Criminal Defense Lawyer Blog

Published on: July 15, 2018

State Investigating Grow House For Pesticide Use

The last few months have been a relatively quiet time regarding medical marijuana news stories in Maryland. The program seems to be running smoothly and there have been no major incidents at state licensed grow houses and dispensaries such as break-ins or missing product. The baseless concerns about the possibility of kids and vagabonds hanging out in dispensary parking lots has obviously not come to fruition, and general crime involving medical marijuana has been pretty much nonexistent. Wait times at dispensaries has been manageable and the supply chain of flower is steady. There are still some gripes about the inexplicable absence of edibles and other forms of the medicine, but overall the program’s first year is going well.

No news is good news for the (still) controversial medical marijuana program, so when you see the words medical marijuana in the Sun or the Post these days it’s likely to report a problem. There appears to be a pretty big problem for an Anne Arundel County grower that was one of the first to open for business in Maryland. Three employees of this particular grow house apparently sent sworn statements to the General Assembly, which accuse the grower of using illegal pesticides on their product in order to eliminate mold and pests. All three of the former employees were at the company last summer when they were allegedly told to spray at least one infested crop with pesticides that often were given code names by supervisors. This practice apparently continued for months until the employees took their concerns to the in-house compliance officer and subsequently left their jobs. Two of the three left back in April, while the third stayed on until June, all the while allegedly spraying the code named pesticides whenever told.

The company has categorically denied the use of pesticides, which were all illegal when the three employees said they were used. A recent tweak in the law now allows the temporary use of minimum risk pesticides, but this tweak is irrelevant to the claims of foul play by the employees. At least one dispensary from Queen Anne’s County is not buying the grow house’s denial, as their patients reportedly complained of burning eyes and throats after using their products. Owners of this dispensary have already stopped purchasing from the Anne Arundel grower and others may join in the future. The scandalous nature of this story is enhanced by the fact that one of the co-owners of the grow house is a prominent supporter of the governor, and even served on his transition team. This owner was allegedly informed of the pesticide use at two meetings back in April, but he has not commented on the allegations.

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Published on: July 8, 2018

Defendant Guilty Of Negligent Driving In Fatal Crash

By Benjamin Herbst

Last week a Montgomery County man was found guilty of negligent driving in a traffic incident that resulted in the death of two law enforcement officers. The accident occurred back in December after an FBI agent lost control of his car and hit the concrete median along Interstate 270. The agent’s car became disabled and in the left lane of travel, and shortly thereafter an off duty law enforcement officer stopped to help. As the two were standing in the shoulder awaiting assistance the defendant’s car stuck and killed both of them. The Maryland State Police conducted a thorough accident investigation, which concluded that the driver was at fault. The driver told investigators that he saw the left lane of travel was blocked by a stopped vehicle, but could not move to the right lane of travel as another vehicle was beside him. In order to avoid the stopped car the man swerved into the shoulder, unaware that the two officers were standing in his way. Regardless of his limited options, investigators determined that the 28-year old driver could have avoided striking the officers had he reacted quicker.

The accident investigation was forwarded to the State’s Attorney’s Office in order to make a determination whether to file criminal charges, and they declined to do so in an April decision. The driver was issued one single citation for negligent driving, which in Maryland is defined as operating a motor vehicle in a careless and imprudent manner that endangers life or property. Negligent driving is a lesser form of reckless driving, but neither offense carries the possibility of jail time, and neither offense requires the defendant to appear in court. In any non-jailable traffic offense a may prepay the fine, request a trial or request a waiver hearing where a guilty with explanation plea will be entered. If a defendant elects the latter two options an attorney may appear on their behalf. In this case the driver pled guilty and was ordered to pay a $280 fine, and will receive 3 points from the MVA because the judge did not grant probation before judgment.

Prosecutors did not believe that the driver’s conduct amounted to criminal negligence, which could have resulted in charges such as reckless endangerment, criminal negligence, gross negligence and manslaughter by vehicle. This decision obviously did not sit well with the family and friends of the victims, but it’s a prosecutor’s job to only proceed on cases where they believe criminal conduct can be proven beyond a reasonable doubt. Not every decision prosecutors make will be popular, but it is their duty to take emotion out of the equation when considering charges. While there are far too many cases of innocent defendants being prosecuted, there are many instances where charges are dropped or not filed despite the severity of the accusations. Just recently our Firm represented a client on serious criminal allegations that were ultimately dismissed after prosecutors took a hard look at the evidence prior to formally charging the case.

