Criminal Defense Lawyer | Personal Injury Attorney | DC & MD | Steven D. Kupferberg

Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence.

This principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.
A better approach is to require the opening of prosecutors’ files to defendants, as a general rule. North Carolina adopted open-files reform to make criminal cases more efficient and fair.

North Carolina’s statute requires prosecutors in felony cases, before trial, to make available to the defense the complete files of all law enforcement agencies, investigatory agencies and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the defendant. The New York Times

So far Ohio has followed North Carolina’s lead, and other states should as well. So should Congress. The best way to fulfill the promise of Brady is with open-files reform, which addresses the need for full disclosure of evidence that could show a defendant’s innocence.

via The New York Times, The Editorial Board

I have been a fan of Paolo Soleri and his architecture since I was a teenager. I have visited his settlement in the high Arizona desert, Arcosanti and recommend a visit by all visionaries who may read this blog.
Steven Kupferberg

Paolo Soleri, a visionary architect whose basic idea was that architecture and ecology are inseparable in their effect on people, died on April 9, 2013 at Cosanti, his home in Paradise Valley, Arizona. He was 93. He was best known as the designer and oracle of Arcosanti, a settlement in the Arizona high desert that became a symbol of hippie-era utopianism and a prescient environmentalism.

He was part of a flock of utopian dreamers who designed mega-structure cities in the 1960s, but he had more of a social and ecological agenda than the others. When so many others were theorizing, Soleri went out into the desert and actually built his vision with his own hands. That’s the reason he became such a counterculture hero.

Jeffrey Cook, a professor of architecture at Arizona State University

via The New York Times, Fred A Bernstein

A version of this obituary appeared in print on Wednesday, April 10, 2013, on page B13 of The New York Times with the headline: Paolo Soleri, 93, Architect Of Counterculture, Dies.

Client was originally charged with Second Degree Rape, Second and Third Degree Sex Offense. The initial trial proceeded in 2010 at which time the client was found not guilty of Second and Third Degree Sexual Offense. The client was found guilty of Second Degree Rape. An appeal was taken to the Court of Special Appeals of Maryland and on June 2, 2011, the guilty finding was overturned and vacated.

The Court found that the trial court in declining to grant the defendant’s counsel’s request for an independent medical examination of the alleged victim and thereafter to conduct an in-camera hearing as contemplated by the law had committed reversible error by not allowing the defense to show that the alleged hymenal tear may have occurred earlier and, therefore, prohibiting him from casting reasonable doubt as to whether he had engaged in vaginal intercourse with the alleged victim. The Court concluded “that the trial court erred in denying the client the opportunity to explore . . . [the alleged victim’s] sexual history in this limited matter . . . the error was not harmless.”

The Court also found that the prosecutor’s argument was an improper appeal to the jury’s prejudice against criminal defense attorneys. The prosecutor’s comments attacked the entire segment of the Bar who provided defense services to criminal defendants, suggesting to the jury that, as a group, criminal defense counsel must “engineer doubt” and “muddy the waters” in order “to distract [the jurors] from the evidence.” Ironically, this argument focused the jury’s attention away from the evidence in this particular case, and urged the jury to discount all arguments made by defense counsel in this case because of gamesmanship on the part of defense counsel generally.

The Court ultimately ruled “In a case that turned on the credibility of a single witness, we cannot say that we are persuaded beyond a reasonable doubt that this error was harmless. Consequently, even if we had not concluded that the conviction had to be vacated for the reasons set forth in the previous section of this opinion, we would vacate the conviction and remand for further proceedings on the basis of this error.”

The Court of Special Appeals of Maryland

This matter was once again set for trial in May of 2012 in the Circuit Court for Charles County, Maryland, and the jury was unable to reach a verdict and a mistrial was declared.

This matter was then set for another jury trial which was held on April 29, 2013, and concluded with a NOT GUILTY as to the remaining count of Second Degree Rape.

This was a long journey for the Defendant and resulted in total vindication.

Once again, it’s hard to beat a man who never gives up.

According to the Pew Research Center, a majority of Americans now say marijuana should be legal, 52 versus 45 percent. The overall shift in support is driven by wide acceptance among younger Americans as well as changing views among their elders. Nearly two-thirds (65 percent) of people between the ages of 18 and 32 say that Marijuana should be legal. At the same time, baby boomers and Generation Xers have become far more supportive than in the early 1990s. Via Scott Clement of the Washington Post

Yet the pot industry in Colorado is struggling with the unique challenges of conducting a business that the federal government considers a crime. The federal government has cautioned many banks against handling marijuana finances, causing state’s pot producers difficulty securing business financing because banks won’t give them loans- most of the time, not even an account. Business owners remain anxious about the intentions of the federal government, which could seize millions of dollars they have invested or even send them to prison.

Furthermore distributing marijuana is not a legitimate business expense under the tax code, so pot distribution companies cannot deduct most of their expenses, which can result in the company losing money after paying income tax. Pot retailers also cannot use many of the traditional means for promoting consumer goods, such as advertising. And state lawmakers are about to regulate everything from the shape of containers to the labeling required for pot laced brownies and other “infused products”. Via T.W. Farnam of the Washington Post

A version of Clement’s article appeared in print on Friday April 5, 2013, on page A3 of The Washington Post with the headline: Marijuana legalization support hits milestone

A version of Farnam’s article appeared in print on Thursday March 26, 2013, on pages A1, A6 of The Washington Post with the headline: In Colo., a growing industry is a federal crime

This term Maryland politicians have begun voting on passing one or both of the dual national movements surrounding Marijuana; decriminalization and medical use.

