Criminal Defense Lawyer Blog
Published on:

By

pistol-1350484_1280-300x200Anne Arundel County Police recently arrested two teenagers ages 14 and 16 for attempting to steal firearms from a Glen Burnie gun store.  Just before 4 a.m. in the morning police observed a white Ford van that crashed into the gun shop, and soon thereafter located two juvenile suspects in the process of stealing firearms from the store’s gun cases.  The juveniles were arrested without further incident and charged with multiple criminal offenses, and could be facing more charges according to media reports.  Police learned that the van in question was also involved in an attempted burglary in Pasadena earlier in the night.  Two other gun stores, including one in Anne Arundel County and one in Montgomery County, were also recently burglarized over the last couple of weeks and suspects had not been apprehended and charged at the time of this latest incident.  The Montgomery County burglary occurred on the night of Thanksgiving, just after midnight.  According to police this incident involved five or six individuals who rammed a stolen black sedan into the front of the gun shop, and then fled the scene with multiple firearms.  The same store was unsuccessfully targeted just one week prior.

The ATF is investigating all of these burglaries to see if there is any connection, and federal charges would likely follow if any of the thieves turn out to be adults.  Juveniles can be prosecuted at the federal level, but state prosecutions are far more common even in crimes that could be charged federally.  Theft of a gun from the premises of a licensed firearms dealer is punishable under 18 U.S.C. section 842(h), and a violation of this law carries up to 10 years in prison.  The logic behind making this a federal crime is that all firearms dealers must have a FFL or Federal Firearms License that is issued by the ATF.  The feds must approve anyone who chooses to sell, import or manufacture guns, so stealing from one of these licensees was established as a federal crime.  This is akin to bank robbery being a federal crime due to almost all banks being insured by the FDIC.

The exact charges in the Anne Arundel County case have not been announced publicly, as all juvenile cases and adult charges involving juvenile defendants are sealed from public view and inspection.  This was not always the case, as until recently juveniles that were charged as adults had their cases entered on Maryland judiciary case search, which is easily accessible to the public.  This has been a source of contention for the criminal defense community, as many of these charges ended up being dismissed or transferred to juvenile court after the damage of public knowledge was already done.  Thankfully, changes occurred that now protect juvenile defendants.  In addition, recent case law from the Maryland’s highest court has moved the needle in favor of transfer if there is any possibility of the juvenile benefiting from programs or services provided by DJS.

Continue reading →
Published on:

By

Gun-evidence-box-300x225One Baltimore man was sentenced and another recently pleaded guilty to the federal charge of illegal possession of a firearm in a school zone.  Both cases were prosecuted at the Baltimore City federal courthouse, and both defendants were originally chaeged in state court before the feds took over.  The first defendant, a 22-year-old man, was arrested back in March of 2021 for possession with intent to distribute fentanyl and firearm charges.  Law enforcement including the DEA recovered multiple firearms and upwards of 6 kilograms of fentanyl from a Pikesville stash house that was tied to the defendant.  The defendant’s case was transferred from the District Court to the Circuit Court for Baltimore City, but then was dismissed after the feds decided to prosecute.  There is rarely one specific reason why the feds choose to pick up a state case, but when a defendant is arrested in the city with a combination of fentanyl and firearms its certainly going to attract their attention.  Federal prosecutors have been focusing on fentanyl cases in the Baltimore and D.C. metro areas over the last couple of years, and had already been heavily involved in prosecuting illegal firearm possession.  Any time both are present there is a good chance the case will be picked up by the U.S. Attorney’s Office.  In this particular case the young man received a 9-year federal prison sentence for illegal possession of a firearm in a school zone and possession with intent to distribute a controlled substance, which means he will likely serve close to 8 years behind bars. There is no parole in the federal criminal justice system, so early release can only be granted based on the defendant’s conduct and the availability of re-entry programs.

