SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_02 0:31

Hello, everybody. This is John Katz to beat the prosecution. I'm a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. I am delighted with the guests we have today. His name is Lenny Stamm. He's a dean of criminal defense and DWI defense lawyers in Virginia. Sorry, in Maryland. I first met him in 1991 when I started my criminal defense career. He's got a book called uh I think it's called Maryland DUI Defense. He'll tell me the correct title. He's over there in Greenbelt, Maryland. He knows a lot. He's one of the co-founders of the National College of DUI Defense that I'm a member of. Lenny Stam, please introduce yourself.

SPEAKER_01 1:14

Yeah, hi. Nice to see you, John, and uh all your listeners. Um I um let's see, where do I begin? I um I went to law school at uh Columbia, Columbus School of Law, Catholic University. Um actually, I'll go back even before that. I was um, you know, I went to Wesleyan University in Connecticut, and uh despite high expectations, I totally uh I was a total screw up over there. And um after two years through uh uh working at a series of different jobs, uh dead-end jobs basically, I decided to uh apply to law school and I went back to Wesleyan to try and find a professor who remembered me, and I couldn't find any, but I did um write a couple of papers and I was able to dig up a couple of recommendations and and uh my grades weren't that good, so I applied to about 16 law schools and got accepted to four. And um uh they were in um uh New York where I grew up and Cleveland where I was living at the time and in DC. Well, I didn't want to go back to New York and be near my family, and I didn't want to stay in in Cleveland with my girlfriend who had just broken up with me, so I figured I'd never lived in D.C., so I figured I'd go there. I went to Catholic law school. And um in my um second year of law school, I saw a posting on the uh career placement board for an internship with a uh Court of Appeals judge. And back then, the Court of Appeals, right now it's called the Supreme Court in Maryland, but back then it was called the Court of Appeals, it was the highest court in Maryland, and I couldn't believe that there was a posting on a career placement for a Court of Appeals judge. That sounded like the coolest thing ever. And I applied for the position of as an intern to for Rita Davidson, who was the first female judge on the Maryland Court of Appeals. And fortunately for me, no one else applied for that position. So uh that I was they they they gave it to me anyway. And um anyway, so uh that was kind of my uh uh entree into the uh field of law, you know, professional. And and in the spring of, that was, let's see, that was actually in the that must have been in the fall of, that must have been in the fall of night of uh 1981, actually. Um so in the spring of 1982 I got a job as a law clerk, and the uh partner who hired me was a domestic relations um lawyer uh named Nick O'Neilia, and the name of the firm was uh Harwitz O'Neilia Goldstein for Ann and Parker. And I started working there in February of 1982, and I was I drafted a few tort complaints and um and maybe did a little bit of research, but I really didn't know what I was doing, and I uh didn't feel particularly uh interested in the work they were giving me. But then uh in April uh this guy came into the office, into the library where the law clerks uh hung out and worked, and he said, hi, he introduced himself to me. Hi, I'm Alan Goldstein, I'm the criminal partner, and I had never seen Alan there before because he was always in court. And uh Alan said, Um, I like to try out all the law clerks, and he invited me into his office. And his office, he was Alan um uh was just such a likable guy, and he had he had he was he had a an uncanny, he and his wife both uh both had an uncanny physical resemblance to Mickey and Minnie Mouse. So Alan was really into the mini mickey mouse thing, and he had a huge drawing of Mickey Mouse on his wall. And uh back then uh you could smoke in buildings. Alan had a big ashtray and he was smoking camel non-filters, and ultimately that's what got him, that's what did him in. But uh Alan was sitting there smoking away, and he says to me, you know, I saw this map years ago that of the DC area, and it had all these areas in green, and all of the green areas were federal property. And he said, and I have this theory that uh on these federal properties, which intersected with, you know, which were uh uh covered some areas that were covered by the the uh Maryland Beltway, um, that uh they're they're exclusive federal jurors that the criminal cases would be handled exclusively in federal court, and that the state courts had no jurisdiction to handle these prosecutions. And he says to me, and I've been speeding over these areas for years, hoping that I would get pulled over so I could test my theory. And um, and he never did, apparently, but what did happen was he had a client who was stopped on the bridge in between, if you know the D.C. Beltway, but in between Kenilworth Avenue and Route 1.

SPEAKER_02 6:20

Right.

SPEAKER_01 6:21

And there's their railroad tracks that run under the bridge, and that was federal, according to the map. So Alan asked me, he said he was in the middle of a trial, he had a sixth sixth offender, uh, and he moved for a judgment of acquittal on the ground that it was that the uh the court had no, the state court in Hyattesville had no jurisdiction. Uh and the judge uh Judge Borelli, and uh there are less and less of us around that remember him, but I do, and maybe you do too, John. As do I. And um anyway, he uh gave him a recess, continuance, and said, uh, well, you know, I'll give you a chance to figure it out and come back. So I went to the uh, you know, of course, this is well before the internet, this was 1980, spring of 1982. I went to uh the land records department in Upper Marlborough, Maryland, which is the county seat for Prince George's County, and I managed to find the uh, and I also found a case called Dryos versus United States, which talks about a clause in the Federal Constitution called the Needful Buildings and Properties Clause. And under that clause of the Federal Constitution, the um when the feds acquire property contained within any of the states or territories, that if the legislature of the state gives their consent, that the feds acquire exclusive jurisdiction over criminal uh offenses that occur on that land. And I looked that up and in the Drios case, it talked about the whole history of the uh Needful Buildings and Properties Clause and mentioned the fact that in the early, I think it was 1906, um the Maryland legislature, the Maryland passed a law that said that pursuant to the Needful Buildings and Properties Clause, we consent. And then the next thing I found was that um some private uh landowners owned this land that Maryland decided to um, well, first the thing they did was they built the Beltsville Agricultural Research Center, and they acquired this land in the 1940s when the law that giving consent to exclusive federal criminal jurisdiction was in effect. So those properties where the Beltsville Agricultural Center was built are exclusive federal. And then what happened was uh in 1971, the uh state of Maryland uh purchased property to build the beltway. But what they didn't, they didn't buy the underlying title to the land, they only bought an easement. And according to all of the law that I could find at the time, that did not confer uh jurisdiction on the state courts because the feds still on, and they still do to this day. There's a couple of areas where you can look on a map and see that they're federal on the beltway. And Allen didn't win his case, uh, but he did get his sixth offender, a first offender uh disposition uh in Maryland called probation before judgment or PBJ. And he came back to the office and he said, You're gonna be my law clerk. So you know, he immediately relieved me of having to do any torts or domestic relation cases or or any of that stuff that I hated doing anyway. And and what's that?

