UNDERDOG - Criminal Defense Lawyer in Virginia & Maryland

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. 

 Bill of Rights (From public domain.)

Today, Maryland's intermediate appellate court upheld a crack cocaine seizure that accompanied a Terry patdown for weapons followed by reasonable articulable suspicion of the presence of a folding knife that turned out to be a cigarette lighter. The searching officer testified that once his hand entered the defendant's pocket to retrieve the perceived knife, he felt a bag in which he recognized crack cocaine. Harrod v. Maryland,  __ Md. App. _ (April 30, 2010). How the police officer knew by mere touch that the bag contained crack is very suspicious, particularly in the light of the scandal earlier this year where New York police arrested two men for possession of alleged crack cocaine that turned out to be harmless candy; the men paid for this debacle with a few days in pretrial detention.

In upholding the crack search, the appellate court said the searching officer's "testimony established that he recognized crack-cocaine in the baggie that he encountered while legitimately searching the pocket for a knife. Under the circumstances, the sergeant’s seizure of the baggie containing crack-cocaine did not violate the Fourth Amendment. See, e.g., Michigan v. Long, 463 U.S. 1032, 1050 (1983) ('If, while conducting a legitimate Terry search . . ., the officer should . . . discover contraband other than weapons, he [is not] required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.')". Harrod v. Maryland.

The trial below was a retrial after a hung-jury mistrial. Detrimentally, after the mistrial was declared, the defense did not re-file a demand for the presence of the chemist. As a result,

Moral of the story: (1) Once a cop legitimately finds a hard object in a pocket, watch out for a court-sanctioned search of other items in the pocket.

 (2) After a mistrial is declared, re-file all motions and other pleadings. 

Unfortunately, last September, a Ninth Circuit panel upheld a warrantless home search where the subject of an arrest warrant never got into the searched home. The panel justified the search under the protective search and plain view doctrines. U.S. v. Lemus, 582 F.3d 958  (9th Cir., Sept. 22, 2009)

Thanks to Judge Kozinski joined by Judge Paez for his scathing dissent from February 18, 2010, from the Ninth Circuit's refusal to review this case en banc.

ADDENDUM: Thanks to a listserv member for posting on Lemus. For whatever the reason, the panel's opinion is filled with so many contractions as to make the opinion sound too informal when considering the serious impact this case has on Mr. Lemus's life and on Fourth Amendment precedent in the Ninth Circuit.

Image from the NIH's website.

In the past, I have blogged about drug dog sniffs, including the following items:

- "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Illinois v. Caballes, 543 U.S. 405, 410 (2005).

- Telling a person of the coming of a drug dog amounts to a Terry  stop, which requires reasonable articulable suspicion, since a reasonable person would not feel free to leave at that point.

- Being animals -- humans, too are animals -- sniffing dogs are fully fallible.

Add this to the mix: New York is among the states whose courts give more state constitutional protection against dog sniffs than does the United States Constitution: "For the reasons that follow, we conclude that while the use of such dogs does not implicate the protections of the Fourth Amendment, our State Constitution requires that the police have at least a reasonable suspicion that a residence contains illicit contraband before this investigative technique may be employed." People v. Dunn, 77 N.Y.2d 19, 21, 564 N.E.2d 1054 (1990), cert. denied, 501 U.S. 1219 (1991) (referencing N.Y.S. Const. art I, § 12). (Thanks to fellow listserv members for having addressed this and other cases and ideas on the dog sniff search constitutionality issue).

My state of Maryland references the foregoing People v. Dunn opinion in continuing to steadfastly refuse to interpret Maryland's Fourth Amendment equivalent any more broadly than its federal counterpart. Fitzgerald v. Maryland, 384 Md. 484, 507, 864 A.2d 1006 (2004) ("Article 26 of the Maryland Declaration of Rights is to be interpreted in pari materia with the Fourth Amendment").

On November 12, 2009, the District of Columbia Court of Appeals issued its most recent ruling on the Second Amendment, as well as on the Fourth Amendment. Plummer v. U.S.. _ A.2d _ (Nov. 12, 2009).

Plummer refused Fourth Amendment relief where the defendant did not submit to police with their guns drawn.

