"Jon Katz is the greatest lawyer on the face of the planet.  I say so because he dealt with not only my criminal case, but my rattled emotional state of mind as well.  Without his guidance and brilliance I don't know what would've happened.  I highly recommend Mr. Katz, and if I ever make the mistake of getting arrested again he will be the first person I call." From a former criminal defense client. See other client views here.

WHEN JUSTICE WINS, WE ALL WIN

When justice wins, we all win. Here is a sample of Jon Katz, P.C.'s victories for justice. Each case is different (e.g., with a different set of facts, law, and adjudicators), and this listing is by no means meant to indicate the results JON KATZ, P.C., will obtain for future clients. Our goal, of course, is for winning advocacy at every turn.  

-OUR CRIMINAL DEFENSE VICTORIES

-OUR FIRST AMENDMENT VICTORIES

-OUR MVA AND DMV VICTORIES

-OUR ADDITIONAL VICTORIES FOR JUSTICE

Jon Katz, P.C.'S CRIMINAL DEFENSE VICTORIES

The case of the unpossessed pot pipe..

The police stop our client for allegedly failing to stop at a stop sign. The stopping cop "conveniently" has a drug sniffing dog with him. When our client's license is being checked for oustanding arrest warrants, the cop walks the dog around the car, and the dog allegedly alerts to drugs by sitting down (or did he sit down just by having been tired at 8:00 p.m.?)

 The judge rejects my motion to suppress the stop of the car and the search following an allegedly positive dog alert.

 After closing arguments, the judge hands down a not guilty verdict, agreeing with our portrayal of our client's car (starting with cross examination) as messy, and the pot pipe as having been found beneath a container lid that was closed, and this being a circumstance where the smell of marijuana and any admissions by our client are absent. Applying the required possession definition (knowledge, dominion and control), the judge agrees that knowledge of the pot pipe's presence was not proven against our client, in part seeing he was borrowing the car from someone else, and there was no showing how long Defendant was in possession of the car.

Coming just a day before 4/20, this victory could not have arrived at a better time. Jon Katz.

The case of the importance of pleading innocent..

The cops found a handgun in our client's parked car, and we entered a not guilty plea. I was ready with a flowchart to try to beat this case. Little did I expect that the prosecutor would help so much for us to win.

At the outset of the trial, on direct examination, the prosecutor asked the arresting officer when the incident took place, and he said January 20, 2007. The prosecutor asked if he was sure it wasn’t in January 20, 2006. He said no. The prosecutor said “I enter the matter nolle prosequi [a dismissal] for an incorrect date on the charging document.”

The prosecutor did not exercise his option to ask the judge to permit a correction to the date on the charging document, even though I have seen prosecutors routinely succeed with date amendment requests many times over my objection (although there is a stronger argument against such amendments in mid-trial rather than before trial begins). If the prosecutor, instead, planned, to recharge the case against our client with a new and corrected charging document, that would not have worked, because jeopardy had already attached through the presentation of testimony from the first witness. Consequently, no further prosecution is permitted. U.S. Const. Amend. V; see also  Maryland v. Taylor, et al., 371 Md. 617, 810 A.2d 964 (2002) (a landmark Maryland double jeopardy victory obtained by Maryland's current Public Defender and our law firm). Jon Katz.

 The case of the unlawful search for a small amount of marijuana.

A client accepted my advice to plead innocent to a marijuana possession charge. A few colleagues who frequently appear in this particular Virginia District courthouse warned me about my supposedly low potential of winning this case, where the police officer stopped my client's car for a burned-out taillight, claimed to have seen my client reaching behind him as the officer approached the car, and claimed to have seen a green leafy substance in a bag on the rear floorboard in the direction where my client reached, containing "suspected marijuana". Our case theory was that possession was absent, due to a failure of the evidence to prove beyond a reasonable doubt that our client exercised knowledge, dominion and control over what turned out to be under two grams of marijuana, which is not enough to roll more than two regular-sized marijuana cigarettes/joints. My primary ground for suppressing the marijuana was that no cop has sufficient vision late at night in the rain to have any idea about the contents of the bag purportedly containing such a small quantity of marijuana.