SPEAKER_02 10:01

You gave us a lot here, and I want to follow up on that. All right, sure. The first time I ever saw you in my life was around uh July or August of 1991. I think it was soon after Alan had passed away.

SPEAKER_01 10:15

Well, Alan, yeah, Alan died on August 1st of 91.

SPEAKER_02 10:19

And uh you you were you were doing a trial in front of Judge Tradiville. I think it was for DWI. I think he convicted your client. But what impressed me was you kept your you kept her cool about you. You talked at in the at the pace you needed to. You it a few times you walked up to the bench, and I don't know if it may have been everything you needed to know about a DWI defense manual, but you you had some stuff in there. I think you were actually challenging some jurisdiction issues, and I I was very impressed by the get from the get-go.

SPEAKER_01 10:51

Well, I learned, you know, how to practice law by working with very closely with Alan Goldstein. I mean, he was just um really well respected, not just by defense lawyers, but also by prosecutors and cops and judges. He just had that gift of being incredibly likable. And and he but he was also he knew his law. He went into court, he was always prepared. And um, you know, of course, I also have learned things since Alan passed that uh helped uh me learn, you know, trial techniques like when Alan taught me cross-examination, he basically took one of those, you know, we used to, the legal pads used to be eight and a half by fourteen. I don't know if you remember that. I remember now they're eight and a half by eleven. Anyway, uh he took one of those long legal pads and he just drew a T on a line across the top and a line down the middle, and he goes, You put the direct on the left, and here's your cross on the right. That was about all the training I had from Alan, but he was such a natural, you know, that that worked for him. Uh later, I bought um the uh cross-examine science of cross-examination by uh Larry Posner and Roger Dodd, and I used that entire book to prepare for a um for a manslaughter case, a vehicular uh manslaughter case, and uh it was just amazing. And um so I really learned how to cross-examine from studying uh Larry Posner and Roger Dodd's book, which I I recommend. I mean, it's just it's just an incredible book. And it teaches you how to organize and prepare your uh cross. So they're great.

SPEAKER_02 12:30

And I I looked out at at Macon at the uh Child Practice Institute of the National Criminal Uh Defense College in 1994. My direct exam uh instructor, one of the two, was Larry Posner. I mean, how much could you looked out than that, you know?

SPEAKER_01 12:45

Well, sure, sure. I mean, you know, there's so many great lawyers, and uh, you know, the the uh Allen passed in 1991, and and uh, you know, I think that uh obviously I can't pay it back, but I you can pay it forward, and that's what I think as as experienced lawyers, that's what we have an obligation to do. Because, you know, the um the criminal defense bar, I mean, the the uh and it's not just the um defense lawyers, but also the prosecutors and judges. I mean, it's our criminal defense system that really where where our freedoms are really tested, you know, the rights we have are tested every day. And, you know, we are obviously become experts in procedure procedure, procedural issues that we raise all the time. And uh because, you know, especially now uh with videos, um, you know, I think it's a little harder to defend some of these cases than it was uh before we had videos. But I'm getting way ahead of myself. When Alan was around um as a um, I was clerking for him as a third-year law student, um, he was involved in some pretty heavy-duty murder cases. And in one of them, you know, one one of the things he did was he would always um he'd take a felony from from the public defenders every year, and he was uh very associated, he was associated, was actually an adjunct professor with the uh criminal justice clinic at Georgetown Law School. And they had a branch in Maryland, and and one of the um, the person who was running the clinic was actually would was a uh beneficiary. They were going to get what well they had what's called the Prettyman uh fellowship, and they were getting, you know, they were they were the fellow, the Prettyman fellow, and um he'd bring them in and have them work on a case with us. And one of the first cases that I didn't, even though I was in law school, wasn't admitted to the bar yet, um Alan got uh the judge in the case, Howard Chasnow, to agree to let me sit at council table in a first we did an armor, well, the my my experience was uh Alan had worked out a deal for this guy. It was a horror it was a shooting at a at a uh at a jewelry store in Iverson Mall in Prince George's County, and a police officer was shot dead, and the state was seeking the the death penalty. And um and our client was the driver, and Alan had secured a deal for him for 40 years. All he had to do was waive Hicks, which is the requirement that he be tried within 180 days. Well, I went um down to the jail and had to have him sign the Hicks waiver, which is just how it was done back then, and um he he didn't want to do it because he was afraid that his friends would think that he was agree, you know, and there wasn't even an agreement, he didn't even have to testify. But he thought that the perception was that he would, and he rejected a deal that had he taken that deal, he would have been he'd be out now. But he didn't take the deal, he went to trial on armed robbery and murder charges. He was convicted and he got life plus 660. And as far as I know, sadly he's um you know still locked up. I did I was contacted by um uh a a lawyer for him, and I offered to help, but I haven't really uh heard anything about that. Um so as far as I know, unfortunately, he's still there. But you know, I kind of learned from that experience. Well, one of the things that happened was our client insisted on testifying, and that was an absolute disaster. And often is, usually is.