Plummer addresses anonymous tips, which rear their ugly heads in my cases from time to time:

What if a person pulls legally to the side of the road to dial a phone number, intending on driving away immediately after doing the dialing? What happens if a police officer pulls up behind the car with emergency lights flashing, and testifies that this was done merely to show the driver and other cars that the officer is approaching, rather than to tell the driver not to move the car?

If the foregoing scenario happens in the District of Columbia, the driver may have a steep battle to have this qualify as a seizure. Jacobs v. U.S., _ A.2d. _ (D.C., Sept. 17, 2009). Hopefully the en banc court will fix Jacobs's seriously flawed conclusion that no seizure occurred.

Jacobs proceeds to say the police had probable cause to search the car upon smelling unburnt marijuana. As I have urged in hte past, it is critical for judges to distinguish between the stinky smell of burnt marijuana and the often indistinguishable smell of fresh marijuana, particularly when it is not in huge quantities right under a cop's nose. 

Jacobs helps defendants in at least one way, by confirming that an "anonymous tip alone is insufficient to establish the minimal level of objective justification for a stop. Gomez v. United States, 597 A.2d 884 (D.C. 1991)."

In 1994, a border patrol agent stopped my car many miles north of the United States-Mexico border, as I drove at night towards my resting point in Albuquerque from Las Cruces, New Mexico. The stop was not pleasant, as the border patrol agent checked the back of my rental car -- perhaps to see if the trunk was weighted down with illegal drugs, smuggled people, or unauthorized mescal -- and then proceeded to try to get me to say I have a green card (maybe I've had a plaid card, but not a green one), and then waved me on after giving me his name, which I had requested, ultimately for no benefit. I already knew from my immigration law class that the Supreme Court had generally allowed such checkpoints deep into the border. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). What most made the stop unpleasant was my irritation at Martinez-Fuerte.

Four years before deciding Martinez-Fuerte, the Supreme Court ruled that roadblocks to check drivers' sobriety do not necessarily violate the Fourth Amendment. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990). I got caught stopped in such a roadblock around ten years ago leaving the Georgetown section of Washington, D.C. The police officer was pleasant under the circumstances, explaining the reason for the stop -- from which no notice had been posted to give me a chance to u-turn away, which I would have done -- asking me and my passenger if we were okay (I preferred not to answer, but did, although I probably would not have if I had been alone in the car), and wishing us a pleasant evening.

As I wrote last year, while many were perhaps still giddy over his ascension to the mayorship two years earlier, D.C. Mayor Adrian Fenty gave police chief Cathy Lanier carte blanche to authorize ten-day "Neighborhood Safety Zones" where, according to mayor Fenty's June 4, 2008, news release, "public safety checks will be established along the main thoroughfares of the established neighborhoods." With its foregoing rulings, the Supreme Court had not made civil libertarians' jobs easy to prevent such unconstitutional abominations. In fact, a federal trial judge refused to enjoin this nonsense.

Praised be the federal three-judge panel of Judges Sentelle, Ginsburg (the one Reagan wanted for the Supreme Court before having to go with Kennedy, over Ginsburg's admitted prior marijuana use), and Rogers for reversing the denial of a preliminary injunction, saying that such a reversal was clearly mandated by Supreme Court precedent. Mills v. D.C., __ F.3d _ (D.C. Cir., July 10, 2009). Also, praised be Partnership for Civil Justice's Mara E. Verheyden-Hilliard (who successfully argued the case in court) and Carl Messineo (on the brief; I know them both) for winning this wonderful preliminary injunction victory. Civil liberties victories like this are an inspiration never to give up and never to give in.

 Bill of Rights (From public domain.)

Five years ago, the U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). For testimonial evidence, Crawford scrapped the rule of Ohio v. Roberts, 448 U.S. 56 (1980), that the Sixth Amendment right to confront one's accusers does not preclude unavailable witnesses' hearsay so long as said hearsay bears adequate indicia of reliability. Crawford applies to testimonial evidence, and has generated substantial litigation over determining what evidence does and does not qualify as testimonial.

