JON KATZ, P.C.
UNDERDOG BLOG ARCHIVES - AUGUST 2006
Attorney at Law
LAWYER FOR JUSTICE
Practicing Law Throughout Maryland, Washington, D.C., and Virginia
WHERE YOUR CAUSE IS OUR CAUSE:
- CRIMINAL DEFENSE (All Felonies, Misdemeanors & DWI / DUI / OWI / OUI)
- CONSTITUTIONAL & FIRST AMENDMENT DEFENSE
- IMMIGRATION ADVOCACY
THE NEWS REPEATEDLY COVERS OUR LEGAL EXPERIENCE, INCLUDING:
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- AV-RATED BY MARTINDALE-HUBBELL
- BAR REGISTER LAWYERS for Criminal Trial Practice, White Collar Crime and Immigration Law
Washingtonian Magazine's "Top Lawyers" (December 2004, Partner Jon Katz)
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HOW WE FIGHT FOR JUSTICE FOR YOU:
Jon Katz, P.C. fights for our clients armed with the following principles: (1) We stick to our highly-experienced roots of going to the mat one client at a time, regardless of how anonymous or high profile is our client or the case, and regardless of how controversial the matter; (2) Our sole obligation is to our clients and justice, in a legal system with the potential of doing substantial justice, but also fraught with landmines to inflict severe harm; (3) We keep at least an arm's length from the legal establishment, opposing lawyers, judges, and authorities, in order to keep our clients' interests and justice first; (4) Because nothing beats in-depth experience, your case stays with one or both of our two founding law partners -- with over thirty years of combined experience -- from beginning to end.
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WE TRAVEL EVERYWHERE IN MARYLAND, DC, AND VIRGINIA FOR JUSTICE
SEE US ADVOCATING FOR JUSTICE IN THE NEWS, INCLUDING SPARRING WITH BILL O'REILLY:
Click below, and view with Windows Media Player. Rebroadcast courtesy Fox News.
UNDERDOG BLOG ARCHIVES - AUGUST 2006
To the end that all lawyers, the courts, government, and everyone serve justice at every turn, at all times, and at all costs.
INDEX OF AUGUST 2006 UNDERDOG BLOG ENTRIES:
August 31: Never give up. Never give in.
August 30: Consistently opposed to libel laws, Jon Katz, P.C. defends libel suit against Westboro Baptist Church / Appears on TV.
August 29: Will cops harvest a bumper crop of confessions post-John Karr?
August 28: Another backdoor First Amendment violation: 18 U.S.C. § 2257.
August 27: Minor hauled to court for allegedly saying "meow".
August 25: Jay Marks's battles for justice.
August 24: John Johnson: As alive as ever.
August 23: Should judge get four years for indecent exposure? What recourse is available to the parties who appeared before him?
August 22: Comparisons and contrasts on the criminal law systems in Maryland, Virginia, the District of Columbia, and federal courts.
August 21: Three prosecutor blogs found: Know the Opposition.
August 21: Virginia criminal defendants: Know your rights / Reverse Virginia's pitiful pay for court-appointed counsel.
August 20: George Allen: Meet Andrew Young and Mel Gibson / Update on macaca-gate.
August 18: Having fun while fighting the powers that be.
August 17: Doing t'ai chi with my opponents.
August 16: Some good suppression cases, the Busted video, and Virginia's malfeasance statute.
August 16: Jon Katz, P.C. is eight-years-old this week!
August 15: How does a minority defendant feel walking into a courthouse with a confederate soldier out front? What does this say to a racist juror instructed to set aside prejudice?
August 15: Virginia Senator George Allen demeaningly calls Indian-American man "macaca".
August 15: Venire jury members, be truthful; any other approach can mean a retrial.
August 14: Prison censorship; prison rape.
August 13: Car passengers can have standing to challenge car stop and search.
August 11: The Bush Administration tries to intimidate future Daniel Ellsbergs, Deep Throats, and journalists who would print their disclosures.
August 10: Jon Katz, P.C. wins acquittal for client caught red-handed with a handgun at airport baggage scanning, using basic trial outline.
August 9: Gansler campaign signs come tumbling down.
August 9: Identifying, selecting, preparing and presenting expert witnesses.
August 8: Don't let a Virginia jury convict, because next the jury fixes the sentence.
August 7: U.S. Senate ratifies the Cybercrime Treaty.
August 6: Maryland and Virginia District Court: Bench trials, appeals, and withdrawal of appeals.
August 4: Loving jurors rather than fearing them.
August 3: Jon Katz, P.C. on the airwaves - Speaking out for justice.
August 2: Mad Mel: Beyond the hateful words
August 1: Know means know: Your rights dealing with the police.
August 31, 2006
Never give up. Never give in.
Fifteen years after starting my criminal defense career, what keeps the fight, zeal, and steam in me? Some of it comes from those around me, with my kindred spirits on one side, and, on the other side, those who perpetuate unfairness and injustice.
Sometimes the inspiration comes from the selflessness of great lawyers. Recently, I sought the wisdom and brainstorming of one of the deans of federal criminal defense law for a critical sentencing matter. I'll give his name if he gives me the go-ahead. Deservedly so, he seems roundly liked and well-respected by other criminal defense lawyers. He probably gets all the more calls for advice, as a result.
In my moment of need, he answered the phone on my first call. He quickly hit the nail on the head in response to my persuasion issues. He asked for nothing in return. As I understand it, he was working into the night, and had a significant court deadline in two days.
Talk about selflessness and commitment to helping other lawyers serve justice. Compare this to some lawyers (and non-lawyers) who mistakenly believe that the road to success is by stepping on the competition's heads. That is one of the roots of social injustice: stepping on others in a race to the top, rather than helping others rise as we rise.
A big theme when I attended the National Criminal Defense College's Trial Practice Institute and Trial Lawyers College over a decade ago was our duty to share our knowledge and abilities with our sister and brother lawyers for justice. I totally subscribe to that. So many of my colleagues have given so much to me and my clients that I would not be able to give back to others what they gave to me even if I spend all my waking hours trying to do so. It is easy to get lost in the daily shuffle and grind of deadlines, days with too few hours in them, and occasional sleep deprivation to put off taking a call from a colleague in need. So many have taken my calls that I do my best to take such calls as soon as possible.
When I later updated this lawyer on the substantial mini-sentencing victory I got in this case (reducing the RICO count from life to nine years imprisonment), he congratulated me and said "Never give up. Never give in." He is a true warrior for justice.
Additional inspiring words to keep fighting for justice came today from Peter Erlinder, who is a National Lawyers Guild activist (I support the Guild's many good human rights actions, but oppose many of its policies and pronouncements) -- and probably opposed that the law school where he teaches has named its law library after former chief justice Warren Burger. Responding to my message about the necessity of accepting personal risks when pursuing controversial fights for justice, Peter was reminded of Frederick Douglass, who said "power concedes nothing without demand, it never has and never will....those who want freedom without struggle are like those who want the crops to grow without the rain..."
Yesterday after leaving the criminal courthouse, my client remarked at the zeal for justice that I have maintained after all these years. (Wait a moment. I'm only 43. I was too young even to have been a hippie). I traced this zeal as far back as the age of nine (probably earlier) when the adjacent fourth grade teacher had the audacity to accuse me of trespassing on the apartment grounds across the street for no other reason than that a brown-haired boy around my age in a blue coat was allegedly seen there. In one of my earlier instances of self-advocacy, I retorted contemptuously: "Not only have I never been to that property, but I am angered that you have singled me out just because I have the same color of coat that most boys my age wear," and walked away from this precursor to the DARE soldiers. So this is what misidentification and J'accuse is all about. I want nothing of it.
Near the time I completed law school, I was walking about four blocks from the White House where two or three cops were towering over a powerless-looking man -- apparently homeless -- bothering him for no apparent reason other than that he looked homeless. Each time the man tried to talk, the rookie-looking cop gleefully and sinisterly hissed "Shut up." I am ashamed that I only watched in disgust and naive surprise, rather than speaking up. I already knew that silence is the voice of conspiracy; I want none of that conspiracy, and by now have caught up for lost time. Jon Katz.
August 30, 2006
Consistently opposed to libel laws, Jon Katz, P.C. defends libel suit against Westboro Baptist Church / Appears on TV.
For many years, I have emphasized my total opposition to libel laws -- both criminal and civil -- as incompatible with the First Amendment and as more damaging than helpful. My previous writings on the topic are found on the foregoing links, and here, here, here.
I strongly agree with Voltaire, who said: "Monsieur l'abbé, I detest what you write, but I would give my life to make it possible for you to continue to write." Voltaire, letter to M. le Riche, February 6, 1770. In that regard, our law firm is defending the Westboro Baptist Church against a lawsuit alleging defamatory statements on the Internet and at a protest concerning Matthew Snyder -- an American soldier killed in Iraq -- and his funeral.
Baltimore CBS affiliate WJZ TV interviewed me
last night about this case. Click "play" here
to see the broadcast. Print stories on this case are here.
Baltimore CBS affiliate WJZ TV interviewed me last night about this case. Click "play" here to see the broadcast. Print stories on this case are here.
The foregoing WJZ news story hits it on the head that I am disgusted by the church’s messages that are the basis of this baseless libel action, but that I believe strongly in their right to express them.
This is not the first time I have stood up for the Constitutional rights of people whose views I oppose. Earlier this year, I went on the O'Reilly Factor to oppose the retrial of Sami al-Arian, despite our very different views about Israel. More about this is here, and you can see the interview here. I defended right-winger Ben Wetmore -- who holds many political views that are abhorrent to me -- when he was hauled before a university kangaroo court after he videotaped Tipper Gore at his campus in full compliance with the warning not to use flash photography (Mr. Wetmore had a video camera without a light source). My representation of the Westboro Baptist Church will not be the first time I have represented a client whose views are diametrically opposed to mine. For instance, early on in my criminal defense career, I found myself assigned to defend a man with swastikas tattooed around his neck, where their purpose had nothing to do with their use before the nazi era. .
I also represent people whose views I like or whose views do not bother me. I have defended Plowshares activists, animal rights demonstrators, demonstrators against the IMF/World Bank, and the local National Lawyers Guild as amicus appellate counsel where a woman was convicted for speaking out in a Senate hearing room. I represent a private citizen against the military's refusal to print his political ads in military base newspapers, and Wenyi Wang in a Freedom of Information Act matter.
Our firm also has spiritedly defended the First Amendment rights of the adult entertainment industry. See here, here, and here.
Although we fight against the imprisonment of our clients, we served as local counsel to lawyer Larry Walters, championing the right of a prison officer to keep her job despite the online appearance of her pre-hire nude photos on a tattoo website.
We obtained the dismissal of a libel suit against a taekwondo referee. I have spoken out against censorship of spam. On the opposite end of Westboro Baptist Church, I represent a group of divorced veterans challenging the law that permits courts to treat their retired pay as divisible marital property.
The key is that our law firm is consistent in insisting that everyone be protected by the Bill of Rights, and we fight for the Bill of Rights daily. Jon Katz.
August 29, 2006
Will cops harvest a bumper crop of confessions post-John Karr?
Much will be discussed about yesterday's news that prosecutors will not pursue John M. Karr in the JonBenet Ramsey case. Unfortunately, like so many blockbuster news epics about tragedies, this story seems to be another way for people to line their pockets with dollars from front page news and punditry. It is critical for people to let the tragedy of JonBenet Ramsey's death sink in, rather than for it to fill some sort of gossip vacuum.
Beyond the tragedy, I have wondered whether this case would have gotten more than five minutes in the media if JonBenet had not been a white beauty queen from a well-to-do family. That is a microcosm of the underrepresentation in the media and elsewhere in society of minorities and so many others who have experienced unfair discrimination for ages. In any event, each media frenzy over a crime is an opportunity for criminal defense lawyers to show why criminal defendants' rights under the Bill of Rights and beyond must be protected so that all our rights are protected.
