that is directed toward DUI education and prevention simply has no comparison. Sure, the war on drugs is trudging along, and sucking up millions of taxpayer dollars, but it targets dozens of substances, and not one single offense. Drunk driving stands alone for a variety of reasons including the fact that it is so common, and its defendants do not fall within a specific age or socioeconomic group. Teenagers, professionals, celebrities, cops, politicians etc. can be the defendants, and unfortunately the victims of this offense. All the media and lobbyist attention does not go unnoticed by lawmakers and state agencies, and as a result there are pages of laws and regulations governing DUI policy. The courts are charged with the task of interpreting each of these regulations, and this past week Maryland’s highest court released a lengthy opinion after being called upon to do just that.
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The bail review process in Maryland could be headed for some major changes as the current system is slated for review in the Court of Appeals on March 7th. Nearly eight years ago a group of detainees in the Baltimore City jail filed a class action lawsuit challenging the state’s bail review process. Specifically they challenged the first appearance procedure where a recently arrested defendant goes before a court commissioner for a bail review. Under the current state law no detainee is entitled to an attorney at this first appearance, and the commissioner is free to make whatever determination he or she decides. Court commissioners are not judges or lawyers, and no legal experience is required for the job. The ones who typically suffer are poor, non violent offenders who can be forced to sit in custody for days or even weeks on bails as low as a few hundred dollars. But it’s not only the poor who suffer, as some commissioners have the tendency to impose egregiously high bail amounts for cases without putting forth the effort to completely examine the circumstances of the case. The issue scheduled for debate is whether having an attorney present at the commissioner bail reviews would prevent unjust and unnecessary pre-trial detention, and if the cost to provide lawyers at these hearings is worth the potential benefit.
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gun.jpgThe Blog has posted multiple articles about our state’s gun laws in the past few weeks as Maryland’s controversial gun laws just cannot seem to stay out of the news. This week was no different, with another headline courtesy of the United States Supreme Court. The Court recently announced that it would not hear argument on the statewide firearm carry permit law, which was upheld by U.S. Court of Appeals for the 4th District this past year. The challenge to the law began when a gun owner from Baltimore had his concealed carry application denied because he could not prove to the state that he had a “good and substantial reason” for the license. This was despite the fact that the man’s house had been burglarized multiple times. The gun owner filed suit in federal district court, and was joined by The Second Amendment foundation, an organization that opposes firearm restrictions. The district court judge agreed that the law was too restrictive and vague, and found it unconstitutional. But the victory was short lived for plaintiffs after the Appellate court reversed and held that the law could stand. Both parties were confident that the Supreme Court would settle the issue for good (and in their respective favor), but it wasn’t to be as the Court decided the 4th Circuit would have the final say.
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1010760_dna_1.jpgMore than a year ago the Maryland Court of Appeals threw out Alonzo King’s rape conviction after ruling that police had illegally seized his DNA sample. Mr. King was arrested on an unrelated assault charge in 2009 and his DNA was collected under authority of a state law, which allowed cops to collect such samples from anyone arrested for a serious offense. This sample was fed into an FBI cold case database several months later and it matched an unidentified sample taken from the scene of a 2003 rape. Arrest and prosecution followed soon thereafter, and Mr. King suffered the same fate that most defendants do when trying to fight a case with inclulpatory DNA evidence, as he was found guilty and later sentenced to life in prison. Shortly after the Court of Appeals vacated King’s guilty plea the United States Supreme Court agreed to hear the case on a writ of certiorari. During the past year Mr. King, and to a lesser extent state law enforcement officers, Governor O’Malley, Attorney General Gansler, and anyone with direct or indirect concerns about our civil liberties have been on edge waiting to hear from the Court, and as of this week the wait is over.

