Thomas G. WitkopLaw Offices

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Defending the Alleged Child Sexual Offender

What I am about to blog about is at best distasteful and at worst may get me some hate mail Assuming anybody even read this).  The fact is that people are charged with heinous and disgusting crimes.  One of the more disgusting crimes is sexual abuse of a minor child.

"That's terrible.  How can you defend such a person?  They are defiling defenseless children.  They should be killed or at least locked up forever!"

Because the charges are so serious, because the consequences if there is a conviction are so dire, that is exactly why the person accused of such awful crimes needs an attorney.

If you or somebody you love is charged with such a terrible crime  you need an experienced attorney on your side to defend you against these charges.  They are after all just charges, they are not evidence of the crime.  It is the duty of a criminal defense attorney to represent the client zealously within the bounds of the law.  Put another way, everyone is entitled to representation, assertion of constitutional rights, defenses against criminal charges, the presentation of a defense no matter what the charge.

You need an attorney who can examine the evidence, and from that examination build a defense and if a defense is not possible present you in the best possible light.

Not long ago I was defending a man in his 40s who was accused of having sexual relations for many years with a girl significantly under 16 years of age.  The man had no criminal history, a long history of good employment, his own family with minor children.  These charges exploded like a bomb tearing everything he had worked for and loved apart.

As a conscientious attorney I am mindful that the effects on the little girl victim are devastating.  Nonetheless, just because she said it happened does not mean that it did happen.

Without getting into detail, the prosecution's case was fairly strong.  I suggested to my client that perhaps a plea deal should be considered.  The problem was at the prosecution was appalled at my client's behavior and made an initial plea offer wherein my client would agree to 20 years of incarceration.  Some of you might think that's lenient for these type of charges.  I think I have a duty to zealously represent my client.  We kept on negotiating but the prosecution at best offered a 15 year deal.  The upside of the guilty plea was much outweighed by the downside so we went to trial.

At the trial my client was facing six charges.  My client beat three of the charges and lost three of thee charges.  The prosecution argued for 20 years of imprisonment.  We argued for a guideline sentence and the judge listened to our argument and  my client received bottom of the guidelines which was five years of incarceration.  My client had already spent one year on house arrest which in this case counted for incarceration so he actually only had to serve another four years.

There were other factors that I brought to the court's attention that helped  persuade the judge to be more lenient in his sentencing.

Not all attorneys are willing to handle these types of cases.  I am.

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Expungement Law in Maryland Has Changed for the Better

Maryland has a very powerful public database, the Maryland Judiciary Case Search.  That database is open to the public whether they are in Maryland or in Timbuktu.  Anybody, be it a stranger, a possible employer, a third cousin or your mother, concerts that database.  That database can be searched by name.

The person searching by name will find a great deal of information such as criminal records, traffic records, civil records, etc.  Some of that information may not be flattering.

For example, you may have a charge of rape when you are in your 20s.  A charge is not the same thing as a conviction.  A charge is just bringing the accusations against you formally.  If that charge was dropped, dismissed, you received an acquittal, Maryland has made it much easier to attain an expungement of that record.

Generally, it used to be that if a charge was dropped and later on you are convicted some different charge, for example, the rape charge was dropped and then after that you are convicted of possession of marijuana, you could not get the rape charge expunged.

The Gen. assembly has changed the law and even though you have that subsequent conviction you may be eligible to expunge the earlier charge.  Obviously what I am providing here is for informational purposes only.  There is no guarantee that you will get your old charge expunged but it is certainly worth looking into.  The process is fairly straightforward and the results can be outstanding.

Below is one of the main sections of Maryland expungement law.  If you need help expunging your record or looking into whether you are eligible for expungement please contact me.