Shortly after the first defendant was sentenced, another Baltimore man pleaded guilty to the sole charge of illegal possession of a firearm in a school zone.  This defendant, a 31-year-old man, was apparently riding around the city on his bicycle with a construction hat, orange safety vest and a loaded .40 caliber handgun sticking out of his waistband.  A call for a potentially armed man was made to Baltimore Police, who were able to locate the suspect on city watch CCTV cameras a short time later.  Officers then stopped the suspect for riding his bicycle on the sidewalk, which is violates a city ordinance.  The man then allegedly tried to flee but was found a short time later knocking on the door of a random house.  Upon detaining the suspect, police located the .40 handgun, which had an obliterated serial number and 15 rounds of ammunition.  The suspect then uttered several spontaneous statements claiming ownership of the firearm.  This case could easily have been prosecuted by the Baltimore City State’s Attorney’s Office, but the feds likely picked up the case due to the defendant’s proximity to a school upon his arrest.  The Gun Fee School Zones Act of 1990 made it a federal crime to possess a firearm within 1,000 feet of a school, and despite being modified several times over the last few decades, the law is still very much intact.  Violation of this provision is a felony punishable by up to 5 years in federal prison, which is significantly harsher than the 3-year penalty for wear, transport or carry a firearm under Maryland law.  The defendant in this case negotiated a plea deal to serve two years in prison, so he is likely not a convicted felon or otherwise prohibited from possessing a firearm.

The Blog will continue to follow all noteworthy drug and gun cases in Maryland, and will post on federal prosecution of traditional state charges.  If you or a loved one is facing adult or juvenile criminal charges contact Maryland gun lawyer Benjamin Herbst anytime for a free consultation at 410-207-2598.  Benjamin specializes in charges involving possession with intent to distribute CDS such as heroin, fentanyl, cocaine and marijuana.  He also has extensive experience defending clients facing probation violations and gun charges such as possession of a firearm by a convicted felon and possession of a firearm in a federal facility.  Contact Benjamin today to learn what defenses may be available in your state or federal case.  Benjamin is also licensed to practice in Florida, where he has successfully defended clients in numerous offenses such as drug trafficking, carrying a concealed firearm and aggravated assault.

Continue reading →
Published on:

By

marijuana-1281540_1280-300x225Ten years ago marijuana first became legal in parts of the United States after voters in Washington and Colorado approved recreational cannabis.  Over the last decade an additional 17 states and the District of Columbia all followed suit and voted to legalize marijuana use for adults.  Maryland lawmakers have been tracking these trends for years, but had been remained hesitant to make any drastic changes to cannabis policy.  Rather, lawmakers have steadily been taking small bites at the apple including lowering the maximum punishment for marijuana possession, creating a medical marijuana program, and then eventually decriminalizing possession of small amounts of cannabis.  This past year lawmakers in Annapolis finally proved ready to take the big plunge, though they decided to leave it up to the voters to legalize pot once and for all.  Passage of the ballot measure was never really in doubt, as previous polls had revealed approximately 60 percent of Maryland voters favored marijuana legalization.  A 60/40 split may not seem like a large margin, but in the election world it’s actually fairly wide.  The margin however turned out to be even wider in the real vote, as the measure passed with a 65.6 percent approval.  Close to 1 million voters said yes to the question of whether citizens 21 and older should be able legally use cannabis Maryland, while just over 500,000 voted no.  This signaled a borderline landslide victory for the good guys.

Now that the ballot measure passed there are a few important things to remember, as it is definitely not legal so spark up a joint on the street or fire up the basement hydroponic grow room just yet.  First off, cannabis will not be legalized for recreational use until July 1 of 2023.  Starting July 1, 2023 possession of up to 1.5 ounces of pot will be fully legal for adults over the age of 21 while possession of 1.5 to 2.5 ounces will constitute a civil infraction.  Possession of over 2.5 ounces will be a misdemeanor punishable by 6 months in jail.  On January 1, 2023 possession of up to 1.5 ounces will be decriminalized though still illegal (much like possession under 10 grams is currently).  On July 1, adults will be able to grow up to two cannabis plants on their property as long as the plants are away from public view and protected from access by minors.  Unlawful distribution of marijuana and possession with intent to distribute will no longer be a felony starting on July 1, but will still retain a harsh sentence of up to 3 years in jail.  Mandatory expungements for past pot offenses that are no longer crimes will begin next year as well, but there is not definite timetable when recreational sales will begin.  Finally, smoking in public will remain illegal, and will be punishable by a civil fine of up to $250.  It is unclear whether municipalities such as Ocean City may try to enact harsher punishments as they do with open containers of alcohol.