The trial was held before a Virginia District Court judge, because no jury trial is available for a first-time marijuana possession case. In Virginia, marijuana possession is a petty offense jailable up to thirty days; thus it qualifies as a petty offense that is not jury-triable. The judge initially denied my motion to suppress the marijuana, despite my arguments that included the cop's not even bringing the alleged marijuana and packaging with him to court, for the judge to reach his own conclusions about the officer's ability to have probable cause that he saw marijuana. Providing the judge the bag and the alleged marijuana would have let the judge see for himself that the officer actually seized the item first before having sufficient information to know the item was marijuana.

The judge refused to keep out the drug analysis report (I subpoenaed and questioned the chemist) despite my arguments about the failure to establish chain of custody, the inadmissible hearsay in the chain of custody report, and failure to produce the alleged marijuana into evidence.

During my closing argument, I reincorporated by reference all my previous arguments at trial. I then focused on the failure of the prosecutor to prove beyond a reasonable doubt that my client had possession -- i.e., knowledge, dominion and control -- over the marijuana. Drew v. Com., 230 Va. 471 (1986).

However, I did not get far into my closing argument before the judge stopped me in my tracks. I recognized that something good probably was coming down the pike, because judges are forbidden from finding guilt without providing sufficient opportunity for the defense to present a closing argument (although I once saw a Maryland judge violate this rule, only for him accidentally to have said "not guilty" rather than "guilty" and to have conceded that once those words "not guilty" passed his lips, he never could summon them back). The judge said that although he believed this was my client's marijuana, he did not believe that the police officer had sufficient grounds late at night to know this was marijuana (which I argued in the first place).

As the judge was talking, I told my client he had won, and shook his hand. My client was in disbelief. Once the judge finished talking, my client was still caught in disbelief. Therefore, I said to my client: "We have won, and you have been found not guilty. Let's get out of here." The last thing we needed was to stick around for the judge to have said that he was changing his mind. Jon Katz.

The case of police "asking" amounting to police "ordering"

Our client is checking on a friend's house by invitation while the friend is away. While he is outside, a police officer starts questioning our client, who is black, after allegedly receiving a report from a "concerned citizen" (or was that a bigoted citizen?) about a few suspicious black males in the block. The officer pats down our client allegedly for his safety. Even though the officer feels no possible weapon, he claims to "ask" our client to empty his pockets, being suspicious that the bag he feels in the pocket might contain contraband. Our client empties his pockets, but leaves the bag in the pocket, claims the police officer. The officer says he "asks" our client to remove the bag again, which our client does; some marijuana is in the bag. 

This is neither a lawful nor consensual search. Whether or not the initial stop of our client qualified as a consensual Terry stop, and whether or  not the weapons patdown was lawful, once the cop found no weapons, it was time to end the encounter. The cop's second "request" for our client to empty his pockets clearly was not consensual where he had refused to empty the bag from his pocket after the officer's first "request" to do so, particularly in the context of the cop's display of authority (arriving with the typical imposing police car with its enhanced bright lights, telling our client to keep his hands out of his pockets, asking for identification, frisking him for weapons, and "asking" him to empty his pockets). 

Our criminal defense partner Jon Katz explains to the prosecutor that this prosecution is based on unlawfully seized evidence, and shows the prosecutor a letter from the homeowner who invited our client to keep an eye on his house, and who takes exception to the arrest. Jon talks to the police officer, and challenges him about this unlawful search. We return to court after the lunch break, and the prosecutor dismisses the case. We do not know the specific reason for the dismissal, but it was the right thing for the prosecutor to do. 

This arrest took place in one of the most liberal towns in Maryland when it comes to race relations and social justice. If it can happen there, it can happen anywhere. 

The case of the man caught red-handed with a handgun at the airport.

From the August 10, 2006, Underdog Blog: 

Yesterday, I won the following acquittal, and simultaneously sang to myself "'Scuze me while I kiss the sky," "And I said to myself, what a wonderful world," and "Hot damn!"

Here's how it started, our client is caught red-handed at National Airport (I refuse to use the former president's name in the title; it was National Airport long before he took his throne at 1600 Pennsylvania Avenue and installed people who'd have had ketchup fulfill one of the vegetable servings in the daily school lunch program) in Arlington, Virginia, with a handgun allegedly showing on the x-ray screen at the carryon baggage checkpoint. 

At trial, the judge denies my motion to suppress evidence of the handgun and my client's alleged admission that it was his bag that contained the gun. The judge does suppress my client's non-Mirandized statements (that he forgot the gun was still in his bag, which is consistent with this gun being lightweight) in the TSA office after he already allegedly said it was his bag with the gun. 

