THE ADVOCATE Newsletter of The Baltimore County Bar Association VOLUME XXV, NO. 9
April 2016
PRESIDENT’S MESSAGE by Hon. Vicki Ballou-Watts C e l e b ra t i n g th e 5 0 th A n n i v e r s a ry of M i r an d a v. A r i zo n a Every year since 1958, the President has issued a Law Day Proclamation in recognition of our rule of law, the liberties we enjoy and the ideals of equality and justice. The American Bar Association announces an annual Law Day theme which bar associations and organizations celebrate through educational programs, art contests, speeches and other events. “Miranda, More Than Words” is the 2016 Law Day theme and the Baltimore County Bar Association (BCBA) is proud to welcome two outstanding jurists - U.S. Court of Appeals Judge Andre M. Davis and Maryland Chief Judge Robert M. Bell (ret.) for this special observance on Monday, May 2, 2016. “Miranda, More Than Words” is the 2016 Law Day theme because the Supreme Court issued its landmark decision fifty years ago in Miranda v. Arizona, 384 U.S. 436 (1966). Of course, that ruling
addressed the 5th Amendment privilege against selfincrimination, the right to counsel and the procedural safeguards law enforcement must follow during custodial interrogations or settings where a suspect’s freedom is curtailed in any significant way. By now, lawyers and members of the general public alike are familiar with the language of the Miranda warnings. “You have the right to remain silent…” Interestingly, Miranda was one of four cases involving custodial interrogations decided by the court in the same opinion. For those of us who studied Miranda in law school many years ago and may not recall the specific facts of the case, here is a brief refresher: Ernesto Miranda, an indigent
Inside This Edition Program Registrations ADR: Changes Bench/Bar Committee Bull & Oyster Roast Calendar of Events Classified Ads Committee Programs County Council Update Court Notices Court Reporter Services Criminal Law Update Itineris, Inc. Judicial Portraits Lawyers Assistance Save the Date Flyer Vietnam War Stories Wines Around the World
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PRESIDENT’S MESSAGE Continued from page 1 Mexican immigrant whom the court described as “a seriously disturbed individual,” was arrested in his home and transported to a police station in Phoenix, Arizona. At the police station, he was identified by a complaining witness who accused him of kidnapping and rape. Miranda was taken to a special interrogation room where he was questioned by two police officers over a period of two hours. He made incriminating statements. However, even though Miranda was never advised of his right to counsel, police presented him with a typed “confession” which contained language stating that the confession was voluntary, without threats and with full knowledge of his legal rights and understanding that any statement he made could be used against him. At trial, the written “confession” was admitted into evidence over defense counsel’s objection. Miranda’s convictions for Kidnapping and Rape (and sentences of 20-30 years, concurrently) were upheld by the Arizona Supreme Court. However, in its decision, the U.S. Supreme Court reversed the convictions, noting that Miranda and the other appellants were “thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures.” As a result, it was necessary for the police to utilize appropriate safeguards at the beginning of the custodial interrogation so that any statements would be “the product of free choice.”
information, contact the BCBA office. Then, at noon, Judge Andre M. Davis will give the Keynote Address in Ceremonial Courtroom 2 in the old courthouse building. During the Noon Ceremony, BCBA past Presidents Debra Schubert and Myles Friedman will receive the Law Day and Judith Ritchey Awards, respectively. The BCBA will also announce the art poster contest winners and make a special presentation to Itineris, Inc. the BCBA designated charity for the 2015-16 bar year. Please join us for these wonderful activities. Hon. Vicki Ballou-Watts President, Baltimore County Bar Association April 2016
The U.S. Supreme Court emphasized that when government seeks to punish an individual, it must produce the evidence against him by its own independent efforts rather than rely upon the easier, more expedient method of obtaining a confession that isn’t voluntary. And, as if to underscore this point, when Miranda was retried, he was convicted again –but through the use of evidence other than the tainted confession. On Monday, May 2, 2016, the Baltimore County Bar Association will begin its celebration of this important legal decision with a Law Day Breakfast program featuring the Honorable Robert M. Bell. The program will be held at the Radisson Hotel in Timonium. It begins at 7:30 AM. For ticket THE ADVOCATE
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April 2016
C ALENDAR
2015-16 Officers President Pres-Elect Secretary Treasurer
Hon. Vicki Ballou-Watts Robert J. Thompson Adam T. Sampson Rebecca A. Fleming
T. Wray McCurdy, Immediate Past President Alexander C. Steeves, YL
Chair
The Advocate Laurie Wasserman, Committee Chair Doris D. Barnes Thomas S. Basham Associate Editors
Contributing Writers C. Theresa Beck Thomas H. Bostwick Catherine A. Dickinson Sondra M. Douglas Bruce E. Friedman Robert C. Lidston Gary Miles Margaret M. McKee Cecilia B. Paizs Jeffrey R. Scholnick Lisa Y. Settles Keith R. Truffer Laurie Wasserman Catherine F. Woods Matthew I. Wyman The Advocate is a monthly publication of the Baltimore County Bar Association informing its members about current events relating to law. Articles do not necessarily reflect the official position of the BCBA and publication does not constitute an endorsement of views expressed. The contents of advertisements are the responsibility of the advertisers and are not recommendations or endorsements by The Advocate. Publication deadline: 5th of the month preceding publication.
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E VENTS
Program/Event Registration Form can be found on page 29 Individual flyers can be found with the online registration for each program on the website calendar.
