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Exceptional Circumstances

For many children, the only parents they’ll ever know are the grandparents who raise them. While these grandparents go about doing the everyday job of raising their grandchildren – changing diapers, preparing meals, and making sure the television is on the Cartoon Network – in the eyes of the law they have no legal authority. The State of Maryland, however, has endowed its courts with the power to take a child away from its parents and commit his or her custody to a third person if it’s in child’s best interest.

There is a long-standing rebuttable presumption that natural parents should have custody of their child over third parties, such as grandparents, in custody cases. When a third party attempts to gain custody of a biological parent’s child, the parent’s fundamental constitutional right to their child’s care, custody, and control is the legal standard that must be overcome. In order to overcome this constitutional presumption in favor of the biological parents, sufficient evidence must be presented that shows that the natural parents are unfit, or that exceptional circumstances exist such that maintaining parental control would be detrimental to the best interests of the child. Once the court is satisfied that both of the natural parents are unfit, or that exceptional circumstances exist to warrant a change in custody, it will then determine the best interests of the child. In many cases, the best interests of the child is to remain in the loving care of the grandparents, or other third person, who have been meeting the child’s day-to- day needs.

On Friday, June 3, 2016, I was able help one exceptional family overcome the constitutional presumption of parentage and establish a more secure future for a little girl being raised by the people who love her. In this instance it was the grandparents of a three-and- a-half year-old little girl, named Chloe, who were seeking custody of their granddaughter. Sadly, the natural parents, both struggling with drug addiction, had abandoned Chloe to the care of her paternal grandparents. While she flourished in their loving environment, my clients worried that the natural parents would swoop in take Chloe into their world of drugs, homelessness, and neglect. Had the biological parents chosen to take Chloe, my clients would have been powerless to stop them. Now, Chloe is home to stay.

– Joshua T. Ortega

The Fighting Ortegas Secure a Big Win for Their Client

On May 5, 2016, the defense team of Windy Ortega and Joshua Ortega successfully defended their client against numerous drug and gun allegations. On September 29, 2014, their client, who will be referred to as “Mr. W” going forward, was stopped for a minor traffic infraction – the legally tinted windows of the vehicle he was operating appeared too dark for the taste of two Baltimore City narcotics officers. The narcotics officers quickly abandoned the alleged purpose of their stop (issuing a citation for a minor traffic infraction), and began searching the vehicle driven by Mr. W. Following this constitutionally questionable search of the vehicle, Mr. W was arrested for possession with intent to distribute marijuana and various handgun violations. The ramifications of a guilty verdict for Mr. W was a lengthy prison sentence. After more than a year-and-a-half of waiting for his day in court, Mr. W was finally able to select a jury on May 2, 2016.

In an effort to prove its case, the State called seven witnesses. The Ortegas systematically exposed the bias and credibility of the narcotics officers and State’s experts, as well as the limitations of the State’s case. Throughout this highly contested trial, the Ortegas fought for Mr. W to make certain he got a fair trial. The jury, hearing the evidence as an impartial and objective body, found Mr. W not guilty of possession with intent to distribute marijuana and four hand gun charges after several hours of deliberations.

The Ortegas, and Mr. W, are forever grateful to the ladies and gentlemen who served on this jury for their time and careful consideration of all the evidence in this case. Joshua and Windy, a husband and wife law firm, lived up to their reputation as the Fighting Ortegas.

Understanding The Preliminary Hearing in Maryland Criminal Cases

“What is a preliminary hearing?” “Do I need a lawyer for it?” These are two common questions that I receive from my clients charged with a felony. To clarify this rare court proceeding, I decided to share my answers with those that are possibly asking the same questions.

A preliminary hearing is usually the first proceeding in a criminal trial when an individual has been accused of committing a felony. Because felony charges often carry greater potential sentences than misdemeanors, our criminal justice system requires probable cause to be found a second time. Probable cause must be found for the felony by a judge at a preliminary hearing or by a grand jury. It is extremely important to have an experienced criminal defense attorney at the preliminary hearing for many reasons. First, a preliminary hearing can open the door for discussion with the prosecutor to get charges dismissed. I have been successful at getting felonies, and in some cases, all the charges dropped at the preliminary hearing when I was retained early enough in the case. Second, a preliminary hearing can provide a platform to have bail reviewed, which can be hugely important if the accused is still incarcerated. Last, it can be used as a discovery tool to learn about the State’s case, and to get a feel for its witnesses.