The twenty-four-year period between 1980's abysmal Ohio v. Roberts and 2004's wonderful Crawford v. Washington saw repeated erosion of Fourth Amendment rights that had been better protected under the Warren Court, before Richard Nixon nominated Warren Burger as chief justice and added Justice William Rehnquist to the court, followed by Reagan's adding Justice Scalia, Bush I's adding Justice Thomas, and Bush II's adding Justice Alito and Chief Justice Roberts.

Even in the darkness of four justices who repeatedly pen and join opinions that take dangerously crabbed views of the Constitution's guarantees of individual liberties -- Chief Justice Roberts, and Justices Scalia, Thomas and Alito -- even those four sometimes get it right, but not always as a unified team.

Justice Scalia penned Crawford.  Yesterday, Justice Scalia penned the opinion that confirms Crawford is alive and well, requires that Crawford be followed full strength by trial and appellate judges, and prohibits chemists' written analyses from coming into evidence at trial when the chemist is absent and the defense objects, because such analyses are testimonial hearsay. Melendez-Diaz v. Massachusetts, __ U.S. _ (June 25, 2009).

Websites and attorney listservs are all abuzz about Melendez. Here are some of the main benefits of Melendez to my clients:

- Melendez is not met merely by giving the defense the opportunity to summons drug chemists, in part because the defense might be in a pickle if the chemist simply does not honor the subpoena or tries to avoid the subpoena by successfully asking permission from the court to do so (e.g., so as to appear at another court for trial, to be in training, or to be on vacation). Melendez, slip op. at 18-19.

- Chain of custody logs and all other chain of custody hearsay for drug cases and all other criminal cases are inadmissible at trial without the testimony of the people in the chain, unless the defense consents otherwise. Melendez, slip op. at 5, n.1.

- For such jurisdictions as Virginia that until yesterday treated breathalyzer test results as non-testimonial, clearly they are. Now, I no longer need to subpoena breath test technicians to trial in Virginia; that burden has shifted to the prosecution in order for the prosecutor to try to get the breath test results admitted into evidence.

Melendez says that Crawford already shows that drug certificates of analysis are testimonial evidence. If so, why did so many judges refuse to treat such certificates of analysis as testimonial evidence? Is it because they sided more with Melendez's four-justice dissent? Is it because they thought the Supreme Court might make an exception for certificates of analysis when realizing how costly it would be to bar the admission of certificates of analysis without live evidence? Is it because some lower court judges knew exactly what Crawford said, but decided to see if the Supreme Court would call them on it?

Now, any time trial or appellate judges hem and haw that the Supreme Court could not have meant this or that in a Supreme court opinion that confirms sweeping rights for criminal defendants, a great response is to whip out Melendez and say: "Melendez tells judges not to make the Supreme Court remind them more than once of their obligations to obey Supreme Court rulings." Jon Katz.

Neither the Fourth Circuit nor the Virginia appellate courts are known as liberal hotbeds. That makes this week all the more sweet with the following two Fourth Amendment appellate victories from those courts:

Neely v. U.S., __ F.3d _  (4th Cir., April 29, 2009), confirms that defendant Neely only consented for the cops to search his vehicle's trunk, but gave no consent to search any other part of his car. The court confirmed that the objective reasonableness test applies to police interpretation of consents to search. Here, the totality of circumstances did not show that Neely had given permission to search anything other than his trunk.

Neely also rejected the prosecution's alternative argument that the police had reasonable articulable suspicion to pat down for a weapon. The court found no such reasonable articulable suspicion.

Raining on the parade somewhat is Neely's following passage:

"We acknowledge that this is a close case, and that several facts present here, under different circumstances, might counsel a different result. But Neely, unlike the defendants in Holmes and Elston, was not thought to be a member of a violent gang with an outstanding arrest warrant or an imminent violent threat based on a detailed 911 tip. There was no evidence or suggestion that Neely was armed. Moreover, Neely never hesitated or complained about following Tran’s orders, never became belligerent, never threatened, intimidated, or in any way suggested that he intended harm. He was not overly nervous or evasive. These factors, combined with Officer Tran’s testimony that Neely was free to leave at any time, render us unable to say that Neely’s actions or past behavior allowed Officer Tran to reasonably believe Neely was dangerous. he simple discovery of a weapon cannot, of course, create reasonable suspicion after the fact. As such, we are unable to find that Tran’s search of Neely’s vehicle was justified under Holmes." Neely v. U.S.,

