Constitutional rights

September 26, 2016

You Can’t Put Lipstick on a Pig

You can’t put lipstick on a pig.

Recently the Trump campaign has hired Kellyanne Conway and other spokespeople in attempt to put a positive spin on Trump. They look nice and speak well. But you can’t put lipstick on a pig.

I am a Jew. I was born in New York in 1955. I may not practice or believe much, but had I been born 15 years earlier in Germany I would have been put to death because I my mother was Jewish. The death camps were the outcome of years of anti-Semitism, words that people acted upon, taken to its despicable, criminal, and murderous end.

September 24, 2016

NCDD and NACDL wrap up a successful conference in Las Vegas

by Goldstein & Stamm, P.A.

The National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL) just wrapped up their annual Las Vegas seminar. As usual, it was well attended and the presentations were very informative.

The conference featured presentations on Thursday, September 22, on cross-examination by Jim Nesci; accident reconstruction by Steven M. Schoor; succeeding without an expert by Tommy Kirk; and, the psychology of winning by Allen Fox, Ph.D. The conference continued on Friday, September 23 with presentations on case law update by Don Ramsell; NHTSA’s ARIDE program (Advanced Roadside Impaired Driving Enforcement) by Tony Palacios; preparing for direct and cross of experts by Virginia Landry; ethics by Jim Nesci and nine other regents; gas chromatography for jurors by Suzanne Perry, M.Sc.; closing arguments by Joe St. Louis and Tommy Kirk; field sobriety test facts and fallacies by Tony Palacios; and, prescription medication issues by Fran Gengo, Pharm. D., Ph. D. The conference concluded today with presentations on closing argument by Tommy Kirk; cross of the standardized field sobriety tests by John Hunsucker (for attorneys with 1-5 years experience) and by Don Ramsell (for attorneys with over 5 years experience); analyzing a DRE facesheet and narrative report by Steven Oberman and Tony Palacios; breath testing by Jim Nesci; defending the impaired marijuana case by George Bianchi; and, how to try your first DUI case by John Hunsucker.

September 24, 2016

Hillary Clinton for President

by Goldstein & Stamm, P.A.

This is the endorsement of the New York Times. I was going to write one but the Times did a great job with it. So I am reprinting it here. I will add that her Supreme Court and other judicial picks will be much better than any her opponent would choose.

In any normal election year, we’d compare the two presidential candidates side by side on the issues. But this is not a normal election year. A comparison like that would be an empty exercise in a race where one candidate — our choice, Hillary Clinton — has a record of service and a raft of pragmatic ideas, and the other, Donald Trump, discloses nothing concrete about himself or his plans while promising the moon and offering the stars on layaway. (We will explain in a subsequent editorial why we believe Mr. Trump to be the worst nominee put forward by a major party in modern American history.)

But this endorsement would also be an empty exercise if it merely affirmed the choice of Clinton supporters. We’re aiming instead to persuade those of you who are hesitating to vote for Mrs. Clinton — because you are reluctant to vote for a Democrat, or for another Clinton, or for a candidate who might appear, on the surface, not to offer change from an establishment that seems indifferent and a political system that seems broken.

July 22, 2016

Speaking out against Trump

by Goldstein & Stamm, P.A.

I will repeat the well known quote from Martin Niemöller:

First they came for the Socialists, and I did not speak out –

Because I was not a Socialist.

June 23, 2016

The Incredible Shrinking Fourth Amendment

by Goldstein & Stamm, P.A.

The Supreme Court decided two Fourth Amendment cases this week that diminish our freedom from police searches. The Fourth Amendment says:

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.

Starting with the Supreme Court’s decision in Terry v. Ohio, in 1968, police have been allowed to stop a person without probable cause if they have an articulable reasonable suspicion that the person has, is, or is about to break the law. Under the exclusionary rule, the government is not allowed to use in court evidence obtained in violation of the Fourth Amendment. The exclusionary rule exists to deter officers from breaking the law.

May 28, 2016

Memorial Day message

by Goldstein & Stamm, P.A.

I have been reflecting on Memorial Day and paying tribute to the men and women who gave the ultimate sacrifice in defense of our liberty.

We are very fortunate to live in a place where an accused is presumed innocent, and has a right to notice, counsel, proof beyond a reasonable doubt, against compelled self incrimination and against unreasonable search and seizure. We also have constitutional rights to equal protection, due process, and freedom of speech and religion, and against government establishment of religion.

Each generation has a responsibility to fight to keep the rights and ideals enshrined in our Constitution alive. As lawyers, we have a special responsibility to give meaning to these rights that define us as a nation of laws and liberties, and we fight in court every day to ensure that the government promotes our rights, and does not encroach on them. We know from experience that many of our citizens take these rights for granted and don’t agree with them unless or until they face charges. As many of us know all too well, many of our prosecutors and judges give only lip service to our rights and achieving justice in many cases requires hard work by us, and is not always successful.

May 16, 2016

NCDD Serious Science Seminar Knocks it Out of the Park

by Goldstein & Stamm, P.A.