Executive Council Hon. Keith R. Truffer Michael W. Siri Jay D. Miller Stanford G. Gann Jr. John G. Turnbull III Lisa Y. Settles
OF
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Young Lawyers’ Annual Bull & Oyster Roast, 2-6 p.m., American Legion Law Day Committee Meeting, 5 p.m., Mezzanine 08 E&T: Annual Dinner w/Orphans’ Court Bench & ROW, 5:30 p.m., CCMd Family Law: Annual Joint Dinner w/BABC, 6 p.m., Forest Park GC Tech: Communication: That’s the Magic Word, 5 p.m., Mezzanine 08 Executive Council Meeting, 8 a.m., Judicial Conference Room 363 Real Property: Closings, Settlements, e-Filing Deeds, Current Trends, Professionalism: Understanding the AGC, 5:30 p.m., Jury Assembly Area Lawyer in the Lobby, Free Walk-in Clinic, 4:30-6:30 p.m. Criminal Law: Cars, Cops & Stops, 5 p.m., Mezzanine 08 Bench/Bar Committee Meeting, 8 a.m., 4th Floor Judicial Conference Room Portrait Unveiling, Hon. J. William Hinkel, 4 p.m., Courtroom 2 Civics & Law Academy, CCBC Catonsville, 8 a.m. - 2 p.m. LRIS: How to Train Your Dragon! 12 noon, Mezzanine 08 Supreme Court Group Admission, see information on page 17
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Law Day Breakfast, 7:30 a.m., The Raddison North, Timonium Law Day Noon Ceremonies, 12 p.m., Ceremonial Courtroom No. 5 Family Law Town Hall Meeting, 8 a.m., Circuit Court Courtroom 12 CLE Magical Mystery Tour, 12 p.m., Mezzanine 08 Family Law Forum, 5 p.m., Circuit Court Courtroom TBD Pro Bono Day, 9 a.m.-12 p.m., Randallstown Public Library Executive Council Meeting, 8 a.m., Judicial Conference Room 363 Lawyer in the Lobby, Free Walk-in Clinic, 4:30-6:30 p.m. Bench/Bar Committee Meeting, 8 a.m., 4th Floor Judicial Conference Room Committee Chair “Best Practices” Workshop, 5 p.m., Mezzanine 08 SLLZ: A View from The Hill w/Congressman Dutch Ruppersberger, 5:30 p.m., Country Club of Maryland COURTS and BAR OFFICE CLOSED, in observance of Memorial Day
June 2016 2
Annual Golf Outing, 12 p.m. Lunch, 1 p.m. Shotgun Start, Rocky Point Golf Course. Beginners’ Clinic will start at 2 p.m. & finish w/dinner 15 MSBA Annual Conference, Ocean City, Maryland - 18 Joint Meeting with the Judiciary, Clarion Resort 23 BCBA Annual Stated Meeting & Reception, 4:30 p.m., Ceremonial Courtroom No. 5, Reception immediately following at TowsonTavern
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COURT NOTICES Circuit Court for Baltimore County Third Judicial Circuit
Chambers of Ruth Ann Jakubowski Family Law Division Coordinating Judge
The Honorable Ruth Ann Jakubowski will hold a Town Hall Meeting on Tuesday, May 3, 2016, 8 a.m., in Courtroom 12 of the County Courts Building, Circuit Court for Baltimore County, 401 Bosley Avenue, Towson, MD. All family law practitioners are welcome and encouraged to attend.
New Policy on rescheduling of Settlement Conference Following Postponement Effective April 1, 2016, all Settlement Court conferences that need to be rescheduled following a postponement must be done within 5 days of counsel receiving notification from Settlement Court of new possible dates. It is the responsibility of counsel that requested the postponement to contact opposing counsel and agree upon a new date and notify Settlement Court. Failure to notify the Settlement Court of the new agreed date within 5 days will result in a new settlement date being automatically set.
SETTLEMENT COURT REMINDERS Arrive on time. If counsel or a party expects to be late due to an unexpected problem or emergency, contact Settlement Court at 410-887-2920 to provide an estimated time of arrival.
All discovery should be completed prior to the Settlement Conference.
Attorneys are expected to have preliminary discussions with clients and opposing counsel concerning the settlement posture of the case in advance of the Settlement Conference in an attempt to narrow issues.
In Family Law matters, counsel and self-represented parties are required to complete a Rule 9-207 Joint Statement and proposed Child Support Guidelines in advance of the Settlement Conference, whenever a marital award or child support are at issue.
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COURT NOTICES Circuit Court for Baltimore County Third Judicial Circuit
Chambers of Ruth Ann Jakubowski
Expedited School Enrollment Policy Between July 5 and August 31, 2016, the Circuit Court for Baltimore County will have a Family Division Judge available to review contested school enrollment issues on an expedited basis. The school enrollment issue must be raised in an appropriate pleading or petition in order to be considered. The matter will be considered on an expedited basis only in cases where the Defendant(s) have been served and the case is already at issue. The party/attorney seeking expedited relief must provide reasonable notice to the opposing side that the party/ attorney will be filing a Petition for Expedited Hearing regarding the school enrollment issue. The original of the Petition must be filed with the Clerk’s Office. The party/attorney will be advised which Family Law Judge is handling School enrollment issues that day. It is incumbent on the party/attorney to contact the assigned Family Law Judge’s Chambers for further direction on handling the request. In order to assist the Judge reviewing the Petition, it is recommended that the Petition include the following information: (1) Whether there is an existing Order covering custody and schooling, and the provisions of that order; (2) The child’s enrollment history, and the proposed change; and (3) The basis for the request for expedited hearing on the issue. The assigned Judge will first determine whether expedited review is warranted. If the request for expedited review is denied, the matter will be scheduled for hearing under the regular protocol. If the assigned Judge determines that expedited review is warranted, the Judge may first attempt to resolve the dispute through consultation with counsel or referral to the Office of Family Mediation. If an expedited hearing is ordered, it will be scheduled within ten (10) days before a Family Law Judge.
