UNDERDOG - Criminal Defense Lawyer in Virginia & Maryland

Cesar Chavez: A champion for the empowerment of workers and immigrants.  

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com. 

Your immigration status is your own business. Whether or not law enforcement personnel have the authority to ask you your immigration status, you have no obligation to answer. 

Certainly, people in the United States without legal authorization to be in the country should not answer such questions to people in the criminal justice system, including judges. In addition, people who are not United States citizens should beware of disclosing their immigration status to anyone in the criminal justice system, lest they be reported to immigration authorities upon being charged or convicted for an offense that could harm their immigration status. 

United States citizens can stand up for immigrants by refusing to disclose their immigration status, as well, to those in the criminal justice system. 

Certainly, when entering the United States, United States citizens and those with valid United States visas should disclose their immigration status if they wish to enter the country. Beyond that, what really are the negative consequences of refusing disclosure of immigration status to those in the criminal justice system? Unless law enforcement personnel have probable cause to believe that a person is not lawfully in the United States, the person cannot be detained for such suspicion. 

As to Arizona's draconian law targeting actual and suspected undocumented people, just last Friday and referencing Arizona’s immigration enforcement law, Virginia’s attorney general issued a legal opinion giving the green light for law enforcement personnel to inquire into the immigration status of detained people.  

Curiously, the Virginia attorney general’s opinion includes the following passage: 

It also should be noted that under Article 36 of the Vienna Convention on Consular Relations, state and local officers are required to advise foreign nationals of their right to speak with a consular officer when those persons are arrested and held for longer than a short period of time.16 It is difficult –- if not impossible -- to effectively provide that advice, mandated by treaty, without making an inquiry into the nationality of a person who is in custody.

However, just as judges may not inquire into one’s immigration status, http://katzjustice.com/underdog/archives/1948-Judges-may-not-inquire-into-immigration-status-in-criminal-cases..html, police may satisfy the Consular Relations Convention merely by advising an arrestee that if s/he is not a United States citizen, the person has the right to speak with a consular official. This avoids asking one’s immigration status. 

I believe that the United States’ immigration laws are too crabbed against people who wish to immigrate here. I also believe that plenty of anti-immigrant sentiments thinly veil racist sentiments. My views on immigration law, policy and procedure are informed all the more by my involvement in law school in 1987 with the immigration law clinic, and my handling two deportation hearings at the time, representing a gentleman seeking asylum from Ethiopia, and a green-card holder fighting deportation after a cocaine felony conviction. 

A huge number of non-citizens who are undocumented (that is to say, without documents showing they are in the United States with visas) are actually on their way to obtaining visas (or are awaiting the results of visa applications) or already have documented status without knowing it (including children of a person who obtained a green card without telling the child). Certainly, “illegal aliens” is an unfair term; nobody should be considered illegal merely because they are somewhere on the planet without papers to be there, and the only aliens should be beings from other planets. National boundaries are human-made and should not be permitted to hem people in too much. 

Both United States law and international law protect political asylees from deportation. Most people who obtain political asylum in the United States are undocumented at the time they have applied for political asylum. Clearly, then, people who qualify for asylum -– and the U.S. government routinely denies asylum to people who merit asylum (the factfinding is done at the Executive Branch level, not at the judicial level, unless an Article III court will re-visit such factfinding on appeal), including for cynical political reasons (e.g., often people are more likely to win asylum if they are from a country whose government is at odds with the U.S. government, versus a government that is a U.S. ally) –- certainly do not merit being called “illegals”, for instance. 

The anti-immigrant movement is hot to trot to marginalize undocumented people (and often to lump documented people in with them) as rule-breakers greedily seeking economic benefits in the United States while disrespecting non-citizens patiently waiting abroad sometimes for years for approval of their visa applications. In reality, plenty of immigrants still are escaping non-economic misery, and not just economic misery. Moreover, such economic misery often is created in significant part by the demand of U.S. consumers –- backed up by U.S. government support for governments permitting inhumane working conditions -- for overseas goods produced cheaply as a result of underpaid labor often required to work inhumanely long hours in horrid conditions (not least of which might involve severely limiting any breaks, let alone bathroom breaks). Just see what happens when you google “Nike Indonesia”. It sounds disingenuous at best to benefit from the misery of such mistreated workers and then to bar them from entering the United States to escape such misery. 