John Karr's blabbermouthing with the police -- topped off with fine first class food and champagne on the flight from Thailand to Boulder -- followed by his release yesterday reads like an extreme warning not to try this at home. It is a true aberration for a person to confess a crime to the police and then to be released. The confession plus slight corroboration are sufficient ingredients to enable a conviction. Do not expect police and prosecutors to focus their energies on a fair outcome for criminal suspects; they are too busy trying to build a case.
Keep your eyes on the prize of asserting your Constitutional rights with the police. Distribute the Busted video far and wide. This is not a matter of advocating crime, but an exercise in asserting our rights against police agents of local, state and federal governments that are obliged to serve us, but with too many employees who lose sight of that, or who never had sight of it in the first place. As people from all walks of life more frequently assert their Constitutional rights with the police, the police may start to act more justly through changes in policy, voting, laws, government administration, and personnel. Jon Katz.
August 28, 2006
Another backdoor First Amendment violation: 18 U.S.C. § 2257.
Federal statutory law requires producers of material made after November 1, 1990, that visually depicts sexually explicit conduct (generally defined as penetration sex, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals) to maintain records showing that minors under eighteen years old are not shown, and to have. 18 U.S.C. § 2257. The same law also requires distributors of such material to assure that "a statement describing where the records required by this section may be located." 18 U.S.C. § 2257(f)(4).
In late 2005, the Free Speech Coalition (for two years I served as founding President of the Free Speech Coalition of DC, MD and VA) obtained a preliminary injunction in the Colorado federal trial court, whereby the plaintiffs and their members are not to be considered producers under this § 2257 law where such a party does not arrange for a performer to participate in sexually explicit material. The injunction also enjoins enforcement of the Justice Department's regulations (28 C.F.R. Part 75) that implement 18 U.S.C. § 2257, against the plaintiffs and their members for websites they do not control. Further information on this issue is at the Free Speech Coalition's website here.
The § 2257 legislation and regulations are backdoor First Amendment violations. It is one thing to prosecute child pornography (the Supreme Court already has permitted such prosecutions), but it clearly is a First Amendment violation to put the burden on producers of sexually explicit material to show that the performers are not minors, and to penalize distributors of such material if it omits a statement confirming compliance with § 2257. The penalties for violating § 2257 are stiff. A conviction for just one violation of this statute carries up to five years in prison; a conviction for multiple violations increases prison exposure. .
The question is not whether people agree with the production and distribution of sexually explicit material. First the First Amendment protects non-obscene sexually-explicit material that is not child pornography, as the Supreme Court has confirmed. Second, the First Amendment was not adopted to protect expression that everyone likes, but to protect expression that would bother some or many people. Plenty of sexually explicit material is sexist, degrading, racist, and the list goes on. The material still is protected by the First Amendment, and should continue having such protection. Jon Katz.
August 27, 2006
Minor hauled to court for allegedly saying "meow".
In violation of the First Amendment, a Pennsylvania harassment prosecution proceeded to trial for a fourteen-year-old who allegedly said "meow" each time he saw his neighbor. The article is here. Pennsylvania's harassment statute is here. Jon Katz.
August 25, 2006
Jay Marks's battles for justice.
My law partner Jay Marks gives me great karma each day as we both battle for justice, and I repeatedly send him my good karma. We share this good karma in infinite forms, from support and brainstorming to reveling over our victories to breaking the intensity of a late night at the office with side-splitting humor, from attacking anti-dentites to welcoming the latest e-mails from conspiracy theorists. We support each other in the thrill of victory and the agony of defeat both in our professional and personal lives. During our eight years together, we often spend more time with each other than with our families, which have grown with our firstborns and Jay's secondborn subsequent to our firm's genesis. As I blogged on August 16, we fight together as a yin-yang harmonious whole.
Jay has chalked up many victories for immigration clients and laborers -- for disclaimer purposes, that does not indicate our future results -- and I look forward to uploading details to our blog and website.
It's a rush to have a law partner who gets as excited as I do about each victory, who toils away to get there, and who scratches his head as I scratch mine about lawyers skeptical how we continue to love what we do now that we are, respectively, seventeen and fifteen years out of law school. A key reason we love it is that we have stubbornly stuck to defending clients and causes we truly believe in, despite any naysayers who warned of the difficulty in making a living this way. We smile back at them with contentment and the last laugh. Jon Katz.
August 24, 2006
John Johnson: As alive as ever.
Early on in my criminal defense career, I learned of the necessity of being well-trained and re-trained, keeping my batteries charged and recharged, caring about my clients no matter how much caring they did or did not show to me, and keeping connected with kindred spirits, even if they were hundreds or thousands of miles from the courtroom, or years away.
On this path, I met John Johnson in 1995. The late John Johnson of Friday Harbor, Washington, was a great man and a great jury trial consultant. He believed strongly in people's ability to derive great power from being real, feeling and expressing love, and finding inner peace. To deal with our pain, John said, we first must embrace the pain before sending it on its way; this sounds similar to the t'ai chi approach of embrace tiger and return to mountain. Like a great t'ai chi warrior, John exhibited his power not by brute force or by raising his voice, but through gentleness and empathy, with deep caring and love.
John taught at the Trial Lawyers College in the College's first two years of 1994 and 1995. For four weeks in 1995 at the Trial Lawyers College, I experienced John's friendship, caring, and essence. John departed the planet in early 1996 after his conflict with cancer. John and I spoke later in 1995, when John emphasized how much peace was lacking where I live, in the Washington, DC, area, where he also once lived. My view is that conflict situations can be substantially harmonized, to a point, as in t'ai chi.
John much preferred having a bucket of cow dung to a bucket of beautiful fake flowers, for at least the cow dung bucket holds something real, in a world where so many people run away from themselves and try to re-create themselves into something they are not. For John, the necessity and power of realness was underlined by the Velveteen Rabbit, which is indispensable for all to read. So important is the Velveteen Rabbit's message -- beyond its old-fashioned images and its appeal to children, on the first level -- that John read us the entire book one day, to the point that the story became his. By this time, like the story's skin horse, John's body had taken a beating, from cancer that caused him to speak with a whisper; his voice carried powerful words, messages, and lessons. He chose what turned out to be a whole month in the last six months of his life to be with four dozen lawyers devoted to becoming their best for their clients, at a ranch ten miles from the nearest paved road
One morning during the last week of the Trial Lawyers College -- which has key hallmarks of a cult (including physical isolation; a charismatic leader; lessons of a better way of life; and rituals of psychodrama, hugging, baring souls/warts/closet skeletons, and showing love) -- we awoke before sunrise, and were told to find a place in this mountainous region away from the sight or sound of anyone else, to reflect on our lives and the courses thereof, before returning to the hustle-bustle of our work and homes. My own life was at a critical crossroads. On the professional level, having learned that the Maryland Public Defender's Office, which I had joined four years before, was not the ideal job -- but instead a stepping stone to giving criminal defendants the best defense -- here I was alone in the Wyoming mountains knowing that my time at the Trial Lawyers College was a key catalyst for me to be a much better advocate for justice, and, inextricably intertwined with that, to be a much better person.
After an hour or two -- I lost track -- I walked to the chow house, seeing the other attendees doing the same, in silence, almost as if we were auditioning for a Boris Karloff film. We continued the silence through breakfast and beyond. John Johnson, who had been through this Vision Quest the summer before, approached each of us, with his angelic smile, and handed each of us his following very applicable signed poem, "A Meeting With Mother Earth", which hangs in my office to remind me of John and of my place on the planet both personally and professionally.
After breakfast, we walked to the big barn, still silently. I was a pile of emotions, from the changes I had gone through at the Trial Lawyers College, still trying to make sense of much of the experience, and knowing that I'd be returning home to people who had not gone through any of these changes during my absence. I saw people hugging. People came up to hug me; it's a Trial Lawyers College ritual that took awhile for me to accept, and still there's part of me that has not fully accepted the ritual. It was a way to stay connected, and not to feel so disconnected on our arrival home. John Johnson and I hugged. Eleven years later, he still has a powerful effect on me.
A MEETING WITH MOTHER EARTH
The life of lawyering is filled with noise and turmoil. Peace is hard to find - even in seeking after justice. Modern mankind runs amok in anxious pursuit of an elusive technological happiness.
But we are sons and daughters of mother earth. She gives us an abundant house, made bright and glorious by sun, moon and stars and nurtured by the waters. She gives the wind upon which seeds blow and birds fly to us with their songs.
Our mother earth speaks to us of peace and fulfillment and love. But we must listen to hear those gifts our mother holds for us. To hear we must let our souls be quiet; we must learn how to be still so that our mother earth can touch us with her wisdom and show us the way to peace.
It is among us already. It is in the earth and sky and the water for all of us to share.
Let us be still and quiet together and ask our mother to help us receive her gifts.
When we find peace we can have power and courage and wisdom. We can go forth as true warriors in seeking after justice.
/s/ John C. Johnson, OFW*
Trial Lawyer's College
Courtesy of Lenore Bayuk, John's widow..
*OFW - Old F----- Warrior (The Trial Lawyers College's trial masters who share their knowledge, their experience, and themselves with the YFW's/Young F----- Warriors)
August 23, 2006
Should judge get four years for indecent exposure? What recourse is available to the parties who appeared before him?
At first blush, news of the weird might seem to be the category for the judge recently sentenced to four years in prison for repeatedly exposing himself from the bench while using a sexual organ pump.
Too often, however, injustice is handed to criminal defendants merely because people marginalized them as a sicko, crackpot, or weirdo. The bigger issues are missed by laughing this story off as a judge gone wild, by insisting that what is good for the goose is good for the gander, or by dismissing the whole matter as the case of a sick man.
The first critical consideration of the criminal side of this case is whether the judge intentionally -- rather than inadvertently -- exposed his genitals for others to see. In this instance, a court reporter claims to have seen the judge repeatedly using the pump during a multi-day murder trial. If she did see this, I wonder whether this judge's courtroom was configured differently from the ones where I appear, where the court reporters sit too far and too low to be able to have any idea what is going on at the judge's seat. Moreover, a police officer claimed that, during a murder trial, he saw part of a plastic tube going under the judge's robes. Once again, this suggests a courtroom configured differently from the ones where I appear. Additionally, investigators claimed they found semen after checking the carpet, the judge's robes, and the judge's chair. At this point, unless the substance was confirmed as semen in a lab and found to match the judge, I might be wondering whether the witnesses were orchestrating a vendetta against the judge; that is my criminal defense side talking.
Particularly with such an outrageous story as this one -- including the righteous indignation that people may feel against a judge focused on pleasuring himself at the bench rather than focusing on making just rulings for the parties appearing before him -- people might lose sight of the need to assure that even this judge receive a fair trial, fair sentencing, and overall justice. All people, including this judge, are entitled to the full panoply of rights at a criminal trial, including the right to be presumed innocent until proven guilty beyond a reasonable doubt by a unanimous jury.
Here, unanimous the jury was. Moreover, ironically, the judge got a taste of his own unjust medicine when his sentencing judge refused to reduce the four-year sentence recommended by the jury (one year per felony indecent exposure count). The judge's court reporter said she never saw him change a jury's verdict during the fifteen years she worked with him.
This case raises larger questions about the fairness, and the lack thereof, of the criminal justice system. The jury probably recommended such a harsh sentence because the indecent exposure took place while the judge was acting in his courtroom capacity. However, I am inclined to think that the better approach would have been to focus on removing the judge from the bench in a non-criminal proceeding if the allegations were true.