The Blog will continue to follow Maryland marijuana policy with a close eye, and will also monitor other states and potential federal policy changes.  On election day five other states provided voters with the ability to determine whether recreational cannabis would be legal, though only Maryland and Missouri voters approved the measures.  Voters in Arkansas, North Dakota and South Dakota all declined to legalize marijuana.  South Dakota voters had previously passed legalization in 2020, but the vote was declared invalid by the state’s highest court.  If you have a question about the new marijuana laws or a past CDS case feel free to call Maryland drug crime lawyer Benjamin Herbst anytime at 410-207-2598.  Benjamin specializes in manufacturing, possession with intent to distribute and drug trafficking charges such as large amount and importation.  He also has extensive experience representing those charged with conspiracy and participation in a criminal gangs.  Contact Benjamin to find out which defenses may be available in your state or federal drug case anytime, 7 days a week.

Published on:

By

fire-1030751_1280-300x199A Charles County grand jury recently found probable cause to indict a 21-year-old woman from Upper Marlboro for two separate fire-bombing incidents that occurred just over one year ago.  The first incident took place in Waldorf, where the Prince George’s County woman allegedly threw a Molotov cocktail or firebomb in a homeowner’s front yard.  The fire bomb in this incident apparently did not properly ignite, and no damage was reported.  However, the next night in St. Mary’s County, police were called to investigate another incident where three fire bombs were ignited and thrown just feet from a residence.  The homeowner in this case reportedly heard noises outside, and upon opening the front door encountered a burning Molotov cocktail.  The homeowner was able to extinguish the burning destructive device without anything catching fire, though he also found two more devices that had already burned out.

Local police from Charles County and St. Mary’s County, as well as the State Fire Marshal investigated the scene but were unable to develop suspects for several months.  After about five months the Marshals honed in on the defendant after reviewing phone records and social media posts, and an arrest warrant was issued in March.  The defendant was eventually arrested in May, and after being denied bail by the commissioner, was released by a Charles County District Court Judge on private home detention.  The case then stayed in the District Court for several months before being indicted, which is not the norm for cases in Maryland.  A defendant is typically indicted within 6 weeks of his or her arrest in a District Court case, though this defendant was indicted five months after her arrest.

The 21-year-old Prince George’s County woman is now facing five criminal charges in the Circuit Court for Charles County, including attempted arson in the first degree, malicious destruction of property and possession or manufacture of a destructive device for the first incident in Charles County.  She is facing attempted arson in the second degree and destructive device charges for the second incident in St. Mary’s County, though both are charged in the same indictment.  First degree arson is a serious felony offense that carries a maximum penalty of 30 years in prison.  While the defendant was charged with misdemeanor attempted arson in the first degree, she would theoretically face the same 30-year maximum penalty upon conviction.  In Maryland charges for attempt and conspiracy are both considered misdemeanor common law offenses, though the maximum penalties are the same as the underlying crime.  First degree arson is charged for burning or attempting to burn a dwelling or an occupied structure, while second degree arson is charged for burning or attempting to burn a structure in general.  Second degree arson still carries a harsh 20-year maximum penalty, though it scores significantly lower on the Maryland sentencing guidelines than arson 1.

Continue reading →
Published on:

By

hammer-719066_960_720-300x225On October 1 a host of new laws took effect in Maryland, though most of these laws do not modify existing criminal laws or procedure.  There are however two laws that will impact on our state’s criminal justice system.  The first new law prohibits a spouse from invoking the marital privilege in a domestic violence case such as second-degree assault if the marriage took place after the alleged incident.  While there may have been a few cases showing up from time to time where a defendant and a victim married in advance of a criminal case, this new law will not likely impact a large number of cases.  A victim who is willing to marry for the sole purpose of invoking the privilege is likely to not be cooperative with the state, and with good representation those cases will typically resolve favorably to the defendant.