SPEAKER_02 16:40

Usually early on in my talks with my guests, I give them a chance to plug themselves. Your your website's lstam.com.

SPEAKER_01 16:50

Yeah, well, I um, you know, one of the things that uh Alan was all also, he's very proficient in wiretap law. I mean, he would get we would get these multi-defendant drug conspiracy cases, and there was a wiretap. And Alan had a habit of winning wiretaps. And uh Maryland at the time we had had some really uh good case law. Alan had um some of the cases were his cases, and he won a lot of wiretaps, and we'd go into court on these big drug conspiracies, and there'd be maybe six or seven lawyers all waiting for Alan to come in and do the motions, and then what would happen is on the motion state the prosecutor would drop Alan's client's case so that uh these other lawyers would be standing there with their pants down around their ankles, not being able to, not knowing what to do. Uh so uh anyway, Alan also did a lot of DUI cases. And the first DUI case that I saw Alan win, I was just amazed because, well, a couple of things. One is Alan, uh, you know, when I took evidence class, I studied with Lou Barricado at uh Catholic Law School, who's a very well-liked and respected uh professor of evidence. And uh Lou always said that, you know, when you see a case with really experienced uh lawyers that you don't hear a lot of objections. Well then I went to trial with Alan. Alan was objecting to every other question, and he had, you know, well uh reasoned objections. He would argue the objections with the judge, he'd get he'd draw the judge into a dialogue, which is kind of an important, and then the judge if the judge ruled against him, he would figure out a way to characterize the judge's ruling as just being completely ridiculous. And he would he would say something like, you know, you you realize that you know, if this ruling means that, you know, when I turn around, pigs are gonna fly out of my ass, or just something totally ridiculous. And the judge would like think, you know, maybe you're right, and he would reverse himself on his ruling. I mean, Alan, I saw Alan do the right. Anyway, so after um, yeah, go ahead. I'm sorry.

SPEAKER_02 18:58

Would he usually smile when he objected and checked a lot of a lot of smaller into the uh judge?

SPEAKER_01 19:04

He smiled all the time. He was la I mean, he was just he knew how to he he could do it without pissing these judges off. And that was that's part of the key of persuasion is you're not gonna it it's hard to piss off to to I'm sorry, to convince a person of something if you if they're pissed off at you. So what Alan would do is, you know, I remember um, you know, there are a lot of stories uh uh around Alan, but you know, one of them was he would go in front of these old, you know, cranky judges, retired judges, and the guy would say something like, Hey Goldstein, I don't want to hear a lot of shit from you. And Alan would come back, would say, Okay, judge, well, how about a little shit? And the judge would start laughing and he'd go, Okay. And then next thing you know, the clients uh actually I had a client, I had another client of mine, I actually was a friend of mine who I who I Alan represented, and he described Alan walking into the courtroom as the parting of the Red Sea. I mean, Alan, everybody just wanted to say hi to Alan, and he would just walk right up to the front of the court uh room and just take over the courtroom. Um and and judges just, you know, they they they wouldn't have to, you know, they're getting these judges, they get so tired of hearing plea, guilty plea after guilty plea after guilty plea. And um, you know, Alan would go in there and and give them their money's worth and uh entertain them even if they even if he didn't win. But uh so in 1991, Alan passed away, and I took over his practice. And you know, we had some high-profile cases going at the time. And I wrote all the clients a letter, said, hey, you know, we're sadly uh Alan's passed away, and you know, I'm gonna be your uh, you know, call my office and make an appointment. And um, and I met and I would say probably 95% of the clients stayed with me. A couple of local lawyers. I had um Fred Joseph in Montgomery County and Barry Hell, I'm sorry, in Prince George's County, and Barry Hell fan in Montgomery County said, look, if you have a client who's gonna give you a hard time, because you know, uh, you know, I'm afraid giant the lawyer, the clients are gonna come in here and say, you know, hired Alan Goldstein, who the hell are you? Uh and um that happened once or twice, and then uh uh Fred helped out uh in the J Bias shooting case, and and Barry helped out in another case I had in in Montgomery County. And um anyway, and it was I guess it was 91 when Barry uh told me that he had a um a breathalyzer uh that he wanted to get you know excluded from evidence. It was it was part of a case he had in Montgomery County with a fairly high profile uh the son of a fairly high profile client. And um he uh He asked me for help, and I said, Well, tell you what, well maybe maybe you should bring me into the case with you. And he said, you know, that's not a bad idea. And he brought me into the case, and what I had developed at the time was, I mean, it's um, you know, this is kind of uh arcane stuff, but I found a piece of paper that that contained the rules by which they approved the breath testing equipment in Maryland. And there was a line in there that the simulator solution had to be approved according to, you know, uh accepted scientific practices or something like that. And so what I did was I wrote the um toxicologist. Well, actually, the first person I wrote was the person who manufactured the simulator solution, and we were told that was Richard Gooth at Gooth Laboratories in Harrisburg, Pennsylvania. So I wrote him and I said, Well, how do you make this stuff? And I asked him for the names of the people who helped prepare it so that we could subpoena them. I mean, I I think he kind of knew that, so uh, which is why I got the answer I got, I kind of got a little bit of a runaround. Uh he said, Well, you know, you have to um talk to Yale Kaplan, who's the head of your breath testing program in Maryland. So I wrote to uh Kaplan, and Kaplan said, Well, you have to talk to Gooth because he's the guy who makes it.

