Thomas G. WitkopLaw Offices

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Five Court Appearances for a Violation of Probation



After shooting his cousin in the neck and a stranger in the back in Gaithersburg, Maryland I was able to generate enough evidence to reduce attempted murder charges down to the misdemeanors reckless endangerment. At the time of the guilty plea my client was given no jail time but was given 18 months of probation in front of a very tough judge. Any violation of his probation conditions would lead to the two years of backup time. This the judge promised.

My client generally did well on probation. He had a job, he was obtaining his GED, he was in counseling and he was very active in his baby's life. Unfortunately, my client felt that he needed to use marijuana. He was missing many of his urine tests but the probation officer let that slide. Finally, the police were conducting a raid at a home for a different person and my client happened to be there and he happened to have six small bags of marijuana in his pockets. He was charged with possession with intent to distribute marijuana and this would be a violation of his probation.

I was able to beat the marijuana charges using a constitutional argument.

The original sentencing judge did not care. He issued a warrant for my client's arrest. My client turned himself in. I appeared with my client at the initial bond hearing. At the bond hearing the judge was already trying the violation of probation case. He was already finding my client in violation of his probation. I argued this was obviously not proper and we were here merely to set his bond. The judge revoked his bond. I asked for a probation hearing to be set in the near future.

Despite the fact that he was acquitted on the possession of marijuana the judge insisted on going forward with the violation of probation. Frankly, that is the state of the law in Maryland. The burden of proof in a criminal case is beyond a reasonable doubt. The burden of proof in a violation of probation case is by a preponderance of the evidence and the quality of the evidence is much less substantial. Nonetheless, I was able to research case law and found that in Maryland normally hearsay evidence is not permitted at a violation of probation hearing. At the first hearing for violation of probation the prosecution did not have its officers to prove the case. The prosecutor, the probation agent were both pushing to have probation continued and if my client did well on probation to withdraw the hearing. This judge would have none of that. He ordered the prosecutor to get a transcript of the marijuana trial and use that as evidence at the next violation of probation hearing.

At the next violation of probation hearing the prosecutor had the transcript but did not have the chemist for the drugs. I argued that the transcript would violate my clients constitutional right to confront witnesses and cited the Maryland cases which supported this position. The judge accepted that and the prosecutor was able to get some of the officers to come to court that day. We had a trial but at the end of the trial the judge postponed the case because the chemist was unavailable.

On the next trial date the chemist was late. I put on five witnesses to establish everything my client had been doing well while on probation. One witness was particularly effective. He works at the Upper County Youth Center. He testified that my client was at the youth center three to four times a week for three to four hours a day studying for his GED. He was also receiving counseling from this witness. The judge was paying close attention.

Finally the chemist showed up and was able to prove that the marijuana in the bags was indeed marijuana. The judge was convinced that my client was guilty of possession of marijuana and violating probation.

The judge was ready to give my client the full backup time. I was able to successfully argue that it would be unfair. My client had spent most of his time on probation doing the right thing-working, getting counseling, getting a GED, trying to get his driver's license. The judge finally relented and instead of giving the full backup time gave 18 months of local time with a consideration for the work release Center in Montgomery County which would allow my client to spend his days working rather than being locked up. This was very unusual for this judge.

Although I did not prevail for my client I appeared five times in court on the violation of probation (there was an initial appearance before another judge regarding a bond hearing), I had law to support my client's position and I had fact witnesses to help in mitigation of sentencing. I fought the state's tooth and nail and at least was able to achieve two things. My client did not get the full backup time. My client is eligible for work release.
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I Have Moved My Office

My office is now at 932 Hungerford Drive, Suite 4B, Rockville, MD 20850. It is 1 mile north of my original office Off of 355. Behind me is Montgomery College and just south of me is the Montgomery County school board. I have the second floor of a townhouse. I renovated the office. I think you might be surprised at how nice it looks (at least compared to my old office). Come by and visit. Parking is of course free. Legal advice costs a little bit more.
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Washington Area Bicyclist Association Holds Crashing Seminar

The Washington Area Bicyclist Association had a seminar, "What to Do after a Crash"; they invited three attorneys, Peter Baskin and Bruce Deming, both of Virginia, and myself. The executive director of WABA, Shane Farthing, moderated. It was an informal roundtable presentation. The discussion included nuts and bolts real world advice as to what to do before and after a crash. It also included larger policy making plans such as reducing crashing through improving the infrastructure, street-level police education as to dealing with cyclists involved in accidents, increasing data flow through 911 involvement for better statistical analysis.