Anti-immigrant propagandists who try to portray non-documented people as money seekers, want people to forget those fleeing from wartorn zones, brutal governments, brutal courts, brutal jailers, and brutal military members. Refugees from Darfur and Burma –- as examples –- are fleeing oppression that goes far beyond the economic. 

Additionally, millions of people who want to obtain visas to permanently live in the United States are barred from doing so, because U.S. immigration law primarily favors white collar professionals and relatives of citizens and green card holders. Such people who are ineligible for visas are not cutting in front of any line, because no waiting line has been created for them in the first place; they often live in the United States as third-class citizens at best, as they do not automatically receive visas merely because they are in the United States. 

We are a nation of immigrants. The only people in the United States who can trace their roots to non-immigrants are Native Americans, and even their ancestors apparently arrived from other continents way back when. We honor immigrants and immigrants’ rights when we refuse to answers questions by police and judges about our immigration status. 

Ever since I was in my single digits in the 1960’s, I have been bombarded with images and details of some of the most heinous violence by humans against humans. Life magazine came to my parents, and I recoiled in horror at such photos as the daylight, on-the-street summary execution captured in 1968 by photographer Eddie Adams, and the 1972 napalming in a Vietnamese village that resulted in the image of a naked girl, Kim Phuc, running desparately for safety but still getting severely burned by the napalm. On top of that was the 1968 My Lai massacre. 

When the foregoing images arrived onscreen, I had little context in which to place all the violence in Vietnam other than hearing one or more anti-war folks say that the United States had no business getting involved in the war there. 

As I later learned, the Vietnam War was hardly the first time that acts of such heinous levels (not limited to any one side, either) had taken place, but it appears that no previous war involved so much free rein of news photographers to capture the rawest of raw war images, and I was there in my earliest years suffering psychological trauma from such images, but certainly not nearly as traumatic as the people experiencing it firsthand. 

As a criminal defense lawyer for nearly two decades, I have defended more than my share of clients accused of violence against others, running from a few punches to the face, to rape that sometimes added additional horrors, to murder. I am sure that at least some of my clients committed such acts. 

How do I jibe my strong opposition to violence and strong leanings towards pacifism (but not total pacifism) with my representation of those charged with violence? There are many reasons, which I believe I have blogged about before, including that nobody’s rights are sufficiently protected if those charged even with the most severe crimes (even those who seem clearly guilty) do not get effective representation at such critical stages as the setting of bond and pretrial release conditions, the preparation for trial, settlement negotiations, trial itself, any sentencing, and appeals. I also do it out of compassion for each human being, although I have some real difficulty reaching compassion for some people, including Hitler, Pol Pot and David Duke. Additionally, I do it because I think that the existing criminal justice system is excessively unjust, in general, to criminal defendants.

How do jurors accept the artificially-seeming (to many) legalism of innocent unless and until proven guilty beyond a reasonable doubt? That probably is not easy at all. Most jurors also have been traumatized several times in their lives learning of (and sometimes experiencing firsthand) horrific violence caused by humans against humans, and may wonder how violence is going to ebb and how violent people are going to get stopped if such “niceties” (as some jurors might see it) as “beyond a reasonable doubt” and the Fourth Amendment exclusionary rule let alleged monsters hit the street again to perpetrate more monstrosities. In that regard, the criminal defense lawyer must humanize the defendant and try to show the jurors and judges directly or implicitly how they need not worry that the release of the defendant will result in any harm to anyone; that takes tremendous skill, empathy, compassion and sweat equity. 

Chihuahua Channel 44's coverage of violence in Juarez.

Three months ago, I wrote about  Cheri Maples, who incorporates Buddhist mindfulness into training police.

Ms. Maples will be speakng this evening in Silver Spring, as follows:

"Foregiveness, Repentance, Criminal Justice, and Mindfulness," 7:00 p.m. Thursday, April 15, 2010,

Crossings, Suite 202, 8505 Fenton Street, Silver Spring, MD 20910.

Bill of Rights. (From the public domain.)

News and lore report MS-13 to be beyond violent, depraved and heartless.  

Judges, however, are not journalists nor professional storytellers. Their job is to judge cases, and to do so fairly and with meticulous adherence to their oath of office.  