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COURT REPORTER SERVICES: MORE THAN DEPOSITIONS The Solo and Small Firm Committee was pleased to have Monica Sienkiewicz, the new owner of Irwin Court Reporting, host its March 8, 2016 luncheon, with a live demonstration by videographer Lisa Bauer. Many practitioners took advantage of this opportunity to learn that court reporting companies offer much more than just transcripts!
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April 2016
Professional Office Space In heart of Towson (Washington & Chesapeake Avenues) available for sublet. Use of conference room, waiting area, internet, copier.
Contact ken@kenpragercpa.com 410-828-4749
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April 2016
WINES AROUND THE WORLD Thursday, March 10, 2016 at Notre Dame Preparatory School
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April 2016
THREE BCBA MEMBERS TO BE FEATURED IN MPT DOCUMENTARY by Laurie M. Wasserman
DVR Alert! On May 24, 25 and 26, 2016, Maryland Public Television will air a three-part documentary entitled Maryland Vietnam War Stories, featuring BCBA members Hon. Timothy Martin, Michael Lawlor, and Jay Carney.
For more information on Maryland Vietnam War Stories, go to http://vietnam.mpt.org/film/ . Check the BCBA website and social media pages for channel and air-time information.
According to MPT’s website, Maryland Vietnam War Stories comprises of three one-hour segments of dramatic television as approximately 100 veterans tell the story of the Vietnam War in their own words. Fifty years later, their words are powerful, emotional, insightful, and sometimes heartbreaking. The documentary reflects on the men and women who served in this controversial war and their return home to an ungrateful nation. Maryland Vietnam War Stories recognizes the veteran’s sacrifices, their valor, and the price they paid after the conflict--physically, psychologically or both.
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CHANGES, CHANGES, CHANGES by Honorable Dorothy J. Wilson On March 31, 2016, the BCBA ADR Committee sponsored an ADR program entitled Changes, Changes, Changes, to discuss the changes the Maryland Judiciary has undergone regarding ADR. The program was well attended by an enthusiastic and engaged audience of ADR practitioners from around the County as well as from Baltimore City and Anne Arundel County. The Committee Chair, Judge Dorothy J. Wilson, opened the program by introducing the newest ADR leaders in the Judiciary who each made a presentation: Maureen A. Denihan, Esquire, Executive Director of the District Court ADR Office and Jonathan S. Rosenthal, Esquire, Director of the Mediation and Conflict Resolution Office (MACRO).
other places within a courthouse to conduct ADR sessions. Jonathan S. Rosenthal, Esquire presented information about ADR in the circuit court. MACRO will continue to provide grant funding for circuit court ADR, offer technical resources to evaluate the success of ADR programs and seek rule changes as needed to promote high quality ADR. New initiatives MACRO will undertake include:
1. To educate stakeholders about ADR. The Office will continue to educate litigants, court personnel, clerks and judges on the benefits of ADR. 2. To provide high quality mediation. The Office will continue the Apprenticeship Program, orientation procedures for new volunteers and data collection for quality assurance. 3. To encourage the use of ADR early and often. New this year is the use of pre-filing ADR to encourage ADR efforts before a complaint is filed. 4. To insure ADR options are accessible and appropriate. New this year is the use of court certified interpreters to insure non-English speaking litigants have access to ADR.
1. Developing one form to be used in multiple counties for practitioners who provide ADR services in a variety of counties. 2. Expanding existing programs to include other ADR processes such as neutral fact-finding and creating new programs where appropriate. 3. Bringing together ADR program managers from around the State to promote greater consistency, where appropriate, between programs. 4. Exploring the ADR opt-out rate across the State, paying closer attention to the reasons insurance companies opt-out. 5. Improving data collection methods to help support requests to the legislature. 6. Launching the revised MPME website on or about May 25, 2016 so that practitioners can register for events and update their information more easily. On the third Tuesday of each month, MPME hosts a conference call for practitioners to confidentially discuss any ethics problems they may have encountered. Participants can receive ethics credits. 7. Participating in a behavior change project through the Public Administration Program at Johns Hopkins University.
Maureen described the Peace Order Mediation program, currently available in Montgomery County District Court only, which addresses nonviolent neighbor to neighbor disputes. In some District Court locations, space availability continues to be a challenge; however, the Office has used unoccupied attorney interview rooms and
There was a lively discussion with lots of good questions and suggestions concerning the data collection procedures and systems and paying District Court ADR volunteers. The program ended with Maureen and Jonathan talking about the ADR research results. The full research report can be found at www.marylandadrresearch.org.
