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

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.

And, if you are a new lawyer looking for legal placement opportunities, you may search online or contact a legal recruitment agency or a legal recruiter.

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 thzat 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. If you too want to launch a business in this are and want it to be a successful one, check similar posts like this one about What is a statutory demand.

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”. If you get arrested for drug charges, you may hire a criminal attorney for your defense strategy and look for a bail bondsman from a bail bonds agency to help with your release.

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

Recently the prosecution of drug cases in Massachusetts has been shaken to its core with the discovery of a chemist who allegedly mishandled drug samples. Annie Dookhan testified in 2010 that she was in charge of quality control in a Massachusetts crime lab, where she worked for nine years. State police closed the lab on August 30, 2012, alleging that Dookhan may have deliberately mishandled drug samples and failed to follow protocols. Defense attorneys believe her actions raise questions regarding over 60,000 drug samples handled by the lab.

Any person who’s been convicted of a drug crime in the last several years whose drugs were tested at the lab [is] very potentially a victim of a very substantial miscarriage of justice.

John Martin

At this time there is no suggestion about what motivated Dookhan to tamper with evidence but inadequate oversight played a major role. As reported by the NPR’s Tovia Smith, the crime lab used to be run by the Massachusetts Department of Public Health, but, like many other states, had been taken over by the state police. Daniel Medwed, a law professor at Northeastern University commented about the risk of combining these two agencies. “There are often implicit pressures [on crime lab technicians] to help out prosecutors — to testify in cases in a way that supports their perceived colleagues in law enforcement,” Medwed says.

According to Drug War Chronicle’s Phillip Smith, Public Health Commissioner John Auerbach, “fell on his sword” resigning with a public statement. It was clear there was “insufficient quality monitoring, reporting and investigating on the part of supervisors and managers” at the lab, which his department had overseen before it was transferred to state police as part of a budgetary realignment. “What happened at the drug lab was unacceptable and the impact on people across the state may be devastating, particularly for some within the criminal justice system.” Auerbach said in the statement. “We owe it to ourselves and the public to make sure we understand exactly how and why this happened.”

In response to this crisis, Massachusetts Governor Deval Patrick chose David Meier to lead the investigation of 34,000 criminal cases possibly linked to drug samples allegedly mishandled by Dookhan. Meier, a former prosecutor, is now a private defense attorney and is well respected by his peers. Huffington Post’s Denise Lavoie reported that Meier has turned over a list of 690 people currently serving sentences in state prisons and 450 who are currently serving sentences in county jails based on evidence that Dookhan handled. The list does not include thousands of people who are currently awaiting trial, are on probation or are serving federal sentences in cases in which Dookhan tested drug samples.

In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme Court determined that criminal defendants have a Sixth Amendment right to cross-examine experts who conduct forensic tests in their cases. In doing so, the Court explained that “forensic evidence is not uniquely immune from the risk of manipulation.” Melendez-Diaz, 557 U.S. at 318. But the Court went on to note:

The defense has the right to call its own witnesses to show that the chain of custody is not secure. But that does not mean it can demand that, in the prosecution’s case in chief, each person who is in the chain of custody–and who had an undoubted opportunity to taint or tamper with the evidence–must be called by the prosecution under the Confrontation Clause. And the same is true with lab technicians.

Melendez-Diaz, 557 U.S. at 339-340.

With the miscarriage of justice that has come to light in Massachusetts the Court’s reasoning in this regard now holds little merit. Dookhan, who according to NPR’s Tovia Smith, used a series of aliases when tampering with the evidence, may have been discovered long ago had the prosecution been required under the Confrontation Clause to call each person who was in the chain of custody. As the investigation of this Massachusetts scandal proceeds and questions are raised about what happened to cause this travesty, attorneys in other jurisdictions should use this as a reminder to be hyper-vigilant about challenging the credibility of forensic results.

On Monday February 4, 2013, ex-chemist Annie Dookhan plead not guilty to the accusations. Cape Cod Times’ Bridget Murphy.