The prosecutor rests his case. I move to dismiss the case (called a motion to strike, in Virginia) due to the prosecutor's failure to show the handgun, and failure to explain why the handgun was not offered into evidence, in that the proof is in the pudding. Then, I pull out our smoking gun: "Judge, the case needs to be dismissed because the prosecutor presented no evidence of a sign posted to give reasonable notice to the public of the prohibition against dangerous weapons. That requirement is an essential element of the regulatory crime [Airports Authority regulations section 8.4] under which my client is being prosecuted. Here's my copy of the regulation." 

See the rest of this story in the August 10, 2006, Underdog Blog.

The case of beating the pathetic race to the courthouse to cry "assault".

In an assault trial, starting with our opening statement, we focused on how in Maryland (at least in the county where we tried the case), we have a culture of too many people racing to the courthouse to be the first in an altercation to swear out an assault warrant. It seems that too many court commissioners too often issue such warrants without inquiring in-depth into the credibility of the complainant. Moreover, it seems that in the county where this case was tried, prosecutors too often do not evaluate the complainants' credibility until the day of trial, which provides insufficient time to evaluate the case alongside the prosecutor's dozens of other cases docketed for the same morning or afternoon. Once the case goes to trial, most complainants feel wedded to their original allegations -- even if false -- lest they admit their lies and thus risk a perjury prosecution or civil lawsuit for false prosecution. 

In this assault trial, our client's former co-worker accused him of assaulting him to the point of leaving him scratched and bloodied. This contrasted with his application for a warrant -- which we had read into the record on cross -- which said our client harmed him no worse than knocking him down and spitting on him. The prosecutor asked whether the complainant sought medical treatment afterwards, to which he said he instead went to the court commissioner to swear out a warrant for assault against my client. Apparently there was never a medical visit, and the prosecutor showed no photos or live images of any injuries, despite the claims of scratches and blood. 

We took the risk of having my client testify, rather than asserting his Fifth Amendment right to remain silent. His denial of assaulting anyone was persuasive. Fortunately, he had witnesses who not only corroborated the same, but who also honored their subpoenas to come to court. The judge acquitted my client, confirming that innocence carries the day unless the allegations are proven beyond a reasonable doubt, and that he found the prosecutor's evidence no more credible than the defendant's. Victory came sweet, but only after our client had to pony up the money to pay my fee, and only after entering the unknown of whether he would win or lose that day. 

We always had the option of going to a jury trial first. However, it often makes more sense with Maryland misdemeanors to try to win in District Court before proceeding to a jury trial in Circuit Court. More on this trial is here. By Jon Katz.

The case of the potential magic of a not guilty plea.

It might seem counterintuitive that sometimes it is harder for an able criminal defense lawyer to convince a client to plead "not guilty" than to plead guilty. Particularly when a client who feels s/he has committed a crime sees the prosecutor with a s__t-eating grin when proclaiming a plea offer of "no jail time" (all too often, whether or not intentionally, too many prosecutors do a backdoor end-run around the prohibition against communicating with represented opponents about the case absent counsel's approval to do so, by speaking (and sometimes bickering) loudly enough to the lawyer so that the client will hear), the defendant may think that the lawyer is taking such risks only because it is not the lawyer facing jail. The competent lawyer, meanwhile, explains to the defendant that even if the judge accepts a recommendation of no jail, jail can come later down the line from any finding of a probation violation, and a conviction today can mean a higher sentence for any future convictions, let alone the potential collateral consequences of a conviction to prospects for employment, educational opportunities, professional and personal licensing, and immigration benefits. 

The fact remains that criminal defendants have no obligation to make a prosecutor's job easier by pleading guilty or by assisting in any other way. This fact gets obscured by the draconian federal sentencing system that favors doing the opposite, unless the defendant's roll of the dice in pleading not guilty results in an acquittal. When a criminal defendant has competent counsel, It is generally wise to plead not guilty when the sentence is unlikely to be more adverse if the defendant is found guilty through a trial rather than through a guilty plea. When the criminal defense lawyer recommends a guilty plea to a client, it must be with the intent of reducing harm, and must come from a position of strength.  

Here is the story of one of our clients who accepted our advice to plead not guilty, and to proceed to trial on a cocaine possession charge that followed a traffic stop.. As a result, we won, after the prosecutor rested her case after the judge kept sustaining our objections to the testimony of the first police witness about his grounds for stopping my client's car. In this instance, the officer testified that he stopped the car after setting a pace for speeding. However, his car was new at the time, and the police had never verified the speedometer's calibration. The judge correctly found it irrelevant as to whether the speedometer was calibrated several weeks after the car stop. 