I prepared a summary of advice for post crash which I include below. Please call me at 301-294-3434 or Tom@WitkopJustice.com if you have questions.

What to do in a crash as it applies to bicyclists in Maryland

You've just been struck by a car. It is a sudden, frightening and disorienting experience. Assuming you are not dead, unconscious or heavily disabled, there are steps that you can take to protect yourself those immediately and down the road should there ever need to be a criminal prosecution against the driver that hit you or a civil lawsuit.

Gen./common sense

Before the Accident
1. Wear a Helmet
2. Have Identification
3. Have a Will and Advanced Directives
4. Obey the Traffic Laws
5. Use Lights
6. Pretend That You Are the Invisible Man.

Immediately after the Accident
1. Remain at the scene
2. Be of assistance to others and yourself
3. Provide contact information to others involved in the accident
4. Get witness information
5. Call 911 for medical assistance and/or police assistance
6. Try to obtain and preserve evidence-identify the driver, identify the vehicle, get the tag number.
7. Try to get a statement from the defendant driver.

More specific to the above rules:

1. Maryland law requires a driver involved in an accident involving property damage or personal injury to remain at the scene and give identifying information. Such this applies whether or not you are at fault. If you are significantly injured get prompt medical help. Witnesses tend to be sympathetic if you are on the ground bleeding. People tend to be helpful but do not want to be involved down the road. Try to get their business card so you can contact them later. Find out if they can identify the vehicle that struck you.

2. Obviously if you are hurt remain down. In motorcycle racing after you crash they recommend that you wait a few seconds to get up because you might still be sliding. Bicycling slower but you do not want to compound your injury by popping up. Obviously if you are on a busy street do what you need to do to avoid being hit a second time. Do what you can to help yourself. In terms of helping yourself, do not curse at the other driver. That sort of thing as a way of affecting what happens at the scene and what happens in court. Recently I had a trial and my client admitted that he said to the other driver "look what you did to my flocking car". The other driver amplified on that and claimed that my client said "look what you did to my flocking car you stupid bitch".

3. Provide your contact information. Address, telephone number. Given get insurance information. Try to see the other person's insurance card. Probably at least 10% of drivers are uninsured.

4. Get witness information. This is critical. I think that people are generally good natured and will help somebody when they're down. They are often less willing down the road to health and litigation. Get their names, address, phone number, e-mail, find out what they have to say. It is critical because there is a general bias against bicyclists. The Metropolitan Police Department and Montgomery County Police Department have a prejudice against us. Insurance companies absolutely have a prejudice against us. If it is the word of the bicyclists against the word of the motorist, the bicyclists usually loses. An independent witness is key for establishing your case.

5. Call 911. That is what they are there for. Often it helps preserve evidence at the scene. It preserves the status quo. When they come do your best to present your side of the story in a pleasant manner. We are wild eyed crazies. Disabuse them of that notion. I understand that you may be bleeding and in shock but try to present your story in a pleasant manner. It can help with your credibility.

6. It hurts your case if you cannot identify the driver. Normally we go after the car and the license plate. Those are hard to see. So was the driver of course. Nonetheless, knowing that the driver is Caucasian, 200 pounds, approximately 50 years old with dark hair, male, clean-shaven is a helpful description. I believe that it was a person that hit me was not so helpful.

7. Anything that the driver says to you is evidence. Do not argue with the driver. Don't tell the other driver that she is a liar. Just get her statement. It is best if you have a witness listening to the statement. In Maryland it is illegal to tape record somebody else's statement without their permission. If you can get their permission and can tape them, go ahead and do it. Likewise, anything that you say is evidence that can be used against you.

Not Long after the Accident

1. If you receive a traffic citation, signed for it. That is not an admission of guilt. I have never seen an officer avoid a ticket after he has written it. After you receive the citation, affirmatively request a trial date. Do not argue with the officer about it. Again anything you say can be used against you.

2. Receive prompt medical attention if you need it. Do not try to make something out of nothing. But if you have an injury take steps to get treatment quickly. It is important for you medically. Doctors have the ability to diagnose and treat and make you feel better and avoid further problems. From a legal standpoint it develops a record that you had a real injury.