Why, then, did the Fourth Circuit yesterday unnecessarily tell a story -- and an interesting and deeply disturbing one at that -- as if it were fact about how MS-13 truly operates? U.S. v. Ayala, __ F.3d _ (4th Cir., April 8, 2010). Instead of saying that the trial evidence at a RICO/VICAR case presented this and that testimony about MS-13 -- which the defendants were found to be members of -- the court said:  

La Mara Salvatrucha, otherwise known as MS-13, is one of the largest and most violent street gangs in the United States. The gang originated in Los Angeles, California in the 1980s. Since then, it has spread across the country and into foreign countries such as El Salvador, Honduras, and Mexico. Today, it has a large presence in the eastern United States, including parts of Maryland and Virginia.  

Violence defines MS-13’s mission. The gang initiates its members through violence: existing members beat up the new members for a period of thirteen seconds. This ritual is meant to signify the beginning of a new, more brutal lifestyle. Once initiated, MS-13 members commit violent acts to defend the gang’s territory against its rivals and to spread fear so that citizens do not report the gang’s activities to the police. In fact, gang members are required to attack and, if possible, kill rival gang members whenever they see them. MS-13 members gain status within the gang through their willingness and ability to commit such violent acts. 

The gang maintains internal discipline through the use of violence as well. Members who do not follow the rules are routinely beaten, and those who cooperate with the police face penalty of death. The violent nature of MS-13 is captured by one of its mottos: "mata, viola, controla" which means "kill, rape, control."  

MS-13 is organized into local cliques. Each clique has two leaders: a "first word" and a "second word." The first word is responsible for running the clique’s meetings, and the second word does so in his absence. At clique meetings, MS-13 members report on their violent activities which often include murders and robberies. The gang also discusses ongoing police investigations and devises ways to prevent others from cooperating with the police. In addition, members pay dues at meetings, which the clique uses to buy weapons, make loans to members, and support members who are in jail.  

Leaders of the various cliques frequently communicate and coordinate with one another to achieve the gang’s objectives. They provide each other with material support, often in the form of guns or places to hide from the police.

Ayala.

Unfortunately, when appellate judges repeat themselves enough with unsettled and questionable factual findings -- including the hole-riddled federal caselaw on probable cause to search after smelling unburnt marijuana -- trial courts are likely to follow suit, leaving present litigants to suffer for any foibles, lack of resources, or bad luck of the judge-draw by their predecessors who got hit with harmful caselaw.

The above-italicized language from Ayala may or may not be fully accurate about MS-13. However, criminal defense lawyers defending alleged MS-13 members in future cases will be disserved by Ayala's painting MS-13 as if the painting depicted incontrovertible fact, rather than saying that the court's description came from the prosecution's "expert" testimony presented about the groups but not from gospel.

ADDENDUM: As an aside, Ayala addresses alleged MS-13 activity in Montgomery County, Maryland, where I live and work, and neighboring Prince George's County, where I started my criminal defense career nearly nineteen years ago. One of my drug felony clients sported MS-13 tattoos. The jury did not hear that, and the judge said he would not consider it for sentencing. I said it is a free speech matter, and does not confirm whether my client was a member of the group (just as my wearing a necktie does not automatically mean I am one of Brooks Brothers, which I thankfully am not).

We can scream and holler all we want about violent gangs, real and imagined. The criminal justice system won't solve the problem. The overpopulated "deport-THEM-all" crowd won't either. I have said repeatedly that the American criminal justice system is overcriminalized. The most powerful way to reduce violence in society is for each person to reach out to others in need. Otherwise, rampant violence will continue, and convicting and jailing people for violent crimes will just be a band-aid that barely covers the wound, and that does little to prevent new wounds. Jon Katz

Many make much fanfare about the United States criminal justice system's right for criminal defendants to remain silent, to have a trial, to be presumed innocent unless and until found guilty beyond a reasonable doubt, and the right to counsel.

However, the courts where I practice interpret the United States Constitution as not requiring the right to counsel, nor a trial for summary contempt proceedings where the judge witnesses the contemptuous behavior. Moreover, the Virginia Supreme Court last week confirmed that at summary contempt proceedings, within certain boundaries the judge may ask questions of the contempt suspect, without providing the right to counsel, and still leaving the judge to use the answers against the suspect. Scaldione v. Virginia, __ Va. _ (Feb. 26, 2010).

Fortunately, Scaldione orders a retrial for three summary contempt defendants where the judge did not see the allegedly fraudulent exhibit redaction that took place out of her sight. The same judge pressured the contempt defendants about the computer user name "westisanazi" that showed up on a defense exhibit, and one of them said he did it because of his disagreement with some of the judge's rulings during a sex offense Circuit Court trial.