There is one new law however that will certainly have a major impact on the criminal justice system.  This law was met with a great deal of resistance and even survived a veto by the Governor.  The law is titled the Youth Interrogation Act, and as of this month effectively prohibits Maryland police officers from interrogating juvenile suspects until the child has consulted with an attorney and the police have made reasonable efforts to contact the parents of the juvenile.  The attorney can be retained by the parents of the detained juvenile or provided by the state, and the consultation must be confidential and conducted in accordance with the Maryland Rules of Professional Conduct.  This requirement cannot be waived by the parents but it appears that a properly advised juvenile can still elect to speak without the presence of a lawyer.  In order for a statement to be deemed admissible the State must prove by clear and convincing evidence that it was made knowingly, intelligently and voluntarily because there is a rebuttable presumption that the statements are inadmissible.  For the purposes of this law, it does not matter whether the detained minor is being charged as an adult or a juvenile, which means all detained minors under the age of 18 may not be interrogated without first being provided the opportunity to speak with a lawyer.  The interrogations must be recorded as long as it is practicable, and the juvenile must be informed of the recording.

There is one major exception to this law, which was included after the bill was met with a great deal of resistance from police and State’s Attorney lobbyists.  Law enforcement may conduct an interrogation of a detained juvenile without the presence of counsel if the law enforcement officer reasonably believes that the information sought is necessary to protect against a threat to public safety, and the questions posed to the child by law enforcement are limited to those questions reasonably necessary to obtain the information necessary to protect against the threat of public safety.  Obviously, any questioning elicited without the presence of a lawyer would come under intense scrutiny from the defense, and any inculpatory statements would likely be suppressed if the police deviated from the permissible line of questioning.

Continue reading →
Published on:

By

handcuffs-2102488__480-300x169In October of 1971 an off-duty Montgomery County Police Captain was shot while working as a security guard.  Law enforcement arrived at the scene shortly after the shooting, but the officer succumbed to his injuries three days after being shot.  Numerous suspects were interviewed, but no arrests were made and the case had remained cold for decades.  Last October marked the 50th anniversary of the homicide, and police detectives decided to take a fresh look at the case in hopes that a new set of eyes could finally bring justice to the family of the fallen officer.  After reviewing the voluminous files and hours of recordings, the detectives honed in on a then 19-year-old witness who had given a statement to police shortly after the shooting, but had never been labeled as a suspect.  A recording of this witness’ interview with police was sent to the FBI where technicians were able to convert the old tape into a digital format.  The digital recording was clear enough for detectives to determine that the witness knew more about the incident than was possible- unless he was involved in the shooting.  This witness also had a criminal record, lived near the scene of the crime and subsequently changed his name.  Detectives then spent weeks trying to track the witness down, and finally located him living and allegedly quiet life in Upstate New York.

Montgomery County homicide detectives traveled to New York to attempt to interview the witness, and left with a confession to the 51-year-old shooting.  The witness turned defendant, who is now 70 years old, apparently admitted to detectives that he was committing a burglary in the area, when the off-duty police captain intervened as he was attempting to flee in a getaway vehicle.  The defendant claimed the shooting was accidental, but nonetheless detectives immediately applied for an arrest warrant for first-degree murder.  An arrest warrant was issued that same day, and the defendant was taken into custody in New York.  He was officially served with the warrant upon arrival at the Montgomery County Detention Center one week later.  He was denied bail by a District Court Commissioner at his initial appearance, and again by a District Court Judge at his bail review.  A preliminary hearing is set for this Friday, but the defendant will almost certainly be charged in the Circuit Court.