SPEAKER_02 23:21

Back and forth.

SPEAKER_01 23:23

What's that?

SPEAKER_02 23:24

Back and forth.

SPEAKER_01 23:25

Yeah, yeah, which is perfect. And um we got a judge in the uh high-profile kids, uh, the high the high profile, high profile dad's case. And the judge said, you know what? Uh, because we're we're saying, you know, judge, we can't get this information from Gooth Laboratories, and the prosecutor's standing there going, I don't even know what they're talking about. Um, I don't have this stuff. And uh the judge goes, uh uh, you know what? If you guys want to go to Harrisburg and take this guy's deposition, I'll sign the order. And and Barry and I were, you know, we're both thrilled. Like, we're going to Harrisburg. And that fortunately, you know, it's only about two hours from here. So um we got a call from the judge. It was the day before Election Day, 1991. So, or was it 92? 92, I'm sorry. It was the day um, I think that uh uh that before Bill Clinton was elected president the first time. And the judge says, I want y'all in my chambers on a on Election Day, and we're going to talk about this because we had filed a uh we went through the um uh the you know the the Uniform Act on deposition of witnesses, and we hired a you know the best civil law firm we could get in Harrisburg, Pennsylvania to serve Gooth, and they filed a motion of quash, and we go in the judge's chambers, and when the judge heard the name of our client's father, he basically says, This deposition's going forward. So uh we uh and then the the lawyer, I remember we went into the cafeteria, this Dauphin County, Pennsylvania courthouse, and we're buying the the losing lawyer a cup of coffee from this, you know, that one of these coffee machines just spit out. I mean, it's just a bunch of mud in a cup. Anyway, so uh the guy says, you know, I need to make a phone call, I'll be right back. He comes back and he says, okay, there's something I need to tell you guys. The simulator solution is what we call a vendor item. I mean, we're like a vendor item, what's that? Well, we don't actually make it ourselves. We make it uh we buy it from this laboratory in New York State called Stiefle Research Laboratories, and they make their stuff is the highest quality, it's the best, and we buy it from them. So when they were telling me, they had written me and said that we don't know the names of the people who test this stuff, and they had also said that you know the testing procedure is a trade secret, they were just making that up.

SPEAKER_02 26:07

Right.

SPEAKER_01 26:08

But they also said that when they said the manufacturer was Stiefle, they said, Oh, by the way, when your toxicologist told you that we made the solution, he knew that we used Stefan. So basically, you have the manufacturer of the solution, a major portion of the breath testing uh materials that are that are necessary for a valid breath test, calling the state toxicologist in Maryland a liar, and the state toxicologist calling the manufacturer a liar. And what I realized at that point was that you know, sometimes in you know, in criminal cases, of course, we file discovery motions, and we want to find out as much as we can about the case. But it's even better when they don't give it to you because I ended up getting sanctions. I had about eight cases where I'd file the same letters and I had the same trail, and I would say probably five of them, they dumped the breath test. In one of them, they even dismissed the case. And I remember the prosecutor standing there in court and going, I can't believe it. I could have made this case without the breath test. But the judge threw it out because the state was lying to us. And then there were a couple of judges who, you know, unfortunately, you know, they just they didn't care. But um, but overall it was, and and then um about that time I was contacted by a lawyer who had a reputation of being like the guy to get if you got a DUI in Atlanta, Georgia, uh Bubba Head. And uh William C. Head, he he's known as Bubba, and goes by Bubba. And um he had this was just when, this was probably '98 or so, when the internet was just starting to uh to heat up. And Bubba wanted to have a website with uh one lawyer from every state on his website. And um, you know, after a little going back and forth, we we uh made a deal, and I was on his website, and that wasn't the uh the key thing. The key thing for me was that Bubba, um at that point in time, I and I met Bubba because I joined the National College uh for DUI Defense. Actually, I was not one of the founding members, because I got that letter and I didn't know what it was. But um anyway, I actually I I now that be but let me just step back for a second, because what had happened was I got this client sentenced to jail in Montgomery County on a DUI case, and the idea of going to jail just freaked him out so much. He was willing to pay any amount to peel the thing as far as gut would go. And it had turned out that um in March of 1991, Alan did one of these cable TV uh CLE classes, and it was filmed in a uh television studio in DC, and at that uh, and I went down with Alan when he videotaped it in March of '91. Alan was had been diagnosed with lung cancer, he was getting chemo and radiation. But we went downtown to film this uh seminar, and that was where I met some other members, founding members of the National College for DUI Defense, um, Gary Trichter, uh Flem Whited, uh John Henry Hinkson, uh, and um and Tom Nichols were um uh the uh were speakers there, and um they were all uh very active in the college, and I met them there, and I remember that a couple years after Alan died, I was maybe it was 94 or so, I um I had this case with the guy who didn't want to go to jail, and I argued that um his prosecution was barred by double jeopardy because he'd already had his driver's license suspended for blowing over the limit. And I took it up on appeal to the circuit court, and Judge McKenna in the Montgomery County Circuit Court granted my motion to dismiss based on double jeopardy. And I had, you know, what I what what uh what I learned with Allen and what I what I also did in my practice was I would look for issues that came up in every case, and procedural issues, things they were doing wrong. I think the first case I saw Allen win was because they wrote, instead of putting Prince George's County where it where it said that you're supposed to put the venue, they would write the number 16. And we prepared a whole memorandum of law on why that was a bad charging document, it had to be dismissed without leave to amend. And I actually, that was the first thing I saw Alan win at DY. I couldn't believe it. You know, guy was obviously drunk, but because they wrote 16 on his citation instead of PG, the judge threw the case out. Uh anyway, so years later I'm doing this double jeopardy, and I got it dismissed. Well, the state finally saw an opportunity to get the double jeopardy issue up to the Maryland Court of Appeals, which is our Supreme Court, and they um it went up there, they granted cert, and um I went up there to argue it, and I remember leaving the uh the Court of Appeals with a good another lawyer still practicing, my good friend Gary Bernstein. And Gary just looks at me and he goes, That was a funeral. We lost. Uh but in the course of getting uh so then I filed a cert petition with the Supreme Court, which ended up getting denied. But in the course of that, I remembered seeing an article that this double jeopardy issue was really a hot issue, and I called uh John Henry Hinkson up, who I'd met, you know, at the seminar in 1991, and he said, you've got to get on this listserv, the sky point list. And it was an email listserv, which was new at the time, and it was all these lawyers from all over the country, and it was from there that I learned about the, you know, people were talking about the National College, and I got into that, and that was how I met Bubba. He put me on his website, but then the other thing that Bubba did was he started this seminar in Atlanta, Georgia, called Mastering Scientific Evidence in DUI Cases. And what he would do is he would take the lawyers that were on his website and give them an opportunity to speak uh to a national audience at his seminars. So my first national presentation uh was in Atlanta uh at Bubba's seminar, and it went over really well. And I um and I and then I ended up writing an art, you know, a couple of articles for the Champion magazine, and um ended up getting uh nominated to be on the board of the National College for DUI defense in probably I think about 2004 or so, and then uh was dean, you know, maybe 12 or 13 years after that, and now I'm a fellow of the National College. And in fact, the Mastering Scientific Evidence seminar has uh Bubba gave it to the National College. The National College partnered with the Texas Criminal Defense Lawyers Association, TCDLA, and actually I'm flying to New Orleans tomorrow to speak at the Mastering, MSC we call it, Mastering Scientific Evidence. I'm gonna speak on Friday uh at MSc. I'm flying down to New Orleans, TSA permitting uh to get down because I mentioned if you watch this podcast later, there's there the hour, the waits at the at the airports are supposed to be three or four hours.