Meanwhile, I anticipate that some of the criminal defendants and civil litigants on the losing side before this judge are going to seek recourse for appearing before a judge who may not have been giving the necessary attention and judiciousness to their cases. Appellate courts tend to give trial judges broad discretion in making factual conclusions, fashioning sentences and other remedies, and ruling on procedural matters. How could a judge be exercising responsible discretion while both distracted with pleasuring himself on the bench and while presumably pre-occupied that he might be caught doing it?
This case also should invite re-examination of the indecent exposure laws. At least where I practice law, people are fair game for indecent exposure arrest for being nudists on a secluded beach, for urinating on the roadside due to a bladder emergency, for sunbathing topless in the backyard if the neighbor can see, and wearing shorts that inadvertently expose the male genitals. I oppose prosecutions in any of these scenarios, and do not believe any prosecutions should ever be allowed against women exposing their breasts (particularly if men cannot be prosecuted for exposing their own chests).
As to people who intentionally expose themselves, prosecution, conviction, and jail is not always the automatic answer. Some people who intentionally expose their genitals might have underlying psychological problems that are better addressed through their working out their underlying psychological problems. Others might be no worse off psychologically than people who went streaking once or twice in the seventies or who moon their friends in an adjacent car.
Finally, if this judge actually committed the acts alleged, then he not only did not belong on the bench, but this reminds people that judges are drawn from the pool of fallible humans. No other type of human exists, but some litigants forget this, to their own disadvantage, and sometimes to their own peril. Jon Katz.
August 22, 2006
Comparisons and contrasts on the criminal law systems in Maryland, Virginia, the District of Columbia, and federal courts.
Tracking the outline of CrimLaw's recent overview -- covered below -- of what lies ahead for a felony criminal defendant in Virginia, following are some comparisons and contrasts regarding the criminal law systems in Maryland, Virginia, the District of Columbia, and federal courts (limiting my federal comments to the Maryland, DC, and Virginia federal courts where I am licensed to practice):
1. Classes of crimes. Virginia designates most crimes into classes for designating the potential incarceration and fine range. Classes of crimes are not used in Maryland, DC, or the federal system.
2. Bond. Pretrial release (bond) is one of the first considerations when the defendant first appears in court in Virginia, Maryland, DC, and the federal courts. In Virginia, some judges will impose no bond -- rather than a high bond -- even for certain lower-level felonies. While Virginia enables quick decisions by successively higher courts for bond denials, the standard of review is abuse of discretion, which can require substantial creativity to overcome by the defense. Unfortunately, the Virginia system also permits bond appeals by the prosecution. Release on bond is conditioned on the amorphous "good behavior;" a judicial finding of "bad behavior" can lead to revocation of bond. The defendant ordinarily has an option to pay a percentage of the bond to a bail bondsperson; however, that payment is not recoverable by the defendant.
In Maryland, judges are more likely to grant a bond -- of whatever amount -- rather than to deny bond outright, except for the most serious criminal charges. Defendants charged with less serious crimes and with minor or non-existent criminal conviction records may be released on personal recognizance or supervised release (which might involve visits to the pretrial release office and periodic drug tests). Defendants should seek maximum flexibility in paying bonds, including the option to pay a recoverable percentage of the bond directly to the court, paying a percentage to a bail bondsperson, and putting up real property for the bond.
In Washington, DC, an arrested person -- unless released by the police -- ordinarily will wait in the very unattractive Superior Courthouse lockup until the next late morning's or afternoon's bond hearings. For less serious criminal charges (with such exceptions as no bond for certain handgun offenses) and minor criminal records, it is common for judges to release defendants without setting a bond, sometimes with supervised release, and often conditioned on the defendant's staying away from the location of the alleged criminal incident. The criminal defense lawyer needs to be vigilant to avoid an unnecessarily overbroad stay-away order, whether based on geography, time of day, or other considerations.
In federal court, various drug felony charges can require the defendant to overcome the statutory presumption that no bond conditions will assure the return of the defendant to court. Pat arguments against this presumption will not suffice. The criminal defense lawyer needs to be prepared with specifics about why the defendant is not leaving the area.
3. Preliminary hearing. At the preliminary hearing, the judge determines whether probable cause exists to permit the case to proceed forward to indictment by a grand jury. Various factors may result in the holding of no preliminary hearing, including reducing the charges to a misdemeanor that does not require a preliminary hearing, an indictment that precedes the preliminary hearing, and a defendant's waiver of a preliminary hearing.
In Virginia, depending on the county and circumstances, prosecutors may make a plea offer that the prosecutor claims will be taken off the table if the preliminary hearing is held. While some prosecutors' offices may generally not renew plea offers after the deadline given, exceptions ordinarily exist to any common practice. At the preliminary hearing, the defendant is permitted to present evidence, or not to do so.
In Maryland, the defendant must demand a preliminary hearing in writing within ten days of appearing before a judicial officer. They must ordinarily be held within thirty days after the defendant demands such a hearing. Preliminary hearings are more common in some counties (e.g., they are usually held in Worcester County) than in others (they ordinarily do not go forward in Montgomery County).
In the District of Columbia, such hearings are called preliminary examinations. D.C. SCR-Crim. Rule 5(d)(2). Unless a rescheduled hearing is granted, the hearing must be held within ten days following the initial court appearance if the defendant is detained and not later than 20 days if the defendant is not detained.
In federal court, a preliminary hearing is not held if the prosecutor files an information under Fed. R. Crim. Proc. 7(b) charging the defendant with a felony; the government files an information charging the defendant with a misdemeanor; or the defendant is charged with a misdemeanor and consents to trial before a magistrate judge. Fed. R. Crim. Proc. 5.1. The hearing must be held within ten days following the initial court appearance if the defendant is detained and not later than 20 days if the defendant is not detained. Id.
5. Court reporters.
In Virginia, court reporters are not provided by the District Court, and must be hired by the party. Court reporters are provided in Circuit Court.
Court reporters are provided in the remaining jurisdictions of Maryland, the District of Columbia, and the federal courts. Jon Katz.
August 21, 2006
Three prosecutor blogs found: Know the Opposition.
Prosecutor blogs seem few and far between to find. This week, I have added links to four of them, in their own separate category, including CrimLaw, whose bloghost Ken Lammers has switched to the prosecution side. Please let me know of other prosecutor blogs in addition to the following:
PROSECUTORS, CURRENT AND FORMER: Know the Opposition.
- Commonwealth Conservative - By Wise County, Virginia's elected chief prosecutor, Chad Dotson. He supports Senator George Allen, and tries to minimize Allen's macaca-gate.
- CrimLaw - Bloghost Ken Lammers has switched to the prosecution side, under Commonwealth Conservative Bloghost Chad Dotson in Wise County, Virginia.
- Prosecutor Post-Script - A former prosecutor, she and I call each other's side the dark side. Keep the opponent no further than arm's length.
- Seeking [In]Justice - By Richmond prosecutor Tom McKenna. I almost did not post a link to this blog that nearly made me lose my lunch. However, let this opponent be revealed. Jon Katz.
August 21, 2006
Virginia criminal defendants: Know your rights / Reverse Virginia's pitiful pay for court-appointed counsel.
CrimLaw has presented an excellent overview of what lies ahead for a criminal defendant in Virginia. I plan this week to provide comparisons and contrasts between CrimLaw's Virginia overview and the criminal law and procedure system in Maryland, the District of Columbia, and the federal courts.
CrimLaw's Ken Lammers has given his full candor on his financial difficulties in earning a living from court-appointed cases in the state that ranks at bottom for pay to court-appointed criminal defense lawyers. Starting around September 1, 2006, he will become an assistant prosecutor in Wise County, Virginia.
We need to end the shameful Sixth Amendment violation that continues in Virginia with its pitiful pay to court-appointed lawyers. Some counties have public defender offices; some very good lawyers are at those offices, and I imagine they get better pay annually than most Virginia court-appointed lawyers. I will try to find out -- and report back here -- how Virginia public defender pay, resources, caseloads, and quality control compare to other states' public defender systems. Jon Katz.
August 20, 2006
George Allen: Meet Andrew Young and Mel Gibson / Update on macaca-gate.
We need to know public figures' views and comments on race relations and other issues of prejudice, so that we may make informed decisions at the polls and in our purchasing habits. Without going into further depth on my recent blogs on this issue (see here and here), this has been quite the month for public figures to stick their feet in their mouths on such issues.
Now added to this list is Andrew Young, who spoke such a blunder that I wonder whether he applied to work for Wal-Mart as a plant of those opposing this corporate giant. ABC News's website reports:
"Young told the Los Angeles Sentinel, a black community newspaper, that those small shops 'are the people who have been overcharging us, selling us stale bread and bad meat and wilted vegetables. … They've ripped off our communities enough. First it was Jews, then it was Koreans and now it's Arabs. Very few black folks own these stores.'"
"Wal-Mart Watch circulated and publicized Young's comments. By Thursday night, Young had apologized and resigned as chairman of Working Families for Wal-Mart. And Walmart began to distance itself from the man it thought would help it, saying in a statement that "'Young's comments do not represent our feelings. … We were outraged.'" See http://abcnews.go.com/US/story?id=2331545&page=1 .
Before this month, I did not know Senator Allen or Andrew Young had questionable views on race relations, and had not concluded from The Passion of Christ that Mel Gibson had anti-Jewish prejudices. People will draw their own conclusions of their recent comments, as they should. In any event, if people are going to hold such views, I much prefer that I know where they stand (and where I stand) than for it to be otherwise.
Finally, regarding George Allen's macaca-gate, Wise County, Virginia, Commonwealth's Attorney Chad Dotson blogs in favor of George Allen, and claims that this picture of Mr. Sidarth shows a Mohawk haircut. However, this Washington Post picture looks quite different. Neither source provides the date that either photo was taken. Jon Katz.
August 18, 2006
Having fun while fighting the powers that be.
During my first year of law school, I got more disenchanted than ever with the political and legal system. I got the impression that conformity ran rampant among most lawyers, law students, and law professors, and that the bottom line was earning a living and avoiding making waves that would get in the way of doing that.
During this time, in the late 1980's, I would not be online for several years more to connect with like-minded lawyers and law students aside from those I knew locally and ultimately met at NACDL meetings and Macon .Fortunately, I got the message soon enough to transcend my disenchantment by focusing on achieving my goals for justice rather than lamenting the number of conformists who did not want to join me. It started with Ralph Nader, when he spoke at my law school at the invitation of the Equal Justice Foundation. Whether or not Mr. Nader inherited or lived with a comfortable lifestyle, his advice remained true: work for justice today, even if that interferes with grades (a lawyer at Public Citizen -- which Nader helped found -- later told me that the group is grade-snobbish in hiring); powerful change can come from two people drafting a proposal at a kitchen table; and beware the seduction of abandoning our ideals in exchange for having hundred dollar bills stuffed in our pockets by corporate law firms and other corporate interests.
Not having digested Mr. Nader's words yet, I asked how he felt about the loss of so many would-be do-gooders to the bottom-line capitalism camp, including the hippies-turned-yuppies. Instead of shaking me by the shoulders, calling me a dummy, and telling me his speech had already answered this, he reminded me that positive change can come from as little as those two people drafting a proposal from their kitchen table.
My disenchantment, however, overabsorbed me. I asked myself how I could fully enjoy life while torture, imprisonment of prisoners of conscience, and all other sorts of human rights violations ran rampant. I felt overwhelmed by all the doom and gloom filling Amnesty International Reports (the same Amnesty International that counseled to light a candle rather than cursing the darkness), Index on Censorship, and the front page of the New York Times. Then, during my first summer in law school -- while seeing federal government workings at the then-named Federal Home Loan Bank Board in the middle of the Savings and Loan scandal -- I went to the Northern Virginia ACLU's annual meeting at the French Embassy, with the location striking me as somewhat odd, seeing that the ACLU has tended to keep at least an arms length from governments.