Maureen provided an overview of the District Court ADR programs offered in each county. She discussed the continuing efforts to meet the following four goals of the mission statement for District Court ADR Office:
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YOUNG LAWYERS’ BULL & OYSTER ROAST Sunday, April 3, 2016 at The Towson American Legion Post No. 22
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BENCH/BAR COMMITTEE REPORT by Richard Grason VI The March meeting of the Bench/bar Committee occurred on March 10, 2016. As is sometimes the case, the Committee was treated to a guest speaker, in this instance a Baltimore County Police Department Chief James W. Johnson. Chief Johnson is the first chief of the Baltimore County Police Department (140 years) to rise from the level of Cadet (1979) to Chief (2007). The Baltimore County Police Department is the 18th largest in the United States and is one of the few free standing police departments in Maryland. Chief Johnson spoke for about a half-hour on various topics and accepted questions from the Committee. During his time of almost 40 years with the BCPD, Chief Johnson has seen a tremendous amount of change. The police department has gone from a warrior style of policing to a mode of trying to balance between “warrior” and “guardian.” The nature of policing is that it is hard to teach “on the scene policing,” whereas the classical methods are much easier discussed in the boardroom or when studying. Arrests are down in the County from 34,000-35,000 seven years ago to 26,000. Further there is a 26 percent higher rate on case clearance now than a decade ago. The biggest area of scrutiny in the BCPD is the coming use of body cameras. The police department is carefully looking at all issues involving body cameras. It is a real struggle for Chief Johnson and the department: cameras have to be embraced for public safety, the good does out way the bad but, the cameras can have unintended consequences. The fear of cameras is that it will “chill” police work, cause officers to become stoic and be more concerned with procedure than substance. The startup costs for body cameras will be between seven to eight million dollars, with two million dollars annually thereafter. Between 20 and 25 officers and other personnel will have to be added, including new positions in the State’s Attorney’s office.
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Further, there is an issue of where to wear the cameras on the body. There is no one perfect place. Another issue is what content to release to the media: issues of officer behavior can unfairly prejudice a subsequent trial. In summation, body cameras will help more than hurt, but they will hurt. Police departments should cautiously step into these waters. The BCPD is pretty healthy and remains a pretty attractive agency within the Mid-Atlantic. In the last two and one-half years, there has been 250 promotions within the department. Twenty-eight percent (28%) of the work-force in the BCPD is of a minority background. In the current session of the General Assembly, there are a lot of bills which could impact police work and prosecution. The Law Enforcement Bill of Rights is something to watch carefully. There is no substitute for good Internal Affairs and management. During Chief Johnson’s tenure, more Internal Affairs cases have originated within the department than from the public. Regarding CDS crimes, even with the change in general approach to drug possession crimes to a more medical treatment of the problem, the BCPD is still actively targeting drug distribution crimes. A lot of really big cases. however. have begun on a marijuana seizure. Police officers wear bulletproof vests on a mandatory basis now. The vests are replaced every three years. Morale within the department is good. Brutality and other complaints have gone down the last 7 years. Only 2 trial boards have been conducted in seven years, none in the last three. Tasers were introduced to the BCPD about seven-eight years ago. Only 50 are actively being used in Baltimore County. Tasers have advantages and flaws. Clothing, wind conditions, distance away from the subject can all interfere with a Taser’s effectiveness.
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BCBA President Hon. Vicki Ballou-Watts and her husband, Claude Watts, enjoying the Young Lawyers’ Bull & Oyster Roast on Sunday, April 3rd at The American Legion
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U p c o m ing Even ts June 2
Golf Tournament
June 23
Stated Meeting &
COMMITTEE REPORTS All Committee Reports, Chair and ViceChair contact information, upcoming programs, and handouts from those programs already held this year, can be found the website at www.bcba.org.
Reception at Towson Tavern
Family Law Paralegal Independent Contractor Paralegal AA & BS Degrees w/23 years experience All services provided at my office, or your office. Available 7 days/week All aspects of Discovery Process, Case Management, Drafting, etc. Overflow work, or temp relief available..
Contact Tammy Daily, TIDparalegalsvcs@gmail.com, 410-409-7541
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April 2016
COUNTY COUNCIL UPDATE by Thomas H. Bostwick
Greetings! The members of the Baltimore County Council are grateful for the opportunity to update the County Bar on the activities of our County’s legislative body. Your seven member County Council serves as the independent Legislative Branch of County government. The Council meets year-round, generally in bi-monthly Legislative Sessions (held at night) and bi-monthly Work Sessions (held during the day). All proceedings are open to the public, and the Legislative Session is broadcast on BCTV (Comcast & Verizon channel 25). The Council’s Website at www.baltimorecountycouncil.org provides helpful information as well. Baltimore County Budget – on April 14, 2016, Baltimore County Executive Kevin Kamenetz presented the administration’s Budget Message, and offered his $3.1 billion Total Operating Budget for Fiscal Year 2017. Highlights of the budget include prioritizing funding for public education, public safety, and strengthening our local economy, while also holding the line on the property tax rate for the 28th year in a row, and the income tax rate for the 24th year in a row. The County Council now undertakes its own review of the FY17 budget. This includes a budget analysis of individual County agencies and departments by the County Auditor, and budget hearings with County agencies. This will culminate in the County Council’s Budget Message and FY17 Budget Adoption on May 26, 2016 in the Council Chamber. CZMP – the County Council is also in the midst of the Comprehensive Zoning Map Process, which occurs countywide every four years. It began with the creation of zoning map “Issues” last fall. The Department of Planning reviewed the Issues over the winter and forwarded its findings to the Planning Board. In March, the Planning Board held a series of public hearings on the Issues, then submitted its zoning recommendations to the County Council. During the month of June, the Council will hold public hearings on all the zoning
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Issues in each Councilmanic District. The hearing schedule is as follows: Fifth District 7:00 PM, June th 6 County Council Chambers Fourth District 6:00 PM, June th 9 New Town High School Sixth District 6:00 PM, June th 14 Parkville High School First District 6:00 PM, June th 16 Catonsville High School Second District 6:00 PM, June 21st Sudbrook Magnet Middle School Third District 6:00 PM, June rd 23 Loch Raven High School Seventh District 6:00 PM, June 28th Chesapeake High School These hearings are open to the public and citizens, developers, attorneys, property owners, and others interested in this process are encouraged to attend to express their opinion regarding a zoning Issue on a particular property. This year-long process will conclude when the Council votes on CZMP legislation on August 30, 2016. Appointments – at its April 4, 2016 Legislative Session, the Council confirmed the re-appointments of Meryl W. Rosen from the Second District and Andrew M. Belt from the Fifth District to three-year terms on the County Board of Appeals. The Council offers its sincere congratulations to Ms. Rosen and Mr. Belt and appreciates their service.
