Although I am not even sworn in yet, I think I am going to like Maryland practice.

I noticed while studying for the bar that the discovery rules are far more encompassing – and rational — than in any other jurisdiction I have practiced. And then, in reading Lenny Stamm’s Maryland DUI Law, I came upon what Stamm refers to as the “stationary shelter” doctrine.

If I recall correctly, there used to be a judicially-created doctrine like this in Pennsylvania until the legislature intervened to eliminate it. It is the recognition that you don’t want to penalize someone who is using a motor vehicle not as a means of transportation but as shelter. As Stamm puts it, “[w]hen a person is reasonably using the shelter for shelter, has not driven, and does not intend to drive the vehicle, the person did not meet the statutory definition of driving” for the purposes of a DUI.”  You also do not want to discourage someone who gets into a motor vehicle to drive only to conclude that he is too intoxicated to drive who then uses the car as a shelter to “sleep it off.”

The key case in Maryland on this doctrine is Atkinson v. State, 627 A.2d 1019 (1993). The officer in that case came upon the defendant in a parked car on the right hand shoulder of the row. The defendant was in the driver’s seat with the keys in the ignition and the engine off. Noting that you do not want to convict someone of “parking while intoxicated,” the court held:

We therefore join other courts which have rejected an inflexible test that would make criminals of all people who sit intoxicated in a vehicle while in possession of the vehicle’s ignition keys, without regard to the surrounding circumstances.

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Guest Post by Mary Anne Brush

We can all agree that smart kids sometimes do stupid things. Studies show that the teenage brain is not fully developed, which leads to impulsive decision-making. And who doesn’t believe an important part of raising children with character is holding them accountable for their actions? I work at a school, where I often hear the expression “natural consequences.” Example: A child who forgets his homework should get a zero for the assignment that day. Lesson learned.

I must confess, however, that I am one of those parents who, when my son texts me at work: “mom forgot my chinese workbook can u drop it off?” I will drop what I am doing, drive home, and sheepishly leave the workbook on the table in the school office cluttered with bag lunches, notebooks and textbooks, avoiding the secretary’s eye. Oh, you are one of those parents, I imagine she is thinking. Do not judge me, I fire back in my head. My child did the homework. I don’t want him to get a zero for a missing assignment. And my son will later thank me. He will express remorse that he bothered me at work. He seems to genuinely appreciate that I will go out of my way for him. I am fortunate that I work six minutes from our house and his high school is halfway in between. If I worked somewhere farther away, if I were less accessible to him, I wouldn’t be able to do this for him. But I can, so I do. What does he learn from this? That his mother cares? That I will fix his mistakes? That I will be there even when he is an adult, still fixing his mistakes? I’m not sure – all I know is that he hasn’t texted me about a forgotten assignment in a while, so I do believe at age sixteen he is learning responsibility, however gradually. Part of helping your children grow up into productive, self-sufficient, functional adults is letting go. But slowly.

So while I admit I am part of a generation of hovering helicopter parents who will micromanage our children’s lives, intervene when a problem arises, complain to teachers about grades and to coaches about playing time, hire tutors and college consultants and enroll our children in expensive test prep classes to give them that edge – in short, fight our children’s battles – there is a flip side to that coin. And that is that the competition today is steeper. The stakes are higher. And the price of poor choices is greater.