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Published on: June 30, 2018

Worcester County Tops At Proving DUI

By Benjamin Herbst

Just as the summer beach season began, Worcester County was honored for producing the highest conviction rate among all Maryland counties for DUI and DWI. The announcement came at a recent gathering for state prosecutors at an Ocean City hotel, which also hosts the annual bar convention. The average conviction rate for drunk driving statewide is about 78 percent, and Worcester County bested this number by a cool 13 percentage points to come in at 91 percent, meaning nine out of ten DUI arrests resulted in a conviction last year in the state’s eastern most county. Worcester is no stranger to a high drunk driving conviction rate, as the county has been tops in the state for 5 of the last 6 years. The State’s Attorney’s Office and the numerous police departments that patrol the county highways deserve much of the credit for the courtroom success, but there are other factors contributing to the unusually high conviction rate.

Worcester County is home to Maryland’s only beachfront resort, and thousands flock to Ocean City each summer to enjoy the sun, sand and plentiful nightlife. While Ocean City will never be confused with South Beach, it is one of the most popular summer destinations in the region and attracts out of state tourists from Pennsylvania, Washington D.C., Northern Virginia, West Virginia and Delaware. Many of these tourists come for mellow family vacations involving mini golf and boardwalk fries, but even more come to party. There is a lot of drinking each night in Ocean City, and unfortunately a lot of driving as well. Police are on high alert for drunk driving all summer long, and anyone pulled over driving at night in the area will immediately become a suspect. This is especially true for teenagers and young adults, and also those with out of state license plates. More drunk driving investigations does not always mean more convictions, but when it comes to younger defendants and out of state residents to odds increase for a conviction.

Out of state defendants are less likely to be versed in Maryland laws and more likely to try to resolve their case on the first trial date. Ocean City and Snow Hill are not exactly centrally located, thus out of state defendants are less inclined to request a jury trial and appear at numerous court hearings. Drunk driving trials are almost a foregone conclusion unless the cases is tried in front of a jury, as a judge will typically believe an officer who makes a determination that a driver is impaired. On the other hand, jurors are definitely more skeptical and require evidence in order to come back with a guilty verdict. It’s one thing to fight your case till the very end when the courthouse is around the corner, but it’s a different animal when court is a five-hour drive away.

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Published on: June 20, 2018

Feds To Support Baltimore Police This Summer

By Benjamin Herbst

While the crime rate in Baltimore slightly decreased over the last year, violence in the city remains at an unacceptable level. So far in 2018 there have been 130 homicides within the city limit, and hundreds more non-fatal shootings. Just last weekend 5 people were killed and 7 more were shot in Baltimore, which lends credence to the fact that summer always brings a spike in crime to the area. Whether it’s the long days or the warm nights, people spend more time out on the streets during summer, and the streets are where the large majority of violent crimes occur. Baltimore Police has over 3,000 sworn police officers patrolling these streets, but the department has its limitations, especially in times of elevated violence.

For the last few years federal law enforcement agencies have increased their presence in Baltimore, and this summer more than ever the feds plan to lend a hand in taking down the most violent of city criminals. The mayor and the police commissioner recently held a press conference announcing a “summer surge” of law enforcement collaboration designed to get ahead of the violence ushered in by the change in seasons. As expected the press conference did not provide specifics on which federal agencies would be involved and exactly how they would contribute, but the announcement did say that the “worst of the worst” would be the target. No federal agencies have made official statements regarding the collaboration, though the city’s DEA office did say a statement could be forthcoming and the U.S. Marshals Service reiterated their continued willingness to assist.

The collaboration hardly means that we will see uniformed FBI and DEA agents out on the streets of Baltimore. Rather, their involvement will likely be in the form of targeted investigations, arrests and prosecutions of the city’s most dangerous residents. The U.S. Attorney’s Office is already involved in the prosecution of gun crimes that would traditionally be handled in state court. Federal prosecutors routinely notify state prosecutors of their willingness to take over the prosecution of crimes such as possession of a firearm by a prohibited person under 18 U.S.C. 922(g) and the use of a firearm during a drug trafficking crime under 18 U.S.C. 924(g). Under state law the maximum penalty for possession of a firearm by a convicted felon is 15 years with a 5-year mandatory sentence if the prior conviction and resulting sentence was within the last 5 years. This same charge under federal law carries a 10-year mandatory sentence and a $250,000 fine. Under state law possession of a firearm during a drug trafficking crime carries a mandatory 5-year sentence with a maximum 20-year sentence, while under federal law this offense carries a maximum penalty of life imprisonment with a mandatory minimum 5 years consecutive to any other offense.