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The BCBA-designated charity for 2015-2016
These items, and more, are available for sale by clients of Itineris, the BCBA-designated Charity for 2015-16. For more information, please contact Vincent Valerio at Itineris, vvalerio@itinerisbaltimore.org or 443-2751100. Your support is greatly appreciated.
Anniegrams are an assortment of greeting cards created by Annie Taubenfeld. Annie is a young woman with autism who enjoys brightening up other people’s days with these sweet, original Anniegrams. A pack of eight cards (and envelopes) will be available for purchase in the Bar Office.
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BAR FOUNDATION REPORT JUDICIAL PORTRAITS by John B. Gontrum
Your help is still needed in assisting the Foundation in funding the portraits of several deceased Circuit Court Judges. The Baltimore County Bar Foundation exists as an independent charitable organization with missions to foster and maintain the honor and integrity of the profession of the law; to improve and to facilitate the administration of justice; to enhance and improve the image of lawyers; and to promote the study of the law and research therein, and the diffusion of knowledge thereof.
Protect your personal and organization’s photographs forever. Guarantee they will be in a retrievable format 10, 20, 50+ years from today. The “free” services are a gamble not worth taking, since they own your photographs, and can remove them at any time. What would you do if you logged on, only to find them all gone?! Email forever100plus@gmail.com for more information on how to protect your legacy. THE ADVOCATE
A few years ago a request was made to the Foundation to act to provide for those wishing to donate funds in order to honor deceased members of the circuit court judiciary by having their portraits made and placed in the court house. The Foundation board believed that this was an appropriate task under its charter. To date, funds have been donated in varying amounts for portraits of Judges Jenifer, Brannan, Hinkle, and Jacobson. Judge Buchanan’s portrait was fully funded by his family. Other portraits have been funded privately. Unfortunately, although each portrait costs a very reasonable $4,100, the funding has not gone as hoped, possibly because the pool of attorneys familiar with the deceased jurists has grown smaller with the passing of time. Judges Jenifer and Brannan, for example, both passed away decades ago. Consequently, the Foundation is in need of funds in order to cover the cost of completion of the portraits. A gift of any size would be appreciated, and would be tax deductible. At this point the Foundation owes $16,400 for the portraits commissioned, and less than a third of that has been received. We believe that the traditions initiated in Courtroom Five are important in establishing the continuity of the bar and the role of these individuals in the history of the county. We appreciate any consideration you might give to this appeal.
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Paul E. Alpert, Retired Judge Available for Mediation and Arbitration Former Judge of District Court, Circuit Court and Court of Special Appeals
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We are a Debt Relief Agency servicing all areas of Baltimore County, Baltimore City and Harford County – Over 1,000 cases filed.
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Michelle and Michael Siri, Rebecca Fleming, Alaina Storie, Rob Erdman and an assortment of kids (Braden Siri, Olivia Ruocco, Courtney Robinson and Blake Ruocco) thoroughly enjoyed the Young Lawyers’ Bull & Oyster Roast on April 3rd, especially the stuffed animal wheel!
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The following items are needed by Itineris, this year’s BCBA-designated charity. Please feel free to drop your donations off at the Bar Office and they will be delivered. In advance, thank you for your generosity. White paper 20 sets of noise cancelling Head phones (for music and for noise control) Fitness items (Balls, medicine Balls, light weights, bands, et.) Calculators Cleaning supplies Art Supplies Batteries (All sizes) Cooking supplies (Measuring cups, Pans, pots, Baking sheets) Flour, sugar, salt, sprinkles (basic cooking supplies) Board games Extra Lap tops (2) Ipads (2) vacuum Video camera Karaoke machine Bikes/Adult tricycles Padding for resource room
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Fake register and scanner Fake food (fruit, cans , etc.) Stress balls Laminator (Industrial sized) Laminate Sheets Board Maker Velcro Index Cards Yellow Hi-liters Papermate Color Pens Large PECS Communication books Extra Sentence Strips Extra Insert Pages Small PECS Communication books Extra Insert Pages ASL computer program? Single hole puncher Index cards Magic markers Colored pencils A large paper shredder
April 2016
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CRIMINAL LAW UPDATE by Robert C. Lidston The March Amicus features three Court of Appeals decisions which may be of interest to practitioners. State v. Bircher, No. 33, September Term 2015, filed February 23, 2016 (opinion by Battaglia, J.). Bircher was convicted of first degree murder and attempted first degree murder after he fired a handgun into a crowd. The bullets struck Gary Hale and killed David Garrett. Trial testimony indicated that Bircher had been flirting with Hale’s girlfriend. Hale told the girlfriend: "Your little boyfriend is about to get his ass beat." Bircher left the bar after this occurred, but then remembered that he had left his debit card inside. Fearful of what Hale might do to him, Bircher took a pistol from his car and headed back inside. When he saw Hale approaching him, he fired thirteen rounds, striking Hale and killing Garrett. At the end of all the testimony, the State did not request an instruction on transferred intent. It argued instead that Bircher intended to kill everyone standing in the area in which he fired. Bircher’s
