UNDERDOG - JON KATZ, Criminal Defense in and beyond the Capital Beltway.

Dr. Phil exposes the unreliability of eyewitness testimony.

nospam@example.com (Jon Katz) — Mon, 08 Feb 2010 00:00:00 -0500

Dr. Phil exposes the unreliability of eyewitness testimony here. Just click the video link listed below the headline EYEWITNESS EXPERIMENT, and read in this link how, after seeing a video of a "suspect", "40 percent of [Dr. Phil's] audience chose suspect number 3. Dr. Phil inform[ed] his audience that anyone who voted chose an innocent man because the real perpetrator was not in the lineup."

And there I was assuming that Dr. Phil's show was just about fluff. That is what happens when I make assumptions about television shows without even having broadcast and cable television at home for the last three blissful years.

Thanks to a fellow lsitserv member for this link.

Super Bowl: $$ meet Exxon meets drug testing meets gender segregation meets metal detectors meet excellence in athletics.

nospam@example.com (Jon Katz) — Sun, 07 Feb 2010 00:10:00 -0500

Another Super Bowl comes today that I will not watch. I think I last watched around 1992. Of course, by my not watching, I miss television's efforts to avoid a repeat of nipple-gate and to be more lenient in running controversial commercials; and miss any further explanation of the roots of "Who Dat", including whether the phrase is or is not racially demeaning.

The problem about Soviet Olympic sports was that the Soviet government apparently poured so much money into its athletes as to make them hardly resemble amateurs any longer. A big problem about professional football, baseball and basketball in the United States is that it is overly commercialized to make watching on television a substantial irritant.

I still enjoy watching sports, particularly a good lacrosse game and some of the televised daring non-ball sports, including wild obstacle courses. I still appreciate the awesome athletic abilities of many athletes. As my nearly four-year-old boy gets older, I likely will be watching more live and televised games, if he wishes. My wife is not big on sports, so we have enjoyed this break from sports together.

Watching sports was more fun for me before I got bothered by my college years that professional football, baseball, basketball, and more are segregated based on gender; before I realized how rampant is drug testing throughout professional and amateur sports, which was not nearly as rampant in my younger days, it seems; and before people had to pass through metal detectors to get into a stadium. I have great memories seeing the Yankees, Knicks, Lakers, and Bruins in their home stadiums. Later, the Yankees put doo-doo on their games by prohibiting people from leaving their seats during the national anthem, or maybe that was the case even when I attended in the late 1970's, without my knowing it.

A few years ago, the local National Lawyers Guild chapter arranged for an outing at Camden Yards. When I stated my concerns about gender segregation and drug testing to a particularly excited member -- who is an avowed communist, to boot -- he focused me on the fun of the Orioles game. Sure, I had fun when I went to a game at Camden Yards. That was not enough to overcome my concerns about returning, and I did not.

Because I may be watching more professional sports in the future, this blog entry is not an effort to convince others not to watch the Super Bowl. I do, however, wish to know your views on the concerns I have stated here.

Keeping drug field tests out of evidence.

nospam@example.com (Jon Katz) — Fri, 05 Feb 2010 00:00:00 -0500

Virginia has a statute allowing marijuana field testing testimony into evidence:

"In any trial for a violation of § 18.2-250.1, any law-enforcement officer shall be permitted to testify as to the results of any marijuana field test approved as accurate and reliable by the Department of Forensic Science pursuant to regulations adopted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.), regarding whether or not any plant material, the identity of which is at issue, is marijuana provided the defendant has been given written notice of his right to request a full chemical analysis. Such notice shall be on a form approved by the Supreme Court and shall be provided to the defendant prior to trial." Va. Code § 19.2-188.1.

Here are my mostly off-the-cuff recent comments on this matter to the Virginia Association of Criminal Defense Lawyers' listserv, on this topic:

I am trying to transcend being burnt up that any judge will allow in marijuana field test evidence at trial, particularly where the defense has obtained an order for the plant material to be tested. Here are a few thoughts:

- The field test calls for expert testimony. Were there expert testimony, the field test hopefully would be exposed for its holes.

- Just as cops are not permitted to give conclusions about the meaning of field sobriety tests, neither should cops be permitted to give interpretations of the meaning of field tests. If cops are going to be able to testify about field tests, it should be limited to saying something along the lines of: “I took a medicine dropper, inserted it into a bottle (argue that it is inadmissible hearsay for the cop to read out the name of the test kit used, nor the expiration date, without bringing the same one to court), put a drop on a portion of the green leafy material, and saw that green leafy substance turn to this or that shade of purple (or whatever other result) after I did so.”