In most counties in Maryland, a preliminary hearing must be requested within 10 days of the initial appearance. The preliminary hearing will be held in front of a Judge at the District Court. The preliminary hearing is usually the first proceeding in a case where someone has been charged with a felony. The preliminary hearing is not a trial and the defendant will not testify or present any evidence. The burden is on the State to show that it has enough evidence to convince a reasonable jury that the defendant committed the felony. This is a much lower standard than what the State has to prove to a jury to convict the defendant of the crime at trial. The State will usually call a detective or police officer to talk about the facts of the case that support the felony charge. The defendant has the opportunity to cross-examine the State’s witness. Since these proceedings are under oath and recorded, the testimony can be used against the testifying officer if necessary at trial. If the judge determines that there is probable cause for the felony charge then the case will be transferred to the Circuit Court, along with any misdemeanors. If the judge does not find probable cause than the felony charge will be dropped and a trail date will be set in the District Court for any remaining misdemeanor charges. In Baltimore City, if your case has not been transferred to the Circuit Court by way of indictment, it is not uncommon for the felony to be dropped at the preliminary hearing and for the State to go forward with a trial on the misdemeanor charges that day.

Facing criminal charges is scary, and an effective lawyer who will fight for your rights can help ease your fears. No one accused of a crime should be alone in the presence of the police, the prosecutor, or the court. A preliminary hearing is a critical stage in the criminal process where an experienced criminal attorney can really help.

Defense Team Secures Acquittal on Murder Charges

Mitchell-CourthouseOn March 27, 2014, the defense team of Andrea E. Jaskulsky and Joshua T. Ortega secured an acquittal of a man accused of murder. The jury found that the defendant, Micah Mayne, was not guilty of four felony charges, including one count of murder in the first-degree. Mr. Mayne maintained his innocence from the time of his arrest on August 14, 2011.

On June 22, 2011, Andrew Womack, a 23-year-old African American man, was violently gunned-down at the 5500 block of Grindon Avenue. With few leads, the police settled upon Micah Mayne, a 21-year-old African American man, as their primary suspect. Mr. Mayne, it seems, slightly resembled the shooter who witnesses described as a dark skinned African American man with short dreadlocks. Though Mr. Mayne is African American, he had long dreadlocks on the date of the shooting and can be described as having a light to medium complexion. Despite this tepid similarity in appearance to the shooter, the police failed to take reasonable steps to confirm their suspicions of Mr. Mayne.

One key issue in the trial was eyewitness testimony. According to the Innocence Project, eyewitness misidentification has played a role in nearly 75% of all wrongful convictions overturned by DNA testing. This newfound knowledge on the unreliability of eyewitness testimony has caused ripples in legal circles.

One such example of change is the Baltimore City Police Department’s (“BCPD”) 2013 change to their policy on how to present photo arrays. A photo array is designed to allow a witness to select a person suspected of a crime from a group of persons who share like or similar features. The BCPD’s new policy requires the use of a “double-blind” or “sequence” procedure which are designed to help avoid the suggestiveness of the array presentation. The key to the double-blind is that the officer or investigator presenting the photographs does not know which photograph depicts the potential suspect. The sequence method of photographic array, the alternative to the double-blind, permits officers to show photographs to witnesses one photograph at a time. Neither of these policies were in place and neither procedure was used at the time of the investigation into Mr. Womack’s death. In fact, the witnesses were shown a photo array in which Mr. Mayne was the only person with dreadlocks.

Mr. Mayne was initially tried in late 2012 only to have a mistrial declared as the jury failed to reach a unanimous verdict. After a seven day retrial, led by Ms. Jaskulsky and Mr. Ortega, the jury acquitted Mr. Mayne of all charges.

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