Gregory Fairchild, a professor of business administration at the University of Virginia Darden School, wrote about the school’s recent endeavor to assist prison inmates prepare for success after release through an intensive new program. 566,000 ex-offenders leave prison and enter parole each year meaning nearly 1,600 ex-offenders reenter society each day. An estimated 95 percent of the 2.3 million others in prison will eventually return to society. Once released, an ex-offender will work with probation officers to reintegrate into daily life, to find work and a stable home. But the inability to find a job is one of the primary factors influencing recidivism, or the return to prison.

An entrepreneurship boot camp and reentry program run by the nonprofit organization Prison Entrepreneurship Program in Texas has achieved impressive results. Three-year recidivism rates in Texas hover around 25 percent, but have dropped to 5 percent for graduates of the program.

Since 2004, we have graduated over 750 men from our program. Our groundbreaking results include a return-to-prison rate of less than 5%, employment rate of 100% within 90 days and over 100 businesses launched.

Prison Entrepreneurship Program

In 2011, at a Virginia correctional facility, the Darden School of Business launched an entrepreneurship program. It involves more than a dozen student volunteers, 25 case studies — and a belief in second chances and human potential. The take away, turning prison inmates into entrepreneurs is possible.

via The Washington Post,

Paul Christopher, M.D. of The New York Times, wrote a compelling article about the struggle facing an addict, a potential patient of his. Prescription drug abuse is America’s fastest-growing drug problem. Every 19 minutes, someone dies from a prescription drug overdose in the United States, triple the rate in 1990. And according to the Centers for Disease Control and Prevention, prescription painkillers (like oxycodone) are largely to blame. More people die from ingesting these drugs than from cocaine and heroin combined.

The requirements for involuntary substance treatment vary widely across the nation, from posing a serious danger to oneself, others or property, to impaired decision-making or even something as vague as losing control of oneself. States approach compulsory treatment for mental illness with far greater uniformity. All allow it, and almost all restrict it to instances in which a patient poses an immediate danger to himself or another.

This common standard stems from a series of federal court cases that set procedural and substantive requirements for mental health commitments. But involuntary commitment for addiction treatment, while certainly not new, has received considerably less judicial attention. In a 1962 case, Robinson v. California, the Supreme Court held that while conviction solely for drug addiction was unconstitutional, “a state might establish a program of compulsory treatment for those addicted to narcotics.” Many did, others didn’t. The high court has yet to revisit the issue.

Another complicating factor is society’s disagreement about what addiction really is: a disease, a moral failing or something in between. Many (often patients themselves) see drug abuse as purely a choice. Under this view, justifying the lost autonomy and expense to taxpayers that accompany mandated treatment becomes a hard sell. Yet a large and ever-growing body of research paints a far more complicated picture of addiction.

The cognitive concepts that we typically associate with “willpower” — motivation, resolve and an ability to delay gratification, resist impulses and consider and choose among alternatives — arise from distinct neural pathways in the brain. The characteristic elements of drug abuse — craving, intoxication, dependency and withdrawal — correspond with disruptions in these circuits. A host of genetic or environmental factors serve to reinforce or mitigate these effects. These data underscore the powerful ways in which addiction constrains one’s ability to resist.

The spotty existence of commitment laws for addiction has created something odd in medicine: a landscape where the standard of care differs dramatically from one place to the next. But change seems to be afoot. In March, Ohio passed a law authorizing substance-related commitments. Pennsylvania is considering a similar bill. In July, Massachusetts extended its maximum period of addiction commitment from 30 days to 90 days, a move driven by the state’s growing opioid abuse epidemic. In the same month, however, California terminated its commitment program for drug abuse.

These shifts come at a time when private insurers increasingly refuse to cover even brief inpatient stays for treatment of opioid abuse and as states grapple with dwindling resources. Still, while short periods of involuntary custody make intuitive sense — to provide protection until the effects of intoxication or withdrawal subside — surprisingly little evidence exists to suggest that a longer period of commitment will lead to abstinence or prevent the behavior that justified commitment in the first place. Science must guide the crafting of these laws, but for now the empirical jury is decidedly out.

A version of this article appeared in print on 10/02/2012, on page D5 of the NewYork edition with the headline: When a Drug Addict Isn’t Ready to Accept Help.