Meanwhile, on April 28, Virginia's Court of Appeals reversed a conviction for a patdown that was not based on reasonable articulable suspicion. Thompson v. Virginia, __ Va. App. _ (April 28, 2009). The court proclaimed:  

"We are not prepared to conclude that one who loiters in an 'open market for drug sales' is automatically subject to a pat down. When there are no other relevant facts to suggest a person is involved in the distribution of drugs, such as a hand-to-hand transaction, contact with others, or maintenance of a 'stash,' we are compelled to conclude that the record does not support a reasonable basis for a weapons pat down." Thompson v. Virginia.

The court reversed Thompson's conviction even though the defendant was nervous when the police were talking with him starting a significant amount of time after they first approached him.

In just one week, my remaining discomfort about living so close to Virginia has ebbed. 

One day when I appeared in the U.S. District Court in D.C. before a judge who also is on the FISA trial-level court, I was dying to ask the judge about that thirty-year-old court, but knew that at best my questions would receive no answers, whether or not with a glare.

This week, we got a further glimpse of the workings of the secret U.S. Foreign Intelligence court system, through the release of a redacted August 22, 2008, opinion from the U.S. Foreign Intelligence Surveillance Court of Review, which acts as an appellate court over the trial level U.S. Foreign Intelligence Surveillance Court. This appellate case is so full of redactions that even its case title is redacted: In Re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act.

In Re Directives confirms a foreign intelligence exception to the Fourth Amendment, and permits the Bush II administration's rogue and rampant use of warrantless domestic governmental infiltration into emails and other communications believed to include participants from outside the United States.

On the one hand, it is better that the opinion was made public than kept secret. On the other hand, why did it take just one week shy of five months to release the opinion?

The Cold War national security police state mentality remains all too alive in the United States. Jon Katz.

ADDENDUM: Related to today's blog entry, check out Secrecy News, EPIC's FISA page, and FAS's FISA overview, 

Supreme Court spiral staircase.

To my knowledge, when they were lawyers, no current Supreme Court justice prosecuted nor defended criminal cases in trial court, and none of them were police. Probably with few or no exceptions, the sitting justices' law clerks are chosen not for previous law clerking experience with trial prosecutors or defense lawyers, but primarily for having high law school grades, coming from law schools and colleges that have the toughest criteria for grades and LSAT/SAT scores, having law review experience, and having clerked for a federal appellate judge. Have any sitting justices ever visited a jail, beyond the public relations tours, but instead walked the empty hallways of a jail, feeling the often stifling and lonely smells and sensations of being there, and to talk to an individual inmate in the often tiny visiting rooms, where the prisoner thereafter emerges to be strip searched to assure the lawyer has not passed the inmate any drugs, weapons, candy, or any other contraband? Have any of them sat through a criminal trial? I hope so.  

The ruling elite, including judges, tend to have high opinions generally of police. The police patrol the neighborhoods in which they live and work. They provide armed escort protection to judges. They provide armed courtroom and courthouse security.

The police propaganda machines in the United States have long infiltrated the schools -- probably at least as far back as the schooldays of the three youngest justices (Roberts, Alito, and Thomas) -- where students from the youngest ages are forced into assemblies to sit on the floor and remain quiet while uniformed police present a fairy tale picture of the complete good of cops as "your friends" (unless, for instance, the cop is racist and the student is of a race that the cop distastes), the complete bad of "criminals" (even of those convicted after driving with two beers in the belly, or for carrying but one marijuana cigarette are bad criminals?). Which schools counterbalance such Madison Avenue-style police incantations with visits from the ACLU and criminal defense lawyers to talk about the right to remain silent with the police, to refuse searches, to turn in rogue cops, to learn all other Constitutional rights to assert with cops and in the courts; and about such police atrocities as the 2006 police killing of Sean Bell, the 1999 police murder of Amadou Diallo, and the 1997 police torture of Abner Louima (and such police brutality is not geographically limited to New York, despite the New York location of the foregoing horrific examples of police abuse)? My younger brother once came home from school with a "Fairfield Cops are Tops" button, but no "I love the Bill of Rights" button, because no such buttons entered the school.