Before the contempt defendants won on appeal, the judge sentenced them to ten days in jail, which sentence was stayed pending appeal by the appellate courts. However, after the defendants won with a Virginia Court of Appeals panel, the en banc court reversed. Fortunately, the Supreme Court of Virginia saved the day.

However, how much of a victory will this reversal be if the new contempt trial is before the same judge? Recusal is called for.

NOTE: Following is an article that I recently submitted for publication in the newsletter of the Maryland Criminal Defense Attorneys Association:

Here are some thoughts for persuading judges, jurors, and prosecutors for negotiations, trials, sentencings, and probation/parole violation hearings involving marijuana: 

- In all likelihood, a small minority of convicted Maryland marijuana defendants will be sentenced under the medical marijuana sentencing scheme. Therefore, medical marijuana arguments alone are not enough in seeking favorable outcomes in medical marijuana cases.

- I have previously written in MCDAA newsletters, about medical marijuana defenses (see http://katzjustice.com/underdog/permalink/Marks-Katz-obtains-Maryland-medical-marijuana-sentence-on-multiple-plants..html and http://katzjustice.com/underdog/permalink/MarijuanaGrowDefense..html) and probable cause arguments involving marijuana smell (see http://katzjustice.com/underdog/permalink/MarijuanaSmell..html).

- In the criminal justice system, marijuana gets lumped in all too often with more harmful drugs. It can be important to distinguish marijuana as meriting less concern than more harmful controlled substances, distilled as the “it’s just marijuana” argument.

Federal and state legislatures nationwide have acknowledged that marijuana is less harmful than plenty of other controlled substances by creating less harsh sentencing schemes for marijuana than with such controlled substances as cocaine and heroin. In Maryland, marijuana gets treated less harshly than cocaine and heroin for maximum possible penalties for misdemeanor and felony possession, by omitting marijuana felony possession from the mandatory minimum second felony offender drug scheme, through lighter treatment in the voluntary sentencing guidelines, and through mere fines for proving medical necessity in marijuana possession cases.

- All judges, prosecutors, jurors, and police are going to have preconceived notions about marijuana, through such factors as past personal marijuana use and personal observation (if any), observing its effects on friends and family members, and considering propaganda from all sides of the issue.

- Arguments from the marijuana legalization/decriminalization side include:

-- Marijuana is less dangerous than alcohol.

-- The entire marijuana plant offers strong medicinal, industrial, environmental, and personal benefits. The industrial and environmental benefits are perhaps most visibly promoted, unfortunately to the point of overhyping, by marijuana champion Jack Herer in The Emperor Wears No Clothes, which is available in full-text at http://www.jackherer.com/chapters.html.

          As to marijuana’s personal and medicinal benefits, Harvard medical school emeritus professor Lester Grinspoon is a high-profile proponent with strong academic bona fides to back him up. He started studying marijuana in the 1960’s expecting to prove marijuana's harm but then found the opposite to dominate. Eventually, he decided it a good idea to try for himself the marijuana he had been studying. He became a big fan of personal marijuana use ever since. Grinspoon says of marijuana: “Over the years, I have come to understand that marijuana is not just for fun, it’s not just for medicine, but there are other ways in which this high is useful … I began to realize that this drug, this plant, is truly remarkable, that it can be used to enhance various aspects of life." “Pot Shots: The Faces of Marijuana in Boston,” by Chris Wright, Boston Phoenix, http://www.bostonphoenix.com/boston/news_features/other_stories/multipage/documents/01815009.htm.

Grinspoon said: “I came to realize that I was the one who was misinformed [about marijuana] — that despite my training in science and medicine, I had been brainwashed like just about every other citizen of this country." “Pot Shots,” supra.

Grinspoon also said of marijuana: "Marijuana expands the breadth of variables one can bring to bear on a situation. It allows the intellect to visit parts of one’s consciousness that are usually off-limits … Cannabis has helped me make some important life decisions. This is something I’m glad I didn’t have to go through life without." “Pot Shots,” supra.

- Arguments from the marijuana opposition include assertions that today’s marijuana is more potent than the marijuana smoked even a generation ago; marijuana is a gateway drug to more harmful controlled substances; marijuana is not FDA-approved and not enough is known yet about its safety; and alcohol is dangerous enough, and we do not need more dangerous drugs legalized.