Whether an acquittal comes in a misdemeanor case like this one or a bigger case, the rush of victory always is wonderful. In this instance, the police stop of my client's car for speeding just eight miles over the speed limit seemed a subterfuge -- which the appellate courts, unfortunately, generally permit -- to investigate for crimes beyond any moving violations. When Bruce Springsteen wrote about how wonderful it feels to be riding on the open road, in "Born to Run", perhaps he had not yet suffered a harassing police traffic stop. On the other hand, upon winning an acquittal in this case, I said to myself, what a wonderful world. 

The Case of Picture This

Before he ever hires us, our client stands before a judge who sentences him to six months in  jail for photographing his housemate while her crotch allegedly is partially visible. Our client turns to JON KATZ, P.C., to undo the damage. 

At trial, we emphasize to the jury that on the alleged incident date, our client comes upstairs from the basement without his glasses. He sees his housemate sleeping on the living room couch, and photographs her with his nearby digital camera (and creating the allegedly smoking gun). He puts down his camera, and goes about his business. 

In closing argument, we remind the jury that being offensive is not a crime (lest Muzak serve life in prison). We remind the jury that our client previously always saw the complainant dressed more modestly, and had no notice that she would be disrobed at all when he took the photo. The jury deliberates for about two hours, requests clarification of the jury instructions (which clarification Jon Katz, P.C. provides), and then the jury returns a verdict for justice, to the tune of "not guilty". 

The Case of Twenty Minutes and the Burning Stove

The police stop our client for a moving violation. Smelling alcohol on our client's breath, the police ask him to do field sobriety tests and to take a blood alcohol test at the police station. At trial, Jon Katz, P.C. successfully argues to keep out the results of the blood alcohol test, because of a violation of the state toxicologist's own mandate to assure no foreign substances in the mouth for at least twenty minutes before taking the test. Although our client may have been alone for a very short period before the breath test operator arrived, that was enough time for him even to have put a mint in his mouth. 

Even though the breath test operator testified to observing our client for eighteen minutes before starting the test, we successfully argue that the two minute shortfall still is critical. Next, we successfully argue that there is reasonable doubt of guilt despite police testimony that our client crossed a double yellow line, did not perform the field sobriety tests perfectly, and had bloodshot eyes. We focus on the absence of much problem in his completing such tests, and that crossing the yellow line after midnight can be explained by many factors other than alcohol. We relate reasonable doubt to taking a car ride from home to Boston; as we get closer to our destination, we become more uncertain whether the stove at home remains burning. If we turn back the car to check the stove, we have reasonable doubt, and in this instance, we must turn back the car. 

The Case of the Morning After

Nine women are arrested for allegedly disorderly conduct, outside the Food and Drug Administration on January 7, 2005, demonstrating to make the morning after pill available over the counter. Jon takes one of the defendants' criminal cases pro bono, and goes to court for the initial appearance date. The case stops soon after it was started, as the prosecutor proceeds to dismiss the charges against all co-defendants after they show completion of many hours of community service. 

The Case of the Marijuana that Wasn't

It is Thursday at 1:00 a.m., with barely a car in site. The police stop our client for not stopping at a flashing red light. The officer incorrectly concludes that the driver has been driving while intoxicated. Our client agrees to a breath test, which proves the officer wrong. Not satisfied, and suspecting that drugs therefore are involved, the officer calls a so-called drug recognition expert (DRE) to the station. Arriving several hours later, the DRE concludes from the driver's behavior and apparent green coating under his tongue that the driver is under the influence of marijuana. 

At trial, on charges of driving under the influence of drugs and a moving violation  JON KATZ, P.C., successfully argues our client's innocence of driving under the influence of drugs. We focus on the prosecutor's burden to prove our client guilty beyond a reasonable doubt, and proceed to point to the reasonable doubt galore, including the absence of any marijuana leaves, the smell of any marijuana, and any admission of the use or presence of marijuana. We argue that the DRE has insufficient qualifications and is using junk science. We win against the charge of driving under the influence of drugs. Our client is found guilty only of the non-jailable offense of driving through a flashing red light; about two months later, we convince the judge to assess no points for the traffic light violation. 

The Case of the Marijuana that Was, or Was It?