From Here on out

1. In Maryland there are several insurance companies that may relate to your accident. If you have a vehicle you have vehicle insurance that covers you including personal injury protection and uninsured motorist coverage. You may have renters or homeowners insurance. You may have health insurance. The other driver has vehicle insurance which will likely have personal injury protection coverage as well as liability coverage.

2. Do not give a recorded statement to the other insurance company. This can only go badly for you.

3. Keep your receipts and your medical records. Keep your lost wages. Take photographs of your injuries and property damage.
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Case Dismissed When State Does Not Follow Proper Procedures

Before you even get to substance-whether somebody is guilty or not-you need to make certain that proper procedures were followed. In this case, the prosecution was attempting to get two bites at the Apple. That is simply not fair. Let me explainin my case. The police found my defendant with alleged marijuana in his pocket and a stolen GPS in his hand on November 24, 2010. He was charged in one district court case with theft under $1000. That case resolved on May 31 when my client, representing himself (he had not hired me yet) pled guilty to theft under $1000 and was given a jail sentence.

In the second District Court case he was charged with possession of marijuana and possession of paraphernalia. That case was set for trial today. Strangely, the laboratory had not done an analysis on the drugs. I waited around all morning and early afternoon for the analysis. While that was happening the public defender let me do some research-this was a panel case-and I found Cook versus state, 281 Maryland 665, ( 1978) which states that "it is beyond question that the closely related doctrines of res judicata and collateral estoppel applied to criminal as well as civil cases." It went on to say that "under the doctrine of res judicata, sometimes known as direct estoppel, a final and valid judgment rendered in one proceeding between two parties operates as a bar in a second proceeding between them on all matters that have been or could have been decided in the original litigation, where the second proceeding involves the same subject matter as the first cause of action."

The state started arguing a double jeopardy analysis but that was not the issue in this case. The issue in this case was res judicata. In this case a final and valid judgment was rendered in one proceeding between the state of Maryland and my client-he was sentenced to jail on May 31, 2011 and all appeal time had run; in the earlier proceeding they could and should have brought the possession of marijuana charge but they did not, consequently the state could not take another bite at the apple. The judge agreed with my analysis and the case was dismissed.
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Client acquitted of reckless driving, telephone testimony allowed by the court



An alleged victim claimed that my client pulled parallel to her car from her right side and get moving to the left pushing her out of her lane and into oncoming traffic. Eventually there was an accident and both cars stopped. The police were summoned and investigated the matter but did not issue any traffic citations. The alleged victim took the unusual step of going to the Commissioner and filing a statement of charges claiming that my client drove recklessly and made an unsafe lane change.

My client represented himself in the District Court. Although he had witnesses in the car those witnesses were not available for his trial. At the District Court level the judge found him guilty of both reckless driving and unsafe lane change.

My client came to me and I recommended that he appeal the case to the circuit court. An appeal of a traffic case or criminal case from the District Court to the circuit court is de novo. That means that the defendant gets a brand-new trial. What happened down below should not influence the judge or jury above. I interviewed his witnesses and they gave favorable testimony. The problem is that both of his witnesses were in Oregon and it was too expensive to bring them to Maryland for trial. My law firm filed a motion requesting that these witnesses be allowed to give testimony by telephone and that request was granted.

The case was called for trial and when it was time to present the defendant's case, I called the witnesses from Oregon. They stated that my client had signaled his turn, made the lane change safely and several seconds thereafter the alleged victim began honking her horn and speeding up and slowing down in an erratic manner behind my client. There was testimony from both the alleged victim and the defense witnesses that the defendant was driving between 30 and 40 mph. Eventually there was a collision. There was no evidence of alcohol or speeding or other aggressive driving.

At the end of the case, the judge found that this driving was at worst negligent driving but certainly not reckless driving. My client was acquitted of reckless driving. That saves him six points on his Maryland driving record.

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Cheated Nurse Wins Punitive Damages in Fraud Trial



My client is a hard-working registered nurse who wanted to expand his business into a group home and perhaps a home health agency. A fellow countrymen was recommended to him. This countrymen told him that he had a PhD in psychology from Harvard and worked as a chief clinical psychologist for the District of Columbia government. He assured my client that he could get him through the paperwork and licensing applications procedure. My client paid this man $25,000 and in return received a binder which purported to contain the information necessary to obtain a license.