Years ago my older brother and a friend were caught drinking. They were sixteen and had just left a bar that was known for serving minors. The police were concerned less about teaching these boys a lesson and more about going after the establishment that was profiting from their illegal and irresponsible actions. I was only thirteen so I don’t recall much about this event, but I do believe my brother paid natural consequences for his actions: mortification at being arrested, fear of disappointing our parents, whose opinion he respected greatly, and a hangover the next morning. On the other hand, he was not suspended from school or kicked off the football team because of one bad decision. He can correct me if I’m wrong, but I don’t think there were any charges pressed. I doubt the incident appeared on his transcript, affecting his college acceptances. However, I am sure he will never forget that phone call to our father late that night: “Dad, I’m at the police station. Can you pick me up?” I don’t recall my parents being particularly angry. I think they assumed he understood what he had done was wrong and expected he wouldn’t do it again. That was a given. Again, my memory may be faulty, but I recall the police visiting our house and encouraging my parents to press charges against the local bar. I suspect my parents wanted to do the right thing. But the other boy’s father also paid them a visit. He urged them not to sacrifice the boys’ reputations and embarrass our two families out of some misplaced sense of civic responsibility. Better to be discreet, to let it blow over. Perhaps he was more concerned about his own reputation than his son’s. Who knows? All I know is that he bullied – even threatened – my parents into acquiescing. Did they regret not standing up to him? I will never know, but I have no doubt my brother learned some tough life lessons without jeopardizing a promising future.

This was the late 1970’s. Flash forward a few years into the early 1980’s, my sophomore year at college. I was on work-study and worked several jobs, one of which was at the student pizza agency, where my duties included taking phone orders and delivering pizza. One night, while I was answering the phone, a classmate used a stolen credit card to order pizza. He also used this card – stolen from another student – to buy pitchers of beer for himself and his friends. He was caught, and since it was on my watch that he purchased the pizza, I was questioned by the campus police. I remember the proctor sitting in my dorm room and making the comment: “Boys will be boys.” I’m not sure in what context he said this – perhaps I was being sanctimonious, shocked that a classmate, a peer, a student at such a prestigious university, would actually steal. I understood the nature of his implication. Some behavior was to be shrugged off with a meaningful wink. The proctor went so far as to suggest that the boy had been drunk when he ordered the pizza. That may be true, I longed to say, but he used the stolen card to buy the beer, too. Was he drunk then? But I was nineteen and not self-assured enough to point this out to an adult, especially one in a position of authority.

As it turned out, the fate of this young man wasn’t up to the proctor or his opinion of what consequences he should pay for his shenanigans (wink, wink). The student whose card he stole decided not to press charges. My classmate (let’s call him Matt) got off scot-free. And what became of Matt? He graduated from Princeton and attended Harvard Law School. Thirty some years ago, whenever I saw Matt on campus, I would feel angry he got away with something that was so blatantly wrong. Today I look back on his actions with a little more compassion. Perhaps he learned his lesson after he was caught, when he faced the possibility of his future going down the drain. I trust he is an upstanding citizen today, probably a husband and father and a productive, contributing member of society. He seemed cocky to me at the time, but maybe he was just young and immature. Hopefully he regrets his actions to this day. We all did stupid things when we were young, didn’t we?

Flash forward again to 2013. A seventeen-year-old boy, a junior who attends the same high school as my son, made a very poor choice. This boy – let’s call him Tommy – acted rashly, then immediately regretted his action, but it was too late. Today, a little over a week after he committed this act, he is at home, suspended from school, facing possible criminal charges and expulsion.

What did he do? He used the word “bomb” in a tweet. It was meant to go to his Twitter followers – presumably his friends – as a joke, but it happened to be on a day when a controversial politician was giving a lecture at the high school and security was heightened. His mother told me the moment after he sent the tweet, he decided it wasn’t such a good idea. He was about to delete it when he was approached by four police officers. He was handcuffed, escorted out of the school, put into a squad car and taken to the local police station. His cell phone was confiscated. His parents were called but they were not allowed to see or speak to him. Nor were they allowed to give him his homework or the ACT study materials they had brought for him. He spent the night in jail with two adult felons – a heroin addict and an alcoholic. He wasn’t released to his parents until the next day at 5 p.m. The Wayne County prosecutor is still deciding, over a week later, whether she will press criminal charges, in which case he will be arraigned and likely expelled from school.