2015 Maryland Code
§ 10-105 - Expungement of record after charge is filed

Universal Citation: MD Crim Pro Code § 10-105 (2015)
(a) Petition for expungement. -- A person who has been charged with the commission of a crime, including a violation of the Transportation Article for which a term of imprisonment may be imposed, or who has been charged with a civil offense or infraction, except a juvenile offense, as a substitute for a criminal charge may file a petition listing relevant facts for expungement of a police record, court record, or other record maintained by the State or a political subdivision of the State if:

(1) the person is acquitted;

(2) the charge is otherwise dismissed;

(3) a probation before judgment is entered, unless the person is charged with a violation of § 21-902 of the Transportation Article or Title 2, Subtitle 5 or § 3-211 of the Criminal Law Article;

(4) a nolle prosequi or nolle prosequi with the requirement of drug or alcohol treatment is entered;

(5) the court indefinitely postpones trial of a criminal charge by marking the criminal charge "stet" or stet with the requirement of drug or alcohol abuse treatment on the docket;

(6) the case is compromised under § 3-207 of the Criminal Law Article;

(7) the charge was transferred to the juvenile court under § 4-202 of this article;

(8) the person:

(i) is convicted of only one criminal act, and that act is not a crime of violence; and

(ii) is granted a full and unconditional pardon by the Governor;

(9) the person was convicted of a crime or found not criminally responsible under any State or local law that prohibits:

(i) urination or defecation in a public place;

(ii) panhandling or soliciting money;

(iii) drinking an alcoholic beverage in a public place;

(iv) obstructing the free passage of another in a public place or a public conveyance;

(v) sleeping on or in park structures, such as benches or doorways;

(vi) loitering;

(vii) vagrancy;

(viii) riding a transit vehicle without paying the applicable fare or exhibiting proof of payment; or

(ix) except for carrying or possessing an explosive, acid, concealed weapon, or other dangerous article as provided in § 7-705(b)(6) of the Transportation Article, any of the acts specified in § 7-705 of the Transportation Article;

(10) the person was found not criminally responsible under any State or local law that prohibits misdemeanor:

(i) trespass;

(ii) disturbing the peace; or

(iii) telephone misuse; or

(11) the person was convicted of a crime and the act on which the conviction was based is no longer a crime.

(a-1) Filing by attorney or personal representative. -- A person's attorney or personal representative may file a petition, on behalf of the person, for expungement under this section if the person died before disposition of the charge by nolle prosequi or dismissal.

(b) Where petition filed. --

(1) Except as provided in paragraphs (2) and (3) of this subsection, a person shall file a petition in the court in which the proceeding began.

(2) (i) Except as provided in subparagraph (ii) of this paragraph, if the proceeding began in one court and was transferred to another court, the person shall file the petition in the court to which the proceeding was transferred.

(ii) If the proceeding began in one court and was transferred to the juvenile court under § 4-202 or § 4-202.2 of this article, the person shall file the petition in the court of original jurisdiction from which the order of transfer was entered.

(3) (i) If the proceeding in a court of original jurisdiction was appealed to a court exercising appellate jurisdiction, the person shall file the petition in the appellate court.

(ii) The appellate court may remand the matter to the court of original jurisdiction.

(c) Time of filing. --

(1) Except as provided in paragraph (2) of this subsection, a petition for expungement based on an acquittal, a nolle prosequi, or a dismissal may not be filed within 3 years after the disposition, unless the petitioner files with the petition a written general waiver and release of all the petitioner's tort claims arising from the charge.

(2) A petition for expungement based on a probation before judgment or a stet with the requirement of drug or alcohol abuse treatment may not be filed earlier than the later of:

(i) the date the petitioner was discharged from probation or the requirements of obtaining drug or alcohol abuse treatment were completed; or

(ii) 3 years after the probation was granted or stet with the requirement of drug or alcohol abuse treatment was entered on the docket.

(3) A petition for expungement based on a nolle prosequi with the requirement of drug or alcohol treatment may not be filed until the completion of the required treatment.

(4) A petition for expungement based on a full and unconditional pardon by the Governor may not be filed later than 10 years after the pardon was signed by the Governor.

(5) Except as provided in paragraph (2) of this subsection, a petition for expungement based on a stet or a compromise under § 3-207 of the Criminal Law Article may not be filed within 3 years after the stet or compromise.