SPEAKER_02 34:04

So I'm I'm happy you're joining us the day before that, and I do want to break this down into some questions. And perhaps you're so modest you didn't take my offer to uh tout yourself. Let's start with that. Your website is lstam.com.

SPEAKER_01 34:19

That's correct. Yes.

SPEAKER_02 34:20

L S T A M M L S T A M M.com. And you've had a book for many years. It's called Maryland DUI Laws.

SPEAKER_01 34:29

Well, yeah, and so in my association with the college and getting on the board, I noticed that just about everybody that was on the board of the National College for DUI Defense had written a book in their state. And um actually there was a book that had been written in um in Maryland uh by a guy named Bill Payton. And Bill Payton actually is his first book in well, law book, the book published by the Hanford Publishing Company in Lancaster, Pennsylvania, and they had the criminal trial manual. And the criminal trial manual had like useful quotes from just about every criminal case in it. And Alan always wanted to do one of those for DUI, but he passed before we could do it. And Bill Payton called me up and said he wanted to do a book like that for Maryland and asked me if I would be a contributing editor. And I and I said, sure. So Bill wrote the book, and but my name was on it, and I thought that was pretty cool. And um then a couple of years later, I uh wrote to West Publishing Company and proposed to them uh a DUI book for Maryland, and they agreed. They said I had to let Bill know, uh, you know, I had to get off of Bill's book, and then I signed a deal with West. And so that was, I think, 2008 when the first edition came out, and I've I updated every year.

SPEAKER_02 35:56

So uh I'm interested in talking about seed planting for persuasion. Is it lore or is it true uh that it was Alan or you who uh one day made a motion in front of a judge, and uh the judge just immediately said denied, and uh or is this an agglomeration of judges, and then the next time the same argument is brought in front of the judge, and the judge thinks about it for a few moments and still denies it. But the third time the argument's made, the judge says, That's a great argument. I've been waiting for a judge to make that argument. To me, that's planting and watering.