To permit the cop to testify that the material tested positive for marijuana brings in inadmissible hearsay and expert testimony about what on earth the change in color of the marijuana from adding the test chemical means.

- Maybe lawyer Jim Shellow will have more ideas. I wrote about him yesterday about his command of challenging drug chemist analyses: http://katzjustice.com/underdog/permalink/DefendingDrugAnalysis..html

- As mentioned in my foregoing blog entry, Melendez-Diaz mentions Shellow. These field tests involve testimonial evidence, geared towards testimony at marijuana trials. Sure, the requirements of the unavailability of the witness in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) does not fully apply when the field testing officer is present, but the whole field testing scheme is testimonial, and the prosecutors do not present the testimony (nor even written certifications) of the people who manufacture nor approve the field testing kits for accuracy. Of course, that is also a problem when prosecutors try presenting results of Intoximeter results without the testimony nor certified letters from the people certifying the Intoximeters.

- Although I have had judges discount caselaw from other jurisdictions – unfortunately sometimes without even knowing what is in the decisions – two opinions to keep in the backpocket relating to the above issues, and to DWI cases, are:

-- Blackwell v. Maryland:, addressed and cited at http://katzjustice.com/underdog/permalink/DUIdefense..html (only expert testimony is allowed to present testimony on the administration of the horizontal gaze nystagmus test, so only expert testimony should be permitted to allow police to talk about their procedures and observations with field tests of suspected marijuana);

-- U.S. v. Horn, 185 F. Supp. 2d 530 (D.Md. 2002) (helping to cut down field sobriety tests towards the junk science that they are).

James Shellow on cross-examining drug analysts.

nospam@example.com (Jon Katz) — Thu, 04 Feb 2010 00:00:00 -0500

On a recent criminal defense lawyers' listserv thread, a colleague recommended James Shellow's Cross Examination of the Analyst in Drug
Prosecutions (Lexis-Nexis). My colleague who posted on Shellow's above-listed treatise points out that he was a chemist before going to law school.

Interestingly, Justice Scalia references Shellow, as follows, in his majority opinion in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009):

"While we still do not know the precise tests used by the analysts, we are told that the laboratories use 'methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs,' App. to Brief for Petitioner 1a–2a. At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence §23.03[c], pp. 532–533, ch. 23A, p. 607 (4th ed. 2007) (identifying four 'critical errors' that analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry analysis); Shellow, The Application of Daubert to the Identification of Drugs, 2 Shepard’s Expert& Scientific Evidence Quarterly 593, 600 (1995) (noting that while spectrometers may be equipped with computerized matching systems, 'forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment')."

As an aside, I have briefly met Jim Shellow, when he was on faculty for a couple of days at the Trial Lawyers College in 1995. He comes across as a very respectful man with no big ego. From having listened to his in-depth talk there about challenging chemical analyses of alleged drugs, it would appear that he is very thorough with his cross-examinations of chemists. Jon Katz

Meeting macaca-gate's central anti-Allen catalyst.

nospam@example.com (Jon Katz) — Wed, 03 Feb 2010 00:00:00 -0500

S.R. Sidarth and Jon Katz (Copyright Jon Katz.)

I kept my composure when encountering such excellent and accomplished people as Lou Jacobi (through a storefront window), Geoffrey Holder (on a SoHo street), and Madeline Kahn (in the audience of Aunt Dan and Lemon).

A rare group of people leave me awestruck. Tears welled in my eyes when I met McCoy Tyner, who made musical and cultural history with John Coltrane. When with Jun Yasuda, I try my best to restrain myself from doing a full questionography of her life. When Pramoedya Ananta Toer strolled into Olson’s Books, I pinched myself.

Shekar Ramanuja Sidarth has joined that group that leaves me awestruck. He is an accidental mini-celebrity who contributed to George Allen’s downfall by merely being present to lead Allen to blunder into Macaca-gate.

I met Sidarth, as he calls himself, for the first time, today, as he was filing something for the law firm he works at, as he continues his second year of George Washington Law School. The descriptions of him as a low-key man who apparently does not seek the limelight seem accurate.

At first, Sidarth seemed so low-key that I wasn’t sure how he would respond to a request for a photo together. But then I remarked how he was accustomed to training the camera on Allen during his failed re-election campaign, and he seemed happy to accept my request for a photo, which turned out to be rather fuzzy in the courthouse’s dark café area, with my cellphone.