(6) A petition for expungement based on the conviction of a crime under subsection (a)(9) of this section may not be filed within 3 years after the conviction or satisfactory completion of the sentence, including probation, that was imposed for the conviction, whichever is later.

(7) A petition for expungement based on a finding of not criminally responsible under subsection (a)(9) or (10) of this section may not be filed within 3 years after the finding of not criminally responsible was made by the court.

(8) A court may grant a petition for expungement at any time on a showing of good cause.

(d) Period for objection by State's Attorney. --

(1) The court shall have a copy of a petition for expungement served on the State's Attorney.

(2) Unless the State's Attorney files an objection to the petition for expungement within 30 days after the petition is served, the court shall pass an order requiring the expungement of all police records and court records about the charge.

(e) Hearing on expungement. --

(1) If the State's Attorney files a timely objection to the petition, the court shall hold a hearing.

(2) If the court at the hearing finds that the person is entitled to expungement, the court shall order the expungement of all police records and court records about the charge.

(3) If the court finds that the person is not entitled to expungement, the court shall deny the petition.

(4) The person is not entitled to expungement if:

(i) the petition is based on the entry of probation before judgment, except a probation before judgment for a crime where the act on which the conviction is based is no longer a crime, and the person within 3 years of the entry of the probation before judgment has been convicted of a crime other than a minor traffic violation or a crime where the act on which the conviction is based is no longer a crime; or

(ii) the person is a defendant in a pending criminal proceeding.

(f) Notice of compliance. -- Unless an order is stayed pending an appeal, within 60 days after entry of the order, every custodian of the police records and court records that are subject to the order of expungement shall advise in writing the court and the person who is seeking expungement of compliance with the order.

(g) Appellate review. --

(1) The State's Attorney is a party to the proceeding.

(2) A party aggrieved by the decision of the court is entitled to appellate review as provided in the Courts Article.


Avoiding a DWI Conviction through Proper Preparation

Recently I was retained to represent a young man charged with DWI. Everything about the case was fairly normal except for the breath test. The results were .25 g of alcohol per 210 L of breath. That's almost 4 times the legal limit in Maryland.

Of course my client is presumed innocent unless the prosecution can prove his guilt beyond a reasonable doubt. I look at a DWI case from two perspectives. The legal side, can the prosecution prove their case beyond a reasonable doubt? The human side, what can my client do to mitigate punishment and maybe address a problem if he has one.

From the legal side the paperwork seemed in order. The client was stopped for weaving among several lanes. When he was stopped he showed signs which would give an officer probable cause to arrest for drunk driving. There read him his advice of rights form in Spanish and he appeared to understand them and he took the test. On the trial date they had all the necessary officers present. They had the officer who made the stop, the officer who provided the translation service, they had the breath test technician. The technician had his necessary documents to establish that the breath test machine was functioning properly.

From the human standpoint, I had my client obtain an alcohol evaluation and also participate in Alcoholics Anonymous. Those small reasonable steps were important in obtaining a favorable outcome. It is important that your attorney know who the judges are. Based on that extremely high breath test, there are many judges who would enter a conviction and even quite a few judges who would impose incarceration. I have been around long enough to realize that the particular judge that we drew had a reputation for being more lenient. Based on my experience I concluded we should go forward with a guilty plea. The results were as anticipated, my client received the benefit of probation before judgment (not a conviction under state law), did not receive any points on his license and he did not receive any incarceration. He did receive substantial probation including total abstinence from drinking, some community service, fines and costs, and continued enrollment in his alcohol classes. Nonetheless, nested not have a motor vehicle administration effect on his license and did not jeopardize his liberty.

When selecting your attorney, experience is a factor you should consider.