SPEAKER_01 36:31

Yeah, that was Alan's rule of five. Um Allen's rule of five, you know, of course, it was perfect, the rule really applied to these kinds of motions that we were filing in memoranda uh that would have um, you know, the the the it would just say the the our client's name would not be in the bottom of the mo in the body of the motion. So what we what we did was we would I would draft a motion and our secretary could just type in the name of the defendant and uh and the heading and whoever was getting served, you know, sent to in the service line, and the but the in the body of the motion just said the defendant, and it was a legal issue, a procedural issue that we found that was, you know, they were would re would occur in many cases, and so we can file those. So Alan would say, you know, the first time you make the motion in front of the judge, he just kind of laughs and tells you to sit down and denies it. And then the second time, you know, he might um you know ask the state what their thoughts were and then still deny it. And then the third time, you know, he has both sides write memos and still denies it. And by the fourth time, he's you know, memos, arguments, and he's looking a little interested, but he's still denies it. But by the fifth time, he says, you know, when I was a lawyer, I used to raise that issue, and I'm glad to see that someone has finally raised that issue, of course, not remembering that the four previous times that he denied it, and grants the motion. And that's and Alan's uh and the lesson from that is you know, especially when you're starting out and you're paying your dues, and you know, by paying your dues, you know, it's you're losing a lot of cases. But you're also learning how to be a better lawyer because you know that same judge can be persuaded, and sometimes it takes more than one time to sell an issue or an argument, a legal argument to a judge. So, and the other thing is um, you know, actually there were a lot of there were a lot of points that uh Alan made. One is um and I don't know if you've read this book called The Four Agreements by uh Don Miguel Ruiz. Um and uh one of those is don't ever take anything personally, you know, another is uh be impeccable with your word. Um always do your best. Um and um, you know, Alan just said don't get wrapped too tight where you you can't function because you're so you know wrapped up in this. You have to keep it light for the judge, or you know, so that the uh and Alan had an incredible sense of humor. Um and uh uh he also Alan also came up with um uh two uh fee charging techniques. Uh one was uh fee catalysts, uh where Alan would um uh would he he would say, okay, you know, sometimes the client comes in your office and you know you wanna, you're a big lawyer, three years out of law school, and you want to charge this big fee. And of course the client tells you this whole sob story, and you think, oh my god, that's horrible. I can't charge him that much. And then um, so fee calisthenics, he would have the whole, you know, a whole room full of lawyers stand up and he would say, repeat after me. You know, that will be $2,500 up front. And um he would go from there to five and ten and goes, okay, well now you've done your feet calisthenics. He said the other thing that a uh uh look that you should do is place an item, a picture of something on your uh put it on your desk in between you and the client, something that motivates you to make money. So um, you know, it could be a boat, it could be your house, um, and you know, it's whenever uh the client gives you that sob story, you think, oh, that's so bad. But then you look at the picture and you think, yeah, but I, you know, the fee goes right back up to where it started. Alan said, on his desk, he keeps a picture of his wife's lawyer. And uh so anyway, he made that up. He totally made that up. The funny thing about Alan, who used to tell these great stories, and of course, me working so closely with him, I knew which ones were bullshit and which ones weren't. But um uh Alan Alan would tell these great stories and great, and he just had an incredible sense of humor. So uh, and and but in terms of my practice, you know, I'm working, I'm now I'm I've I've got the DUI book, and I've got the um, and one of the things I learned from Alan was, you know, your reputation is so important. Um, you know, it's so important to be respected by the prosecutors and judges. And the way you do that is by, you know, representing your clients professionally, not getting uh emotional. I mean, it's hard, and I think that's the one of the hardest things about practicing criminal defense is to keep your emotions out of it, because these cases are emotional to our clients, but they need somebody who's not emotional to go in a courtroom and to be able to sell legal issues or factual issues to a judge or to a jury. You can't lose your cool. Uh, because once you lose your cool, and I've seen this, you know, you put a client on a stand, they lose their cool. Yeah. Case is over. Case is over. And I've I've experienced that. Uh so um, you know, they just get it, the jury's pissed off at them now.

SPEAKER_02 42:20

So okay, so I want to ask you this then. So uh Fred Joseph, who is a great mentor of mine, we were both uh uh active with the American Civil Liberties Union, he seems like maybe he was more of an activist uh th than you for certain aspects of civil liberties. Maybe I'm wrong, but he was still at least as likable as you. Uh, are you motivated at all uh to to believe that uh you're on the side of the angels? That uh would you ever have been able to stomach being a prosecutor? And uh finally, my understanding is that uh you say that Alan believed, and you also believe in even making sure that prosecutors know how to uh uh do their cases right, and you help them out with that.

SPEAKER_01 43:04

Sure. I mean, you know, I think that uh you know, the we're we're so fortunate to live in a country um where the rule of law is supreme, at least it has been. I mean, obviously it's under attack now in ways that we never really uh anticipated. Uh and you know that and the criminal bar is such an important part of the resistance uh now uh to what's going on uh down in DC. Um the uh uh you know, so the extent to which the I mean the all you know, I also I so you know, I've been doing a lot I do a lot of continuum in legal education, I do a lot of public defender trainings. I've been involved in this um new project called the Criminal Law University where judges receive training. And uh I'm doing you know, I'm working with a uh prosecutor from Harwick County, we we lecture the judges. I think it's so important that everybody in the criminal justice system um you know uh react uh act uh professionally and and competently. And um, you know, I think it's important to have competent and uh and and and uh you know prosecutors who also have a conscience and realize that it's not not just a question of, you know, you've got to look at not just whether the law was violated, but what are the consequences of a conviction? Because a lot of time with most of my clients, I feel like the the consequences in court are not as necessarily as harmful to them as the collateral consequences outside of court. You know, are they gonna be able to get a job? Are they gonna get deported? Are they gonna get arrested? Are they gonna violate their probation? I mean, you know, the law is there and it can be used skillfully to achieve a result where your client, you know, even if uh you lose the case, they're not gonna be uh destroyed by the experience. Their whole life is not gonna be um determined by the one, you know, the worst night of their uh of their lives. But um at the same time, you know, now we ha it's it's I think it's harder uh to defend some of these cases now because with body, you know, we've been complaining for years that we need body cameras. And um now uh we're complaining that we have body cameras. So um because I'm finding a lot of these cases my dis you know before body cameras, it was a lot easier to try almost every case, uh the drunk driving cases. And I stu I stuck with drunk driving because um number one, it was something I was comfortable with. It involved science as well as law. You know, there's so many air uh areas of law le law of legal practice that don't involve legal research or writing briefs or making arguments. Um I enjoyed that aspect of it, doing the research, finding the cases that support you, distinguishing the cases that uh are against you, and making the argument uh in court. Um the uh and and uh fa factually, you know, in DUI cases there they're typically there'd be a two or three page uh single-spaced report from the officer.

unknown 46:39

Uh-huh.