Although the sitting Supreme Court justices are too old to have been further propagandized by the D.A.R.E. program, all their law clerks are young enough to have been so propagandized, without memories of the days when barely any schools had metal detectors or urine-drug testing even to play in the marching band. Even when Supreme Court law clerks do not submit drafts for portions of Supreme Court opinions, they are part of the justices' reality. Who else do justices confide in about pending cases other than each other and their law clerks?

Even the most brilliant and knowledgeable judge cannot sufficiently conceive of what the criminal justice system really is without having been there again and again in the pits of the criminal trial courts, the jails, and alleged crime scenes. It is scary to have justices with so little connection to the real criminal justice system, making pronouncements on the Fourth Amendment when they have been so removed from the daily realities of the effects of their Fourth Amendment pronouncements that often live on for years and decades.

The solution to the foregoing conundrums is not to mandate that Supreme Court justices have more experience in the criminal justice system -- and I particularly am not interested in adding more justices from the prosecutorial darkside -- but to shrink the criminal justice system so that the system can be more manageably and clearly understood by the justices in the first place and so that justices will be less concerned about making rulings that might let so-called "bad guys" go, particularly when a shrunken criminal justice system will create fewer "bad guys" in the first place. To shrink the criminal justice system to a more reasonable size and into a system in which more civil libertarians can have faith, let us start by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating such overcriminalized laws as criminal libel; and eliminating mandatory minimum prison sentencing.

With the foregoing backdrop, yesterday, the United States Supreme Court yesterday issued a 5-4 decision refusing to exclude evidence obtained through Fourth Amendment violations resulting from mere, innocent police negligence. Herring v. U.S.,, __ U.S. _ (Jan. 14, 2008). In this case, a police officer wanted to find an excuse to stop and search Bennie Herring, and got his supposed ticket when a police assistant called the neighboring police department to learn of an open arrest warrant for failing to appear in court. The only problem is that the court had already withdrawn the warrant, but the neighboring police department neglected to update its records accordingly. The Supreme Court affirmed Herring's conviction for being a felon in possession of a handgun and possessing methamphetamine, even though those items were found incident to his unlawful arrest. The majority reasoned that the Exclusionary Rule is designed to deter Fourth Amendment violations, and that such deterrence would not reach innocent police mistakes. To the contrary, if the Supreme Court extends the Exclusionary Rule to police negligence, police departments and personnel will be motivated to be less negligent, lest police leaders and underlings be disciplined and fired for being asleep at the wheel. Moreover, once governments follow my above-detailed recipe for shrinking the criminal justice system, there will be less police negligence in the first place, because police departments will then be flush with enough cash to only hire, train, maintain, and supervise higher-quality police and police employees, and to have less information overload to manage and bungle. The effect of the Supreme Court's holding in Herring, even if unintended, is that sh*t happens;

Police need to make countless decisions in a split-second, as many police are fond of saying when decrying public scrutiny of police decisions to shoot suspects when they fear that not shooting might leave a dead police officer or innocent civilian. Police are also filled with information overload at the police academy, about the Fourth Amendment right against unreasonable search and seizure and the Fourth Amendment's warrant requirements; the Fifth Amendment and the Miranda right to remain silent; detecting, testing and packaging suspected illegal drugs; detecting and investigating drunk driving; fingerprinting; handling scary and bloody situations; dealing with hysterical screaming complainants and suspects; diffusing dangerous situations; knowing when and how to use and not use their guns and tasers; knowing how to avoid being disarmed by suspects, and how to get them handcuffed and brought to the police station and court.

With all the information overload in police officer's heads, the bright-line rule of Miranda, for instance, is critical, that once a suspect is not free to leave, the suspect's answers to questioning stay out of trial evidence without first being read and waiving the Miranda warnings. Both the police and public also need a bright-line rule that evidence obtained in violation of the Fourth Amendment gets excluded from trial, period. As Justice Breyer dissents in Herring: "I therefore would apply the exclusionary rule when police personnel are responsible for a recordkeeping error that results in a Fourth Amendment violation. The need for a clear line, and the recognition of such a line in our precedent, are further reasons in support of the outcome that JUSTICE GINSBURG’s dissent would reach." Jon Katz