Successful Automobile Accident Mediation

My clients are successful and intelligent individuals. He is logical and well reasoned. Some years ago he was involved in a significant rear end car accident. Before the accident he and his wife had no back or neck problems. Ever since the accident he has been suffering from back problems. He is a fairly stoic fellow and did not seek abundant medical attention. Specifically he went to the emergency room the day after the accident and received some anti-inflammatory pills. That did not help fully resolve the problem and several weeks later he went back and they recommended some home exercises. That did not help and several months later he went back and they recommended acupuncture treatment and he did that for five sessions. That helped a little bit but not fully. Almost 8 months postaccident he saw an orthopedic surgeon who recommended an MRI. Almost 1 year postaccident he had the MRI and again saw the orthopedic surgeon who recommended he see a specialist surgeon. The specialist surgeon reviewed the MRI saw that there were problems but thought that the risks of surgery outweighed the benefits of the surgery. After that my client went to a chiropractor for a while and this was two years postaccident.

The man had almost $8000 in medical expenses and his wife had almost $800 medical expenses. As I stated, he was well educated, thoughtful, logical and tried to resolve the case on his own. He sent a well written demand letter to the insurance company. He included pictures of the damage to the car, all of his medical expenses, some of the doctors reports. The insurance company offered him $2500 to settle both cases.

He came to me several days before the statute of limitations ran asking for assistance. Other law firms had turned him down. It is a significant risk taking a case several days before the statute of limitations runs. The lawyer may not have the correct name of the defendants, may not include all of the causes of actions, or not have all the facts, or other gaps in information. The point is that everything important must be pled by the running of the statute of limitations for the additional claims are usually barred. My client seem to be at wits and and I wanted to help so I took the case.

I filed a lawsuit and was able to chase down the owner of the car (I have a good process server). I was not able to find the driver because I think he had left the country.

I made an effort to look at the case objectively. Clearly my client was having back problems and he did not have them before the car accident. He clearly deserved compensation for his injuries. On the other hand, the burden is on the plaintiff (my client) to prove his injuries to a jury. He must get evidence together which shows that his injuries were a result of the accident. The problem is that the doctors were not clear in relating his problems to the car accident. My client was also not inclined to pay for the cost of an opinion from the various doctors (it is not unusual for a doctor to charge several hundred dollars or more for a written opinion).

Given these limitations and the fact that the accident happened in Montgomery County it was my opinion that our best results could be had through mediation. I chose someone who was a very experienced insurance defense attorney. I was certain that the insurance company lawyer would agree with that mediator. My hope was that the mediator would help educate my client as to the value of the case (lowering my client's expectations somewhat) and simultaneously putting credible pressure on the insurance company to make a fair settlement.

The mediation took just over two hours. The initial offer that my client received on his own was $2500 for both cases. By the time we were done I was able to obtain a settlement of seven times that original offer for both clients.

In my mind this was a pretty good result. I think the result was based on various factors including my ability to present my client's case in the best light, my reputation in the legal community (I try to be reasonable and make things work out but I am also perfectly willing to try a case), my ability to get along with the defense attorney and the insurance adjuster and finally the choice of the mediator.

If you are hurt in an accident, feel free to contact me and I will do my best to get you maximum value for your case.

Oath of Office of a Police Officer

The oath of office of the police officer is somewhat similar to the oath of office of an attorney. You can compare for yourself:

From the Maryland Constitution:

Section 9. Every person elected, or appointed, to any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath, or affirmation: I, ..........., do swear, (or affirm, as the case may be,) that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitution and Laws thereof; and that I will, to the best of my skill and judgment, diligently and faithfully, without partiality or prejudice, execute the office of .............., according to the Constitution and Laws of this State, (and, if a Governor, Senator, Member of the House of Delegates, or Judge,) that I will not directly or indirectly, receive the profits or any part of the profits of any other office during the term of my acting as .................. (1977, ch. 681, ratified Nov. 7, 1978.)

I believe that this is the oath that a police officer takes. They are appointed to an office of trust. In my opinion if the police officer take such an oath he or she should at least be somewhat familiar with the Constitution of the United States as well as the Constitution of the state of Maryland.