I spoke with the ACLU chapter president, and told him how overwhelmed I felt by the ongoing rampant civil liberties violations. He responded that he refused to stop being positive about the prospects for civil liberties. Then, the featured speaker took the microphone. I forget her name, but know she was a seasoned activist with the National Organization for Women. She was full of urine and vinegar, rallying the troops, and talking of being more accustomed to speaking through a bullhorn than into a microphone. She took issue with the ACLU if it were to support pro-lifers' rights to demonstrate right outside abortion clinics (I support that right, too, as clearly First Amendment-protected), saying that maybe her position would get more support if the demonstrations were outside a vasectomy center, where one slip by the doctor from the distraction of the protesters could cause the patient quite the pickle. When I asked her what she thought about working side-by-side with conservative feminists, she insisted that no such feminists exist.
One day in my second or third year of law school, I ran into Natan Sharansky on the street. Regardless of my differences between my dovish Zionism and his apparently more hawkish Zionism, this was a very important, yet brief, meeting; I told him how inspired I was to see him finally out of prison, after working for the freedom of Soviet Jews and Ethiopian Jews in college. This man had reached the literal light at the end of the tunnel. I had never been in much of a tunnel; I'd be no good to help anybody if I let myself be overwhelmed by all the injustice around me rather than finding a way to carry on all the battles for justice that had already been waged and often won.
Part of my getting back on track to optimistically fighting for justice was reconnecting with my deep sense of humor that was always there, but which I too often let lag behind somewhere. My inspirations for reconnecting with my humor included the great philosopher Bill Griffith, the world's brave methane lighters, Edith Prickley, and Johnny LaRue. It also helped to learn that Abbie Hoffman was quite the prankster, from his outrageous passages in Steal This Book to his antics at the Chicago Seven trial to the time that, unsolicited, he self-appointed himself a street barker inviting people into a Times Square strip club.
I also learned that Bill Kunstler would bring coffee and donuts to the JDL members who would protest outside his office for his representation of El Sayyid Nosair. During summers in upstate New York, he sent his daughters to a summer camp run by conservative Christians, seeing that it did not seem to cause any problems for his daughters (who perhaps littered the camp with radical tracts and rants). Soon before Gulf War I started, I went to a pro-pot rally at Lafayette Park, and met more optimistic crusaders for justice, including the colorful Jack Herer and Lone Reefer. Not having been a member of the pot party -- but instead advocating marijuana legalization for civil liberties and medical marijuana reasons -- I needed something other than pot to loosen up while fighting the good fight.
I kept trying to connect with kindred spirits. In 1990, I went to the NORML annual conference in Washington, DC, and recognized at once that I felt too isolated in my daily life from like-minded spirits, that such spirits were all around me, and that birds of a feather don't fly far if they just stick together without circulating among everyone else. Paul Krassner had me rolling in the aisle with laughter, his powerful weapon. Expected speaker Hunter Thompson, being Hunter Thompson, simply did not appear.
I did not belong as an associate lawyer at a small corporate law firm, so I found a way to join the Maryland Public Defender's Office after overcoming my hesitation about doing criminal defense work where I previously questioned how I would feel defending people I knew were guilty of rape, murder, and other heinous offenses. As I learned more about the injustices of the criminal justice system, those hesitations rapidly became distant memories.
To truly reach my potential for fighting justice, I needed to shed myself of bosses. I did that in 1998, along with my law partner Jay Marks. What keeps our batteries charged is fighting on the side of the angels; often winning, and reveling in each victory; and keeping our humor engines running, from the sophomoric and buffoonish to the more ready for prime time. In court, humor sometimes has its place, as when I cross-examined a cop at a preliminary hearing about how he knew in the first place what marijuana smelled like: "Did you receive marijuana joints to smoke, as in Serpico?" This entertained the judge, which perhaps made him more inclined to cut me some slack as I kept weaving in entertainment as I obtained important information to defend my client.
My temptation to feel dread over all the ongoing injustice is strong, including the dread I often feel in the pit of my stomach as I enter a courthouse with the recognition of all the injustice that has happened there, but needing to remember all the justice that has been done there, too, and that will continue to be done there. Like the protagonists in M*A*S*H, I search out the often bent side of humor to maintain a sane balance. T'ai chi alone won't do it for me. Jon Katz.
August 17, 2006
Doing t'ai chi with my opponents.
The more I rant and rave against my political and ideological opponents, the more I seem to bump into them, almost as if my friends were playing a sick joke on me. In reality, though, it happens because I have chosen to be a criminal defense lawyer, which brings me in contact with my opponents all the time, and because I am within a mile of the Washington, DC, border.. However, state's attorney Gansler's move to our building for his state attorney general campaign headquarters did start me thinking whether someone I know had goaded him to move just one floor below our office.
When I bump into my opponents, I try best to separate the sin from the sinner. Taking that approach, I have been able to feel full comfort at all times with my law partner Jay Marks, who is not a political opponent, but had been a big fan of my nemesis Ronald Reagan and was active with the Federalist Society set in law school. At all times, Jay and I, nevertheless, have pursued many critically important overlapping views on individual liberties.
In 1987, my law school legal research and writing instructor pulled me to reality when somehow we got on the topic of my overboiling anger at Ed Meese and crew's trampling on individual liberties. He opined that anything less than a diplomatic tone of voice in talking with him or other opponents would mark me as a loony toon whom nobody would take seriously. I finally remembered a WWII movie scene where a GI is calmly chomping on a cigar while gunning down Italian soldiers from a hidden location. His calmness is surreal with all the death and maiming his bullets would have been causing had this not been Hollywood. Several years later, I became a lifelong student of t'ai chi, recognizing then more than ever before that to be the strongest fighter, I must empty myself of all anger and tension in dealing wtih an opponent -- while keeping the passion that drives me -- and that it is better to keep an opponent at arm's length where I can keep an eye on the opponent's strategizing and efforts at attack.
It was not an easy transition going from seething over Reagan and his crew -- followed by Bush I -- wreaking havoc on civil liberties just four blocks from my law school, to now, when at my best I approach my opponents as a t'ai chi practitioner. An important example of my metamorphosis is in my dealings with Dick Thornburgh.
Two months before graduating law school in 1989, I learned that then-attorney general Dick Thornburgh would be honored as the keynote speaker. To me, Thornburgh's Justice Department continued where the Meese Justice Department left off, with rampant disrespect for immigrants' rights, a First Amendment-trampling anti-obscenity campaign, advocating drug-testing of its employees, and, of course, continued assault on women's right to choose abortion. Sadly, regime change did not result in a Clinton Administration that championed civil liberties nearly as much as I hoped it would (and the notion of a drug-testing-free society has become a quaint one for now), although Clinton certainly was pro choice, and his administration withdrew from obscenity prosecutions in favor of child pornography prosecutions.
My close law school friend Lou Manuta and I identified and weighed our options: boycott the graduation; tape protest messages to our graduation caps; or proceed with the graduation but leaflet the attendees. We arrived at the third option after concluding that a small-scale boycott would not be a message to anybody, and that there's not much of a persuasive message to put on a graduation cap. Consequently, we put together a simple leaflet saying: "George Washington Law School welcomes Dick Thornburgh as keynote speaker.... But," and continuing on the inner pages to detail our above-listed concerns. With some fellow graduates joining our cause, we called ourselves Law Students for Justice, suggested that people contact Mr. Thornburgh directly with their concerns, and recruited a few people to hand out the leaflets as attendees filed in.
As it turned out, Mr. Thornburgh's speech was very unpolitical. He spoke of this being a country of laws rather than a country of men. He went on in that vein. At the end of his mercifully brief and lackluster presentation, he got a standing ovation; I do not know if my leafleting friend and I were the only ones remaining seated. Over time, I recognized that Thornburgh was not the raging idealogue that personified his predecessor Ed Meese, although I do not think he was a mere technocrat, either.
I later bumped into Mr. Thornburgh, twice. Our first meeting was in 2000, when I spoke on behalf of robust free expression rights before his Orwellian ad hoc committee called, in true Washington-ese: Tools and Strategies for Protecting Children from Pornography on the Internet and Their Applicability to Other Inappropriate Internet Content. My published article on this committee is here. Before my panel got started in the Holiday Inn conference room not far from the famous Exorcist scene with the steep Georgetown steps, I told him of my leafleting campaign against him. To his credit, he smiled and cheerfully said that he had been leafleted by the best of them. Sometimes I wish that my opponents were more unlikable as individuals; some are likeable by nature, whereas others lay it on thick.
Then, last Friday night, I bumped into Mr. Thornburgh in downtown Bethesda, as I walked with my wife and baby boy to the bookstore. I said hello to him, and reminded him of my First Amendment defense activities. He told me he remembered me; had he been hanging out with Harry Lorayne, or perhaps he'd caught me on television? His wife and he showed great delight in our son; now that he doesn't seem to be aiming for any more political positions or a Supreme Court justiceship, I figure that was genuine. Because he does not seem to have much or any political clout left, there wasn't much political for me to say, other than to tell my son right there and then that he's been my political opponent.
It's curious how amiable some opponents can be with each other. Among the most striking examples is the time that radically progressive lawyer Arthur Kinoy bumped into late Supreme Court chief justice William Rehnquist on the street. They both warmly greeted each other, apparently with neither concerned that showing such mutual warmth would detract from their images of the radical progressive and the right-wing justice.
Sometimes it is easy to overlook that our opponents also are humans, until we meet them. Jon Katz.
August 16, 2006
Jon Katz, P.C. is eight-years-old this week!
Thanks to my law partner Jay Marks, our staff, clients and kindred spirits for our amazing eight years together, where each morning, I proclaim, as did Mel Brooks, "It's good to be the king."
Who would have known that the seeds of our law firm were in the making when Jay and I first met in 1969 at a six-year-old birthday party in Monroe, Connecticut? From there, until we finished law school, we traveled mainly in different yet sometimes parallel circles. We both ultimately landed in the D.C. area, and started bumping into each other, on the street, in the courthouse, at Lexington Market. We renewed our friendship.
Then one day eight years ago -- on two separate occasions, actually -- a lawyer opposing Jay and me, when we represented co-plaintiffs while we were with separate law firms, got same-day trial postponements over our vociferous objections. Each time, having time to talk, with our calendars cleared for trial, we discussed where our careers were headed. We were ready to take the leap at the same time to being our own bosses, and agreed to do it together. Numerous colleagues whom I respect very much had been encouraging me for several years to become my own boss. We opened two months later.
Jay and I remain like yin and yang, creating a harmonious whole, still stubbornly and successfully committed to serving the side of the angels, and loving it. On the day we finalized our partnership agreement with our business lawyer, he asked in a head-scratching tone: "You're really going to go through with this?" We took the leap, we shed ourselves of bosses, we empowered ourselves, we never looked back, and keep looking forward. This is no exaggeration; that's why we're still here.
Some more biographical information on our genesis is here. More on Jay is here and on me is here. I talk about the benefit of being our own bosses at Law.com, here. It's time to go to court and do some more knee-whacking. Jon Katz.
August 16, 2006
Some good suppression cases, the Busted video, and Virginia's malfeasance statute.
Weapons for the criminal defense are meant to be shared, so I share some good suppression cases and other powerful weapons for justice here:
- Virginia Code § 19.2-59 - A tip of the justice hat to Harrisonburg lawyer Robert Keefer, for making prominent this law that penalizes police officers' unlawful searches as criminal malfeasance in office, with punitive and compensatory damages liability to their victim, and with firing for the second offense.