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Published on: June 13, 2018

Police Ramping Up Eastern Shore Patrols

By Benjamin Herbst

Depending on where you live schools are either out or ending Friday, and the annual senior week pilgrimage to Ocean City is already underway. Pretty soon traffic will be piling up on Bay Bridge each weekend, and Route 50 will be jam packed with beachgoers. If you venture east not only will you be sharing the road with thousands of station wagons and SUVs filled to the brim with coolers and chairs, but also with state and local law enforcement. Maryland State Police have officially launched their “Lose the Booze” initiative for 2018, and are teaming up with local law enforcement on the Eastern Shore to combat underage drinking and DUI. The Easton Police Department, Talbot County Sheriff and Caroline County Sheriff have already joined the initiative, and other law enforcement agencies in the area will certainly be on high alert for all drug and alcohol related offenses.

Police on the Eastern Shore are notorious for making arrests on the few thoroughfares that head to Ocean City and the Delaware beaches. Route 50 is really the only direct way to Ocean City for beachgoers from Maryland, Washington D.C. and Virginia. Police patrolling 50, 301 and 404 will always profile a car full of young adults/ teenagers and look for any excuse to make a traffic stop to investigate further. Out of state license plates do not help the cause either. Pennsylvania vacationers avoid most of the Maryland highways on their way to the beach but their PA license plate still sticks out on Coastal Highway and other roads inland. Most of the time it’s speeding, but an officer who locks on to a car is legally permitted to make a stop for any type of traffic infraction, no matter how minor. Once the traffic stop begins the officer can then use his or her observations to develop probable cause for a search.

Upon making a traffic stop Eastern Shore police officers are immediately looking for signs of impairment. All police are trained to look for clues of DUI or DWI but officers in Ocean City and the surrounding areas almost expect it. This is especially true on weekends in the afternoon, evening, or even first thing in the morning for those drivers who have not quite slept it off. Cops that encounter teenagers or anyone that looks under the age of 21 will be on high alert for alcohol in the vehicle. Minors in possession of alcohol can be charged with a civil citation and face up to a $500 fine, which all minors in a car could be subject to if the alcohol is found in the passenger compartment.

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Published on: June 8, 2018

Trouble Continues For Baltimore Police

By Benjamin Herbst

Fresh off an embarrassing turn of events where Baltimore’s top cop resigned after just 4 months on the job, the city police department is back in the news for the wrong reasons. This week an ongoing investigation involving another high ranking police officer became public, and that officer has since been suspended and removed from her position as the department’s representative in a national police organization. The officer in question held the ranking of major and oversaw the entire robbery and non-fatal shooting unit. She was in charge of over 30 detectives who investigated thousands of robberies per year before being suspended this week. The misconduct that led to the suspension involved the misappropriation of funds from a non-profit organization she created to mend the relationship between cops and the community. While the officer may have mended some relationships, she also used over $2,000 of the foundation’s money to purchase plane tickets for a European vacation with her kids.

News of the major’s misconduct was not released by the police department, the State’s Attorney’s Office or the feds as would be typical in a situation such as this. Rather a reporter for the Sun broke the story that ultimately forced the department’s hand at the suspension. The information about the misconduct came to light in a closed custody hearing between the major and her ex-husband who is also a high-ranking officer in the department. The husband apparently disclosed to the Court that he became suspicious of the misconduct after coming across a bank statement in the trash that showed the non-profit’s funds had been used for personal reasons. He also turned this information over to the internal affairs, which began their investigation of the major back in December. The internal affairs investigation was kept secret from everyone else in the department, and also from the national police organization that was no doubt embarrassed and irked that one of its members had been under investigation for six months for stealing from a charity.

News about the soon to be ex-major came within a month of the police commissioner resigning after being charged with tax evasion by the federal government. The department totally failed to properly vet the commissioner and then the mayor made the situation even more embarrassing by offering support of her chosen top cop even after he was charged. The mayor seemed to minimize the charges by alluding that the ex-commissioner simply failed to prioritize his personal affairs when he violated federal law, which is a ridiculous statement on so many levels. The ex-commissioner now faces up to one year in jail and a $25,000 fine for each of the three misdemeanor counts that represent the three years he failed to file. It will be interesting to see how this case plays out, and whether the former commissioner will be held to a higher standard than an average Joe who fails to file.