As Time said a few weeks after Allen’s defeat:

“It was definitely not Sidarth's idea to put the clip [of Allen’s macacagate] on YouTube. ‘Getting drawn out into the limelight was really surprising," he says, and he means it. He's an intensely private person, and he declined to answer quite a few of the questions put to him by TIME. He's focused on keeping his head down and getting into law school. ‘Ultimately I'd hope people wouldn't pay as much attention to things like this, instead caring more about who can serve the country or the state better,’ he says. ‘Of course,’ he adds, ‘character plays into that. And this event reflected on Allen's character.’”

Where Sidarth was an accidental catalyst to Allen’s downfall, Mike Stark sought to get Allen’s goat during the campaign, got tackled by some goons who were either present to support Allen or possibly were asked by his campaign to provide security or order, and helped further the unravelling of Allen’s reelection bid. Sidarth told me he knows Stark.

On Jeopardy two months ago, Sidarth told Alex Trebeck about going on a religious pilgrimage with his mother to Tibet.

Although I am not crazy either way about Jim Webb, who defeated Allen, I think an Allen reelection would have been much worse. Sidarth wrote a great piece a few days after Allen’s defeat, turning an ugly situation into an inspiring look forward.

Challenging breathalyzers with engineers.

nospam@example.com (Jon Katz) — Tue, 02 Feb 2010 00:00:00 -0500

Forensic toxicologists and forensic chemists are common experts for challenging the accuracy and reliability of breathalyzer tests. Sometimes an engineer should be consulted for providing analysis and testimony about the breathalyzer, including testing the breathalyzer with such equipment as an oscilloscope.

One engineer who does such work is Thomas E. Workman, Jr. His related article is "Massachusetts Breath Testing for Alchol: A Computer Science Perspective." 8 J. High Tech. L. 209 (2008).

"Swear words" are not sufficient by themselves to get a conviction.

nospam@example.com (Jon Katz) — Mon, 01 Feb 2010 00:00:00 -0500

Recently, Virginia's Court of Appeals confirmed that so-called "swear words" are insufficient by themselves to convict for obscene or profane language. In Lofgren v. Virginia, __ Va. App. _ (Nov. 3, 2009), the Court reversed Lofgren's conviction for a phone call in which he let loose a tirade against the complainant with F-bombs, and the words bitch and c-nt. The Court examined the definitions of those words and prior Virginia caselaw about obscene speech, and found that the primary purpose of Mr. Lofgren's speech was not shown by the evidence to have been an appeal to the prurient interest.

D.C. City Council to hold hearing on medical marijuana.

nospam@example.com (Jon Katz) — Sun, 31 Jan 2010 00:00:00 -0500

Image from public domain.

The District of Columbia City Council will hold hearings on February 11, 2010, on the road to effectuating the medical marijuana initiative that D.C. voters approved in 1998, but which Congress blocked until recently. Further details are here http://www.dccouncil.washington.dc.us/media/2010%20Meeting%20Notices/HandPSJpublichearingFebruary1120101000.PDF. Thanks to the person who notified me of this important date.

Applying Gant, D.C.'s Court of Appeals affirms a drug search.

nospam@example.com (Jon Katz) — Fri, 29 Jan 2010 00:00:00 -0500

On January 21, 2010, D.C.'s highest court considered the application of Gant to a car search. In affirming the search and conviction, the court stated:

"Here, appellant was arrested for possession of marijuana – for which the police had probable cause – after seeing him drop a blunt on the ground. The police had noticed that the blunt was unevenly rolled, which suggested that appellant had manipulated the cigar to smoke marijuana. We do not think that Chimel provides a basis to search the car incident to arrest because the car was locked (and appellant handcuffed) when he was arrested, and therefore did not pose a risk to the safety of the officers or the integrity of any evidence. But Thornton does furnish that basis, because having observed appellant lean into the car and close the door shortly before he was seen with a marijuana blunt, the officers reasonably could have believed that appellant had additional marijuana or drug paraphernalia in the car such that it was “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant, 129 S.Ct. at 1719."

Dawkins v. U.S. , __ A.2d _ (D.C., Jan. 21, 2010).

