Articles Posted in Criminal Procedure

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hammer-620011_640One year ago today Maryland made national headlines for officially decriminalizing simple marijuana possession, while back home the statewide buzz over decriminalization overshadowed each of last year’s new laws. The climate is vastly different this October 1st, as almost all the media attention is focused on an approaching hurricane rather than the on statue books. But there are a few new laws effective today in the criminal arena that have the potentially to dramatically impact the lives of thousands of Marylanders. One of these laws is actually related to decriminalization, and was likely the inspired by lawmakers taking simple marijuana possession off the criminal books. Starting today anyone convicted of an offense no longer classified as a crime under state law will now be able to apply for expungement. This is huge news for the far too many that have been carrying around the baggage of an unwarranted criminal record for years. The large majority of these cases will undoubtedly be for possession of less than 10 grams of marijuana, which will no longer be a permanent scar on a person’s background. In addition, those who received probation before judgment for possession less than 10 will no longer have to wait three years to apply for an expungement, as applications may be filed immediately, or in some cases as soon as probation terminates.

In addition to expanded expungement, the aptly named second chance law also goes into effect today. This law will allow those convicted of certain nonviolent misdemeanors to shield their conviction from public view after 3 years. The eligible offenses include disorderly conduct and disturbing the peace, failure to obey a law enforcement officer, malicious destruction of property less than $500, and trespass on posted property. Other offenses include possession of drug paraphernalia, possession of a noncontrolled substance, and prostitution. Soliciting a prostitute or assignation is specifically excluded from the shielding statute. The second chance law also applies to certain misdemeanor traffic offenses such as driving on a suspended license or without a license and driving while uninsured.

In addition to the three year wait, which begins after parole or probation has ended, defendants wishing to avail themselves of the shielding statute must also be aware of other conditions. One important limitation is that person may only shield prior convictions once during his or her lifetime; so choosing wisely when to apply is of great importance. The statue was designed to give a prior offender one free pass when it comes to seeking employment or applying for school or some professional licenses, but it was not designed to give two or more free passes. If you apply to shield your prior convictions you must do so with the knowledge that it’s a one shot deal. Another provision prohibits shielding one particular conviction if there is a non-shieldable conviction attached to it. Finally, if an applicant incurs a new conviction during the three-year wait period, he or she will be prohibited from shielding the original offense unless the new offense is also eligible for shielding.

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tow.pngIt almost seems like a crime in and of itself. A police officer arrests a person for suspicion of committing a drug offense. Then a few hours (hopefully not longer) later upon being released he or she finds out that the police have kept some of their property. Property that is entirely legal on its own. Typically it’s something small like a few bucks or a cell phone. But in some cases it could be thousands of dollars, a car, boat, or even a house. Time and time again the courts have upheld law enforcement’s right to confiscate a suspect’s property. It is widely understood, if not accepted, that a cop can take a person’s otherwise legal property if that officer believes it will be evidence in a criminal prosecution. Unfortunately this is hardly the only justification an officer needs to take a citizen’s stuff. For decades the law of civil forfeiture has driven defendant’s, their families, and criminal defense lawyers crazy. In a nutshell forfeiture gives police the right to confiscate property they believe is being used to further criminal activity. The definition is vague and general, and the standard of proof is low. Forfeiture is easily abused by law enforcement, and when it is, legally thievery is the result.
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1010760_dna_1.jpgA few months back, the blog posted an article on a controversial Maryland law that allows police to sample and store DNA from any individual arrested for a violent crime or for burglary. Despite this law still being up on appeal, for the past few months state law enforcement agencies have continued to engage in this practice under the authority of a signed order from Chief Justice Roberts. The order did not overturn a decision by the state court of appeals, which declared the DNA law unconstitutional, but rather allowed DNA sampling to continue pending a final opinion by the country’s highest court. A decision on this controversial law is now expected in the coming months, as the Supreme Court recently heard arguments on the constitutionality police DNA sampling. The arguments were spirited to say the least, and at this early juncture there is no indication which way the majority appears to be leaning. But all justices are aware that this is could be a seminal opinion that could shape criminal procedure for the coming years. Justice Alito described it as the most important criminal procedure case in decades. He added that many murders and rapes could be solved using this technology, which involves a minimal intrusion on personal privacy, and asked why DNA sampling is not the fingerprinting of the 21st century. Whether these statements have tipped Alito’s hand remains to be seen, but there were is certainly some skepticism from the other justices about the law’s constitutionality.
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917191_fulles-04.jpgA variety of new Maryland laws are set to go into effect on Monday, October 1st. Many of these new Maryland laws are part to the criminal justice system, most notably the Maryland marijuana possession law. After years of lobbying by marijuana legalization groups, the Maryland state legislature finally voted to change the state’s harsh marijuana possession laws. Starting on Monday, the maximum penalty for simple possession of marijuana will be lowered from 1 year in jail to 90 days in jail, and the maximum fine will be lowered from $1,000 to $500. Simple possession of marijuana is possession of less than 10 grams of the controlled substance. Pressure from pro marijuana lobbyist groups was not the only reason that the legislature and governor agreed with the new marijuana penalties. The legislature was also swayed by proponents of a more streamlined judicial system.

Possession of marijuana cases have been clogging the district court dockets in Maryland for years, especially in densely populated jurisdictions such as Baltimore City, Baltimore County, and Prince George’s County. But in the past, many of these simple marijuana possession cases would also end up clogging the circuit court dockets as well. By lowering the maximum penalty for possession of marijuana to 90 days, a defendant is no longer allowed to demand a trial by jury in the circuit court, and starting October 1st possession of marijuana cases will for the most part begin and end in district court. Under the Maryland rules of criminal procedure a defendant may only demand a jury trial if he or she is facing more than 90 days incarceration. The new marijuana possession laws may seem like a victory for marijuana legalization supporters, but losing the right to a jury trial could prove to be a significant detriment to a possession of marijuana defendant who decides to fight his or her charges. Demanding a jury trial in a possession of marijuana case was not only a means to guarantee due process, but also a significant bargaining chip that a defense lawyer could use to earn a better negotiated offer from the state prosecuting lawyer.
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387604_securicam.jpgThe Baltimore City Police Department is currently working out the details of a plan to begin video recording police interrogations for violent crimes. While the Baltimore City Police Department is the eigth largest in the county it is certainly not the most technologically advanced. Hundreds of police departments across the country currently record police interrogations for almost any crime including the Baltimore County Police Department. Some jurisdictions, including Washington D.C., go as far as requiring video recording for all police interrogations. In 2008, the Maryland General Assembly endorsed the use of video recorded interrogations, but did not decide to require them. As a result of the endorsement, the number of police agencies using video recording in Maryland has nearly doubled.

Baltimore Police began to incorporate video recording several years ago in an effort to update investigation capabilities in its sex crimes division. The Baltimore City Police Department will now undergo another video recording update, but initially only for serious crimes such as murder and gun crimes involving a shooting. City police commissioner Frederick Bealefeld III is on record as being committed to institute video recording for violent crimes in a cost effective and informed manner. Baltimore Police must first purchase and install video recording equipment and then train detectives in the art of interrogating a suspect on camera.
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