This case brings up a host of interesting legal issues.  One involves the statute of limitations, which under Maryland law varies greatly depending on the crime.  Almost all felonies including murder, first-degree assault and robbery have no statute of limitations, and the state could prosecute at any time.  Many misdemeanors have a 1-year statute of limitations, but there is no limit if the crime is punishable by a prison sentence.  In Maryland a prison sentence is a year and a day or more, so any crime with a maximum penalty of 18 months or higher can be charged at any time.  This means common misdemeanor crimes such as second-degree assault and fourth degree burglary have no statute of limitations in Maryland.  There are several crimes that carry two and three-year limitations such as manslaughter by vehicle, tax offenses, election law violations and Medicaid fraud that carry a 3-year limit.  Crimes charged under the Natural Resources Article and fraudulent driver’s license crimes carry a 2-year limitation.

Continue reading →
Published on:

By

drink-driving-808790_960_720-300x200The installation of engine interlock devices on vehicles in Maryland has increased exponentially over the last decade, and they have been lauded as a highly effective means to reduce impaired driving.  Currently though, there have been no realistic attempts by the state to make these devices mandatory in all vehicles.  In fact, it would likely impossible for any state to require the use of these devices in vehicles.  There are myriad reasons why a state such as Maryland would find it impractical or even unconstitutional to implement mandatory interlock or related programs.  First, the state does not have the budget or the manpower to develop an enforceable program where drivers would be required to submit to an alcohol test before putting a vehicle in drive.  Aftermarket alcohol testing devices are not especially reliable, and there would have to be someone on the government side to enforce the installation and maintenance of these devices.  Requiring drivers to install and maintain these alcohol testing devices would create a major public outcry regarding the expense and the civil liberties implications.  On top of all of these issues, instituting a statewide testing program would have an undue burden on interstate commerce, and likely lead to the years of legal challenges.

As a result of these implementation issues, the only realistic way to mandate devices that monitor a driver for intoxication is to require the auto manufacturers to install them in the factory.  This may seem like a pipe dream, but decades ago it would have been hard to imagine that all cars new would have seatbelt monitoring systems and airbags.  The NHTSA is the administrative agency that sets the safety requirements for vehicles being sold in the United States, and they take recommendations from the NTSB.  The NTSB has made lobbying for alcohol devices a priority since 2012, and has continued to recommend new cars be manufactured with them.  Passive alcohol testing devices monitor drivers for signs of impairment such as swerving, drifting and even facial expressions and movements.  They are called passive devices because the driver does not actually do anything to activate the device such as blowing into a tube on an interlock device.  Passive devices are always functioning while the car is in operation, and have been researched by multiple auto manufacturers since 2008.  The technology currently exists to detect signs of impairment in drivers, but they are not be perfect and could likely be disabled by a mechanic if the owner was so inclined.  The mandate would only apply to newly manufactured vehicles based on the aforementioned difficulty and expense in installing after-market devices; it could pass muster in a civil liberties argument because the burden will be placed on auto manufacturers and not individual citizens.  The government would not be forcing individuals to be tested for impairment while driving, but rather saying if anyone wants to buy a new car, they will have to deal with the devices.

Nearly 43,000 people were killed on roads in the United States last year, and this alarming number continues to rise.  Roughly one quarter of these deaths are alcohol related, and the government believes each and every one of these are preventable.  As the technology continues to improve, the pressure will mount on the NHTSA to act.  Therefore, it is highly likely that within the next five years all new cars sold in the United States will have some sort of passive intoxication monitoring system.  The Blog will continue to follow this story and may post a follow up article in the future.  If you have a question about a DUI case, an MVA license suspension or the interlock device program feel free to call Maryland DUI lawyer Benjamin Herbst anytime for a free consultation.  Benjamin is an experienced criminal defense lawyer who specializes in traffic violations such as leaving the scene of an accident, fleeing or eluding, driving on suspended license and all drunk driving related matters.  He can also fight to have your bench warrant or arrest warrant recalled if you have missed court or violated your probation.  Call Benjamin anytime at 410-207-2598.