It is late at night, and a police officer thinks he sees our client driver puffing marijuana from a pipe. For that sole basis, the officer stops the driver, and smells smoked marijuana coming through the open window. The police order the driver out of the car, and find two pipes in the car. A police search of the car finds two bags of a leafy green substance. Nothing is found on our client's person. 

At trial on charges of possession of drugs and drug paraphernalia, JON KATZ, P.C., argues to suppress all evidence due to an unlawful car stop, since both tobacco and marijuana can be smoked from the same pipe, but the judge allows the testimony after deciding the testimony is sufficient to show such a pipe is ordinarily used to smoke marijuana . We also argue that the prosecutor failed to prove beyond a reasonable doubt the essential element of our client's knowledge of the presence of the alleged marijuana. After all, the car was an overstrewn mess, the prosecutor presented no admissible proof of the car owner's identity, and even the officer had significant difficulty finding the alleged marijuana, 

Our winning argument, though, is to challenge that the alleged marijuana found by the police is not necessarily the same substance that was tested by the county's crime lab. Well in advance of trial, JON KATZ, P.C., filed a demand for the presence and testimony at trial of the chemist and all other persons who handled the alleged marijuana or the package containing the alleged marijuana. However, the prosecutor only produces the testimony of two of the four people who handled the alleged marijuana package (the stopping and seizing officer and chemist testify). Therefore, our client is found not guilty for the alleged marijuana. He is found guilty only of the non-jailable offense of drug paraphernalia possession (for the alleged pot pipes). 

The Case of the Innocent Drunk Man

It is late at night, and a police officer finds our client kicking snow from a car that was run off the road. The officer never sees our client inside the car, and has not witnessed a warm engine. 

At trial on drunk driving charges, JON KATZ, P.C., hammers home its winning argument that the prosecution failed to satisfy Maryland law's essential element that our client drove or attempted to drive the vehicle after drinking too much (see the law here). We win despite evidence of our client's poor coordination, admission that he had been drinking at the bar, and breath test results indicating that his blood alcohol level was over twice the legally allowed limit. Despite these strikes against our client, there is insufficient evidence to prove when our client had been driving or attempting to drive the car, and whether his drinking at the nearby bar started only after his one-car accident. 

The Case of Sinking the Drinking and Boating Prosecution

The sun has just set, and our client is boating with a companion to a restaurant. However, our client miscalculates when the dark will arrive, and the police stop our client for not having the rear light illuminated in the dark. The police start talking with our client and erroneously conclude intoxication, based on "uncooperative" behavior, swaying, "strong" alcohol odor, "slurred speech", "glassy eyes", and imperfect performance on the unscientific field sobriety tests (see http://www.katzjustice.com/dwi.htm ) and the sham horizontal gaze nystagmus test. 

JON KATZ, P.C., steps up to bat. At trial, before the first witness gets sworn in, we convince the prosecutor -- apparently against her wishes -- to reduce the charges from boating under the influence of alcohol (carrying up to twelve months in jail) to boating while impaired by alcohol (carrying only one-sixth the jail exposure). 

Jon Katz, P.C. cross examines the arresting police officer at trial to highlight how weak his story is. For one thing, we get the police officer to admit that our client's boat was swaying, and that when one gets on land from a long boat ride (as our client did), the land can feel like it's swaying. This natural swaying argument helps win the case. We also argue that the absence of a blood alcohol test result should be construed favorably for our client, because Maryland case law burdens the government with proving a willful refusal of a blood alcohol test. We walk out victorious with our client owing nothing more than a fine for not having illuminated his rear light. 

The Case of the Sabotaged Sabotage Prosecution

It is a chilly early December morning. Four figures pass without detection into a military base, carrying hammers inscribed with biblical phrases. They begin to hammer on two warplanes, one with a huge rosary now hung from its nosecone, intending on beating swords into plowshares. They pour their blood on the planes, symbolizing the blood of Jesus. They've hung a banner from one of the planes, and have left leaflets decrying these planes and the depleted uranium bullets that they fire. 

These four Plowshares peace activists hire Jon Katz, P.C. and former United States Attorney General Ramsey Clark to advocate for them at their criminal jury trial. However, before the jury trial begins, it is time to strike back for the prosecution's overcharging the Plowshares in alleging sabotage and conspiracy to commit sabotage. Jon Katz successfully argues in writing and during arguments one week before trial that this is not a case of sabotage even if one were to believe the prosecution's factual allegations. For further information about the Plowshares case, click here. For Jon Katz, P.C.'s winning motion to dismiss the sabotage counts, click here. 