Tommy was not some alienated loner building a bomb in his basement or plotting the demise of a classmate or a politician or anyone else. He sings and dances with the school choir and is a member of the sailing team. He was the student council president of his middle school. There was no evidence of any previous wrongdoing. His Twitter account has been reviewed for the past three years. His cell phone still has not been returned to him, and his mother got rid of their landline so he is essentially cut off from the outside world during his exile. His computer has been confiscated, his private emails read, his web site history investigated. His house has been searched. Nothing has been found. There was no intent to do harm or awareness of criminal activity when he sent the tweet. It was just stupid, as my own son, who is otherwise sympathetic to Tommy’s plight, will attest. In fact, “stupid” seems to be the main adjective coming out of everyone’s mouths in relation to this act. “How could he have been so stupid?” his mother admits was her immediate reaction to the news. The police were quoted in the news as saying, “He is a smart kid who did a stupid thing and he knows it.” The police and his mother both insist he has been contrite from the beginning, acknowledging his wrongdoing. “I’m sorry I embarrassed you at your work,” he said to his mother.

Tommy was in the midst of trying to pull up his grades during the all-important junior year. Now assignments and tests are being missed, his grades further slipping. He was not allowed to participate in a sailing regatta the weekend after the incident. Not only will this offense appear on his school transcript, but he may be flagged by the FBI for the rest of his life. Whether the prosecutor decides to press charges or not, Tommy’s parents will likely face a long and expensive legal battle. They have of course consulted with an attorney. They have also had the foresight to have Tommy visit a therapist, someone he had already been seeing to help him through the aftermath of his parents’ divorce. I commend them for this action because eight years ago another teenage boy at the high school made a poor choice, saw his future in jeopardy, and paid a high price for his actions. He had been caught smoking marijuana at his best friend’s house (his friend’s own mother called the police on him) and was arrested. He was popular, strikingly good looking, a strong student and a star swimmer. Due to his arrest he wasn’t allowed to participate in the state swim meet that weekend, where he had expected to achieve state times as a freshman. He had a tempestuous relationship with his father and that night they fought. He took his father’s gun down to the basement of his house and shot himself. Lesson learned. Price paid.

Needless to say, the bomb Tweet incident has received much attention in the local media. It is unfortunate that it followed so closely on the heels of the Boston Marathon bombings, the surviving suspect for which is also just a teenager, someone whose friends initially claimed would not hurt a fly. So in that respect it is understandable reactions are so harsh. Some choose to see it as intentional, as if Tommy had the foresight to know his tweet would be picked up so quickly by security. “There was clear intent here, wake up and see it for what it was, a form of terrorism really,” posted GPDad on a local on-line newsletter.  “That kid should at least get a weekend in jail.” Really, GPDad? Terrorism? Intent? Would you be so quick to throw your own kid in jail? Have you checked his or her computer recently? I challenge every parent in my community and across the country to look at their children’s Twitter accounts. If there is not one tweet or re-tweet that includes racist, homophobic, misogynistic or sexually or otherwise inappropriate language, then go ahead: cast the first stone. But if so, show some compassion, for God’s sake. Kids don’t always use the best judgment when it comes to social media. But most don’t get thrown in jail as a result of it.

Just to give a little context to Tommy’s actions, the politician speaking at his school that fateful day was Rick Santorum, and his visit was hotly contested. A newly formed club at the high school, the Young Americans for Freedom (YAF) club, had arranged the visit and even secured the $18,000 speaker fee from the national YAF organization. After the principal approved the speech, several teachers expressed concern about such a controversial politician speaking at a mandatory all-school assembly during school hours. The principal requested an outline of the speech from the national organization sponsoring the lecture to determine the nature of the speech (it was meant to be about leadership) and was declined. The lecture was cancelled, an email intended for school faculty and staff was inadvertently sent to parents, the press was alerted, and all hell broke loose. What about free speech? was one outcry. Others commented on the inappropriateness of a political speech during the school day. (Even Martin Luther King, Jr., who spoke in our town 45 years ago, did so after school.) Had the administration only checked (or known) its own district policy, the direction would have been clear: “The Board of Education will not permit the use of school facilities by non-district-sponsored clubs and activities or district-sponsored, extra-curricular clubs and activities during instructional hours. During non-instructional time, however, no group of students, regardless of the size of the group, will be denied an opportunity to meet on the basis of the religious, political, philosophical, or other content of the activity” (bylaw #5730). Had the lecture been scheduled after school hours, in accordance with district policy, I doubt Mr. Santorum’s presence, or the banal content of his lecture on “leadership” – especially without the publicity that ensued from the snafu – would have filled half that gym. Students are too busy after school and the message was not targeted to adults. As it was, the lecture, cancelled one day, was back on the next. A compromise was struck: the lecture would be held during the school day, but it was voluntary for students on an “opt-in” basis; in other words, parents had to sign a permission slip for their children to attend.