Continue reading →
Published on:

By
793842_school_bus-300x224Maryland State Police troopers recently charged a Carroll County public school bus driver with DUI after her bus crashed into multiple telephone poles on Route 32.  Troopers responded to Bartholow Road in Eldersburg and observed such severe damage to the telephone poles that the road was forced to be shut down for roughly 9 hours.  According to reports the school bus drove off the roadway around 2 p.m., and police responded shortly thereafter.  Troopers allegedly observed signs of impairment on the driver that were consistent with recent consumption of alcohol or drugs, and later arrested her on charges of DUI and DWI.  Additional charges may be forthcoming pending the results of a blood analysis that was likely required by the officers.  There is no indication that the driver, a 54-year-old woman from Westminster, was injured, but it appears she was treated by medical personnel.  Reports stated the bus driver was in fact on her way to pick up children at one of the nearby schools, but law enforcement has not confirmed this as fact.  The two closest schools in the area are Eldersburg Elementary and Liberty High School.  At the time of this post the bus driver’s charges had not been released publicly, but she will likely face a host of traffic violations in addition to DUI and DWI, such as reckless driving and negligent driving.  If the results of the blood test reveal an alcohol concentration of .08 or higher the driver will be cited for DUI per se, which carries a 1-year maximum jail sentence and a $1,000 fine.

While there were no children on the bus at the time of the accident, this case will not sit well with the State if indeed there is sufficient evidence of impairment.  The bus driver does not appear to have a criminal record, but does have two prior convictions for driving on a suspended license.  One conviction was from Baltimore County in 2014, and the other from Carroll County in 2012.  If in fact the bus driver was heading to pick up children from school there is certainly going to be a great deal of public attention surrounding the case.  The Blog will certainly follow its progress, and may post a follow-up article in the future.  Obviously, the situation could have been drastically worse if children were in the bus, so the accident may have actually been a blessing.

If there had been children in the bus, the driver could have faced a host of other charges, including criminal charges, regardless of whether an accident occurred.  For starters she would have faced charges for driving while impaired (or under the influence) by alcohol or drugs while transporting a minor.  The maximum penalty for DUI while transporting a minor is up to 2 years in jail for a first offense, which is double the normal maximum penalty.  Repeat offenders face up to 3 years for a second offense and up to 4 years in prison for a third or subsequent offense.  Under Maryland law the maximum penalty for DWI while transporting a minor is up to 6 months in jail, which is three times the normal maximum penalty of 60 days.  The maximum penalties are much harsher, and the judges and the State will also take these cases far more seriously.  For this reason, it is important to retain an experienced Maryland DUI lawyer for your charge right away.  There are a host of things that a defendant can do prior to court to improve the outcome of the case, and it should start right away.  Benjamin specializes in DUI while transporting a minor, federal DUI, repeat offender cases, out-of-state defendants and minors charged with DUI, and has successfully defended numerous clients charged with these offenses.  Call Benjamin anytime for a free consultation at 410-207-2598 and learn what defenses may be available in your case.
Continue reading →
Published on:

By

technology-2500010__480-300x200According to a recent press release by the Prince George’s County Police Department, thirteen of its own officers have been indicted on charges of theft and misconduct in office.  The indictment was revealed last week at the Prince George’s County Circuit Court in Upper Marlboro.  The defendants in the indictment were mostly experienced members of the police force, as ten were Corporals and one has since retired.  Based on the press release the department began an internal investigation after catching wind that several officers were working for a security company and receiving compensation while on duty at police officers.  The company serviced more that 20 apartment complexes in the county from at least the end of 2019 until February 2021.  The officers were suspended in April of 2021.  Among other allegations, the officers allegedly provided false information to the apartment complexes in order to justify their continue employment.  The total amount that the officers profited is alleged to be between $1,500 and $25,000, which means they are facing felony charges in addition to the misdemeanor charge for misconduct in office.

The department initiated the investigation after another high-ranking officer pleaded guilty to tax evasion several years ago.  In an effort to make sure this type of conduct ends with this indictment, the department has instituted policy changes that began a few months after the officers were suspended.  The policy changes include a blanket prohibition on officers working as security guards, as well as hiring a third-party software company to allow officers to clock out of work before beginning secondary employment.  The internal affairs division of the department will also conduct site investigations of any secondary employment locations that employees disclose, and  these site investigations will be conducted at random.