- The Busted video uncut and viewable for free online - Another tip of the justice hat to Harrisonburg lawyer Robert Keefer, for making available this brilliant video for emboldening people, with a smile, to assert their rights to remain silent, to decline "consent" searches, and to lock their car doors when told by police to get out of the car.
- Aguilar v. State, 88 Md. App. 276, 594 A.2d 1167 (1991) - Drawing a line on the Terry search and search incident insanity.
Ferris v. State, 355
- Derricott v. Maryland, 327 Md. 582 (1992) - Rejecting racial profiling for traffic stops.
- Bryant v. State, 129 Md. App. 150, 741 A.2d 495 (1999), cert. denied, 358 Md. 164 (2000) - Putting the brakes on prosecutors commenting on a non-testifying defendant's courtroom demeanor, absent the defendant's trying to communicate to the jury from counsel table.
Reynolds v. State, 130
August 15, 2006
How does a minority defendant feel walking into a courthouse with a confederate soldier out front? What does this say to a racist juror instructed to set aside prejudice?
When I was deciding whether to take the Maryland or Virginia bar exam at the end of law school (I chose Maryland, and later took the Virginia exam), a northerner observed that "One's Mason; the other's Dixon," not realizing that such a line separates Maryland from Pennsylvania.
My move from New York to the DC area in 1986 brought with it substantial culture shock about being around honors to confederate soldiers and the confederacy all over the place. (Worse was learning how rampant was the racism and segregation in the District of Columbia and Maryland right into the 1950's and 1960's). I'd see the stars and bars draped on vehicles; an Anne Arundel County, Maryland, restaurant mural paying tribute to confederate soldiers singing "Maryland, Oh My Maryland" as they crossed the Potomac into Maryland; and, after passing the Virginia Bar, a confederate soldier statue standing guard over the Loudoun County courthouse and an engraved portrait of Robert E. Lee in the Culpeper County Circuit Court clerk's office.
Consequently, I posted the following to the listservs of the Virginia Association of Criminal Defense Lawyers and the Virginia Trial Lawyers Association:
accustomed to seeing such confederacy remnants where I usually practice, I ask
all of you for examples of other courthouses that prominently display remnants
of the confederacy.
"How do you feel about this state of affairs? For me, I wonder how fair a
trial a minority feels s/he’ll get at a courthouse that prominently displays
confederate soldier statues and Robert E. Lee portraits, and whether such
confederate symbols will embolden jurors who are racists to ignore jury
instructions to set aside prejudice. I suppose an alternative to dismantling
these confederacy reminders is to put up statues and portraits of Martin Luther
King, Jr., Frederick Douglas, and other champions for racial justice."
"How do you feel about this state of affairs? For me, I wonder how fair a trial a minority feels s/he’ll get at a courthouse that prominently displays confederate soldier statues and Robert E. Lee portraits, and whether such confederate symbols will embolden jurors who are racists to ignore jury instructions to set aside prejudice. I suppose an alternative to dismantling these confederacy reminders is to put up statues and portraits of Martin Luther King, Jr., Frederick Douglas, and other champions for racial justice."
The replies have shown, among
other things, a civil war soldier and Stonewall Jackson statue at the Albemarle
courthouse; and the Louisa County Circuit Courtroom with a big Robert E. Lee
portrait facing the judge. One member puts the confederate honors lower on the
list of concerns of a minority criminal defendant than a trial presided over by
an all-white jury and white judge. Another member said he apologizes to his
clients for being a white male, and for his German and Italian heritage.
I can say these confederate soldier statues and Robert E. Lee pictures at the courthouses give me cause for pause about the message about justice given to litigants and jurors entering the courthouses, and continue to give me cause for pause. I know that Lee/Jackson Day is an official Virginia holiday, that Lee Highway goes for miles and miles, continuing with a new name once it hits Washington, DC, and that Arthur Ashe's statue was relegated far away from the statues of confederate figures on the same roadway in Richmond. However, these very courthouses that in the past enforced Jim Crow laws continue carrying these honors to confederates and the confederacy without counterbalancing messages, from what I can tell. I do not see how this is not important enough to address head on. By Jon Katz.
August 15, 2006
Virginia Senator George Allen demeaningly calls Indian-American man "macaca".
Because lawmakers and government executives bring us the laws under which my clients get prosecuted, from time to time I will discuss the non-judicial branches of government.
TalkLeft does a good job at covering Virginia Senator George Allen's sticking his foot in his mouth (at best) followed by his campaign manager's sticking her foot and the senator's feet further in their mouths by asserting that it is a non-issue that the senator repeatedly called an Indian-American "macaca" when that is not his name (his name is S.R. Sidarth), but is instead a name for a monkey with a hairstyle that Sidarth does not wear. [UPDATE (Aug. 20, 2006): Wise County, Virginia, Commonwealth's Attorney Chad Dotson blogs in favor of George Allen, and claims that this picture of Mr. Sidarth shows a Mohawk haircut. However, this Washington Post picture looks quite different. Neither source provides the date that either photo was taken.]
Virginians especially, see the video of George Allen's Macaca-gate. This footage does not lie. By Jon Katz.
August 15, 2006
Venire jury members, be truthful; any other approach can mean a retrial.
Bravo to the four of seven Maryland Court of Appeals judges who this month proclaimed:
hold that, where there is a non-disclosure by a juror of information that a voir
dire question seeks and the record does not reveal whether the non-disclosure
was intentional or inadvertent, n9 the defendant is entitled to a new trial. n10
That the disclosure would not automatically have required a strike for cause
does not matter; it is the inability of the defendant to have the benefit of a
further investigation by the court, he or she being deprived of the ability to
delve into the juror's state of mind for bias and of a finding in that regard,
that is decisive. The perceived "remoteness" of the potential bias
does not preclude bias; without a finding of fact in confirmation, it cannot be
a sufficient reason to deny a new trial.
Williams v. State, No. 121, Sept. Term 2004, ____ Md. ____ (Aug. 3, 2006).
Perhaps ironically, such juror non-disclosure would probably be minimized if Maryland gave attorneys in criminal cases the right to lawyer-conducted jury voir dire. Alas, judge-run voir dire is the ordinary state of affairs in Maryland. By Jon Katz.
August 14, 2006
Prison censorship; prison rape.
Many politicians think it is politically popular to push for removing "criminals" from the streets. One problem is that too many activities are criminalized that should not be criminalized. Another problem is that too many people are locked up for the wrong reasons and for too long, whether because of unjust bond laws, unfair mandatory minimum sentencing laws, unfair sentencing guidelines, and unfair sentences, period. The final problem, particularly for those not concerned about the first and second problems, is that the jail and prison system imposes too great a drain on the economy, which helps explain why so many economic conservatives want to downsize or eliminate the drug war.
Too often, convicted persons are warehoused in jails and prisons (I call them cages), often returning to the streets at the end of their sentences -- or on parole (the federal government and some or many states no longer permit parole) or probation not only without additional skills to be productive outside of prison walls, but sometimes more hardened than before entering prison. Consider, for instance, the high incidence of prisoner-against-prisoner rape and staff sexual harassment against prisoners. A 2005 federal government study -- produced pursuant to the Prison Rape Elimination Act of 2003 -- acknowledges not only the severely rampant incidence of prison rape, but also the reluctance prisoners often have in even reporting being raped.
While Robert De Niro's Max Cady in Cape Fear may have been an extreme example of the violence and anger that can result when a raped prisoner returns to the street (and, in this film, Cady was extremely violent before entering prison, and was also angry that his lawyer had sold him down the river), it is a fairy tale to expect that a prisoner who is raped by other inmates -- without the ability to escape the assailants day in and day out -- will somehow emerge from prison without serious psychological scars that can lead to harm to other people. This is not meant to advocate further controls on convicted persons, but is meant to encourage heavy reform of the rampant long-term warehousing of people convicted of crimes, often for drug crimes that involve no direct violence.
Moving beyond the prison rape issue is the issue of censoring prisoners. If a convicted person is going to be put in prison, it is a bad civics and rehabilitation lesson to over-censor the prisoner. Unfortunately, recently the United States Court of Appeals for the Seventh Circuit upheld such over-censorship, in upholding a prison's refusal to send an inmate's letter encouraging a company to produce stickers, t-shirts and other products that would refer to "The Department of Corruptions" below a swastika and above the slogan "Keeping Kids in Kages." In so doing, the court granted too much unbridled discretion to the prison system to suppress First Amendment rights, and also enabled the prison to engage in self-serving censorship of an inmate's complaints about the prison system. Irony of ironies, the Seventh Circuit deferred to the prison staff's "assessment that Mr. Koutnik's correspondence to Northern Sun contained gang symbols," even though the use of the swastika and KKK reference seemed to be meant a description of the prison system rather than as a promotion for the activities of nazis and KKK members and their symbols. The case is Koutnik v. Brown, 2006 U.S. App. LEXIS 20249 (Aug. 8, 2006). Thanks to lawyer Larry Sutter, Senior Counsel at Penthouse Media Group, Inc., for bringing my attention to this case.
Unfortunately, another prison plans to set a disciplinary hearing for an inmate who has created beautiful art using M&M's for paint and his hair for a brush, because he has been denied art supplies (for reasons I do not know). Inmate Donny Johnson is accused of running a business from prison without the warden's permission, even though the proceeds go to charity. His mother said: "'He just found an outlet for his energy.'" "'He says, "When I paint I leave the room. ... You just go into your own space and time." It really helps him survive.'" If only prisons would make art supplies available to all inmates, and if only more inmates would find painting to be a positive outlet of their energy, and a way mentally to escape their cages.
While I believe that prisons have their places -- but that they have been overused and abused for too long -- my friend Jun Yasuda takes a more radical approach than mine. Jun-san -- who has been on many a peace walk for prisoners, and has vigiled and fasted for Mumia Abu Jamal -- says: "All living things are sacred. Punishment is no solution; putting people in cages is no solution; more killing is no solution. These things happen because of fear. We believe in taking care of each other in a human way, with compassion." The time to start taking care of our fellow human beings is from birth, continuing to all stages of life. This can be done without instituting more socialism, and without enforcing social engineering, so long as more people help others from the goodness of their hearts, rather than living isolated lives of going to work, providing for their families, staying wired to the Internet and their home entertainments systems, and doing nothing else to better society. By Jon Katz.
August 13, 2006
Car passengers can have standing to challenge car stop and search.
When a judge asks a lawyer whether s/he has a case to support an objection or motion, sometimes the judge is leaning towards denying the objection or motion absent such caselaw. In the absence of caselaw, the lawyer needs to cite the Constitution, and needs to remind the judge that Constitutional issues must be decided in the trial court, even in the absence of caselaw.
One of Maryland's great Fourth Amendment cases for the defense is Ott v. Maryland, 325 Md. 206, cert. denied, 506 U.S. 904 (2002). In Ott, an officer approached the only car parked in a shopping center parking lot late at night, obtained the two occupants' identifications, and determined that Mr. Ott, in the driver's seat (where the owner was in the passenger's seat) had an open arrest warrant. Ott reversed the arrest and subsequent search, holding that insufficient grounds existed for permitting the arrest of Ott (which led to drugs being found only during a search incident to that arrest), seeing that the officer relied on a database that was incorrect for several days, in that the warrant stopped being open several days beforehand.
With Ott, it is not enough to rely on a police officer's say-so that the officer turned up an open arrest warrant for a suspect, or found that a car or other item had been reported stolen. Under Ott, the defense is permitted to attack the credibility and reliability of the police officer and the information relied upon by the officer.