defense was that he acted in self defense and did not mean to hit anyone, including Garrett. During deliberations, the jurors sent the judge a note, "We are confused on the term ‘intent’. Does it mean to kill a person or the specific person. Can you please clarify? Thank you". Over a defense objection, the judge responded to the question with the instruction on transferred intent. The Court of Special Appeals reversed the convictions. It held that the judge’s response did not address the question asked by the jury and had "no place at Mr. Bircher’s trial to begin with." On the State’s appeal to the Court of Appeals, the Court reversed COSA. The Court decided that, using the abuse of discretion standard, the evidence showed that Bircher could have heard Hale and his threats and been afraid. The evidence also suggested that when Bircher went back to the bar for his debit card, he may have intended to protect himself by shooting Hale, even though his bullets killed Garrett. It rejected the idea that the instruction was prejudicial. Defense counsel did not concede that Bircher intended to shoot Hale and not Garrett, an argument that would have "walked into" the transferred intent issue. On the contrary, Bircher’s counsel repeatedly pointed out that Bircher did not intend to shoot anyone, did not intend to shoot Garrett specifically, and acted in self defense. None of these arguments prejudiced Bircher with regard to the giving of a transferred intent instruction. According to defense counsel, Bircher "did not have an intent to kill anybody." Additionally, Bircher’s counsel had adequate time to prepare additional closing remarks tailored to the new jury instruction. Ray-Simmons and McGouldrick v State, No. 28, September Term 2015, filed February 22, 2016 (opinion by Barbera, C.J.). Prior to trial, defense counsel requested and was granted by the judge a ruling that an objection made by one defendant would be deemed to be made by the others. During
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CRIMINAL LAW UPDATE Continued from page 22 jury selection, the lawyer for Ray-Simmons alleged that the prosecution’s exercise of five peremptory challenges, all against African American men, violated the holding in Batson v. Kentucky, 476 U.S. 79 (1986). The trial judge asked the State to explain its peremptory challenges and the State provided an explanation for each challenge. Right after the explanation, the judge decided that the prosecution had provided sufficient explanation for its challenges. After twelve jurors had been selected, the judge asked counsel for Ray-Simmons if the panel was acceptable and he replied that it was. To the same question, the defense attorney for McGouldrick answered, "acceptable, safe from prior objections, Your Honor." Defendants were acquitted of first degree murder but were found guilty of second degree murder and other crimes. In an unreported opinion, the Court of Special Appeals decided that neither petitioner had preserved a Batson claim. Both had accepted the composition of the jury. COSA held that, in the alternative, the trial judge had not erred in deciding that the two defendants failed to establish a prima facie case of discrimination and that the prosecutor’s explanation was sufficiently neutral to comply with Batson. The Court of Appeals decided that both petitioners were entitled to a new trial. The judge’s decision that an objection made on behalf of one defendant would be deemed made on behalf of the others was sufficient to preserve the Batson claim. When the attorney for Ray-Simmons raised Batson, the attorney for McGouldrick joined automatically in that challenge. When McGouldrick’s counsel stated that the jury was acceptable "safe from prior objections," the Batson’s challenge was preserved for his client as well as for Ray-Simmons. The Court decided that the trial judge erred in concluding that both defendants failed to establish a prima facie case of discrimination because that inquiry became moot when the State offered explanations for the exercise of its peremptory
challenge. The State had exercised peremptory challenges only against African American men. This was sufficient to establish a prima facie case of discrimination under Batson. The State’s explanation as to one of the challenged jurors, "I intended to replace him with another black male," was neither a clear and reasonably specific explanation nor race and gender neutral. An expressed desire to replace the juror with another unknown possible panel member does not explain in any way the State’s reason for striking the juror it struck. The announced intention to replace that juror with another African American male suggested that race and gender factored improperly in the prosecutor’s decision, in violation of Batson. Seward v. State, No. 12, September Term 2015, filed January 27, 2016 (opinion by Adkins, J.). Seward was found guilty of assault and related crimes. During the trial, his employer stated that she was unable to locate employment records to say whether he was at work the week of the crime. The victim’s testimony provided the only substantive evidence to identify Steward as the attacker. Seward’s post conviction attorney found the employment records. The employer reviewed them and decided it was "impossible" that Seward could have left his job to conduct the attack. Having failed in obtaining post conviction relief, Seward filed a petition for writ of actual innocense. The circuit court gave him a new trial. Because of the employment records, it decided that a substantial possibility existed that the result of Seward’s trial could have been different. It further decided that Seward’s trial attorney had acted with "due diligence" in trying to produce the records at the original trial. The prosecution filed a notice of appeal, but Seward moved to dismiss, arguing the State’s limited authority to appeal as established by statute. The Court of Special Appeals denied Seward’s motion, deciding that the State can appeal an order granting a petition for writ of actual innocense. On the merits of the State’s appeal, COSA added that Seward’s Continued on page 24
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CRIMINAL LAW UPDATE Continued from page 23 petition must be denied. The circuit court had erred by applying the wrong standard for due diligence. COSA reversed the trial court, reasoning that the records were not newly discovered evidence under a proper due diligence analysis. The Court of Appeals granted Seward’s Petition for Cert. The Court reversed. The right to appeal is entirely statutory. Courts and Judicial Proceedings subsection 12-301 needed to be examined to determine whether the State had a right to appeal an order granting a petition for writ of actual innocence. Douglas v. State, 423 Md. 156, 31 A.3d 250 (2011) held that a petition for writ of actual innocence is a final judgment under Courts and Judicial Proceedings subsection 12-301. The State failed to show a significant difference between Douglas and the incident case. An order denying a petition for writ of actual innocence was final because the order concluded a petitioner’s rights as to all claims based on the newly discovered evidence alleged in the petition.