The Case of the Unlawful Drunk Driving Arrest

It is late at night, and a police officer stops a car after it weaves in and out of its lane. The case goes to trial on charges of criminal drinking and driving. However, the trial doesn't go far before JON KATZ, P.C., wins a dismissal for an unlawful stop of our client. 

At trial, held just twenty yards from the arrest site, JON KATZ, P.C., cross examines the stopping police officer, to convince the judge to throw out the case. We lock the officer into a story that will enhance our chances of suppressing the stop: traffic was light; the officer observed our client driving for less than one hundred yards; and our client did not cause any near-collisions. We then successfully argue to suppress the stop and all subsequently obtained evidence, because the Maryland Court of Appeals confirmed in 2001 that mere weaving in and out of one's lane of travel -- without more -- is not a sufficient basis for stopping a car (see the case here). The judge agrees that the prosecution has in fact failed to show that our client was lawfully stopped by the police. Our client is acquitted.

The Case of the Absent Breath Technician

It is holiday season, and the police stop our client for a traffic violation. The officer suspects our client is drunk, and confirms this through a breath test showing a blood alcohol level exceeding Maryland's legal limit.  

JON KATZ, P.C., files numerous pretrial documents to protect our client's rights, including a demand that the prosecution provide all particulars concerning the charges against our client. The case goes to trial on charges of drunk driving. Before the presentation of evidence, Jon Katz, P.C. alerts the judge that the charging document alleges multiple crimes of driving while intoxicated, driving under the influence of alcohol, and driving under the influence of drugs. Based on our previous demand for particulars, we ask that the prosecutor be required to limit the trial to just one of these charges. Instead of arguing that the prosecution does not have to make such a designation, the prosecutor elects to prosecute only on a charge of the then less serious charge of driving under the influence of alcohol. The benefit to our client was to reduce his exposure to a maximum of sixty days in jail and eight points off his Maryland license, rather than the more onerous lead charge carrying a maximum of twelve months in jail and twelve points off the license. 

Why did the prosecutor elect to proceed with the lesser drinking and driving count, rather than on the more serious drinking and driving count? Why did the prosecutor not present the testimony of the breath technician, even though the technician was apparently present in the courthouse. Those questions made little difference to our client, who was happy to leave the courthouse only with a guilty finding on the lesser count, and with a probation before judgment disposition that avoided jail and avoided any points off his license.  

The Case of the Disintegrating Drunk Driving Prosecution

The police stop our client at a field sobriety checkpoint, which the Supreme Court has refused to invalidate, despite the Fourth Amendment's guarantee against unreasonable searches and seizures. The police suspect our client of drunk driving, and obtain a breath test reading that is more than twice the established legal limit. 

 We show up in court for our client's scheduling hearing, but the prosecutor has not processed the case yet. The judge tells us to come back if notified to do so. Instead, the case falls into silence, and we hear nothing more. Several months pass, and now it is nearly too late under the Constitution to enable a prosecution. For reasons still unknown, we discover the prosecution dismissed the case before it ever started. 

The Case of the Powerful Motion

One evening our client is exceeding the speed limit, leading to a police stop. Our client's alleged blood alcohol level is very high, creating exposure to mandatory jail time. JON KATZ, P.C., files numerous pretrial documents to protect our client's rights, including a motion to suppress the prosecution's evidence. After the prosecution fails to file a timely opposition to our motion to suppress, Jon Katz, P.C. files a motion to treat our original motion to suppress as conceded to, because the governing court rules allow such a concession to be declared absent the timely filing of an opposition motion. 

We show up for the trial date, and among the judge's first words is to inquire about the prosecution's position on Jon Katz, P.C.'s motion to suppress evidence. After the judge shows no sympathy for the prosecution's failure to file an opposition motion, the prosecutor dismisses the case without prejudice, to keep the opportunity to begin the prosecution anew on a later date (which would have had  Jon Katz, P.C. arguing a violation of our client's right to a speedy trial). Over one year has passed, and the case has remained dismissed, where now it will always remain.