Those who disparaged its cancelling now applauded the actions of the administration. Those who lauded the school for their foresight now lamented its shortsightedness. The story had already broken nationally: Rick Santorum cast aspersions about “liberal educators” on his web site; conservative radio and television broadcasters accused the school administration of censorship. Those on the left cried out for equal time. Parents maligned teachers at a school board meeting while audience members applauded. No one, not Mr. Santorum or the national YAF organization that sponsored his lecture in an attempt to spread their conservative message could have choreographed a better scenario to ensure them the publicity they sought. Meanwhile our already polarized community, a microcosm of our nation at large, became even further divided.

The Rick Santorum lecture is not the point of this story, but it does provide a backdrop to Tommy’s motivations. “I bet his liberal parents wouldn’t let him attend,” posted “GDog Slim” on the on-line community newsletter. On the contrary, it was Tommy’s own choice to not attend the lecture. His political leanings are irrelevant (his father is conservative, his mother is liberal – so there, GDog Slim.) In keeping with the message of Santorum’s lecture on leadership, “stand up for what you believe to be true,” Tommy did just that. While the majority of the student body flocked into that gym like sheep (my son included), Tommy protested Santorum’s presence by boycotting his visit. He was not the only one to skip the lecture, but he was in the minority. Perhaps he was a little resentful of his classmates, most of whom did not share his views. Perhaps he was bored. So he thought of something funny to tweet and he tweeted it: “Hey Mr. Santorum, can you sign this bomb for me?”

Okay, so it was a bad joke. It was stupid. He should have known better. As he sits alone in his room day after day, awaiting his fate that is now in the hands of a county prosecutor and the school administration, his friends are in class, learning to think for themselves (because that is, after all, what even liberal educators teach). While his choir friends are rehearsing for the school musical that opens this weekend and his sailing teammates are on the lake practicing for the next regatta, Tommy is left alone with plenty of time to think about what he did. I’m sure he wishes he hadn’t done it, but it can’t be undone. No one was hurt by his actions but himself. When, finally, do we decide that the price of a bad decision is too high?

In the last few months or so, I have heard more talk about our rights as citizens of this country. Our right to free speech. Our right to bear arms. We are so quick to defend our own rights, to define them in ways that suit the convenience of our own beliefs, while throwing the rights of others out the window with the prevailing winds. We all understand the need to subject ourselves to x-ray machines and searches at the airport in the interest of public safety, yet fear simple changes in laws that attempt to make our world safer for all of us. “Gun control” has become code for “taking away my rights,” yet not a single one of our rights comes without restrictions. Rights without restriction equals anarchy, and who wants to live in a society like that? Then there are laws created to protect innocent people, but apparently only certain innocent people. Suspects in terrorist attacks are subject to different rules than those accused of other criminal acts. In the context of the arrest of the Boston Marathon bomber I have read articles on the distinctions in the laws but I can’t pretend to understand them. What about Tommy’s rights? What about his right to free speech? Does he even have any, as a minor? Does his choice of the one word “bomb” in conjunction with a politician put him in the same category as a terrorist? Does his tweet constitute a threat to our national security? Was there ever any intent behind his words to hurt, to harm, to do anything other than make a few friends laugh?