Carrie Hubbard and Ami Taubenfeld of Itineris with Richard Anderson (center) who recorded and produced the documentary video debuted at Wines Around The World
In the Seward matter, the trial court’s order did not prohibit the State from further prosecuting and defending its rights and interests in the newly discovered evidence. Because the trial court gave Seward a new trial, the State could exercise its right to prosecute Seward at that trial and attack the newly discovered evidence. To allow the State to appeal this order would subvert the purpose of Criminal and Judicial Proceedings subsection 12-301: to prevent piecemeal appeals and ... the interruption of ongoing judicial proceedings." An appeal must be "from a final judgment" CJP subsection 12-301. The circuit court’s order was not a final judgment. The State unsuccessfully argued that the General Assembly failed to include a right to appeal for either the petitioner or the State in Criminal Procedures subsection 8-301 because that right already existed in CJP subsection 12-301. The denial of a petition for a writ of actual innocence was a final judgment, and thus, within the scope of CJP subsection 12-301. Legislative history had nothing to do with that conclusion.
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Don’t let this happen to your career. Reach out for help before it becomes a train wreck. Don’t wait for Bar Counsel to pay you a visit. Confidential help is available for any attorney, paralegal or support staff for drug, alcohol and/or mental health issues, among others.
ARE ALCOHOL AND DRUGS CAUSING PROBLEMS IN YOUR LIFE? There is a way up and a way out — for ABSOLUTELY CONFIDENTIAL help, call us today ... BALTIMORE COUNTY LAWYER ASSISTANCE PROGRAM A CONFIDENTIAL resource for Baltimore County attorneys, assistants and judges. Our services include help for a broad range of problems and personal concerns, such as: Depression Marital and Family Relationships Alcohol and Drug Abuse Stress and Burnout Prescription Drug Concerns Career Concerns
Gambling Internet Addiction Sexual Addiction Compulsive Spending Eating Disorders Balancing Work and Family
WE DO NOT KEEP RECORDS. Our sole purpose is to provide help. We can assist with providing access to treatment facilities and provide emergency practice management, as well as referrals to professional counselors. GARY MILES, Chair RICHARD LYNAS, Vice-Chair STUART AXILBUND JIM BEACH MARY CHALAWSKY MARISSA JOELSON JAY MILLER JOSE MOLINA SAM MOXLEY JOE MURTHA JIM QUINN BILL SALTYSIAK MARK VAN BAVEL
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443-632-1760 410-288-1099 410-832-7579 410-241-8538 410-649-2000 917-226-6472 410-951-7165 443-851-7353 410-733-3306 410-583-6969 443-703-3041 410-583-8883 410-337-5291
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Committee Programs CLE Committee Mezzanine 08 April 6, 2016, Noon Peace/Protective Orders May 4, 2016, Common Mistakes: Avoiding Attorney Grievance September 7, 2016 District Court Personal Injury Cases: Proving Damages
Law Day 2016 Miranda, More Than Words To be celebrated on Monday, May 2, 2016 Student Essays and Art Entries are due by April 4, 2016. The flyers with criteria are available by clicking the hyperlinks included above. Committee Meetings Scheduled: April 5, 2016, 5 pm All meetings will be held in Mezzanine 08
Criminal Law Committee Mezzanine 08, 5 - 6 p.m. April 13, 2016, Cars, Cops & Stops June 8, 2016
Memorial & Recognition Committee Please notify Doris Barnes at the Bar Office of the passing of any BCBA member. If this information is received in a timely manner, it will be emailed to the members. Thank you.
Entertainment Committee
June 2, 2016, Golf Tournament
Those members who will be honored at next year’s service on November 17, 2016, at 3:30 p.m., include:
Estates & Trusts Committee Mezzanine 08, 5 p.m. April 6, 2016, Committee Dinner
Robert William Cannon Robert Edward “Boz” Joy Hon. I. Marshall Seidler Charles E. “Chuck” Brooks Charles E. Norton, Jr. Roland R. Bounds, BCBA Past President 1980
Family Law Committee Dinner Programs, 6 p.m. April 7, 2016, Joint Program with BABC Informational Sessions Evening Series Mezzanine 08, 5-6:30 p.m. April 20, 2016 May 4, 2016, 4:30 p.m., Annual Forum May 18, 2016
Lawyer Referral Committee
April 21, 2016, 12 p.m., How to Train Your Dragon! Or, How to Interpret & Complete a Referral Status Update Report. OR, Why Am I Not Receiving Referrals
Negligence, Insurance & Workers’ Comp Mezzanine 08, 5-6:30 p.m. May 3, 2016, followed by a Happy Hour Medical Malpractice Matters
Professionalism Committee Jury Assembly Area, 5:30 p.m. April 12, 2016 Understanding the Attorney Grievance Commission Reception Immediately Following Program in Mezzanine 08
Public Awareness & Speakers Committee Civics & Law Academies, 8 a.m. - 2 p.m. April 15, 2016 @ CCBC Catonsville
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Committee Programs Real Property Committee Mezzanine 08, 12 - 1:30 p.m. Brown Bag Lunch April 12, 2016 Closings, Settlements, e-Filing Deeds, Current Trends May 10, 2016
Not sure what benefits are available to you as a BCBA Member? Click the picture to the left to learn more, or call or email Doris Barnes or Maxine Morrow for more information.
State, Local Laws & Zoning Committee Dinner Programs, 5:30 p.m., Country Club of Maryland April 13, 2016, Environmental Issues in Baltimore County May 26, 2016, A View From The Hill with Congressman Ruppersberger
Technology Committee Mezzanine 08 April 11, 2016, 5 p.m., Communication: That’s the Magic Word
Young Lawyers Committee
April 3, 2016, 2-6 p.m. Bull & Oyster Roast, Silent Auction
Family Law Magistrate Wendy Schenker, Kristin Howanski, Wendy Meadows and Judge Nancy Purpura enjoyed the Young Lawyers Bull & Oyster Roast on April 3rd, but not more than Grayson and Ava Meadows!