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Published on: May 30, 2018

No Bail Holds Rampant In Baltimore

By Benjamin Herbst

The inmate population at state correctional facilities in Maryland is steadily decreasing, but sadly the reverse is occurring at Central Booking in Baltimore City. From 2017 to 2018 the number of inmates held at the notorious jail facility jumped more than 20 percent from an average of 655 inmates per day to 856 per day. The overall crime rate has gone down and arrest numbers have decreased over the last decade, leaving bail reform as one of the only possible culprits of the inmate spike. But before blaming bail reform, which effectively eliminated the unjust and presumably corrupt cash bail system, you must first look to the human beings who make the decisions to hold defendants without bail.

In February of 2017 Maryland’s highest court approved sweeping changes to the unjust cash bail system. These changes became effective roughly one year ago, and almost every jurisdiction is actually abiding by Court’s mandate, when determining release, to use the least restrictive means to assure the safety of the community and to assure the defendant’s presence in court. Baltimore City seems to be the one outlier and the one jurisdiction where pre-trial inmate numbers are skyrocketing, so you cannot simply blame the new bail system. Rather, the blame should be focused on the individuals who are tasked with implementing the new bail system and have since failed to do so in Baltimore City. The failure of Baltimore to adhere to the Court of Appeals’ mandate begins with the district court commissioners. These commissioners are only required to be college graduates, have little or no formal legal training and yet they are tasked with the immense responsibility of determining whether a defendant stays in custody or goes home to face the charges. Commissioners are also given the power to issue arrest warrants on civilian charging documents, and often do so without ever considering the charges could be untrue and motivated by spite and vengeance. Each day dozens of innocent people are arrested on charges supported by little or no corroborating evidence, and then are rubber stamped with a no bail by commissioners.

After a court commissioner denies bail the defendant will sit until the next business day when he or she will go before a district court judge for a bail review. In Baltimore City agents from pre-trial services will first speak to the judge. These agents do very little background research on the defendant and absolutely no research about the pending case. Often pre-trial will wait until an hour or so before the hearing to try to confirm the defendant’s living situation. The result is typically pre-trial giving the same recommendation as the commissioner, which sadly again is to hold without bail. The Assistant State’s Attorneys who conduct bail reviews at the Wabash or Patapsco Avenue district courts typically do not take a closer look into the facts surrounding the arrest either, which is a huge problem not just in Baltimore City, but the entire state. At the very least all civilian criminal complaints should be reviewed by a trained attorney. It is simply too easy to have someone falsely arrested in Maryland, and this absolutely needs to change.

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Published on: May 23, 2018

Maryland Reports Largest Prison Population Decline

By Benjamin Herbst

The national prison population continues to decline, and for the first time in almost fifteen years the total number of inmates dipped below 1.5 million. Last year Maryland lead the entire nation with a dramatic 10 percent reduction in prisoners, which brought the state inmate population down almost 2 thousand to a total of around 18 thousand. While the simplest explanation for the decline is the passage of the Justice Reinvestment Act, a closer look reveals a variety of factors at play.

The Justice Reinvestment Act or JRA was a groundbreaking and massive piece of legislation that sought to reduce money and manpower dedicated to jailing defendants, and to divert these resources to treating and rehabilitating convicted defendants. The JRA eliminated harsh mandatory sentences for repeat drug offenders convicted of non-violent offenses such as possession with intent to distribute narcotics. The maximum penalty for possession of CDS not marijuana was also lowered to one year, which eliminated the possibility of a prison sentence for drug possession. While most state correctional inmates are serving the original sentence handed down by the judge, a large portion are doing time for violating their probation. Lawmakers became aware that the sentences handed down for probation violations were getting out of control, and used the JRA to do something about it.

Each day dozens of defendants plea out to large suspended sentences in order to be released from jail, and many end up back in court on a violation. Some of these violations are extremely minor, and could be avoided by more patient probation officers. In the past defendants faced years in prison for extremely minor violations, but since the JRA went into effect there are now limits on the sentences handed down for these so called technical violations. The limits are not binding on the judge, but are certainly persuasive when it comes to sentencing a probationer for a positive drug test, failing to complete treatment or not paying restitution.

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Published on: May 15, 2018

Supreme Court Clears Path For Maryland Sports Gambling

By Benjamin Herbst

Back in March the Maryland House of Delegates passed a bill that would place legalized sports gambling in the hands of voters come November. At the time wagering on sports was effectively prohibited under federal law in almost all states, but Maryland lawmakers had expected the day to come when the Supreme Court would put an end to the illogical ban under the Professional and Amateur Sports Protection Act (PAPSA). That day finally came yesterday when the nation’s highest court declared PAPSA unconstitutional by a vote of 6-3. We won’t bore our readers with the technical nuance of the ruling, but a brief explanation should be helpful to those not inclined to tackle the 30 page opinion. We will also comment on the expected impact of this opinion here in Maryland, which to put it plainly will be enormous.