The Case of the Crime that Didn't Exist

The police execute a search and seizure warrant on a house in the District of Columbia, to find Jon Katz, P.C.'s client nearby numerous lockboxes, which demonstrators can use to lock arms together in a fashion that requires substantial time and effort by the police to get them disengaged. The prosecutors try to obtain a conviction, but there's just one catch: the District of Columbia has no law at the time prohibiting possession of such items. Nevertheless, the prosecutor tries to twist the English language on its head to claim that our client has violated a law that governs possession of implements of burglars' tools; demonstrators' lockboxes clearly are not burglars' tools. At the hearing on its motion to dismiss, Jon Katz, P.C. persuasively and methodically shows the judge that the language of the statute involved in the prosecution -- straight down to the placement of the commas in the statute -- has no relationship to the alleged criminal activity by our client. The judge agrees and dismisses the prosecution. Although the prosecutor then files an appeal, the prosecutor then withdraws the appeal before legal briefs are due. Late, but finally, our client obtains justice. 

The Case of the Marijuana That Never Arrived

One day, our client opens the door to find the police with a package in hand, but the package is addressed to another resident. The police are suspicious of the package, and later learn that there's marijuana inside. They suspect our client of complicity, and send a letter for him to come talk to them. 

Knowing his right to counsel and to remain silent, our client hires Jon Katz, P.C. to respond to the police letter. Within forty-eight hours, we speak to the assigned investigator, hear out his concerns, and talk about the difficulty in obtaining a conviction of our client, as well as the relatively small amount of marijuana involved. In the end, the investigator agrees not to pursue a prosecution so long as we discuss our client's legal obligations with him. The client benefits tremendously from having acted proactively. 

The Case of the Unjust Bond That Shrank

Jon Katz, P.C.'s client is arrested under suspicion of trying to kill our client's baby daughter by shaking after she is brought to the hospital with cerebral hemorrhaging. Before even holding a bond hearing, the court sets bond at $325,000 for our client. Jon Katz, P.C. immediately goes into action by visiting the hospital to obtain and review critical medical records of the child, to show the court -- along with medical studies on shaken baby syndrome -- that legions of circumstances could have caused the child's injuries without any wrongdoing by our client. We demonstrate that, even assuming for argument's sake that the child was shaken, shaking by itself has as little chance of causing brain injury as shaking an egg will break the yolk (it will not). Furthermore, we present medical evidence that even when a baby suffers a head injury, the child can remain lucid for up to forty-eight hours, which, therefore, raises substantial questions about who or what might have caused this child's head injury, and when. Through these arguments, combined with other persuasive evidence that our client is not a risk of flight nor a danger to others, the same judge dramatically reduces our client's bond to $50,000, which enable him to leave pretrial detention in a matter of days after his arrest. 

The Case of Once is Never Enough

Jon Katz, P.C.'s client is accused of harassing her husband's significant other by going to the complainant's home and raising a raucous. At the peace order hearing, the complainant gets on the witness stand and talks on and on. Jon Katz, P.C. cross examines her to show our client had a legitimate purpose to be there, because she was visiting her husband who was inside. At the close of the opponent's evidence, Jon Katz, P.C. argues, in part, to dismiss for failure to testify to any continuing course of conduct, since the law does not otherwise permit a harassment finding. The judge agrees and dismisses the case. Justice is done, except for the injustice of our client's having to spend legal fees and experience the anxiety of defending her case. 

The Case of the Eluded Mandatory Minimum Sentence

It is nighttime and Jon Katz, P.C.'s client gets into a one-car accident. The police arrive to take an accident report, but eventually suspect our client of drinking and driving. Our client takes the breath test, which results in .20, which exposes our client to a mandatory minimum five days in jail if convicted. Jon Katz, P.C. sees that all the prosecutor's necessary witnesses are present, and, with our client's admission to the police of being the driver, determines that the chances of an acquittal are very limited. Consequently, our client negotiates to plead guilty as a first-time drunk driver (despite a previous conviction that brings an additional five days of mandatory minimum jail exposure), and then Jon Katz, P.C. successfully contends through a hotly argued hearing that no sufficient proof has been made that our client's .20 blood alcohol test result accurately reflects a blood alcohol level at the time of the collision, when considering our client's testimony about drinking liquor after the collision took place, and after leaving the wheel. We all walk out of the courthouse free from the jail's cages.  