To meet the execution exemption for being mentally retarded, one must assemble the smarts and evidence to prove mental retardation.

nospam@example.com (Jon Katz) — Thu, 28 Jan 2010 00:10:00 -0500

On January 27, 2010, the Fourth Circuit essentially said that to meet the execution exemption for being mentally retarded, one must assemble the smarts and evidence to prove mental retardation. This 2-1 Fourth Circuit opinion sets the bar too high for proving mental retardation to avoid capital punishment. Walker v. Kelly, __ F.3d _ (4th Cir., Jan. 27, 2010). Jon Katz

Recent Maryland appellate opinions.

nospam@example.com (Jon Katz) — Thu, 28 Jan 2010 00:00:00 -0500

Following are two particularly important recent opinions from Maryland's Court of Appeals:

- The Court affirmed a trial court's exclusion of a defense expert on witness identification. Bomas v. Maryland, __ Md. _ (Jan. 15, 2010).

- The Court found that probable cause to arrest (which arrest revealed PCP possession) was absent based on the totality of the circumstances, including the odor of ether on the defendant. Bailey v. Maryland, __ Md. _ (Jan. 14, 2010).

Three fake crack rocks insufficient to prove intent to distribute.

nospam@example.com (Jon Katz) — Wed, 27 Jan 2010 00:00:00 -0500

Praised be Virginia's Court of Appeals, for finding that possession of three fake crack rocks -- without more -- is insufficient to convict for intent to distribute. Holloway v. Virginia, __ Va. App. _ (Jan. 26, 2010).

Curiously, just four days before Holloway was decided, the New York Post reported on the abortion of justice by the arrest and multi-day jailing of two men who possessed candy that might look like crack, but would have tested negative had the cop(s) taken but a moment to use a field drug test kit, which they did not. As underlined at Drug War Rant, this candy arrest should be enough reason for people to refuse police searches.

Briscoe is but a blip on the screen.

nospam@example.com (Jon Katz) — Tue, 26 Jan 2010 00:10:00 -0500

Through the sheer elegance of minimalist language, the Supreme Court -- without dissent -- kept Melendez-Diaz in its rightfully supreme place. Here is the Court's per curiam Briscoe opinion from January 25, 2010:

"SUPREME COURT OF THE UNITED STATES

No. 07–11191

MARK A. BRISCOE AND SHELDON A. CYPRESS,

PETITIONERS v. VIRGINIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

VIRGINIA

[January 25, 2010]

PER CURIAM. We vacate the judgment of the Supreme Court of Vir-ginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massa-chusetts, 557 U. S. __ (2009). It is so ordered."

Briscoe v. Virginia, __ U.S. _ (Jan. 25, 2010).

Recent Virginia Supreme Court opinions.

nospam@example.com (Jon Katz) — Tue, 26 Jan 2010 00:00:00 -0500

Following are some particularly important recent Virginia Supreme Court opinions:

Logan v. Virginia, __ Va. _ (Jan. 15, 2010): The "exclusionary rule is not applicable in probation revocation proceedings absent a showing of bad faith on the part of the police."

Jones v. Virginia, __ Va. _ (Jan. 15, 2010): In a DWI case, refusal to submit to field sobriety tests is inadmissible as to the defendant's consciousness of guilt, but is admissible for a probable cause determination whether to arrest if accompanied by other indiciae of DWI. Compare this to Maryland, where field sobriety tests are a search, and, therefore, refusal to perform such tests is not applicable to find probable cause to arrest nor to find guilt or innocence.

Anderson v. Virginia, __ Va. _ (Jan. 15, 2010): The Court affirmed a conviction, applying the public safety exception where the police did not Mirandize the defendant before he was asked whether a gun was loaded.

Citizens United v. FEC

nospam@example.com (Jon Katz) — Mon, 25 Jan 2010 00:00:00 -0500

The Internet is abuzz about Citizens United v. FEC. For the First Amendment defense side of my law practice -- and as a concerned person -- Citizens United is a critical opinion for me to read and digest, all 183 pages of the case, which covers Chief Justice Roberts's opinion, two concurring opinions (by Justices Scalia and Thomas), and Justice Stevens's opinion (joined by Justices Ginsburg, Breyer, and Sotomayor) that partially concurs and objects.

As an advocate for erring on the side of providing too much free expression protection than too little, I expect I will be on the side of the Supreme Court's majority that is in opposition to Justice Stevens's opinion. Even if the opinion will favor Republican candidates and more "mainstream"-sounding candidates, the First Amendment means little if it is not given full protection. As to those who wish to give less First Amendment protetion to corporations than to individuals, I see no such limitations in the language of the First Amendment. Moreover, when corporate First Amendment rights are watered down, damage to individuals' First Amendment rights will be simultaneous and consecutive to such damage to corporations' free expression rights.