This observation is relevant because sometimes during trial a question is asked of an officer if he or she is familiar with something as general as the fourth amendment. This will often draw an objection from the prosecution where they claim that the officer is not a lawyer and has no reason to know the laws. I think a proper response is that the officer took a solemn oath to support the Constitution of the United States as well as the Constitution of Maryland. How can the officer support these constitutions if he has no idea of their content? I think it's a fair argument.

The oath an attorney takes in Maryland before being admitted to the bar

MD Code Bus. Occ. & Prof. 10-212 Oath or affirmation for admission (Maryland Code (2013 Edition)) Provides the following language:

On admission to the Bar, a lawyer shall take the following oath or affirmation in open court:

"I do solemnly (swear) (affirm) that I will at all times demean myself fairly and honorably as an attorney and practitioner at law; that I will bear true allegiance to the State of Maryland, and support the laws and Constitution thereof, and that I will bear true allegiance to the United States, and that I will support, protect and defend the Constitution, laws and government thereof as the supreme law of the land; any law, or ordinance of this or any state to the contrary notwithstanding."

I took this oath in 1986 and try to adhere to its principles.

County loses forfeiture claim against alleged drug dealer

My client made the unfortunate mistake of consoling a drug user and almost lost several thousand dollars for his efforts. No good deed goes unpunished.

My client was minding his own business when he pulled up to a convenience store. He saw a friend who he knew was having problems and began speaking with the friend. After a few minutes he went back into his own vehicle. This was under the watchful eyes of the police who concluded that a drug deal had just occurred. They stopped the friend who had a very small quantity of cocaine on him and claimed that my client just sold them to him for several hundred dollars. (Don't get me started on false confessions).

They stopped my client and found several thousand dollars in cash upon him. There were no drugs with my client or in his car.  They charged him with distribution of drugs anyway. They also seized the cash. The distribution charges were eventually dismissed but they held onto the cash.

The county prosecutor offered me a deal: they keep 90% of the cash and my client keeps 10% of the cash. I told the county prosecutor we were on the same page but my client keeps 90% of the cash and the county gets 10% of the cash. We did not work out a deal.

At the forfeiture trial the county had the officers testify as to what they saw and what they recovered. The alleged buyer of the drugs was not available to testify but they had a written statement which came into evidence over my objection as a declaration against penal interest. In that statement it said that my client sold the buyer the drugs for several hundred dollars. The officers testified how they found the cash on my client in various packets and how that was consistent with drug dealing. Interestingly, none of the packets were for several hundred dollars. We presented evidence that my client was a businessman and we produced tax returns showing that he had a cash business. We were able to explain why he had several thousand dollars.

At the end of the trial the judge awarded the county 10% of the money and returned 90% of the money to my client.

If the government ever seizes your cash, car or house and attempts to forfeit it for the benefit of the state, you have rights. You should contact my office so that I can help protect your rights.

Insurance Company Proved Wrong, Bicyclist Wins His Case after Trial

Kudos to the Washington Area Bicycle Association. They were kind enough to inform a fellow cyclist of my services after he was struck by a car and injured.

This isn't so much a case about winning. It is more a case about the prejudice that bicyclists suffer on an almost constant basis.

My client was bicycling to work as he usually does. He was in Washington DC heading straight on one of the avenues. The Avenue had to travel lanes and to parked car lanes. As is legal in Washington DC at the time he was passing the parked cars and in the traveled portion of the roadway. Traffic was medium and sometimes cars were passing him and sometimes he was passing cars. One of the cars decided to either pass or at least make a right turn directly into my client. It was an impact between the right front quarter panel and my client bicycle. He was thrown off his bicycle onto the ground.

The driver of the car apologized. That was very nice of her but he was still suffering from a shoulder injury.

The initial prejudice began when the police officer arrived. He gave my client a ticket for riding his bicycle in an improper manner. The police officer thought that it is illegal to pass cars in the same lane. The District of Columbia municipal regulations which regulate the flow of traffic both for cars and bicyclists make it very clear that it is perfectly legal for a cyclist to pass vehicles in the same lane if it is safe to do so. In this particular case my client was simply heading straight down the Avenue. It was the car that made the right turn when it was not safe to do so.(My clients ticket was eventually dismissed).