I imagine, like my brother who drank beer when he was underage and went on to be Phi Beta Kappa in college, like Matt the credit card thief who graduated from Harvard Law School, Tommy has learned some powerful lessons. The difference is the jury is still out on how this event will change the trajectory of his life. I suspect every single student at his school has learned from Tommy’s mistake and will think before they tweet. So my appeal to the prosecutor and the administration is this: don’t make Tommy an example. Don’t make him pay a higher price than he already has. In some respects he did the administration a favor by taking the spotlight away from their bungling of the Santorum decision. Other than that Tweeting incident, many commented after the event, the students were so well behaved! They gave the former Senator two standing ovations! The school superintendent said the students’ behavior exceeded his expectations and described the students who attended as “engaged and respectful” (Grosse Pointe Patch, April 24, 2013). Like this was surprising, when the reaction of the students was never the concern; it was the decorum of the adults that was in question. See, after all that fuss, everything went smoothly after all! was the underlying message. So what if we violated district policy? Of course the students listened, were polite, applauded when appropriate, even my own son.

“What did you think of the speech?” I asked him afterwards. “Did you think it was political?”

“To tell you the truth, I kind of zoned out after about twenty minutes,” he confessed. “I didn’t think he was that great a speaker. He was actually kind of boring.” Well, thank goodness for the attention span of a sixteen-year-old boy, because I watched every minute of that speech on-line, and it was political, with very subtle underlying messages. But I won’t go into that. Part of me wonders if my son is afraid to express his opinion – to think for himself – when it comes to political matters. My husband and I have even asked ourselves, only half jokingly, whether we have indoctrinated him too much with our own liberal leanings. Between us and his two bleeding heart older sisters, the poor boy doesn’t stand a chance.

After dinner the night of the lecture, he was heading upstairs to do his homework. “Oh, guys,” he said as an afterthought, half turning on the steps. “I do have something to tell you.” Uh oh, we thought, detecting that tone in his voice that precipitated news we would not want to hear. “And what is that?” we asked with trepidation.

“I got my picture taken with Rick Santorum.”

You what? Leave this house immediately, young man! You have disgraced this family. No son of ours…

We said none of the above. “That’s fine,” we said. “There’s nothing wrong with that.” We glanced at each other sheepishly. Did he actually feel the need to apologize to us for this?

“I really didn’t want a picture with him,” he explained. “I just went up to shake his hand and thank him for coming. But then Jack and Mac and Mikey….”

“No, that’s really nice,” my husband interrupted.

“That was the right thing to do,” I echoed.

We’re proud of you, whatever you do, was the message we meant to send. We want you to think for yourself. To form your own ideas.

Like Tommy did, by deciding not to attend the lecture. By having the courage to stand up for what he believed in, even if the act of resistance felt futile and meaningless, empty. Left with no voice to express his dissent, he decided to make a joke. With one push of a button on his phone, in the time it takes to pull a trigger, detonate a bomb, light a firecracker or blow a kiss, his entire world exploded.

Photo credit:  Sara Eaton Martin (Grosse Pointe Patch)

I passed the Maryland Out-of-State Lawyers’ Bar Exam.  It was not a slam dunk.

I probably over-prepared the last time I sat for a bar – that was the full, two-day Virginia bar exam I took in 2010.  So confident was I of passing that exam that I walked out an hour early on the second day for both the morning and afternoon sessions.  I was confident I had already accumulated enough points to pass.

This exam was different.  I had the same feeling after taking this one as I did walking out of the Multi-State Professional Responsibility Exam (MPRE) a couple of years ago.  With all of the multiple choice questions on the MPRE, you could usually narrow your choice down to two or three of the answers but, although you might have an inkling as to which you thought was the best answer, you could never be 100% sure you were right. As a result, you walked out of that exam unsure of whether or not you had passed.  That is the way I felt after finishing the Maryland out-of-state bar.