Also important is that Ott leaves open the possibility of standing of a car passenger to challenge the stop, seizure and search of the car and the passenger. This counters any suggestion that a non-owner passenger of a car somehow is automatically deemed to have no reasonable expectation of privacy in the car. Ott, 325 Md. 206. By Jon Katz.
August 11, 2006
The Bush Administration tries to intimidate future Daniel Ellsbergs, Deep Throats, and journalists who would print their disclosures.
When I chose to study law in Washington, DC, I had visions of doing good through government and outside it. Then, while visiting Washington to find an apartment -- and beyond -- I wondered whether this was the government I wanted to work with. The military presence was over-saturated on land and in the sky. I wondered whether an upstanding president would replace Reagan before I graduated from law school (instead, we got Bush the First), and a mentor who previously held a federal general counsel position said "If you want to play god, government is not the place to do it."
Consequently, aside from a law school summer at the former Federal Home Loan Bank Board in the eye of the savings and loan scandals, I did all my do-gooding work outside government. Fortunately so, because not a day passes that I am not mortified at the constant injustices perpetrated by federal, state and local governments.
A case in point is the current federal prosecution against two former employees of the American Israel Public Affairs Committee (AIPAC) for allegedly conspiring to transmit information relating to the national defense, in violation of 18 U.S.C. § 793(g). The case is U.S. v. Franklin, U.S. Dist. Ct. Crim. No. 1:05-cr-00225 (E.D. Va.). The gist of the case is that the two AIPAC defendants received purportedly classified information from a State Department employee cooperating with the Federal Bureau of Investigation, and passed the information to journalists and foreign officials. On August 9, Judge T.S. Ellis denied the AIPAC defendants' motion to dismiss the prosecution on such grounds as vagueness of this World War I-era statute and First Amendment protections.
Judge Ellis's opinion is lengthy as is the motion to dismiss. My initial brief review of this case scares me that the prosecution has not been dismissed for the statute's very vagueness (e.g., about what constitutes "information relating to the national defense") and violation of the First Amendment (gagging reporters from informing the public about the many otherwise cloaked injustices perpetrated by those that govern). This prosecution, if not dismissed on appeal or resolved by an acquittal, will chill future Daniel Ellsbergs, Deep Throats, and journalists who print their disclosures.
In June, I urged media courage in bringing the government's dastardly actions to light. It is time to repeal this law, which is 18 U.S.C. § 793(g).Thanks go to Secrecy News for covering this story. By Jon Katz.
August 10, 2006
Jon Katz, P.C. wins acquittal for client caught red-handed with a handgun at airport baggage scanning, using basic trial outline.
Yesterday, I won the following acquittal, and simultaneously sang to myself "'Scuze me while I kiss the sky," "And I said to myself, what a wonderful world," and "Hot damn!"
Here's how it started, our client is caught red-handed at National Airport (I refuse to use the former president's name in the title; it was National Airport long before he took his throne at 1600 Pennsylvania Avenue and installed people who'd have had ketchup fulfill one of the vegetable servings in the daily school lunch program) in Arlington, Virginia, with a handgun allegedly showing on the x-ray screen at the carryon baggage checkpoint.
At trial, the judge denies my motion to suppress evidence of the handgun and my client's alleged admission that it was his bag that contained the gun. The judge does suppress my client's non-Mirandized statements (that he forgot the gun was still in his bag, which is consistent with this gun being lightweight) in the TSA office after he already allegedly said it was his bag with the gun.
The prosecutor rests his case. I move to dismiss the case (called a motion to strike, in Virginia) due to the prosecutor's failure to show the handgun, and failure to explain why the handgun was not offered into evidence, in that the proof is in the pudding. Then, I pull out our smoking gun: "Judge, the case needs to be dismissed because the prosecutor presented no evidence of a sign posted to give reasonable notice to the public of the prohibition against dangerous weapons. That requirement is an essential element of the regulatory crime [Airports Authority regulations section 8.4] under which my client is being prosecuted. Here's my copy of the regulation."
The judge agrees that no such evidence had been presented about such a warning sign against dangerous weapons. The police officer, sitting next to the prosecutor (I had moved for witness sequestration at the outset of trial, but did not expect to present evidence, which would have prevented the officer from testifying in rebuttal), proclaims loudly enough for the judge to hear: "There were signs at the terminal." The judge confirmed, though, that, it was too late to present any further testimony (which is quite different from a Maryland District Court judge who once asked for more evidence from a police officer when I already was in the middle of my motion for judgment of acquittal).
The prosecutor proclaims that his copy of the applicable regulations is silent about requiring the presence of a warning sign, and asks the judge if her copy has such a provision, which it does not. I say: "My regulation copy is clearly the reliable version. I printed it this morning from the Airports Authority's website," which is http://www.metwashairports.com/_/File/_/PDFregs.PDF. The judge gives the prosecutor ten minutes to see if he wants to present additional arguments against my claim that my version of the regulations are the most updated.
The prosecutor returns, and concedes that my version of the regulations are the accurate version. The judge then finds my client not guilty, without inviting argument (nor hearing protest) from the prosecution.
This victory supports my strong belief in pleading innocent if the likely outcome of going to trial is no worse than pleading guilty. Moreover, acquittals do not come without "not guilty/innocent" pleas.
Of course, I had no reason to expect that a victory at this trial would result from the warning sign issue. This win came from applying the basics of always having a checklist at hand of a crime's elements; keeping the trial moving at an efficient pace without sacrificing key arguments, objections, and evidence; and helping the judge or jury feel comfortable enough with acquitting. In this instance, the judge denied some of my motions and arguments, and I left the best for last, which was my argument to dismiss for the absence of evidence about warning signs.
While a basic trial checklist (preferably in writing, or else kept at the center of the brain) will not win the trial, the failure to use such a checklist can be fatal. My checklist for this trial looked like this:
1. Move to sequester witnesses. Any other preliminary matters. Opening statements.
2. Prosecutor's case in chief.
a. Checklist for elements of the crime:
- Defendant (sometimes the witness does not identify the defendant, which is a ground to move to dismiss)
- Possessed (possession is defined as knowledge, dominion and control)
- Or brought into the following applicable locations
- A dangerous weapon (in this instance, a pistol, revolver, or other weapon designed or intended to propel a missile of any kind)
(NOTE: In Virginia, the firearm does not necessarily need to be operable. Armstrong v. Com., 263 Va. 573, 583-84 (2002). In Maryland, on the other hand, a firearm must be operable to sustain a conviction for possessing a firearm. Powell v. Maryland, 140 Md. App. 479, cert denied, 367 Md. 90 (2001)).
- Into National Airport's terminals or the airfields or any building that opens onto the airfield on which signs are posted so as to give reasonable notice to the public. (At this trial, I argued that the rule of lenity made the sign requirement applicable to terminals, airfields, and buildings, and not just buildings. Nobody paid attention to that issue).
- On [insert date and time]
- At [insert address and county or city where the court sits]
- Without legal justification or public policy excuse
3. Cross examination (First consider whether cross examination will help more than hurt the defense). Be careful whether offering any exhibits into evidence at this stage will preclude the defense from moving for judgment of acquittal after the prosecution rests.
4. Prosecution rests after re-direct examination.
5. Defense moves to strike the evidence, based on legal arguments, arguments that the prosecutor's burden has not even been met at this stage, and arguments that evidence about one or more of the elements is missing.
6. Defense evidence. Decide with client whether to waive the Fifth Amendment, and whether to introduce evidence.
7. Prosecution's rebuttal evidence (not available if the defense presents no evidence).
8. Defense renews motion to strike evidence, and reincorporates by reference the original motion to strike.
9. Closing argument, which may include an applicable discussion of reasonable doubt (e.g., the lying prosecution witness is reasonable doubt defined/personified; if you'd return home on the way to vacation to make sure the stove's not still on, that's reasonable doubt; if a cat's in a box with a mouse and later is alone all smiling, it's still reasonable doubt whether the cat ate the mouse if you find a small hole in the box (and the prosecutor's case is full of holes)).
10. If an acquittal, celebrate. If a guilty verdict, minimize the damage by fighting for the most favorable possible sentence.
11. If the judge orders executed incarceration, argue for an appeal bond, the payment of which will keep the client at liberty pending disposition of an appeal. If the judge denies an appeal bond, go to the next highest court to seek an appeal bond.
12. Have the client advised of the applicable rights to appeal, motion for retrial, and motion to reduce sentence.
13. Be available with information and emotional and legal support for the client, and the client's friends and family.
14. Get self back to harmony from any defeat. Make the time before much time passes to identify and learn from the strong and weak performances at trial by everyone involved.
15. Move onto the next battle. Keep focusing on improvement. Or, as an amateur jazz pianist responded to what he believed to be the idiotic question to a jazz great about how much the musician practiced: "You practice til you're f---ing great... Then you have a cup of coffee... Then you practice some more." And some more. By Jon Katz.
August 9, 2006
Gansler campaign signs come tumbling down.
On July 26, I blogged against the Gansler attorney general campaign, which is just one floor below our law firm. On July 27, I faxed our office building landlord -- with a copy to the Gansler campaign -- a letter demanding equal opportunity for all tenants to post signs on the building lawn (mine to have been anti-Gansler signs) seeing that four Gansler signs had been placed there, allegedly by the building owners' choice.
Today, the landlord faxed me a letter that this afternoon, all four Gansler signs had been removed. The landlord did not take me up on my suggestion of enabling me to post anti-Gansler signs; all signs are down. By Jon Katz.
August 9, 2006
Identifying, selecting, preparing and presenting expert witnesses.
Criminal defense is battle, and sometimes war. I have posted a list of expert witnesses -- and sources for finding them, as well as other relevant information sources -- that I will occasionally update. Some I have worked with, and others I have heard about through recommendations or otherwise. Consequently, quality will vary. I welcome recommendations for additions to this list.
Caveat emptor: Credibility is key with every lay and expert witness, both in terms of (1) the expert's honesty (the expert's credibility can be enhanced if the expert has worked in law enforcement, has testified for the prosecution or can explain why the expert has not so testified (e.g., with drug chemists, the prosecution has its in-house witnesses), background, likelihood to qualify as an expert witness, and ability to perform in court (not only on the witness stand, but also for cooperating with the lawyer's, client's and court's schedules) and (2) the lawyer's ability to help the expert be understandable, credible, and likeable to the jury. A good basic article is here for using and finding experts for criminal cases. By Jon Katz.
August 8, 2006
Don't let a Virginia jury convict, because next the jury fixes the sentence.
In Virginia, unless the parties agree otherwise, a jury decides whether a defendant is guilty or innocent in a jury-triable case, and the jury fixes the sentence in a second phase of a bifurcated trial, even though the trial judge is permitted to suspend a portion of that sentence. Va. Code §§ 19.2-295 and 19.2-303.
For convictions involving victims, the Virginia Court of Appeals recently confirmed that the prosecutor is permitted to present victim testimony at the outset of the sentencing phase, whether or not the defendant presents evidence or testimony at sentencing. Washington v. Com., 2006 Va. App. LEXIS 349 (2006), Record No. 0500-05-1. The Court of Appeals did not permit Va. Code § 19.2-295.1 -- which limits the prosecutor in its sentencing case in chief to present the defendant's prior criminal record -- to trump the prosecutor's ability to present victim impact testimony in the sentencing case in chief. Va. Code § 19.2-295.1. Prosecutors have the ability to get much mileage from this Harrison opinion, and defense attorneys have all the more reason to find creative ways to take the wind out of the prosecution's sails at sentencing. By Jon Katz.
August 7, 2006
U.S. Senate ratifies the Cybercrime Treaty.
If people get the government they deserve, what have I done to be stuck with the Bush Administration and the senators who have signed and ratified (on August 3, 2006) the Cybercrime Treaty? Read the treaty and weep about the sweeping measures permitting the United States to cooperate with other nations in enforcing their cybercrime laws, even where those laws otherwise would be unlawful in the United States; thankfully, the Bill of Rights still trumps treaties.