My client went to his application hearing and was advised by the hearing examiner that the information in the binder was irrelevant, that my client needed to demonstrate a compelling and unique need in order to obtain the license and this type of license has not been issued for the past four years. Additionally, many questions needed to be answered which the binder did not address.

My client went back to his consultant who promised to work something out but merely managed to put off my client and avoid my client and not return any of the money. My client found other people likewise duped by this consultant.

My firm sued the consultant for breach of contract, unjust enrichment and fraud. Prior to trial we were able to obtain judgment in three of the counts in the amount of $25,000. We had requested that the defendant admit to facts that we posed. This is a discovery device. It is called request for admissions of facts and genuineness of documents. We used it to establish approximately 80 facts which conclusively established that my client paid the money, that the defendant did not provide the services, that the defendant made representations that were false, etc. My firm moved for summary judgment based on these undisputed facts and received a judgment of $25,000.

The fraud count remained. We appeared for trial as did the defendant and his attorney. The defendant wanted to introduce documents into evidence which were never revealed to the plaintiff. Some months prior to the trial we had requested those documents from the defendants. They were never produced. Months prior to trial we asked the court for assistance and received an order compelling the defendant to turnover the documents. The defendant never did so. The judge was not inclined to allow the defendant to use those documents at trial.

The defendant next tried to set aside the request for admissions of fact which had been so damaging. I argued that the defendant had many opportunities to address these admissions of fact and had failed to do so. Setting them aside on the day of trial would cause great prejudice to the plaintiff's case and the judge agreed.

At trial we put on several witnesses to prove the defendants deceit and dishonesty. The defendant took the stand and did not fare very well under cross examination. I called the defendant in our case to establish his net worth. Despite stating that he owned the company and did the books for the company and collected the money for the company he had no idea what the gross receipts were for calendar years 2010 and 2009 and 2008. He could not even tell the judge within $100,000 what the company's income was.

When the judge rendered his verdict he found the defendant not to be credible, found that not only did we prove our case through the request for admission of fact but we also prove by clear and convincing evidence that the defendant committed fraud through the testimony of the witnesses on the stand. The judge awarded $25,000 in compensatory damages and $25,000 in punitive damages.

I hope that the public record of the trial will alert other potential victims of the fraudulent nature of the defendant's business.
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Bicyclist Cut off by DC Motorist Settles Case



My client is an avid bicyclist. He is used to riding in traffic. On a nice bright Saturday he was pedaling along in Washington DC when a subcompact car made a left turn darting through traffic in front of him. My client tried to stop but could not and struck the side of the car. He fell off damaging his shoulder.

The defendant denied liability. The defendant claimed that there was no contact between my client and the vehicle. There was no crash damage to the side of the car. My client merely lost control of his bicycle and fell off. Further, the defendant claimed that the rotator cuff tear, the injury to the shoulder, which is a very painful injury, had nothing to do with the accident. This injury did require extensive surgery.

I was a bicycle mechanic. I asked to examine the bicycle. I learned that the fork was bent backwards. The fork is one of the weaker parts on the bicycle. The wheel assembly generally absorbs the blow and then bends back the fork which may bend back the frame. In this case, the fork was bent back clearly demonstrating that there was an impact between the bicycle and the car.

The insurance company initially offered $6000 to settle the case. I filed suit on behalf of my client. I took the deposition of the defendant and on the record and under oath forced him to admit that he did not look further up than approximately 15 feet up the road before making the turn. In other words, he turned without looking for the bicyclist. My client was sympathetic and credible in his deposition. We were able to settle his case at over 12 times the original offer.
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Lack of courtesy can lose a case

Lack of courtesy can lose a case

I tried a case last week where the police had a search warrant for a house. They knocked on the door at about 6 AM, waited less than 10 seconds, and then used the SWAT team to bang through the door and enter the home. In the home they found women, children, and my client. My client was searched without consent and six bags of marijuana were found upon him. He later on confessed to possessing marijuana.

Things look pretty bad for my client. He was on probation. The police had a warrant signed by a judge. They found the marijuana on him. He confessed that the marijuana was his. It sounds like a certain conviction.

