Maryland Lawyer Blog

No big shock: State Senator Ulysses Currie, chairman of a legislative committee that steers $32 billion in spending for Maryland, was indicted of illegally using his influence to benefit Shoppers Food Warehouse.

Judge Harrell starts out another opinion with a pop culture reference in a criminal case involving a drug deal in Prince George’s County:

Our house is a very, very, very fine house, With two [cops] in the yard; Life used to be so hard, Now everything is [seized] ’cause of you.

In a footnote, Judge Harrell apologizes to Crosby, Stills, Nash & Young "for tinkering with the lyrics" from their song, “Our House,” from their 1970 album, Deja Vu.

The Maryland Court of Appeals reversed the trial court that threw out erroneously seized evidence from an improper search, finding that the evidence recovered would be admissible under the good faith exception to the Fourth Amendment’s exclusionary rule.

I really should not be spending my time reviewing criminal cases. I try to take a quick glance at all new opinions, including criminal opinions, just to see if there is anything of interest to my practice. The lead-in to this case got my attention and I kept reading.

You can find the opinion in Marshall v. State here.

A grand jury has indicted will indict Roger Clemens on charges of making false statements to Congress about his use of performance-enhancing drugs, according to the New York Times reported, citing two sources briefed on the case. ESPN has a copy of the indictment. I think you will be able to figure out who "Strength Coach #1" is.

This may cause the congressman who had their picture taken with him before Clemens testified some chagrin.

I had a hard time believing that Clemens would be so bold as lie after he said he wanted to testify after Congress was apparently willing to let him off the mat and not require him to testify. Obviously, federal prosecutors think he is just that bold. I do not think it is huge news that the grand jury chose to indict Clemens because it is not hard for a federal prosecutor to get an indictment. But it clearly shows the prosecutors believe they can get a conviction.

I'm all for prosecuting those who lie to Congress although I think it was inane that Roger Clemens was testifying before Congress in the first place.

Now the best pitcher and the best hitter of in the last 20 years are both under indictment.

Brian McNamee has a defamation lawsuit pending in New York. What is the value of that claim now? The vast, vast majority of defamation claims have two fatal flaws: (1) the defendant has no money, and (2) the defamation is not that widespread to cause significant harm. In this case, the world only knows who Brian McNamee is because of the alleged defamation. Neither of these circumstances are present here.

• Clemens loses appeal in civil case
• New York Times article

MSNBC reports on a new law in some Miami Beach playground areas that allows for fines for adults that come to the playground unaccompanied by a minor. Apparently, and this is the first I'm hearing of it, there are already laws on the books in New York City and San Francisco.

I have a hard time figuring out why anyone would oppose this and I really can't figure out what the theoretical constitutional basis would be for striking this statute.

In Fleming v. Maryland, the Court of Special Appeals of Maryland affirmed a murder conviction and touched on two issues that are of interest to all trial lawyers in Maryland involved in personal injury cases.

The first issue discusses the admissibility of expert testimony concerning scientific or forensic evidence in Maryland under the Frye-Reed standard, which provides that scientific techniques can be admissible at trial if they are “generally accepted” in the medical and/or scientific community. The second involves the doctrine of harmless error, which applies in defining the scope of cross-examination.

In many personal injury car accident trials in Maryland, a trial can pass with few rulings that are not completely discretionary for the court. If a plaintiff prevails at trial, there are not many issues for the defendant's lawyer to attack. So it is not uncommon to get motions for new trials after a verdict that involves discretionary rulings and errors that are clearly harmless.

There is an interesting article in Time on a Maryland man who faces 16 years in prison 16 years in prison for videotaping and putting on YouTube his encounter with a Maryland state trooper who pulled him over for speeding on a motorcycle.

Why the interest? The plain clothed Maryland state trooper cut the motorcyclist off and yelled at him while brandishing a gun before identifying himself as a trooper.

If someone came into my office claiming this, I would assume he was not telling the truth. But in many cases, the video cuts through the he said/she said.

It is unlikely this man will ever spend a day in jail. The Maryland attorney general's office has given the opinion that Maryland's wiretap law does not apply to traffic stops because the conversation is not private.

This is one of those "I cannot believe this has not been conclusively resolved yet" type of issues.

When a Court of Appeals of Maryland opinion starts off with, "Reminiscent of a scene from a Cheech & Chong movie...", you know the opinion will be interesting. Particularly when the dissent responds by quoting Mr. Mackey from South Park.

You can find the full Smith v. State opinion here.

The United States Supreme Court ruled today that the government can keep some sex offenders in prison after they serve their sentences, affirming the Adam Walsh Child Protection and Safety Act that authorized the civil commitment of sexually dangerous federal prisoners.

The U.S. Supreme Court ruling, issued just minutes ago, states that the government may indefinitely imprison convicts that are found "sexually dangerous" even after their prison sentences have been completed. In the case before the court, four men who served prison terms for possession of child pornography or sexual abuse of a minor were not released at the end of their sentences.

Justice Breyer wrote for the majority in a 7-2 opinion:

The federal government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose.

Justices Antonin Scalia and Clarence Thomas dissented.

I have not read the opinion or the dissents. I have no opinion of the legal issues that were discussed. In theory, prisoners ought to be released after their sentences. They have served their time. Still, I support the law and I adopt whatever legal reasoning the majority used to reach their conclusion. Because it is just not responsible to release someone who you believe essentially poses a threat to children. You just can't.