To be fair, I felt like I got a lucky break with this exam.

Looking back at exams from previous years, it was clear that there were certain topics they always tested:  professional ethics, evidence (particularly privilege), civil and criminal procedure, and so on. To make sure you don’t just prepare those topics, however, they also seem to test in one new area for each exam.

The new topic tested for this exam was juvenile delinquency. Having done a lot of juvenile work in my career, I felt like Cliff the Mailman on the old T.V. show Cheers. Cliff makes it onto Jeopardy only to find that every question on the board has to do with the U.S. postal service.

My disappointment was that this year’s exam was light on Evidence. Usually there is at least one meaty question on prior inconsistent statements or character evidence or something like that in which you are asked to rule on an objection.  I figured I could score some serious points on that type of question. This year, if I recall correctly, the only evidentiary questions had to do with privilege.

Having taken three bar exams over the last seven years, I am thinking this will be my last one.  Or at least that is what I tell myself. Filling out the application for the character evaluation alone was difficult enough to discourage me from ever wanting to do it again.

Update:  Although my wife got her notice a day after I, she also passed.  And she hardly studied at all — just a couple of hours leafing through the code books on flights to and from California.

More like this:

Applying for the Maryland Out-of-State Lawyers’ Bar Exam

Preparing for the Virginia Bar Exam

The Virginia Bar Exam:  How Much Studying Is Enough?

Surviving the Virginia Bar Exam:  Reflections After Day One

Although I may not be a gamer like Ken White of Popehat, I have been playing some Hearts on the Internet recently. I love the game of Hearts. I have gotten pretty good at it over the years.  And I can never get my children or anyone else to play it with me in person anymore. The games go quickly on-line without the distractions of an in-person card game, and it is a nice way to take a break during the later part of the afternoon when my blood sugar is starting to get low.

Although there is not a lot of interaction during the games (the chatter tends to slow the game down), the one thing I have learned from these games is that, inevitably, it is the guy in last place who complains that nobody else knows how to play the game. People like this tend to forget that the purpose of the match is to win the game, not to correctly apply the rules of etiquette or conventions.  You can never assume that people will always do what is in their self-interest.  The best players know how to prevail against others playing at all different levels.

Criminal defense, like life, has a lot in common with a game of Hearts on the Internet.  You put aside what other people think you should do in order to do what you need to do. And it is always the guy not doing so well who is mad at everyone else.

McCormick on Evidence first points out that you should avoid referring to  “the exclusionary rule” in the singular:

Discussions sometimes assume the existence of “the exclusionary rule,” suggesting that there is only one remedial requirement involved. This is unfortunate and misleading. Litigation and discussion is often dominated by considerations of the Supreme Court’s construction of the Fourth Amendment to the United States Constitution as requiring the exclusion in both state and federal criminal prosecutions of evidence tainted by a violation of that provision. But this ignores that exclusion may be required because evidence was obtained by violating other legal requirements, many of them not embodied in the federal constitution.  Moreover, the contents of these exclusionary requirements need not necessarily be the same as that of the Fourth Amendment exclusionary requirement.

Generally, then, discussion best avoids simplistic reference to “the exclusionary rule” as a single rule covering a range of situations.  Instead, this area should be conceptualized as containing numerous possible exclusionary rules or sanctions. 

With that out of the way, McCormick then points out why the exclusionary rules might not be quite as effective as we might think in deterring illegal action by police officers and other government officials:

Deterrence consists of motivating persons to consciously choose not to violate legal requirements because of a desire to avoid rendering evidence inadmissible.  Usually in exclusionary sanction debates this means encouraging law enforcement officers to comply with legal requirements in a conscious effort to assure the admissibility of the products of their investigative efforts.  But detractors of the exclusionary sanction approach argue that any expectation that deterrence will work effectively is naïve, because law enforcement officers will often perceive the threat of exclusion as far less meaningful than other considerations influencing their conduct.