The treaty also calls on the signatories to criminalize various child pornography activities (where children are defined as minors, which in the United States is anyone under eighteen), including mere possession of child pornography. I believe -- but the Supreme Court does not -- that the First Amendment protects mere possession of child pornography. While a discussion of the Constitutionality of possessing child pornography can be the subject of a lengthy separate discussion, the current child pornography laws in the United States criminalize not only possession of photos of the most explicit sexual activity by minors, but also bring criminal exposure to parents with photos of their children in the bathtub where the intention is not sexual at all, and so-called crotch shots of children's clothed crotch areas. The nation's child pornography criminal laws go too far.
Published views against the Cybercrime treaty include those of the ACLU' and the Electronic Frontier Foundation. By Jon Katz.
August 6, 2006
Maryland and Virginia District Court: Bench trials, appeals, and withdrawal of appeals.
Maryland and Virginia have a curious system where the District and Circuit Courts can obtain overlapping jurisdiction over certain lower-level criminal accusations. As a result, the vast majority of criminal cases in both states begin and end in the District Courts, with the Circuit Courts having more resources to devote to more serious criminal accusations. .
In Maryland, all misdemeanors and certain lower-level felonies are initially set for trial in District Court (unless the prosecutor arranges for a direct indictment or criminal information to Circuit Court), where the Defendant exclusively has the option to demand a jury trial in Circuit Court (if the case is jury triable by being jailable over ninety days) and has the alternative option of appealing any criminal conviction for a de novo trial in Circuit Court. The notice of appeal must be filed in District Court within thirty days from the sentencing date in District Court. The de novo Circuit Court trial is jury triable so long as it is jailable for any period of time (even if it is jailable for as little as one day). Md. Code Ann. Cts. & Jud. Proc. art. § 12-401(g). The appealing defendant can ask the District Court to set an appeal bond the payment of which will stay the execution of the jailable portion of the sentence. If that is denied, the defendant may file a writ of habeas corpus in Circuit Court and seek an emergency hearing.
In Virginia, all misdemeanors (i.e., offenses not jailable for more than one year) must first go to trial in District Court. Va. Code § 16.1-123.1. (Because the District Court is a court not of record, no court reporter is present unless hired by a party to be present). As in Maryland, no jury sits in District Court. Upon a conviction in District Court, the defendant has the exclusive right to appeal, within ten days from the sentencing date, for a de novo trial in Circuit Court. A jury trial is available on such an appeal only if at least one of the convicted counts is jailable over six months. The defendant can inform the sentencing District Court judge of the intention to appeal, and can ask for the bond to remain the same or to be set at another affordable amount, to stay the imposition of the sentence pending the appeal. If that is denied, the defendant may seek relief in Circuit Court.
In both Maryland and Virginia, the sentence in District Court does not cap the possible sentence on appeal to the Circuit Court; this risk often leads defendants to withdraw their appeals. A guilty plea in District Court does not prevent an appeal to Circuit Court, nor does a District Court guilty plea prevent a not guilty plea for the appeal in Circuit Court. In Maryland, forfeiture of the right to appeal is the quid pro quo for obtaining a probation before judgment.
In Maryland, generally, the defendant may withdraw the appeal from District Court to Circuit Court right up to the day of the new trial in Circuit Court. The Circuit Courts benefit from that procedure by clearing out their dockets with defendants who get cold feet from proceeding forward when they see the prosecutor has all prosecution witnesses present; defendants benefit by the chance of beating their case if the prosecution witnesses do not appear.
In Virginia, withdrawing the appeal to Circuit Court requires, among other things, giving written notice of such intention prior to the Circuit Court trial of the appeal. Va. Code § 16.1-133. In Virginia, a benefit of appealing to Circuit Court is to make a District Court conviction inapplicable -- pending appeal -- to Virginia's numerous enhanced sentencing schemes for repeat offenders.
Inexperienced criminal defense lawyers generally are better suited to start out with District Court defense in Maryland and Virginia before handling a jury trial in Circuit Court. The stakes are lower in District Court, and a District Court loss always can be appealed for a new trial in Circuit Court. Not all states have such options available.
Sadly, on numerous occasions, I have seen District Court judges in both Maryland and Virginia fail to advise pro se defendants of their right to appeal for a de novo trial, sometimes with devastating consequences for the defendant. By Jon Katz.
August 4, 2006
Loving jurors rather than fearing them.
In Practical Jury Dynamics, amazing human, trial lawyer, and storyteller Sunwolf says of amazing Denver criminal defense lawyer Lisa Wayne that Lisa loves her jurors and they love her back
I have sat mesmerized in the presence of each of these women, with Sunwolf showing how "reality is no obstacle" and with Lisa showing why we must not fear going to trial in the face of severe sentencing in the event of a guilty verdict. They both know the wide, deep, and profound injustice that is inextricably intertwined in our criminal justice system, but know that cursing that darkness rather than skillfully lighting multiple candles against it only plays into the hands of those who would perpetuate such injustice.
Loving jurors who sit in judgment over our clients is easier said than done. Just ask the late Samuel Leibowitz, who spent years defending the Scottsboro Boys at no charge. When hired, he had a fifteen-year winning streak. Perhaps nothing had prepared him for the vicious racism he would face defending these gentlemen, who went through convictions, harsh sentences, and retrials after Leibowitz successfully argued to the Supreme Court that they were unconstitutionally deprived of fair trials due to the absence of African Americans on the jury. Norris v. Alabama, 294 U.S. 587 (1935).
Asked about the initial trial loss, Leibowitz replied: "If you ever saw those creatures, those bigots whose mouths are slits in their faces, whose eyes pop out like a frog's, whose chins drip tobacco juice, bewhiskered and filthy, you would not ask how they could do it." This certainly did not endear Mr. Leibowitz to the locals and new jurors when the case went back for retrial.
Being human, juries are far from perfect, and may include bigots, people who do not care about justice, and people who lied that they would be fair jurors, just to get on the jury. This truism plays itself out in Twelve Angry Men. Yet, who persuades the eleven guilty voters to vote not guilty? The gentle juror number 8, who persuades the rest to an acquittal not by anger nor by being overbearing, but by being gentle, kind and caring.
Having learned many important life lessons of peacefulness, caring, and compassion from my friend and perpetual peacenik Jun Yasuda -- a Nipponzan Myohoji Buddhist nun -- I do my best to view all people as part of the Buddha, all interconnected. If one person suffers, we all suffer. One of my challenges is to overcome seeing some people as a carbuncle on society. Jun-san has me beat in that realm. Last year as we drove 100 miles to a peace walk, I asked Jun-san what she would do if she lived in the 1940's and bumped into Hitler, since I knew her response would not have mirrored my response of shooting him dead first and asking questions later. Whether or not I agreed, Jun-san explained that everyone has several personalities including good parts of their personalities; she mentioned Hitler's having been a painter. Jun-san would have asked Hitler why he was so angry. She said she might have started by offering him a massage, looking at it as soothing the soul of a savage beast.
The challenge for me and all criminal defense lawyers is to accept that we are not going to change who our jurors are as people in the span of a few days or weeks or even months. The best we can do is to approach them with the power of t'ai chi to seek to harmonize the situation as best we can for our clients, the caring of a thirteenth juror, the passion of Samuel Leibowitz (without letting that passion overtake our sensibilities), and the love exemplified by Lisa Wayne and Sunwolf. By Jon Katz.
August 3, 2006
Jon Katz, P.C. on the airwaves - Speaking out for justice.
In addition to fighting for justice in the courts, my law partner Jay Marks and I often are asked for our legal views by the media. This has given us a wonderful opportunity to spread the word of justice at a time when too many people are willing to sacrifice civil liberties for the hope of more security, when those who would sacrifice the first for the second end up with neither.
Early on, the microphone helped cement the close personal and professional relationship between me and my law partner Jay Marks. Jay and I grew up in the same town and same public school system, but traveled in different circles in public school days, both socially and politically. (I still remember Jay's boundless happiness in advanced biology class the day after he met Ronald Reagan and got his autograph on a National Review cover. I forgive him.)
Nine years after graduating high school, Jay and I started bumping into each other, first in Washington, then around Baltimore, and next working together on a jury case. We learned that our goals closely overlapped for finally being our own bosses and to focus on fighting for individual rights. We agreed on our partnership within two weeks, and opened our doors within two months. Eight years later, we continue loving working together and for our clients.
Something that helped cement our close ties in the early days of our law firm was our continuation of the weekend legal talk show that Jay started with his previous firm's sponsorship passing to our sponsorship. On our show "Legalmente Hablando" ("Legally Speaking"), for an hour each weekend, for over two years, we would help the listeners cut through the albatross of potentially oppressive and beneficial laws concerning criminal defense and immigration. First I started as an Ed McMahon sidekick to Jay, who speaks superior Spanish to my then-limited semester of Spanish. As I spoke Spanish more often with numerous clients and on the air, my Spanish-speaking abilities improved to the point that especially for criminal defense topics, I eventually held my own in Spanish without need of much help from Jay. To think that the radio helped me speak comprehensible Spanish.
For years, Jay has been a mainstay on the airwaves, particularly on local Spanish news programs, and twice-weekly discussing immigration law on Radio Zol 99.1 FM (Wednesdays at 8:30 a.m. and Saturdays at 10:00 a.m.). I frequently appear on the airwaves and in print, as well; a listing of our appearances is here. Rebroadcasts of two of my interviews are here: sparring with Bill O'Reilly, and explaining the criminal law differences in DC, Maryland and Virginia.
Television news often does not seek an interview until the same day. Sometimes we are available, and sometimes we are tied up in court. One of these days, a brilliant inventor will find a way to dim those bright lights glaring at interviewees like an interrogation room. In any event, we make ourselves widely available to the media to discuss critical issues of justice. When asked about our own clients, however, we are like Swiss bankers. By Jon Katz.
August 2, 2006
Mad Mel: Beyond the hateful words
Mel Gibson's recent drunk driving arrest has stirred substantial discussion about his despicable rant about Jewish people, a possible police cover-up of his words, and the possible effect this all will have on his popularity. I will focus here on the prosecution that will proceed against Mr. Gibson, and how minor is his alleged drunk driving offense.
Before turning to the criminal aspects of the case, here are a few thoughts about Mr. Gibson's allegedly hate-filled words at the time of his arrest. (I say allegedly, because although he apparently made such comments, I do not give any more credence to police than to laypeople; of course, Mr. Gibson's latest apology dances around what he did or did not actually say). First, many people mis-characterize anti-Jewish bigotry as "anti-Semitic," where anti-Semitism also covers Arabs and Ethiopians. In that regard, Sam Donaldson several years ago misused the phrase by asking Louis Farrakhan if he was anti-Semitic, to which Mr. Farrakhan easily answered "no", since he clearly is not anti-Arab or anti-Ethiopian. Second, let this be an opportunity for all of us to recognize, fight and eliminate bigotry within ourselves and those around us; otherwise, the whole outburst against Mr. Gibson's bigoted words is all for naught. Third, let this be an opportunity for us to teach our children and others to effectively respond to bigotry directed at them. It is easier said than done; over time, I have passed through the portals of flying off the handle when hearing bigoted comments, to now dealing more constructively with the hateful words, and the reverse discrimination words (including clients' family members who can't help saying how happy they are to have a Jewish lawyer).
As to the criminal case against Mr. Gibson, it is a minor drunk driving arrest. He is alleged to have registered a 0.12 blood alcohol level. Portions of the purported police report are linked here.