Where's Elena Kagan on this issue? Well, no one knows for sure. But she did argue the government's case in the Supreme Court.

I found this link from the Daily Record's blog to a rare Daily Double about spotting a prospective hold out juror; it was both funny and educational. Of course, it would have been a lot more educational if Maryland had a voir dire process that allowed you to actually learn something about the jurors besides their name, rank and serial number.

• Voir Dire in Maryland
• Sample Maryland Voir Dire

The Maryland Court of Appeals made us all a little bit safer by its ruling in MVA v. Dove. I like safer. Whether there was justice in this individual case, I have no idea.

In Dove, the defendant rear-ends a car while driving his motorcycle on Route 4 in Calvert County. When the Calvert County Sheriff’s Office arrived at the scene they found the Defendant being treated by the EMT. The officer noticed red, watery eyes and a strong odor of alcohol coming from him. He used the "I had one beer" defense and said he was afraid of needles so he couldn't take a blood test to determine his BAC.

The court overturned a Calvert County judge who found that MVA could not suspend the Defendant's license.

I think you should have to take a blood test and your license should be suspended if you don't. I think this is a policy that will save lives in the long run. Whether or not ultimate justice was served in this case is a more difficult question: the Defendant's breath test showed a 0.00. Read the full opinion for all of the details on this case. It is an interesting read.

Add victims of violent crime in with roofers, landscapers, and chiropractors as the big winners of the twin blizzard. Baltimore had a very unBaltimorelike streak of 9 consecutive days without a homicide report.

What does Mayor Dixon's embezzlement conviction mean? Ostensibly, it means she can no longer be mayor. Does she get to exhaust her appeals? I have no idea.

Another juror note in the Sheila Dixon trial.

I'm not that wrapped up in local Baltimore City politics. But the drama of this is incredible. I'm surprised there is not more national media attention focused on these charges against a big city mayor.

P.S. - Now we have a verdict. Yet nothing on CNN about verdict yet. But we know Tiger had toast and eggs for breakfast and his wife reportedly glared at him when he asked for orange juice.

Jurors in the Shelia Dixon trial convening for the 38th consecutive day today. Okay, not really, but it just feels that way.

Jurors are watching videotape of trial testimony of one of the witnesses. To say the least, this is unusual. But I don't think it is reversible error. This judge knows what he is doing.

The Baltimore Sun is tweeting the story. I check in periodically. The jury is out. Which means a lot of tweeting about nothing right now.

Another Above the Law link. A former Portland High School teacher convicted of having sex with her underage teacher's aide has been sentenced to 12 years in prison.

The title of the post is a little misleading. She is eligible for parole in four years. She was a teacher who slept with the student who was in high school. Maybe she should go to jail for that, she is in loco parentis and all of that. But the kid was a month from turning 18. Twelve years seems insane?

Dilip Paliath writes in the Examiner about the jury selection process in the Sheila Dixon trial.

Dixon has seven lawyers. I'd love to know how and if she is paying these lawyers. Dixon makes about $151,000 a year. Could it really be pro bono with seven lawyers in there slugging it out for her? How many trees will be burned in columns of outrage if she is acquitted and she tries to stick Baltimore City with the bill?

More campaign financing criminal law problems: a grand jury has indicted developer and H&S Bakery owner Jon Paterakis and reindicted Baltimore City Councilwoman Helen Holton on charges of violating campaign finance laws.

The Baltimore Sun story is here.

The Maryland Daily Record reports that Baltimore County Councilman (Randallstown) Kenneth N. Oliver plead guilty of two counts of campaign finance violations. Essentially, Oliver plead guilty to taking money out of his campaign for his own personal use. Oliver was sentenced to six months’ probation and is required to pay a $2,500 fine and performing 50 hours of community service.

A woman has filed a lawsuit in Nevada alleging that Ben Roethlisberger raped her in a hotel penthouse a year ago. Roethlisberger denies the claim.

Everything about the story sucks. Because while there is some narrow middle ground, one of two things likely happened here: (1) Roethlisberger assaulted this woman, which means he is an awful human being, or (2) this woman is completely lying because she is insane or trying to make a buck by suing someone with fame and fortune. If it is the latter, notwithstanding the American public’s willingness to forget horrendous allegations (see Bryant, Kobe and Jackson, Michael, for examples), Roethlisberger will always have a taint on him.

"If an investigation is commenced, Ben will cooperate fully and Ben will be fully exonerated," Roethlisberger’s lawyer David Cornwell said in a statement. But the most likely outcome is dropped charges after a civil resolution or an acquittal (the burden of proof is really tough on he said/she said). So unless Cromwell has a Perry Mason moment, we will never really know which of the two that it is.

So, cutting to the end of the story, Roethlisberger will get 95% of his reputation back, which means there is either a 95% or a 5% complete injustice.

Yesterday, I said that I thought Bernie Madoff's sentence was over the top given that he plead guilty. The Wall Street Journal Law Blog has a post called "Nobody... Is Every Going to Plead Guilty Again." This is more thoughtful analysis of my drive by thoughts yesterday. Madoff absolutely must go to jail. But a guilty plea plus a lack of causing physical harm to me does not equate to 150 years.