Judge Sherrie Bailey and her husband, Drew Bailey supporting Itineris at Wines Around The World, March 10th at Notre Dame Preparatory School THE ADVOCATE
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Signature Sponsors
Custom order your string-art plaque from Itineris, and know that you are helping an adult with autism remain relevant and confident that they, too, have something to contribute! Contact the Bar Office for more information.
LAWYER IN THE LOBBY CLINIC The attorneys listed below have volunteered to staff the LAWYER IN THE LOBBY CLINIC, which is held the second Wednesday of each month, 4:30 to 6:30 p.m. This is an opportunity for citizens of Baltimore County to meet, free of charge, with an attorney for advice and/or referral or both (including self-referral) in the areas of collections, bankruptcy, landlord/tenant matters, contract, warranties and other consumer matters, wills, probate, advance directives, or small claims actions. If you are interested in staffing the Clinic, please call Rachel M. Ruocco at 410-337-9100 or email rachel@bcba.org. Jerry Blake Jessica Corace Keith Franz Bruce Friedman Valerie Ibe Michael Jeffers Fu-Mei Jiang Brady Locher
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Lisa Magil Mala Malhotro-Ortiz Paul Mayhew James Nolan Larry Polen Michelle Valenti Jordan Watts
The Baltimore County Bar Association continues its Signature Sponsor program, which enhances the opportunities for our sponsors, as well as our members. This singletier program provides more engagement between our sponsors and our members. Each Signature Sponsor will host one of teb signature events held throughout the year, thereby reducing the cost of the event for members, and many other added benefits. Sponsorships help the Bar Association maintain its current dues level, despite the increasing costs of providing top-shelf legal education programs, social events, networking opportunities and Bar Office services available in the County Courts Building. If you know of a business that would be interested in one of these limited sponsorship opportunities, please contact Doris Barnes (doris@bcba.org or 410 -337-9103).
Please join us in welcoming these sponsors and consider their services when you need them. Their ads are throughout each issue of The Advocate, and can be located quickly using the index at the end of the issue, and by the gold ribbon that accompanies their ad. Please let them know you appreciate their support. Thank you!
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P R O G R A M & E V E N T R E G I S T R AT I O N F O R M Please return this form to the Baltimore County Bar Association, 100 County Courts Building, 401 Bosley Avenue, Towson, MD 21204 with a check or credit card info; fax to 410-823-3418, or REGISTER ONLINE at www.bcba.org. PLEASE register me for the following programs/events:
Registration Fee: Member Non-Member May 2, 7:30 a.m. May 4, 12 p.m. May 4, 4:30 p.m. May 19, 5 p.m. May 22, 5:30 p.m. June 6, 5 p.m.
Law Day Breakfast, The Raddison Timonium CLE: Magical Mystery Tour of the Clerk’s Office Family Law Annual Forum, County Courts Building Technology: Is this thing on? Ethical Problems & Tech SLLZ: A View from “The Hill” with Congressman C. A. “Dutch” Ruppersberger, CCMd E&T: Legislative Developments, County Cts Building
$20 $0 $0 $0
$25 $20 $20 $20
$60 $0
$65 $20
Name(s) Telephone Address City State Zip Email Amount Enclosed Menu Choice (if applicable) Name on C/C Today’s Date Billing Address City State Zip Email Amount authorized MC/Visa/Discover/American Express Card No. Expiration SEC# (on back of card) Signature____________________________________________________________________________
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The Baltimore County Bar Association 100 County Courts Building 401 Bosley Avenue Towson, MD 21204-4491 410-337-9103-Telephone 410-823-3418-Facsimile www.bcba.org
University of Baltimore Law School students and alum were very well represented at the Young Lawyers Bull & Oyster Roast held on Sunday, April 3rd at The Towson American Legion Post No. 22. Proceeds raised benefitted Itineris, Inc., the BCBA-designated charity for 2015-16.
MEMBER ADVERTISEMENTS Towson. Window office space (and interior office space) available for subtenant with boutique litigation firm loctated in top floor of the PNC Bank building, 409 Washington Avenue, Towson MD. Panoramic views of Towson overlooking Courthouse Gardens. Use of newly furnished large glass conference room and other support available depending on individual needs. Contact Adam at 410-823-5003 or adam@spencefirm.com. Owings Mills. Office space available in a small law firm, perfect for a solo practitioner. Includes use of conference rooms, waiting area, photocopier/fax/scanner, utilities, plentiful free parking, and congenial atmosphere. Located just off Red Run Blvd., near I-795. Contact Andy Hermann at ahermann@LMCPLAW.com or 410-998-1198. Towson. Office space available in a small law firm, perfect for a solo practitioner. Approximate size is 20x15. Furnished office, and comes with desk, credenza and book cases. Use of conference room, waiting room and utilities. Free parking. Rent $650/month. Call 410-321-8368 or email Stephen Dunn at sdunn@sdunnlaw.com. Towson. Small criminal defense law firm (Spencer Gordon) seeking subtenant for our office at Courthouse Commons, 222 Bosley Avenue, Suite B7. One block from Circuit Courthouse; 15’ x 13.5’ room. Administrative/legal assistant support available. Free parking. Seeking easy-going individual. Financial arrangements negotiable. Call 410-296-2555 or email sajlaw@gmail.com.
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