The National College for DUI Defense (NCDD) just concluded its second annual Serious Science seminar Saturday in Ft. Collins, Colorado. Attended by 21 lawyer students, the five day seminar featured a day and a half of lectures by the nation’s leading experts on forensic blood alcohol testing, Jimmie Valentine, Ph.D., Carrie Valentine, Ph.D., Janine Arvizu, NCDD Regent Joe St. Louis, Patricia Sulik, Ph.D. and Robert Lantz, Ph. D., followed by a tour of a working forensic laboratory, Rocky Mountain Instrumental Laboratories. Rocky Mountain Instrumental Laboratories in Ft. Collins, Colorado, is run by Patricia Sulik, Ph.D. and Robert Lantz, Ph. D.

The science portion was followed by three days of lectures and breakouts on trial techniques taught by by two veteran faculty members of the Gerry Spence Trial Lawyers College, Marjorie Russell, and Francisco “Paco” Duarte. The TLC website says:

Trial skills are only part of being a force in the courtroom. The trial lawyers’ power originates from within. Knowledge of oneself gives the lawyer the capability to know others and to connect with each person in the courtroom including the witnesses, the judge and the jurors. The power of TLC’s methods come alive through creative, spontaneous, outside-the-box innovations that capture juries and move them to justice.

April 20, 2016

The Supreme Court considers whether breath tests require a search warrant

by Goldstein & Stamm, P.A.

Today the Supreme Court heard oral argument in the cases of Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).

Leonard R. Stamm, along with Donald Ramsell and Jeff Green, co-authored an amicus brief filed on behalf of the National College for DUI Defense and the National Association of Criminal Defense Lawyers, in these three cases on February 11, 2016.

The issue in the case was whether a state may make it a crime to refuse a warrantless breath test, or put differently to exercise one’s constitutional right to require the state to comply with the Fourth Amendment. Maryland has a sentencing enhancement of up to 60 days that may apply if a person is found by a judge or jury to have knowingly refused a test. The National Park Service, which controls a number of roads in Maryland, including the Baltimore-Washington Parkway, has a regulation, 36 CFR § 4.23(c) that makes it a crime to refuse a breath test, with a maximum penalty of 6 months in jail and a $5,000 fine. In both state and federal DUI cases, a suspect is told there is a possible jail sentence if he or she refuses to submit to a breath test. As a result, every breath test in state and federal court in Maryland is subject to a motion to suppress alleging that giving that advice is coercive and in violation of the Fourth Amendment.

April 14, 2016

Senate and House Compromise on Noah’s Law: Ignition Interlocks NOT Required on All First Offenders

by Goldstein & Stamm, P.A.

If you have been following the news lately you have heard that Maryland has joined the states that require interlocks in all DUI cases, even for first offenders blowing under 0.15. For example, see Md. lawmaker: Slain officer Noah Leotta ‘is still on the job’ in the Washington Post. However a close examination of the record reveals over 50 changes to the original version of Noah’s law contained in the Conference Committee Report.

A key provision in contention would have required a first offender with a test result of 0.08 or higher but less than 0.15 to get an ignition interlock for 90 days. The House had rejected that provision. However, that provision was contained in the third reading of the Senate Bill 945. (The House and Senate had both already stricken a provision requiring defendants charged with DUI or DWI but only convicted of reckless or negligent driving to get an ignition interlock). In the end, the House and Senate Conference Committee compromised. They increased the length of the suspension to 6 months, but reinstated a provision that allows alleged offenders to request a hearing to get a permit that allows driving for employment, alcohol education, education or medical purposes for the licensee or family members, without obtaining an ignition interlock in the car. So while a 6 month interlock is an option, it is not a requirement in the new law. The new law, which takes effect on October 1, 2016 (assuming the Governor signs it), also requires ignition interlock for defendants convicted of drunk driving (for 6 months, one year, or 18 months). But in Maryland most of them are second offenders, since most first offenders found guilty end up with probation before judgment (PBJ) – not a conviction.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

March 19, 2016

Why every breath test in Maryland should be suppressed

by Goldstein & Stamm, P.A.

Every breath test in Maryland is subject to suppression. Every administrative suspension based on a failed breath test should be thrown out. The reason is – in Maryland there is a potential 60 day enhanced jail penalty for every driver arrested for DUI who refuses to take a breath test. The question is – can the State put someone in jail for refusing to consent to a search of their body? Can the State make it a crime, or a sentencing enhancement to refuse to consent to a warrantless search? And if they cannot, can they comply with due process when they use the threat of jail to induce the person to consent to a breath test? The answer to these three questions should be NO.

There is a conflict among courts on the issue of whether a State can criminalize refusal to submit to an alcohol test. If it cannot, then any consent obtained by advising a suspect that refusal is a crime carrying a potential penalty of incarceration is coerced and involuntary as a matter of law. In Maryland, the DR-15 advice used to obtain consent gives this questionable advice.

This is an important issue currently because on December 11, 2015, the Supreme Court granted certiorari in three cases that raised this issue: Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015). These cases will be argued in the Supreme Court on April 20, 2016.