    Here are rebuttals for each of the foregoing four claims:

-- The more potent that marijuana becomes, the less marijuana people need to smoke to obtain the same high or other benefits. Unlike wine, beer and other alcohol, marijuana use is not about finishing a serving of marijuana in one sitting. A marijuana cigarette may be extinguished for later use, and marijuana used in pipes gets burnt in small amounts and the rest can be saved for later. Marijuana used in baked goods also can be consumed in more than one sitting, as well.

-- One scholarly study that helps debunk the argument that marijuana is a gateway to more dangerous drugs is “Predictors of Marijuana Use in Adolescents Before and After Licit Drug Use: Examination of the Gateway Hypothesis,” by Ralph E. Tarter, Ph.D., et al., American Journal of Psychiatry (Dec. 2006), http://ajp.psychiatryonline.org/cgi/content/full/163/12/2134.

-- Harvard medical school emeritus professor Lester Grinspoon  estimates that at least $200 million is needed for studies to get a drug approved by the United States Food and Drug Administration. Absent huge financial donations from the likes of Bill Gates and George Soros to meet the FDA’s drug-study protocols, nobody is going to pay for such a study. Marijuana is unpatented, so pharmaceutical companies will have no interest in paying to get FDA approval for marijuana. With the FDA approval process too expensive for marijuana, Dr. Grinspoon points to persuasive anecdotal evidence of marijuana's strong benefits and low risks as medicine. “Commentary: On the Pharmaceuticalization of Marijuana,” by Lester Grinspoon, MD,

International Journal of Drug Policy, 12 (5-6) (2001), pp. 377-383, http://rxmarijuana.com/Pharmaceuticalization.htm.

-- As to the claim that we do not need to legalize additional dangerous substances, in what ways is marijuana more harmful than alcohol, nicotine and caffeine, with all being profoundly addictive, and marijuana nowhere near as addictive? How many people have died from a marijuana overdose, if such overdoses even exist? What percentage of people become violent after drinking many beers versus the percentage of people who become all the more mellow after smoking (or eating, in baked goods) even a small amount of marijuana?

- Recently, I spoke with a forensic chemist who typically testifies for the criminal defense side in drunk driving cases, about marijuana laws and the extent of marijuana’s benefits and harms. He believes very strongly in keeping marijuana illegal -- even for medicinal use -- and that its benefits are far outweighed by its risks and harms. 

This forensic chemist talked of the presence of over 150 chemicals in marijuana, and of marijuana's harms being like shooting a shotgun, having a minority of the pellets being beneficial -- not being sure which of those pellets are beneficial -- and having a substantial number of the pellets dangerous. He analogized to asbestos, which was used for many years before anyone found any harm from asbestos.

- Regardless of how accurate the above-mentioned forensic chemist is or is not about marijuana’s dangers, the late pharmaceutical and marijuana expert John P. Morgan, M.D., made a strong argument that marijuana is comparatively safe, in reference to alcohol and other recreational drugs, and its potential benefits are enormous. As to drivers under the influence of marijuana, he believed they often slow down. Even if marijuana turned out to be very harmful, which Dr. Morgan discounted, he would have found that to be all the more a good reason to have marijuana -- along with all other drugs -- legalized, regulated, and better controlled through the marketplace, and removed from the dangers of the current illicit drug market. “Why Marijuana Should Be Legalized: An Expert's Perspective,” http://www.youtube.com/watch?v=9KLy150NR_U&eurl=http://www.celebstoner.com/news/marijuana-news/marijuana-advocate-author-dr.-john-p.-morgan-1940-2008.html.

 - Local martial arts practitioner and massage therapist Matt Stampe takes the following balancing approach with marijuana use:

-- "[M]y Chinese doctor used to grow her own herbs and they really were helpful. I don’t see why marijuana which is 'yin' energy could not be included with other powerful herbs.

-- "As a licensed massage therapist- I have mixed views on the legalization of marijuana. First it is still a toxin to the lungs, second it affect QI 'chi' flow in the body, and can damage the 'Shen' or Mind and 'Jing' or essence of reproduction. Marijuana does pose a threat to our society in that is can make people dumb, create accidents, and make bad decisions. However I do stand for its healing benefits and some of the results for AIDS, Cancer, and other uses that help the individual and economy."