SPEAKER_01 46:39

But you know, they have these manuals that are put out by the National Highway Traffic Safety Administration that are pretty thick and list all kinds of behaviors uh that are you know consistent with drunk with impairment by alcohol or drugs. And of course, in a two or three-page report, they would leave 90% of what they had observed out of the report. And you could cross-examine them on it, say, well, you know, if the person had done this, you know, thing A, which is indicative of of impairment, you would have put that in your report, and they say yes. And I go, Well, I'm looking at your report, I don't see that. And the officer would agree pretty readily. Well, then it didn't happen. Uh, you know, he didn't fumble for his driver's license, he didn't fall when he opened the door, he didn't vomit, um, you know, he didn't uh pee in his pants, he didn't, you know, he he was standing normally during the uh horizontal eye test, the horizontal gaze antagmus. Or he was walk able to, you know, he walked the line pretty well uh and and things like that. And um, you know, so that but now with videotape the 90% that the officer leaves out of his report are in the video. Now the judge is gonna see the judge is gonna see him, and you know, so that to my way of looking at it, the practice has for me has changed a lot because I can't really justify trying those cases when I know that uh I can probably achieve a better result for the client without going to trial. So that's kind of the dilemma that I have now.

SPEAKER_02 48:21

How about uh your uh efforts either wittingly or unwittingly to obtain amazing results when the judge is just flat out uh making a wrong ruling to your favor or rattling the prosecutor? In one instance, uh I couldn't believe it. I was arguing to the judge to uh keep out my clients' breath test results because this in Virginia, the manual for doing the uh breath tests with the intoxic CR2 machine says that the uh breath tests, the breath analyst has to uh inspect the mouth for foreign substances at least 20 minutes before blowing to the machine. And the trooper didn't remember that, but the judge let it in, and so I didn't have a whole bunch uh to to uh argue in closing other than to re-argue that issue, not to give a lot of credence to the uh the breath test results. And in finding my client uh not guilty, he said, I'm not so convinced that the defendant didn't shrink from that unsealed container of alcohol that the police officer saw in his passenger seat. Lenny, we saw during the trial the dash cam that didn't show my client reaching at all for that. So that was an instance where I won where I wasn't supposed to, but I'll take the win where I can. And then there's another one with uh video. This was a few years ago when prosecutors in a certain jurisdiction didn't let us have our own copy of the video. I had to drive out to the prosecutor's office. Her um supervisor would not agree to break it down to reckless driving. So I passed the note over to her saying, please have the uh video tape ready. And she passed the note right back to me because she's a counsel table saying, Stop passing me notes. Well, if she if she or the cop had bothered looking at the video, they would have seen it wasn't just what was in the police officer's report that my client took an unsafe left-hand turn, but that my client kept skirting the yellow line. So when I moved to uh suppress the stop of my client, uh the judge leaned back in his uh uh in his chair and he said, Well, you know, the officer says that it was an unsafe left-hand turn that the defendant took, but the cop says that he took a left-hand turn too. So I don't know how it could have been unsafe. Well, of course it could have been unsafe because traffic uh cleared. So the judge ended up saying to the prosecutor after she asked if she could reopen her case for the motion, uh motion to suppress the stage and have the uh the cop come back. He said, No, ma'am, he said, I've given you a lot today, but I'm taking this from you. And it was near lunchtime, and I don't know if it had anything to do with that. So, what can you say about that? Is this just dumb luck, or do you are you able to sometimes set things up like that?