The officers are charged with theft based on the allegation that they were collecting taxpayer dollars while engaged in private employment.  It’s true that the defendants did not physically steal anything, but their pay from the government was accepted under circumstances where the they were clearly double dipping.  It is still an interesting and fairly uncommon means of charging a theft case, and if the cases go to trial, there may be some arguments that could sway a jury to acquit.  Regardless, state prosecutors seem to be in good shape on the misconduct counts.

Continue reading →
Published on:

By

hammer-802296__480-300x225Can the State go to trial without the defendant being present in court?  Last month a Washington County man was convicted of possession with intent to distribute cocaine, and driving under the influence after a traffic stop in the early morning hours of April 8, 2021.  Normally this type of case would not be especially newsworthy for the Blog but for one glaring detail; the defendant was tried and convicted by a jury despite not being present in court.  In legal terms the defendant was tried in absentia, simply meaning he was absent from court but the judge decided to move forward with the case anyway.  The stop and the trial occurred in Cumberland County, Pennsylvania, which is just north of the man’s hometown of Hagerstown on Interstate 81.  According to a press release by the District Attorney’s Office the man was traveling southbound toward Maryland on I81 and nearly collided with a tractor trailer.  After making contact with the Hagerstown man, Troopers noticed marijuana in plain view in the vehicle and observed signs of impairment.  The defendant then allegedly admitted to drinking alcohol and smoking marijuana before driving.  Upon being arrested for DUI Troopers recovered a plastic bag with a white powdery substance that the defendant was trying to conceal in the front bumper of the vehicle.  Chemical analysis revealed that the substance was in fact cocaine, weighing nearly 75 grams.  The amount of cocaine apparently was enough for the jury to conclude that it was not for personal use, but rather that he possessed the drug with intent to distribute.  Sentencing is set for October 4 of this year, and it remains to be seen whether the defendant will show.

Although the defendant was arrested and prosecuted in Pennsylvania, the law regarding trials being held in absentia appear to be similar to the Maryland law.  We do not usually post about cases in other states, but the defendant does hail from Hagerstown and the trial brings up an interesting and rare issue.  Pursuant to Maryland Rule 4-231 a defendant in a criminal proceeding is entitled to be physically present in person at every stage of the case and trial.  The most common exceptions are during arguments over the law, or a when nolle prosequi or STET is entered.  The courts have been conducting remote hearings for more than two years, but at most hearings the judge reminds the defendant that he or she has a right to be physically present.  This is especially true for evidentiary hearings and plea hearings.  There is one more exception to this rule, and it is triggered when the defendant waives his or her appearance by being voluntarily absent from court after the proceeding has commenced or when the defendant engages in conduct that justifies exclusion from the court.  A defendant may also personally or through counsel waive the right to be present.  We have seen cases where defendants have been disruptive in court and then removed from the courtroom in the middle of a trial.  One particular case occurred in Florida, and the trial continued without the defendant even after the jury witnessed the outburst.  This is obviously a rare situation that all parties attempt to avoid, but it does happen.

The lawyers for this defendant in this Pennsylvania case likely attempted to postpone the trial or even withdraw from the case, but the State and the judge seemed to agree that moving the case along was in the best interest of justice.  It is not clear whether the defendant was absent for the entire case or just for the trial, but the language of the Maryland rule does appear to create somewhat of a murky issue by stating “after the proceeding has commenced”.  An argument could be made that the proceeding means the actual jury trial, and therefore a defendant’s presence cannot be waived by failing to appear at trial.  The Blog will continue to follow this case to see whether the defendant shows, and whether the sentence takes into account the defendant’s failure to appear.  It would likely be advisable for the defendant to show up for sentencing, as unlike during trial, a judge does have the ability to factor in failing to appear at sentencing.

Continue reading →
Contact Information
Baltimore Office
400 E Pratt St 8th Floor
Baltimore, MD 21202
Phone: (410) 207-2598

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2015 – 2025, Benjamin Herbst, Esq.
JUSTIA Law Firm Blog Design