- When defending students at parallel student disciplinary proceedings for marijuana possession, it may be beneficial to remind the student disciplinary panels that in 2006, nearly two-thirds of voting University of Maryland students voted to soften penalties for marijuana in student disciplinary proceedings. http://cannabisnews.com/news/21/thread21731.shtml. The school administration left the vote as advisory only.

- In such jurisdictions as Prince George’s County, where prosecutors routinely reduce marijuana felony possession charges to simple possession for quantities under two ounces, watch out for judges who will be inclined to sentence more harshly when considering the marijuana quantity involved and when considering the later-amended felony possession charge on the charging document.

Both for making a preemptive strike under such sentencing situations, and for arguing to prosecutors and factfinders that large quantities are for personal use only, consider that marijuana is very economical to buy in bulk for personal use, making it significantly less expensive than purchasing in small quantities. Pricing information on marijuana is routinely carried in High Times magazine. Pricing information together with testimony from a suitable medical doctor (about marijuana dosages) can help counter arguments that marijuana amounts over an ounce are intended for distribution.

- Some dealers of marijuana and other drugs throw in small baggies for resale purposes. Therefore, the mere possession of small empty baggies along with one large bag of marijuana is not sufficient by itself to prove intent to distribute.

CONCLUSION

          Although many of the foregoing views are applicable to arguments for reforming the drug laws, many of these arguments can also be effective in negotiating marijuana cases (and in some instances other drug cases), arguing the cases at trial, and arguing at drug sentencing.

          A criminal defense lawyer’s arguments that marijuana should be treated as a less harmful drug than cocaine and heroin should not diminish the same lawyer’s effectiveness in arguing for other clients that stronger drugs also should be dealt with more heavily with probation supervision and treatment than with lengthy incarceration.    

No matter the prohibition laws, many people will still go out of their way to obtain lawful and unlawful highs, whether through scheduled drugs, frog-licking (if that even works), homemade alcohol, glue-sniffing, gasoline sniffing, and the list goes on.

Around a century ago, and on the heels of alcohol prohibition, lawmakers in the United States criminalized controlled substances with a vengeance. That did not stop LSD from being introduced in the United States initially as an unregulated substance. (See LSD founder Albert Hoffman's fascinating account of his LSD discovery and use here.) Consider all the wasted legislative and criminal justice system energy spent playing catch-up and spending billions of dollars chasing after recreational drugs.

One recreational drug that recently came to my attention -- and which apparently is not criminalized everywhere in the United States, yet -- is salvia divinorum, which apparently produces a mild hallucinogenic effect. (Thanks to a listserv member for posting on salvia). The websites here and here track international and national efforts to criminalize the salvia plant. Jon Katz

No matter how out-of-balance I have found Maryland's criminal justice system -- as to the rights of the criminally accused -- Virginia is heavily an even less hospitable place.

Virginia is eminently worse than Maryland in the realm of discovery, alone. In Virginia District Court, mandatory criminal discovery is practically non-existent, and is limited to defendants' statements to law enforcement, the defendant's criminal record, and Brady/exculpatory evidence (except that the prosecutor ordinarily is the sole person to decide what evidence is exculpatory, which is like having the fox guard the henhouse). Va. Sup. Ct. Rule 7C:5. Moreover, the governing court rules require seeking, pretrial, a discovery order even to be able to obtain Rule 7C:5 discovery. Worse, in all Virginia courts, Jencks is non-existent.

Without giving an exhaustive list of how much Virginia law is unbalanced in favor of the prosecution, an area of critical note is drunk driving sentencing. Maryland generally has no mandatory minimum sentencing for drunk driving. Virginia provides for twenty days mandatory incarceration for those convicted of drunk driving a second time within five years, and ten days for a second conviction within ten years. Virginia mandates a minimum of five days in jail for having a blood alcohol level of 0.15 or higher at the time of testing, and ten days for having a blood alcohol level of 0.20 or higher at the time of testing. Certainly, even with a conviction, an aggressive defense in Virginia can argue whether the prior conviction has been proven and is a qualifying conviction, and can attack the admissibility and reliability of the breath and blood alcohol testing performed on the defendant.

In various Maryland counties, it is common to receive a probation before judgment -- whereby the judge imposes a probation period after a finding of guilt, and where the defendant can say s/he has never been convicted, but immigration authorities consider it a conviction --f or a guilty finding for DWI (which means losing no license points for a DWI guilty finding, with a PBJ) and a whole host of other misdemeanors, where the defendant's criminal record is otherwise clean and where the factual findings by the judge do not show an egregious crime. Md. Code, Crim. Proc. art. 6-220.