Yesterday The Supreme Court reiterated that it is not the business of the federal government to regulate the way state governments regulate their citizens. PAPSA did not make sports gambling illegal under federal law, and in fact wagering on sports has never been a specific federal crime. Rather, PAPSA prohibited states from establishing their own sports wagering industry by allowing the Attorney General and individual sports organizations to bring legal action against anyone operating sports gambling business outside of Nevada. The Court basically told federal lawmakers that if they want to make gambling illegal then go ahead, but if not then states have the authority under the 10^thAmendment to make the decision for themselves.

Sports betting is now legal in all 50 states (or more accurately is not prohibited under federal law in any state), so what will the impact be in Maryland? As usual we’re starting off a little late to the game, as neighboring West Virginia has already passed sports gambling legislation and Delaware and New Jersey sports books will be up and running in no time. But at least some of our lawmakers had the wherewithal to anticipate the SCOTUS ruling and start the ball rolling. There will likely be a referendum on election day this year to officially legalize sports gambling at casinos and racetracks around the state, and there is no doubt that it will pass. By 2019 we could see sports books opening at Laurel, MGM National Harbor, Maryland Live, The Horseshoe in Baltimore and all other licensed gambling establishments. The main impact of legalized sports betting in Maryland will be the millions of dollars to spread around, though the profits may not be as high as people think as less than 5 percent of casino profits in Vegas are attributed to sports gambling. But legalized wagering will bring increased traffic to the casinos and likely boost the already massive $1.7 billion in yearly revenue currently generated by Maryland casinos. Casinos sports books don’t simply generate revenue through bets, as they are entertainment destinations for gamblers and sports fans alike.

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Published on: May 9, 2018

How Does Law Enforcement Recover Stolen Property?

By Benjamin Herbst

Theft is one of the most common crimes in Maryland, with over 100,000 cases reported annually to law enforcement. Most of the reported cases involve valuable personal property, but if you factor in retail theft/ shoplifting and the thousands of other petit cases that citizens don’t bother to report the true number of thefts is likely around a quarter of a million per year. Unlike 10 to 20 years ago, only a small percentage of these cases are motor vehicle thefts. In the early 2000’s and at points in the mid 90’s there were frequently over 35,000 motor vehicle thefts per year, and now this number is hovering around 10,000. The drastic drop in motor vehicle thefts could be a result of new technology, which has made cars more difficult to steal. But the real story is the evolving ability of law enforcement to track the commerce of second hand items.

All vehicles sold in America have unique vehicle identification numbers, which make it difficult to illegally buy and sell stolen cars. Nobody wants to drive a stolen car because it’s only a matter of time before law enforcement finds it. This drastically decreases the value of a stolen vehicle, and in turn makes cars less of a target for thieves. The incentive to steal cars in this day and age is for the expensive parts and the scrap metal, which have no unique identifying information. This creates an obvious problem for law enforcement, as there is no way to know if something is stolen. On the other hand if you can track when, where and by whom something is sold, you may be able to match that up with a reported theft to produce a suspect. This data gathering approach to law enforcement is far from glamorous, but it has been highly effective in Maryland.

Last year Maryland law enforcement officers recovered over $5 million worth of stolen property by analyzing data stored in the RAPID database, which keeps track of all scrap metal, pawn/jewelry, and recycled automotive part transactions around the state. Any licensed business that engages in the second hand commerce of these products is required to keep track of all their transactions, including gathering and entering the identity of persons selling items. The transactions are then recorded and saved into a uniform database that is accessible by all law enforcement agencies. A quick example of the RAPID database in action could go like this: a suspect breaks into a house and steals a laptop and a watch in Anne Arundel County. There are no eyewitnesses and the suspect makes a clean getaway. The same suspect or an accomplice then travels to another area like Baltimore or Montgomery County to pawn the items. The pawnshop employee gladly takes the items in exchange for cash (at a major discount) with the only condition that the suspect produces identification and sign for the items. Two days later the homeowner reports a burglary to police, who come out to the scene and inventory the stolen items. A detective then runs the items through the RAPID database, the transaction pops up and the detective basically has enough evidence right there to seek an arrest warrant for the suspect for theft and burglary.

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