Exclusion will be a possibility only if the case is actively contested.  Most criminal cases are not ultimately litigated, so the technical admissibility of evidence will not be a consideration.  In the infrequent cases in which exclusion becomes a real possibility, the threat materializes only long after the officers’ role in the case is finished.  A threat to exclude, made in the context of plea bargaining and protracted processing of criminal cases, may be a threat of such minimal and distant significance that it cannot be expected to overcome, in the officers’ mind, other considerations that suggest different courses of action. 

In actuality, other considerations may be more immediately pressing and make stronger cases for officers’ attention.  If an officer believes that compliance with legal requirements endangers his personal safety, he is unlikely to ignore that risk because of the possibility of legal challenges to the admissibility of the products of his actions at some distant time.  Similarly, the expectations of the officer’s peers and immediate supervisors may well conflict with what the law requires and may compete quite effectively with evidentiary rules for the officer’s response.

Source:  McCormick on Evidence, Sixth Edition, Thomson-West.

Like Kramer asking for extra MSG on Seinfeld, I think I am going to put myself on a “please call” list for marketers.

Just kidding.

Some marketing guy from Avvo called me the other day, and I shut him down the same way I shut down most marketers: I told him I am so swamped with business that I couldn’t possibly take on one more case. There is always a long silence on the other end of the phone whenever I say this. They have lots to say if you question the cost or the utility of their service. But they have no idea how to respond when you tell them this.

Although this marketer was not as obnoxious as many of the people who call, I continue to have problems with Avvo. And the problems begin with their advertisements and their claims.

For example:  Avvo claims that my profile was “seen” by 1,566 “potential clients over the past 30 days.  I have no idea what it means to be “seen”:  Does this mean that my profile came up on 1,566 searches for a criminal defense lawyer in D.C. or Virginia?  Or that someone actually clicked through to my profile?

But I can’t help thinking it doesn’t mean anything at all. I claimed my Avvo profile three and a half years ago. If I averaged 1,500 views a month over that time period, which is just under the number they say I had for the last 30 days, that would come to 63,000 “potential clients” who had seen my profile. And yet, as far as I know, I have not had a single person even contact me through my Avvo profile, much less decide to hire me.  “I found you through Avvo” is something I have never once heard.

And if Avvo is not being completely straight with me when it comes to how many people come across my profile, I can’t help wondering how else they are not being honest with me.  As they say:  Falsus in uno, falsus in omnibus.

In Pennsylvania, the offense is known as endangering the welfare of a child.  In D.C., it is cruelty to children and, as the D.C. Court of Appeals pointed out recently in Mitchell v. United States, __ A.3d __ (D.C. 2013), you cannot read too much into the title of a criminal offense:  The title is of use in interpreting a statute only if it sheds light on some ambiguous word or phrase in the statute itself.  It cannot limit the plain meaning of the text.

Chanel Mitchell was convicted of second-degree cruelty to children after police recovered, among other things, two loaded revolvers and two loaded shotguns in the living room of the home she shared with her three children. Challenging the conviction on the grounds that she was acquitted of all the firearm charges, Mitchell argued in effect that she could not be held liable for exposing her children to firearms if she was not even aware that the firearms were present.

The Court was unconvinced. First, there is no problem with “inconsistent verdicts”:  “a not guilty verdict to one count of an indictment that is inconsistent with a guilty verdict to another count cannot invalidate the guilty verdict so long as the guilty verdict is based upon sufficient evidence.”  Second, whether or not Mitchell knew about the firearms and intended to exercise dominion and control over them (as in a constructive possession case) is different than whether Mitchell “knew of the danger and intentionally and recklessly failed to do anything about it” (as would be required under the cruelty to children charge).

Conviction affirmed:  Cruelty to children is a general intent crime.  The statute does not require that a person’s conduct be directed at a child or that the child suffer an injury.  It only requires that the person intentionally or recklessly engaged in conduct which caused grave risk of bodily injury to a child.