Virginia's equivalent of a probation before judgment is a suspended imposition of sentence, whereby after a finding of guilt, the case is usually rescheduled six or twelve months down the road, and the case is dismissed, absent any finding of a violation of probation conditions. I have not heard of any SIS's given for DWI cases, and many prosecutors like to urge that SIS's are only available under very limited circumstances.

Virginia's SIS statute appears to apply broadly to a wide range of crimes. Va. Code. § 19.2-303, no matter how much prosecutor's argue to the contrary. Although the granting of an SIS rests within a sentencing judge's sound discretion, part of the battle is to convince the judge that s/he has the authority to grant an SIS in the first place. Jon Katz

Having finished high school before the D.A.R.E. program, how did I stay away from using illegal drugs other than ultimately smoking marijuana literally a handful of times? It did not hurt that I always found tobacco-cigarette smoking gross, and joint-smoking even uglier, since joints looked uglier than tobacco cigarettes, especially when smoked. I found the smell of marijuana smoke to be no picnic. Up until college graduation, good quality marijuana was imported, which raised questions both about how much blood figuratively was on the pot, and also how much impurities were inside, especially after the paraquat scandal.

Even uglier than images of people smoking marijuana joints were images of people cooking heroin on spoons, using their mouths to tie rubber hoses around their biceps to stick out their veins, and jabbing themselves with heroin-filled needles, particularly when I had the heebie-jeebies about needles until I started donating blood in high school.  

The remaining popular drugs included blood-drenched cocaine and a bunch of chemicals, when chemical additives in food already turned me off in my adolescence.

Television images going back to Adam-12 and such powerful movies as Serpico further turned me off from recreational use of any drugs other than alcohol, but now I feel that we would have a much better society if plenty of people turned to marijuana rather than alcohol as an inebriant. This image from Dragnet -- thanks, Ken Lammers, for the posting -- is a prime example of how Hollywood in the 1960's, for instance, frequently jumped on the government's anti-drug bandwagon, trying to portray a deeply complex and shades-of-grey situation in black and white.

Just because I have had little interest in using drugs aside from the alcohol that I rarely ever drink any longer -- to the point that I refused to take the percocet and percodan prescribed when I had teeth pulled, lest I be ingesting codeine, derived from opium -- that is different from my strong opposition to the drug wars. With drugs, the focus needs to be on harm reduction, not only on all of us giving people the moral support for them to reduce abuse of legal and illegal drugs (which include alcohol, pharmaceuticals, marijuana, cocaine, opiate-based drugs, nicotine and caffeine), but also on reducing the harm caused to people in the criminal justice system -- including those forced into no-bond status through draconian Supreme Court-approved bail laws -- in drug prosecutions and with the rampant privacy-invasive drug testing of criminal defendants at the pretrial stage, incarceration stage, and parole and probation stage.

Marijuana must be legalized. All other currently controlled substances must be heavily decriminalized. Employers must severely narrow rampant drug testing that is now even required to get retail jobs with big companies. Sports fans should learn whether players of their favorite sports are being drug-tested, and decide whether it is worth supporting a drug testing culture by pumping in money to those sports. Do not just remain silent about this critical issue. Jon Katz.

Professor Henry Louis Gates, Jr's story shines the light on police practices that too often are business as usual operating too often in the shadows. Here are some of my thoughts on his conflict with the police;

- Too many police will arrest for disorderly conduct when people exercise their First Amendment right to complain about those holding governmental power. 

- From 1981 to 1985, during college, I lived two miles from Harvard. Overt racism at the time, and probably to this day, was all too common in the Boston area, but not only in that part of the United States.

- What was arresting Sergeant James Crowley's exposure to racism, anti-racism, and the beauty of a rainbow society? Do police get trained in anti-racism?

- How much was Sgt. Crowley racially motivated? He should have left by the time he saw identification showing Gates lived there. There certainly should not have been any inquiry by police into Gates's profession, as if possibly to question how a black man could afford to live in such a house in such a nice neighborhood.

- Being a sergeant, Crowley was no rookie. How could he not have recognized the firestorm that would result from persisting with questioning of Professor Gates?

- When race is not a factor, how often do cops still abuse their power out of belief that certain suspects have more privilege than the cops or out of belief that suspects are copping a superior attitude or not kowtowing to the cops?