This was argued to the insurance company and the specific statutes were provided to the insurance company. The insurance company continued the prejudice by denying the claim without even giving a legitimate reason.

We filed suit in the District Court of Maryland for Montgomery County because the defendant lived in Maryland. That is an important thing to consider. The case was not a large case and filing suit in Washington DC for anything over $5000 involves a great deal of pretrial discovery and court time. Filing suit in the District Court for $15,000 assures that the case will stay in District Court and that discovery is limited and usually you can take care of it in one court trip.

The case was called for trial and my client testified very effectively and credibly. The defendant testified on cross-examination that she never saw the bicyclist before she made the turn.

In my mind the case was very clear in terms of negligence on the defendant. The defendant has a duty to look before changing lanes and clearly she did not do that. The cyclist had a right to ride his bicycle in the lane and clearly he did that.

The judge agreed with this analysis and awarded damages in favor of the cyclist. I was pleased with the result. The defendant insurance company never offered any money on the case. I made a demand to the insurance company which was less than the judgment of the court.

I am a longtime cyclist and an experienced trial attorney. If you get hurt while riding your bicycle please contact me and I might be able to help you.

Preliminary Injunction Civil Protective Order in Washington DC

Washington DC does have a vehicle for a civil protective order. It is a straightforward procedure if the victim and defendant are related by blood, adoption, marriage, domestic partnership, have a child in common, share or have shared the same home, or have previously had a dating relationship. Additionally, if the person you are currently in a relationship with has an former partner who is threatening you you can get a civil protection order also. It also protects people not in the above type relationships who are victims of stalking, sexual assault or sexual abuse.

The procedure is fairly straightforward and the DC code tells you how to do it.  Refer to  DC code section 16-1000 etc.

But what happens if you don't fit into that category and are being threatened. The procedure is more complicated. The district allows you to file a civil complaint requesting a temporary restraining order followed up by a request for an injunction. The steps are more involved and the process can take several court hearings. I recently had such a case and share some very basic observations:

Based on my legal research it is my opinion that in  order to succeed with the injunction the following four factors need to be proved:

1. Likelihood of irreparable harm if request is not granted (this is the most important factor)
2. Likelihood of success on the merits of the underlying action
3. The "balance of injuries" favors giving injunction
4. Public interest would be served by granting the injunction

The burden of proof that you as the petitioner must overcome is clear and convincing proof. That is the second highest level of proof in the American justice system only somewhat below "beyond reasonable doubt".

In this particular case I call the victim who testified as to the threats made by the defendant. The victim testified very credibly and consistently. The defendant took the stand and his testimony was not presented well. I made a tactical decision not to cross-examine the defendant because I did not think that he hurt my client's case and he did not help his case.

Thereafter I put on a rebuttal witness who basically confirmed what the victim said and further rebutted what the defendant said.

The judge was able to make a decision without hearing closing argument. He favored my client's testimony and granted the preliminary injunction preventing the defendant from having any contact with my client, the victim, for one year.

If you are in a situation where you need a civil protective order or a Temporary Restraining Order I have both prosecuted and defended these in the Superior Court for Washington DC.


Brief Observation on DNA Evidence

Recently I was at a DNA seminar and there was a point well made. Consider the following matrix:

Offense: Rape
Activity: Intercourse
Source: Linens from the bed
Substance: DNA

The offense in the case is rape, the activity is intercourse, the source are the sheets and the substance found is the defendant's DNA.

The prosecution would have the jury believe that the DNA is from semen and therefore a rape was committed. The defense must challenge where that DNA came from. It could've come from a skin cell, hair, or blood. It did not necessarily come from semen. It would likely establish that the defendant was there but it does not conclusively prove that the defendant provided DNA from his semen.  If there is no semen there may be reasonable doubt that intercourse let alone rape occurred.

The point is, just because DNA is present doesn't mean that the defendant did something illegal.
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