The Wiretap law in Maryland exists to protect society’s right to privacy by protecting conversations we engage in, thinking that we know who can hear us. All laws, however worded, carry with them the potential to be misused, to criminalize activity unintended by the legislators. The Maryland Wiretap law has been the focus of media attention recently because of efforts of police officers to use the Wiretap law to criminalize videotaping police interactions. This is an inappropriate application of the current law that does nothing to further the public policy interest in privacy. Furthermore, such an application of the Maryland Wiretap law goes against the interest society has in being able to supervise the police.
Tag Archives: criminal defense - Page 2
Maryland Judiciary Watch, Vol.4
ELROY MATTHEWS, JR.
v.
STATE OF MARYLAND
http://mdcourts.gov/opinions/cosa/2011/2801s09.pdf
Another opinion by the Court of Special Appeals, another opinion by Judge Moylan — this time focusing on what constitutes an “illegal sentence.“
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Maryland Judicial Watch, Vol. 3
ADRIAN MCFADDEN AND ANTHONY MILES
v.
STATE OF MARYLAND
http://mdcourts.gov/opinions/cosa/2011/275s09.pdf
This opinion by the Court of Special Appeals contains a record much more typical of what I’ve come to expect, which is why I was so pleasantly surprised in my last judicial watch post.
Maryland Judiciary Watch, Vol. 2
JOSE GARCIA-PERLERA
v.
STATE OF MARYLAND
http://mdcourts.gov/opinions/cosa/2011/1371s09.pdf
Maryland Judiciary Watch Volume 1
I have decided to start summarizing the MD cases published by the Maryland Court of Special Appeals and Court of Appeals. Previously I tried tweeting a summation, but it’s simply too hard to make any meaningful analysis over twitter. Before now I was obviously content with meaninglessness, but no longer! Not right now, at least.
Love of justice
This post is something I have been thinking on for a while, but Laura McWilliams prompted me to post it with her Love of the Law, part 2 post.
I went into law school with a gut feeling that I could never defend criminals, and that if I went into Criminal Law it would be as a prosecutor.
Then I was introduced, through the eyes of cases skimmed during class and through the perspective of the Criminal Defense attorneys I “met” through twitter, to the Criminal Injustice system of our country.
Berghuis v. Thompkins
The Supreme Court issued Berghuis v. Thompkins today. In it they held that a defendant must make an affirmative invocation of his or her right to remain silent and to an attorney.
Thompkins, the defendant, was subject to a 3 hour interrogation in an 8 x 10 foot room. During the entire interview, Thompkins remained silent — exercising his right to remain so. SCOTUS decided that remaining silent isn’t enough, a defendant must make a “simple, unambiguous” statement such as “that he wanted to remain silent or that he did not want to talk with the police.” (page 10 of the majority opinion) and that failing to make such a statement meant that he did not invoke his right. To remain silent. By remaining silent.
The court then decides that remaining silent for nearly 3 hours and finally giving a monosyllabic response is “sufficient to show a course of conduct indicating waiver.” (page 14 of the majority opinion)
Among the ridiculousness of this decision — and I believe it is ridiculous — the thing that strikes me the most is the way the court analyzes the issues. The Miranda warnings exist to inform defendants of their rights, and the options open to them. They are asked whether they understand the rights, so the warning is obviously for the defendant. So why does the court (and I’m not limiting this to Berghuis, it applies equally to earlier cases such as Davis, which this opinion relied upon) assume that the defendant knows he must break his silence immediately after being told that he has the right to remain silent?! Change the #$!@#& wording of the warning! Everything else in the opinion stems from that simple idiotic assumption. Waiver only comes up since the court found that Thompkins never invoked his right to remain silent.
I know I’m not adding any new or brilliant analysis, but I had to get that off of my chest.
One man’s anal retentiveness is another man’s freedom
In my Maryland Criminal Practice class this evening, the professor mentioned an unreported opinion of the MD Court of Special Appeals that was issued on Tuesday, May 24th.
Parenthetically, this is an incredibly interesting and seemingly practical class that is taught by Judge Dana Levitz, a former State’s Attorney and head of the trial division for Baltimore County and former Md. Circuit Court judge who is now the judge who deals with the initial incoming prayers for jury cases from the Baltimore County District Courts. I plan on devoting an entire post to Judge Levitz and his philosophy regarding his current position.
The opinion, Clark, Darrell Maurice Jr. v. State, Docket 1393/08, was issued by Judge Davis. To (very briefly) summarize, a first-degree burglary conviction which carried with it a 20 year prison sentence was vacated as a result of a slight, but incredibly important, defect in Baltimore County’s form first-degree burglary charge language.
The form language uses a short-form citation to establish the elements of the crime, which I just learnt is perfectly acceptable. However, instead of citing the statute within the charge, the citation is recorded after the required concluding phrase of “against the peace, government, and dignity of the State.”
The defense attorney moved to dismiss the charging document as defective on this ground in pretrial but the trial court refused, asking how that could make any difference.
The Court of Special Appeals begged to differ.
Speculation as to how this will affect claims of ineffective assistance of counsel and whether this would or would not be counted as being charged in terms of double jeopardy were bandied about in class, but the most important thing Judge Levitz wanted us to get out of the case is how ripe with possibility charging documents are for defense attorneys.
Like I said, this seems like a practical class.
Realities of Criminal Defense — Updated
UPDATE
Please take a moment and read Scott’s and Rick’s posts. I severely abridged their posts to the point of ruining their meanings, and I apologize about that.
This post has been modified in response to Rick’s comment below.
Yesterday brought another interesting post from Scott Greenfield’s Simple Justice. He had been made aware of a blog by a new law school graduate with hopes of entering the world of criminal defense. The author monologued about the moral dilemma a defense attorney has when representing a “guilty-as-charged” client. Her ultimate answer to it was that a defense attorney has a duty to tell her client’s story in order to achieve a fair outcome.
Scott, lodged in a lesson about the dangers of blogging (Loose blog posts Sink egos, or something of the sort), explained that there is no moral dilemma. A defense attorney is there to beat the prosecution and win freedom for his client. It is, after all, an adversarial system. (Disclaimer: This is my summary. Read his comment.)
That was yesterday.
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