- Rampant police abuse will continue until we shrink the criminal justice system. I repeat again that we can shrink and radically improve the criminal justice system by legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentencing, eliminating per se BAC guilty rules in DWI cases, and ending the death penalty.

- I would have advised Professor Gates and all other suspects not to open the door of their homes to the police without a warrant.

- Gates's lawyer says the cop did not give his name. If so, is this akin or not to the cop telling me on a traffic stop that I would receive his name in due time? Are some cops taught to delay giving their name as an effort to control by being questioners rather than being answerers?

- The police role should not be to control everyone in their line of sight and beyond. Police are in many ways a necessary evil, interfering with achieving a truly free society.

- There is possibly a chicken-and-the-egg question about the likelihood that police will respect civilians the more civilians treat them compassionately, and vice versa. Are cops trained that way?

- We live in too much of a police state for police and prosecutorial abuse to end before we shrink the criminal justice system.

- How will we achieve a more humane policing system when even three of twenty-five lawyers at my first law firm unashamedly spoke at various times of the general criminal defense population as scum? I next joined the Maryland Public Defender's Office; none of my clients have ever been scum; they are human beings deserving of compassion and the best defense.  

- One day I was speaking with a law school professor, and asked if he knew a particular person from his home town. Know him? The professor exclaimed: "What a pr*ck."

- With difficult judges, trial master Steve Rench applies the basic and effective lesson of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion's sole and to pull it out, rather than trying to slay the lion.

- A person arrives home one evening, looking forward to be greeted by her dog, and instead the dog starts angrily attacking her, and never changes from thereon in. How does the person avoid feeling devastated?

In the foregoing three scenarios, the person being affected by the challenging situation has an opportunity to attach to the image of a reprehensible person, an impossible judge, and a dog turned bad. Similarly, the affected person has the opportunity to empty the mind, the feelings, and the vessel, in order to acknowledge that we are all connected in one way or another, that it is difficult to compartmentalize a single person or non-human animal as awful or great, and that true happiness is not found by searching for it externally. How else can one win in the courtroom, in the battlefield, and in life by doing anything other than working towards such non-attachment?

T'ai chi teaches non-attachment in terms of harmonizing an imbalanced situation rather than about vilifying and trying to decimate the opponent. Buddhism covers non-attachment through non-dualism, including the concepts of no birth/no death, no coming/no going, and no increase/no decrease. The more we give up our desires and the more we give up our expectations of others, the more we can successfully practice non-attachment. And therein lies the rub. How can one deeply love another without feeling attachment? How powerful can people be if they feel no love? How can one immerse himself or herself into years of academic study, years of a work project, and years of investing one's assets and still feel no attachment when the heart is shattered, the academic study bears no diploma, and the investing collapses? That may be easy for someone content to live in a cave without possessions and ready to do a good deed for parentless lion cubs by donating his or her flesh to them so they may eat another meal. But what does everyone else do?

It is hard to live without attachment to anything. On the other hand, too many people are too attached to their bodies, to the point that many will rush to plastic surgeons to fight ageing, let alone fighting against their own ultimate mortality. Too many people are attached to the fear of a roller coaster even when it is clear that the roller coaster at worst might turn the stomach. Too many people are attached to their comfort zone. Too many people are attached to anger. Non-attachment to youth, the illusion of immortality, comfort, fear, fear of death, and anger are very achievable levels of non-attachment, but certainly far from easy to reach.

When I began practicing criminal defense eighteen years ago, I was angry at the criminal justice system that inflicted so much injustice. I was dumbfounded that even a lawyer for animal rights causes had no interest in hearing my deep reservations about prosecuting after he recommended that one could not beat being an assistant United States attorney if I wanted to get on the path of criminal defense. I was jolted to reality when I learned how many criminal defense lawyers do not see themselves as crusaders for any cause rather than as advocating as best they can for each client. All of this was attachment.

Practicing t'ai chi in the courtroom reminds me of a scene from a World War II movie where an American soldier, hidden from view of his opponents, guns down opposing soldier after opposing soldier, calmly chomping on his unlit cigar at every step of the way. As much as we must be sensitive about any violence, had this soldier lost his calm to anger, fear or yelling, he would have been a dead duck. His calmness, together with his shooting skill, gave him strength. So much for anti-tobacco crusades. This fictitious character's cigar holds deep meaning for me.