In a five to four decision the Supreme Court ruled that the Maryland DNA statute does not violate our Fourth Amendment rights, and law enforcement officials are free to sample the DNA of anyone arrested for a serious crime. The majority opined that an arrestee’s expectation of privacy is not offended by the minor intrusion of a brief swab of his cheeks, and by contrast the government has a significant interest in identifying the arrestee. The government, according to majority, must be able to accurately identify the arrestee so that the proper name can be attached to his charges, and also so the criminal justice system can make a fully informed decision about the arrestee’s pretrial custody status, i.e. the amount of his bail. The majority then compared DNA sampling to photographing, and the universally accepted, although never by Supreme Court opinion, practice of fingerprinting. The four dissenting Justices deferred to Justice Scalia to pen the dissent, which explained and discarded the majority’s 28-page opinion in 18 pages so brilliant that it was actually easy reading. Needless to say if you don’t have time to read both, start your reading after the words “it is so ordered”.
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About a year ago the Blog posted an article addressing the issue of whether it is legal to video record a police officer engaging in his or her duties. While there is clearly no state or federal law prohibiting this protected First Amendment behavior, the answer is not so simple. In other words, despite no specific law prohibiting the act of filming a cop, it’s not legal if the police can just arrest you for disorderly conduct or some other petty offense. A year ago, the Maryland Attorney General issued an opinion advising police departments around the state that the public has the right to video record its officers. The Department of Justice, or DOJ, also filed an 11-page letter with the court in a Baltimore City civil rights lawsuit. The lawsuit was based on a 2010 incident at the Preakness where a man’s phone was confiscated after he was seen recording the police make an arrest. This DOJ letter pointed out that the Baltimore Police Department’s policies do not adequately protect a citizen’s right to record cops. Recently, the DOJ has once again reiterated its stance on this issue by filing another letter with the United States District Court in Maryland.
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165997_air_soft_gun_1.jpgA little over a year ago, Federal District Court Judge Benson Everett Legg ruled that the “good and substantial” provision of the Maryland concealed carry gun law was unconstitutional. This provision required citizens to prove to the state Handgun Permit Unit that they had a good and substantial reason before being granted a concealed carry permit. When a Baltimore County man was denied one such permit, he filed suit in federal court, and the Second Amendment Foundation, which advocates for the preservation of the right to carry, joined in the lawsuit. Despite the Attorney General’s best efforts, Judge Legg concluded that the law was too broad to satisfy the state’s compelling interest to protect its citizens and prevent crime. According to the Judge the good and substantial provision did not safeguard the public from every handgun related hazard, and therefore did not do enough to justify a significant limitation on the constitutional right to bear arms. But just last week, a three-judge panel sitting for the U.S. Court of Appeals for the 4th Circuit unanimously disagreed with Judge Legg, and reversed his decision.
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1010760_dna_1.jpgA few months back, the blog posted an article on a controversial Maryland law that allows police to sample and store DNA from any individual arrested for a violent crime or for burglary. Despite this law still being up on appeal, for the past few months state law enforcement agencies have continued to engage in this practice under the authority of a signed order from Chief Justice Roberts. The order did not overturn a decision by the state court of appeals, which declared the DNA law unconstitutional, but rather allowed DNA sampling to continue pending a final opinion by the country’s highest court. A decision on this controversial law is now expected in the coming months, as the Supreme Court recently heard arguments on the constitutionality police DNA sampling. The arguments were spirited to say the least, and at this early juncture there is no indication which way the majority appears to be leaning. But all justices are aware that this is could be a seminal opinion that could shape criminal procedure for the coming years. Justice Alito described it as the most important criminal procedure case in decades. He added that many murders and rapes could be solved using this technology, which involves a minimal intrusion on personal privacy, and asked why DNA sampling is not the fingerprinting of the 21st century. Whether these statements have tipped Alito’s hand remains to be seen, but there were is certainly some skepticism from the other justices about the law’s constitutionality.
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652136_blood.jpgCompulsory or mandatory blood tests during the course of a DUI investigation have been a hotly debated legal topic over the last decade. The debate over whether cops should legally be able to force a DUI suspect to submit to a blood draw to measure blood alcohol level has been debated in Maryland, Delaware, and in almost every state in the county. Twenty years ago it would truly have been far fetched to predict that a state could one day grant its law enforcement officers the power to force a DUI suspect to submit to a blood test without a warrant, but now this idea is becoming a reality. Many Maryland beachgoers who happen to cross over into Delaware can find out the hard way about this harsh law.

In Delaware, a police officer may require a DUI suspect to submit to a blood alcohol test if he or she refuses to take a breath alcohol test. Typically, an EMT will be called to the scene of the DUI and instructed to take the suspects blood, or the blood draw can occur in the police station. Delaware law does not require that the DUI involve an accident or a serious injury to anyone involved in the DUI. Delaware law also does not require that the arresting officer or any officer obtain a warrant before requiring a blood alcohol test. There have been countless incidents of Maryland residents being arrested for DUI in Delaware, especially in the summer months when Marylanders flock to beach towns such as Dewey and Rehoboth. Many times these Maryland residents try to invoke their right to refuse a breath or blood alcohol test, only to be informed (and many times rudely informed) that this is only a right they can exercise in Maryland.
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1330873_courthouse.jpgThere are not many civil law topics worthy of a post on a criminal law blog, but the revival of the contributory negligence debate is one topic that deserves an exception. The Maryland civil justice system is one of four states plus Washington D.C. that uses the contributory negligence standard in all civil lawsuits. The contributory negligence standard bars recovery for a party that contributed in any manner to the accident or injury. If a plaintiff brings a civil lawsuit he or she may not recover a dime if the defense lawyers show that the plaintiff was negligent. For example, in a pedestrian accident case if the defense lawyer that represents the driver of the vehicle that hit the pedestrian shows that the pedestrian negligently ran across the street, then the pedestrian may not legally recover any damages. Even if the plaintiff’s lawyer has shown the driver who caused the accident was speeding and driving recklessly.

Most states use the comparative negligence standard, which allows the plaintiff to recover damages even if he or she was negligent in causing the accident or injury. If the jury finds that the plaintiff deserves a verdict, the jury will be instructed to subtract their award of damages based on the percentage of the plaintiff’s negligence or fault. If the plaintiff proves $100,000 damages but was 10 percent negligent in causing the accident, then the jury will be instructed to award a verdict of $90,000. The contributory negligence standard does occasionally cross over to the criminal justice system, when there is evidence that the plaintiff of an injury case was under the influence of drugs such as marijuana or prescription medication, or if the plaintiff was driving and drinking alcohol, but not to the level that would rise to DUI. The comparative negligence standard in civil cases is highly favorable to the plaintiff, and Maryland trial lawyers have been fighting to change the standard for years. Maryland trial lawyers argue that the contributory negligence standard is too harsh, and unjustly bars recovery. The trial lawyers also argue that everyday citizens are denied access to the civil justice system, because trial lawyers cannot afford to take on cases that may be thrown out due to the slightest bit of contributory negligence. On the other hand, the insurance companies argue that the contributory negligence system keeps frivolous lawsuits out of the court system, and keeps Maryland insurance premiums in check.
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