Although most if not all states now criminalize driving with a blood alcohol level over 0.08, through the early 1990's, the cutoff was 0.10 in most places. It takes as little as one and one-half bottles of beer to reach the 0.12 level allegedly registered for Mr. Gibson. Moreover, alcohol breath testing equipment, procedures, and practices are fraught with unreliability, which contributes to reasonable doubt and acquittal. The breath-testing machines have at least a twenty percent margin of error even when operated correctly, which means that -- adjusting for margin of error -- Mr. Gibson's actual blood alcohol level could have been 0.096 or lower. Often, however, breath-testing equipment is not properly repaired, calibrated and certified, and often the testing procedures are unreliable, either because the test technician is not sufficiently trained, experienced or capable, or because the test was performed in a sloppy manner not in accordance with sufficient test-taking guidelines, or because of circumstances beyond the test-taker's control (e.g., where the arrestee belches up alcohol into the oral cavity, to amount to a false indication of more alcohol than is actually in the bloodstream).
More information about defending drunk driving cases is here. Of course, too many people have gone MADD about drunk driving. Not everyone with an blood alcohol level over 0.08 is a danger on the road; plenty of people driving after drinking beer are safer than terrible drivers who are technically sober.
In sum, Mel Gibson's hateful words should not be minimized, and should lead to more self-discovery and personal action on the bigotry that exists all around us. He has the First Amendment right to say such hateful words; the First Amendment certainly was not adopted to protect speech that everyone likes. He has the right to an aggressive defense in court. For Mr. Gibson, money is no object in hiring the best lawyer; it is a critical struggle to make top-notch criminal defense available to all people, regardless of ability to pay. By Jon Katz.
August 1, 2006
Know means know: Your rights dealing with the police.
Again and again, criminal suspects come to me only after having talked with the police or only after having allowed the police to search themselves or their property. Rarely if ever is this wise. Rarely have these visitors read our following top ten list for dealing with the police, which has been posted to most pages of our website for several years. I repost this list in the hope that more future suspects will understand and exercise these rights:
1. MUST I SPEAK WITH THE POLICE?
Nobody has an obligation to speak with the police other than when asked for one's name (see the next paragraph for dealing with requests for one's name or identification). If you are a criminal suspect, it rarely helps to speak with the police. If you are unsure whether you are a suspect, it is better not to speak with the police before obtaining the advice of a qualified criminal defense lawyer.
2. MUST I GIVE MY NAME OR SHOW THE POLICE MY IDENTIFICATION IF I AM NOT DRIVING A CAR?
To refuse to provide one's name to the police can be risky, absent a later Catch-22 court ruling that the police had no reasonable suspicion to stop the person. A non-driver should not be required to show identification. Hiibel v. Sixth Judicial District Court of Nevada.
3. MUST I SHOW THE POLICE MY IDENTIFICATION IF I AM STOPPED WHILE DRIVING?
It seems risky not to show one's driver's license and vehicle registration when lawfully stopped by the police when one is behind the wheel. California v. Byers, 402 U.S. 424, 433-34 (1971).
IF THE POLICE STOP ME, WHAT DO I DO?
You can assert your rights without being confrontational. For instance:
POLICE OFFICER: Excuse me, would you tell me where you are going?
CIVILIAN: No, officer.
POLICE OFFICER: Why not?
CIVILIAN: I choose not to speak, officer.
POLICE OFFICER: Please pop open your trunk.
CIVILIAN: No, officer.
See additional tips on the Busted video.
5. IF THE POLICE UNLAWFULLY DETAIN ME, MAY I USE PHYSICAL FORCE?
Even if you believe your arrest is unlawful, a judge or jury may not agree. Moreover, some jurisdictions prohibit physical force even against an unlawful police arrest.
MUST I AGREE TO A SEARCH OF MY PERSON, PROPERTY, CAR OR HOUSE?
No. If you do not agree to a search, clearly say so. However, do not physically interfere with any search by the police.
IF THE POLICE SHOW ME A SEARCH WARRANT, MUST I ASSIST IN FINDING THE ITEMS
THEY SEEK, AND IN OPENING LOCKED OR PASSWORD-PROTECTED ITEMS?
No. Generally, you have the right passively to resist the police, by not showing any physical obstruction, on the one hand, and by not providing assistance, on the other.
8. MUST I REMAIN WITH THE POLICE MERELY BECAUSE THE POLICE ARE SPEAKING TO ME?
If you are unsure whether you are free to leave, ask if you are free to leave. If the police do not allow you to leave, ask the reason.
9. WHAT DO I DO IF SUSPECTED OF DRINKING AND DRIVING?
practical suggestions at www.katzjustice.com/drunkdriving.htm.
10. WHAT DO I DO IF THE POLICE THREATEN ME WITH ARREST, ARREST ME, SEIZE MY PROPERTY, MISTREAT ME, NOT READ ME MY RIGHTS, PUT ME UNDER SURVEILLANCE, TELL ME I'M MAKING TOO BIG A DEAL OF THE SITUATION BY WANTING A LAWYER, OR ASK ME TO "HELP" OR COOPERATE WITH THEM IN EXCHANGE FOR POSSIBLE LENIENCY?
Consult with a qualified criminal defense lawyer to level the playing field in dealing with the police, and to avoid devastating landmines in advance. If you cannot afford a lawyer, you will be eligible for court-appointed or public defender counsel by the time you are formally charged with committing a crime, if you ever are charged with a crime, at the very latest. Some court-appointed counsel and public defender systems make indigent defense counsel available before a person is arrested or indicted for an alleged crime. Your rights to a lawyer and to remain silent are sacred and are enshrined in the Constitution's Bill of Rights. U.S. Constitution, Fifth and Sixth Amendments.
A one-page printable (and shorter) version of this list is here.
DISCLAIMER: Nothing in this list nor anywhere else on this website should be taken as legal advice for any individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, please consult a qualified attorney. By Jon Katz.
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JON KATZ, P.C.
JON KATZ, P.C.
8720 Georgia Ave., Suite 703
SILVER SPRING, MD 20910
OUR BLAWG: www.katzjustice.com/justiceblog.htm
See also our other legal links, articles, and homepage.
- Abolish the Death Penalty - From the National Coalition to Abolish the Death Penalty.
- Arbitrary and Capricious - By an anonymous public defender.
- Capital Defense Weekly - Capital punishment is unjust as a punishment and in its application.
- CrimLaw - A prosecutor and former criminal defense lawyer as of September 2006.
- CrimProf - Do they encourage all professors to give fair exams and to grade fairly (not easily, just fairly)?
- Defending Those People - "Those people" often are your friends, family members, co-workers, and neighbors.
- Diary of a Criminal Solicitor - By a British criminal defense lawyer. There's no comfort being reminded that criminal defendants' rights are repeatedly abused in every nation.
- DUI Blog - When it comes to drunk driving laws and enforcement, the nation's gone MADD in the worst way. See our drunk driving defense article here.
- FourthAmendment.com - The site's author, John Wesley Hall, is a Little Rock, AK, attorney. Another Little Rock attorney, Bill Clinton, underlined that it's certainly not only Republican presidents who trample on the Bill of Rights. Were that not so, why did Clinton make sure to witness an execution during his 1992 presidential campaign?
- Grits for Breakfast - By a writer and researcher whose blog primarily focuses on criminal defense.
- Indefensible - New York public defender and writer.
- Law Of Criminal Defense - Another blog from John Wesley Hall, who also presents FourthAmendment.com and co-presents TalkLeft.
- Sentencing Law and Policy - Plea bargaining was the most distasteful part of becoming a criminal defense lawyer. Sentencing ran a close second.
- Truth About False Confessions - If the police assert a suspect confessed voluntarily, without coercion, and having fully waived the right to remain silent and to have the presence of counsel, see if the police can back it up with a reliable, unedited videotape of the discussion showing everything happening in the interview room, including how small the room is, how many police tower over the suspect wearing their guns and handcuffs, how booming their voice are, how often the suspect is permitted breaks/ food/drink, and the extent to which the suspect has been given the opportunity for deep sleep in a comfortable bed after a home-cooked meal. In other words, the un-coerced confession is a rarity, and courts repeatedly do injustice by permitting coerced statements into evidence.
- Underdog Blog - To the end that all lawyers, the courts, government, and everyone serve justice at every turn, at all times, and at all costs.
- White Collar Crime Prof - Achieving justice demands aggressive defense of both blue collar and white collar criminal cases.
PROSECUTORS AND COPS: Know the Opposition.
- Commonwealth Conservative - By Wise County, Virginia's elected chief prosecutor, Chad Dotson. He supports Senator George Allen, and tries to minimize Allen's macaca-gate.
- CrimLaw - Bloghost Ken Lammers has switched to the prosecution side, under Commonwealth Conservative Bloghost Chad Dotson in Wise County, Virginia.
- Prosecutor Post-Script - A former prosecutor, she and I call each other's side the dark side. Keep the opponent no further than arm's length.
- Seeking [In]Justice - By Richmond prosecutor Tom McKenna. I almost did not post a link to this blog that nearly made me lose my lunch. However, let this opponent be revealed.
- American Constitutional Society - Proclaiming that: "Today, American values, our constitutional heritage, and the freedoms and opportunities of our people are being undermined by a narrow, conservative approach to the law which lacks appropriate regard for the ways in which the law affects people's lives and that has come to dominate American law and public policy."
- Appellate Law and Practice - Rare is the jury trial conviction that should not be appealed.
- Becker-Posner Blog - Federal judge and University of Chicago economics professor discuss government and economics.
- Cato-At-Liberty - Raising timely public policy issues, including the United States' shameful concentration camps for those of Japanese ancestry, legislation on online gambling, and farm subsidies. The Cato Institute (not from the Green Hornet) claims to be libertarian.
- Criminal Waste of Space - Musings of a California appellate judge on such matters as Dick Cheney's marksmanship, lack of public confidence in American governors, and admitting his press overexposure.
- Drug War Rant - In his 1980's Steal This Urine Test, Abbie Hoffman recommends crank calls to drug testing companies. By now, it could take decades to make a daily crank call to a different drug testing entity (including all the hospitals that are part of the action).
- Judge Jones's Blog - Two Texas judges provide information on court procedure, including a clothing prohibition on football sweatshirts, rock band pictures, and Harley shirts, but allowing Ralph Lauren Polo shirts. How is this not content-based gagging?
- Legal Reader - Notable legal newsbites.
- Loose Robes - Its blogmaster says: "After twenty-four years in the criminal justice system -- as defense attorney, prosecutor, and judge -- I stepped away and looked back in dismay. My overall feeling was not one of accomplishment, of a job well done. My sense, rather, was one of relief that I was getting out of the pit. I had burned out."
- Magistrate's Blog - From an anonymous English judge. Please let us know of any equally frank blogs from any judges in the United States.
- SCOTUS - News from the Supremes. (No, not those Supremes).
- Sui Generis - Civil rights and other issues.
- TalkLeft - Proclaiming to be the "Online Magazine with Liberal coverage of crime-related political and injustice news." As to liberalism on criminal justice, count me in.
- Volokh Conspiracy - A bunch of professors and others discussing Constitutional, criminal and other legal issues.
- Windypundit - Julius Knipl photographed real estate. This photographer covers social and political issues.
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SEE AND HEAR US ON THE AIR AND ONLINE:
Jon Katz, P.C. repeatedly gives legal commentary on the airwaves and in print.
- Blawg - Includes link to our Underdog Blog.
- DMOZ Criminal Blog Directory
LINK SUBMISSIONS - We welcome suggestions for links to quality blogs, by contacting jon[at]katzjustice[dot]com .
JAY S. MARKS(Admitted in MD/DC/IL)
JONATHAN L. KATZ (Admitted in MD/DC/VA)
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