The Maryland Senate voted 30-16 on Tuesday, March 19, 2013 to decriminalize the possession of less than 10 grams of marijuana. The measure would change the current penalty of up to 90 days in jail and a $500 fine for possessing less than 10 grams of marijuana to a $100 civil fine. The law was changed last year to reduce jail time for possession under 10 grams to 90 days instead of a year in jail. This bill is expected to face an uphill fight in the House of Delegates.
Via The Daily Record

Meanwhile the Maryland House of delegates approved, 108 to 28, a bill on March 25, 2013 that would legalize medical marijuana. Maryland’s bill would limit distribution of marijuana to a small number of qualified academic medical centers. Under the bill, the centers would be required to monitor patients and publish their findings. The Senate has not taken actions during this session on a medical marijuana bill but said they would give it careful consideration during the final two weeks of the 90-day session.
Via John Wagner and Aaron C. Davis of The Washington Post

A version of The Washington Post article appeared in print on Tuesday March 26, 2013, on pages B, B2 with the headline: Md. House approves medical marijuana.

In 2010, the Supreme Court ruled that criminal defense lawyers must warn their clients if deportation could be a collateral consequence of a guilty plea. This February, the court limited the reach of that ruling, saying it did not apply retroactively to people whose convictions had become final by the time the justices announced their 2010 decision, Padilla v. Kentucky. Based on the Padilla decision, a federal judge in Illinois set aside Roselva Chaidez’s conviction.

Justice Elena Kagan, writing for herself and six other justices, heard the case of Chaidez v. United States, No. 11-820 and said the federal judge’s ruling was at odds with the Supreme Court’s central precedent concerning retroactivity, its 1989 decision in Teague v. Lane. The Teague decision said that a ruling is retroactive if it applies existing precedent, but not if it announces a new legal principle. New rules count only from when they are announced.

via Adam Liptak of The New York Times

A version of this article appeared in print on Thursday, February 21, 2013, on page A14 of The New York Times with the headline: Supreme Court Limits Reach of 2010 Ruling on Deportation Warning

Ethan Bronner of The New York Times reported that the United States Supreme Court barred life sentences for juveniles convicted of murder in the sharpest indication to date of a shift in how the American judicial system views young felons — from irredeemable predators to victims of circumstance with a potential for rehabilitation.

What we are seeing is a very stark and important rethinking of how we treat juvenile criminal offenders. For years we were trying to convince the courts that kids have constitutional rights just like adults. Now we realize that to ensure that kids are protected, we have to recognize that they are actually different from adults.

Marsha Levick, Co-Founder of the Juvenile Law Center in Philadelphia

That sense of difference has fueled the Supreme Court decisions of the past seven years — first a ruling that barred the death penalty for juveniles in 2005; one that banned life in prison for juveniles convicted of crimes other than homicide in 2010; and this most recent ruling rendered invalid state laws requiring youths convicted of homicide as well to die in prison. That decision will lead to resentencing hearings for about 2,000 convicts — some of them now well into middle age — in more than two dozen states.

via The New York Times

Judge Taylor presided over my first trial in the Circuit Court for Prince George’s County in 1972. Judge Taylor was extraordinarily kind to new lawyers like myself who did not even know “what lawyers and judges said at sidebars at the bench during trial”. A kinder more considerate jurist did not and does not now exist.
Steven Kupferberg

Retired Judge James H. Taylor passed away at the age of 86 on October 31, 2012. He was considered to be a pathbreaker in suburban Maryland legal circles when he became the first black Circuit Court judge in Prince George’s county back in 1969.

He was born July 7, 1926 and served in the Army Air Forces in 1945-1946. He graduated from Howard University in 1950, completed law school at American University in 1953, and three years later, became one of the first blacks admitted to the Prince George’s County Bar Association.
In 1963, he was named Maryland’s first black Assistant State’s Attorney. In 1969, he was appointed by Gov. Marvin Mandel (D) to the state’s 7th Judicial Circuit until he retired in 1987.

When asked by the American University publication what he enjoyed about being on the bench, Judge Taylor said,

At the risk of sounding corny, I would say it was an opportunity to make a philosophical contribution within the framework of law.

Judge James H Taylor

via The Washington Post’s Megan McDonough

A version of this obituary appeared in print on Tuesday December 11, 2012, on page B5 of The Washington Post with the headline: Md. judge broke many racial barriers.

The Wall Street Journal reported that 97 percent of cases the Justice Department prosecuted last year ended with guilty pleas, up from 84 percent in 1990. The ratio is nearly as high at the state level.

Criminal justice today is for the most part a system of pleas, not a system of trials.

Justice Anthony M. Kennedy

On its own, the high number of guilty pleas is not proof of a problem that demands an aggressive response across the federal and various state systems. The Justice Department already expects prosecutors to ensure that plea deals are fair. Federal judges have discretion to review deals. Public defenders on the federal level are generally excellent, which probably make things fairer than in some states.

But, recognizing the primary role that plea bargaining has come to play in the justice system, the Supreme Court this year began to extend judicial supervision over the process, ruling that defendants have a right to competent counsel in plea negotiations. The justices should not be the only ones examining the dominance of plea bargaining. State officials, legal scholars, the Justice Department and perhaps Congress should more thoroughly consider whether and how to make the nation’s system of pleas, not of trials, more predictable or procedurally sound.

via The Washington Post