SPEAKER_01 50:53

Well, sure. Um the uh you know, when you go into trial, you never know what's gonna happen. And um, you're listening for things that they say that don't really add up. And it happens a lot. They're you know, they the uh prosecutors have many cases, and they're you know, I think for mine they generally do prepare, but uh a lot of they don't know what's coming. They don't know what what the officer's gonna say. Um and uh, you know, certainly there are many cases where even though the uh video doesn't, you know, shows the client may look impaired, but the officer violated their rights, and that's gonna take precedence because what we're doing in there we're we may be uh well we're really defending the Fourth Amendment in many cases. And you know, the extent to which the Fourth Amendment is alive is really determined by the courts, because courts all over the country are applying the Fourth Amendment, they're teaching officers every day what they can and can't do, and that makes you know us freer uh as a society. Um so you know, we're um uh and and when the judges rule against you, you know, something to keep in mind. I always I use this in one of my um uh presentations. You know, it's so frustrating when you know that the judge is um ruling when the judge is ruling against you, but sometimes what they're doing by ruling against you, they're just kind of setting themselves up for the next thing. You know, most of these DUI trials, there will be a couple of issues. You know, I look at, first of all, you're gonna have a Fourth Amendment issue, potential Fourth Amendment issue, in three spots. One is the stop. And then if they get past the stop, they have to show that they had an articulable, reasonable suspicion to detain the person other than the traffic offense that generated, you know, that justified the stop in order to detain that person to do a second investigation. And then there has to be probable cause uh for the arrest. And so even if there's a breath test, you may have these Fourth Amendment issues that stand in the way. Also, you're gonna have things that the officer did or didn't do properly that you can bring out uh in cross-examination. So but if the judge doesn't um uh grant your, you know, do doesn't grant your motion or overrules your objection, uh it reminds me of this scene from Animal House, uh, where Kevin Bacon is um you know pledging to to the to a frat. It's the uh the jock frat in Animal House, and he's on all fours in his underwear, and they hit him in the butt with a paddle, and he says, Thank you, sir. May I have another? And that's kind of my approach to losing motions in trial. Because, you know, you got you may have a couple of other things, maybe a couple of surprises, and maybe by denying the motion in kind of a weird way, you're kind of setting the judge up for the one that he's gonna give you. Or she's right. So, so there, you know, it's like that's just like your that was just my opening jab. It wasn't really meant to knock anybody out, it was just kind of get the judge in the swing of things. No, we're gonna have a few motions. And, you know, if if you don't grant it this time, I got another one coming up that's gonna be even better. So, um, but I mean you have to, you know, you just do your best to prepare for get your client the best, but you just cannot get emotional with these judges when they rule against you. And I've you know, it's fun, it's funny. Some of the judges, you know, they'll feel bad that they've ruled. Yeah, I mean, it's hard to believe that. I remember there was a judge in federal court, and uh he gave finally gave me an acquittal. And of course, from the for the next five years, he never forgot, let me forget, that I already won one. I mean, what do you want from me? I gave you sometimes that's you know, at least I got one. Uh so I mean you just do the best you can and you move on. And you you try to the other thing that's happened over the years, I mean, when I first started doing this, and I first started, I became, I was uh my first day in court. Um, by the way, it's a funny story. My first day in court was with Alan Goldstein on September 4th, uh, 1984. And I had just gotten back from my uh honeymoon. We went to the Greek Islands for three weeks, and of course I timed it so I didn't have to get to court, you know. I mean, I timed it to the very last minute. So I show up in Upper Marlborough, um, you know, and I'm I'm really jet lagged. And uh Alan is doing motions in a uh a trial where the the our clients charged with conspiracy to commit murder, and uh I'm sitting at council table with Alan, and um Alan goes uh with Judge Melbourne, and uh I had clerk for Alan helped me get a uh clerkship with Judge Chasnow, across the hall uh um and uh Howard Chasnow eventually made it to the Maryland Court of Appeals. Um and um anyway, so we're in front of uh Judge Melbourne, and uh Alan, I get go to court with Alan. Alan says, you know, it's my pleasure to introduce to the court Mr. Leonard Stam. Court knows him, he was a law clerk for the last year across the hall from you. Uh he's now my an associate of my firm, and he is going to argue today's motions. And with that, Alan Alan sits down, and the judge and the prosecutor were all in on the joke, and they're all looking it over, stand up, get up, Lenny. Lenny, get up. And I start to get up, and they all just started cracking up. I mean, you know, this is a serious case, but Alan had such a great sense of humor. Um uh he he played that joke on me. That was my introduction to the uh practice of law. Um but you know, another thing was back then, and this is a big, big uh this is important. Um back then, you know, Alan said, you know, I'm not one of these guys in um, you know, in jeans and a work shirt and sandals, and you know, I don't I don't, you know, I'm not a doctor, I'm not a therapist, I don't treat, you know, basically we would go to court, and if the person lost, they'd be ordered to do some alcohol classes. Now it's pretty much the norm, at least in Maryland, you need to do the classes before you even get to court. And actually that helps you in terms of your ability to negotiate with the prosecutor, and it also helps your client get a less severe uh sentence. Because you know, the objective is to that if you're if you can't win your case, you at least want to make it as painless as possible or as pain-free as possible for your client. And um, you know, a lot of the people that we represent have have they have problems in their lives. They have drinking problems, they may have psychological problems, emotional problems. You know, they're and and we're we're we're do we're more than lawyers. We're social workers, we're you know, alcohol counselors. We try to at least direct our clients in the right direction so that you know what I want to what I tell my clients is I don't only want to win your case today, I want to win all your future cases. You're never gonna have another case again if you do the things that I recommend. Or at least we've we're showing the prosecutors and the courts that we are participating in reducing the risk that down the road our client you know hurts or kills somebody or or does you know property damage, you know, they have an accident. So what we're trying we're trying to uh help our clients out at the same time, and I think the clients uh appreciate that.

SPEAKER_02 58:55

That's right. Well, Lenny, I told you we would finish at four. We've gone beyond that, and there are hours and hours more I'd love to talk to you about, but I'm not gonna do that to you this time around. But I do want to give you the opportunity to tell everyone anything you haven't already said or a reminder of anything. We haven't even gotten into your musicianship and how that overlaps with your practice of law, but anything else you wish to say?

SPEAKER_01 59:20

Well, uh, John, thank you very much for um inviting me to be on your podcast. And um, you know, I think the the practice of law of criminal defense can be very rewarding. And uh I'm not getting rich from this, but I'm I'm surviving, I'm doing fine. I was able to create a retirement, you know, account, and between that and social security, I'm doing fine. I'm actually my secretary of uh over 40 years is has been begging me to retire for the last five years, and we're closing my office on April 30th, but I'm I'm thinking I'm still gonna stay involved with the law, still gonna be training public defenders, still gonna be writing the book, uh, and still be accessible uh to answer questions. I'm gonna um so uh anyway, for for those of you who have made it this far, thank you for listening. Wish you the best of luck and um keep the faith. I mean, you're doing something that's really important, that really it's really meaningful uh and uh and rewarding because you're you're not just helping your clients, uh you're you're actually helping um the system actually work and function, and that's so important, especially now that our legal system has been under attack like never before. And it's gonna require vigilance from all of us to survive uh these difficult times.

SPEAKER_02 1:00:46

Thank you, Lenny. And now I'm gonna give you a very public thank you. One of my martial arts teachers says, do not let our teachers forget how much we appreciate them. You have picked up your phone and uh returned many of my phone calls when I had questions for you, and I appreciate that so much. And from that first uh trial I saw you do, I learned so much, like you said, about being level-headed, being that level-headed fighter. As I told you, I do the Tai Chi Chuan martial arts. It's about being a level-headed fighter. I appreciate it so much. I'll be seeing you in May at the uh at the uh DWI seminar there. Everybody, you have heard from Lenny Stamm of Goldstein and Stam. That's lstam.com. He's the writer of the Maryland DUI uh book, Maryland DUI Laws book. Thank you so much. This is John Katza Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. Stand by, Lenny.

SPEAKER_01 1:01:46

All right, thank you, John.

SPEAKER_00 1:01:48

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.