The fourth amendment to the Constitution of the United States reads as follows, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I argued to the judge that the search was unreasonable. Yes the police had a warrant. But under the common law of Maryland, the police are generally required to knock and give a reasonable amount of time before they enter a home. There are of course exceptions to this general rule, but this case did not fit into that exception. The court agreed with the argument, found the search to be unreasonable, consequently all evidence including the marijuana and the confession was suppressed and my client was found not guilty.

Had the police been courteous and waited a reasonable amount of time for someone to answer the door, this would not have happened.
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Legal Poetry

John W Davis (April 13, 1873 – March 24, 1955) was an American politician, diplomat and lawyer. He served as a United States Representative from West Virginia (1911–1913), then as Solicitor General of the United States and U.S. Ambassador to the UK under President Woodrow Wilson. Over a 60-year legal career, he argued 140 cases before the U.S. Supreme Court.
Davis is best known as the Democratic Party nominee for President of the United States during the 1924 presidential election, losing to Republican incumbent Calvin Coolidge. Obviously he had a long and distinguished career. I like him for a poem that he wrote:

The lawyer's a man of sorrow, and acquainted with grief;
among all the sinners, he's considered the chief.
His friends all admire him when he conquers for them;
when he chances to lose, they're quick to condemn.
They say, "he is bought!" If he loses a case;
they say, "ah! He is crooked!" If he wins in the race.
If he charges big fees, they say he's a grafter;
if he charges small fees, "he's not worth going after."
If he joins the church, "it's for an effect;"
if he doesn't join, "he's as wicked as heck."
But here's one fact we all must admit:
when we get into trouble, our lawyer is IT!

With thanks to Jacob a Stein for making me aware of this poem.
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Conflicting police testimony leads to an acquittal

My client and his girlfriend ran out of bus money and called a friend to pick them up in the middle of the night. The friend picked them up and was stopped for weaving outside of his lane and almost striking the police officer's vehicle. The officers approached on both sides of the defendant's vehicle. My client was in the passenger seat and with the help of his flashlight the officer immediately noticed flakes of marijuana on his jacket. Everybody was taken out of the car and the car was searched and half an ounce of marijuana was found in a bag in the car as well as cigars allegedly used for smoking marijuana.

At trial I sequestered all the witnesses which means that they could not hear what the other one said on the stand. The officer that came up on the driver side testified that the 11 g of marijuana was found under the driver seat in a plastic bag. The cigar paraphernalia was found in front of the passenger seat where my client was sitting. This was consistent with his police report. Nowhere in his report did it state that there was a smell of marijuana. Nowhere in his report did it state that the backseat passenger claimed ownership of the marijuana. The officer testified that he could smell marijuana from the car and that it smelt of freshly burned, perhaps burned in the last hour or so. The officer also testified that there were tobacco crumbs on the floorboard in front of the passenger.

The officer who came on the passenger side where my client was sitting testified that the other officer found the cigars and that the package was open and that at least two of the cigars had been hollowed out to receive marijuana. He also testified that the 11 g of marijuana was found on the passenger side of the vehicle. Dissemination he admitted that he was not the one who found the marijuana and that he was mistaken and that the marijuana was found under the driver seat. I showed him the evidence of the cigars. The cigar package was completely sealed. It had never been opened and none of the cigars were taken apart.

My client testified that he had called his friend to pick him up and borrowed his friend's jacket. He put the jacket on in the car. He did not notice that there was any marijuana on it. The marijuana was not his and he had no idea that it was in the car.

At the close of the evidence the judge had trouble with the testimony from the police. The officer testified that the cigar package was open and that the cigars had been tampered with. The evidence clearly showed that the package was sealed and the cigars were intact. The person in the back claimed ownership of the marijuana. It was not clear whether the marijuana was under the driver seat or under the passenger seat. It was not clear about the smell of marijuana. It was not clear whether there was a burnt marijuana cigarette in my client's pocket. The judge had a reasonable doubt in my client was acquitted.

With respect, I do not believe that the police officers were as ready as they could have been. They left many important facts out of the report which I brought to light. In other words, they testified to things that were not contained in the report. These were important matters such as the officer who had my client claimed that there was the remains of the marijuana cigarette in the jacket. That was nowhere in the report. They also tried to testify what my client said. That was nowhere in the report and because they did not turn over this information prior to trial the judge excluded using that information. They had a videotape of what happened that the arrest scene but that was not used by the prosecution. Experienced cross examination brought out the conflicts and problems in the state's case and led to an acquittal.
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