The Case of the Prosecution that Ends Soon After it Starts

Maryland's new Republican lieutenant governor is speaking at a local hotel, and he has attracted a group of demonstrators demanding sufficient funding for public education. The demonstrators are told to leave, which they start doing. Not satisfied with his speed of departure, the police arrest one of the demonstrators, who then turns to Jon Katz, P.C. for pro bono criminal defense. Jon Katz, P.C. argues to the prosecutor that the arrested demonstrator (charged with trespass and failure to obey a police officer's lawful order) is from a low-key community activist organization (ACORN), and that the prosecution was not justified. Two weeks before the case is to go to trial, the prosecutor dismisses the case. 

The Case of the Victory for Double Jeopardy and Nude Dancing

One evening in 1999, police in SWAT-team gear raid an exotic cabaret for allegedly violating the county's ban on full nudity in public. The defendants convince the trial judge to throw the case out of court, successfully arguing that the cabaret is not a public place under the governing law, and that the Constitution protects nude dancing. The prosecution successfully appeals to the Circuit Court, which sends the case back to District Court for trial. 

The defendants then hire Jon Katz, P.C., which successfully obtains leave to appeal to the Maryland Court of Appeals.  Jon Katz, P.C. successfully argues in writing and during August 2002 oral argument that the defendants' double jeopardy rights prevented the prosecutor's original appeal and required the reinstatement of the original dismissal of the prosecution, even though no witnesses had yet been sworn in against the defendants. In November 2002, a four to three majority of the Court of Appeals rules in the defendants' favor, and reinstates the original dismissal of the prosecution. For full details, click here. 

The Case of Obtaining Justice in a Post-9/11 World

A teenager escapes to the United States from the violence of post-Marxist Afghanistan. He applies for political asylum. Unfortunately for our client, although the Republican administration does not like Marxist governments, the Soviets and their client Marxist government have long since departed Afghanistan. Similarly, although the United States government does not like the Taliban, this is pre-Taliban days. Asylum is denied our client, and he is without a valid visa to remain in the United States. 

For inexplicable reasons, the United States government then takes several years to issue an order for our client to depart the United States. Several years later, the September 11 murders take place, and the federal government tries to interview as many native males from Afghanistan and other "suspect" countries that will speak to the authorities. In the process, the federal authorities nab our client for deportation proceedings. Not satisfied to stop there, the United States Attorney's Office steps in, and charges our client with the crime of violating his deportation order. A conviction will make our client jailable, and will further harm our client's ability to return to the United States in the future, and can harm his ability to obtain residence visas in other countries. 

Once criminally charged, our client hires Jon Katz, P.C. to defend him in criminal court. Jon Katz, P.C. goes into action by presenting a spirited defense at the preliminary hearing to demonstrate the case's substantial weaknesses, including the prosecutor's failure to show that our client knew or should have known about the deportation order. Not a shred of evidence shows that the deportation order was delivered to our client, rather than just to his previous immigration attorney, nor that the previous immigration lawyer even knew where to find the client by that time. 

The prosecutor initially refuses to drop the case. However, after Jon Katz, P.C.'s persistence in presenting a spirited defense for our client, the prosecutor finally relents and dismisses the case rather than seeking an indictment. 

The Case of Vindicating Activist's Rights Against Arrest and Pepper Spray

As Bladensburg (Prince George's County, Maryland) High School lets out, leafleters hand out flyers inviting participation in the weekend's anti-Bush demonstration. Not recognizing this basic First Amendment right to leaflet against the day's ruler, the police move in, order the leafletters to move on, arrest them when they continue exercising their First Amendment right to leaflet, and pepper-spray them for allegedly resisting this unlawful arrest. 

When the police move in to violate First Amendment and Constitutional rights, Jon Katz, P.C. stands ready to move in to vindicate those rights. At our client's trial in Maryland District Court for alleged disorderly conduct and resisting arrest, the arresting police officer claims he arrested our client for failing to follow a police order to get off the sidewalk. After the judge hears lengthy arguments from both sides on our motion to suppress any evidence about the arrest, the judge agrees there was no peace disturbed nor any lawful police order issued to be violated. The judge then acquits our client. Justice is finally obtained, but should never have been denied in the first place, including the censorship of our client's message resulting from his arrest. Jon Katz, P.C. believes that victories for justice must be re-won again and again; it's a sad truth, but it remains our honor to pursue this truth. 

Addendum: See news coverage of this trial here and here. Regarding references to the Revolutionary Communist Party in the first article, JON KATZ, P.C. defends free expression rights for people from all parts of the political and social spectrum. By doing so, we help protect everyone's free expression rights and stay true to the First Amendment. 

The Case of the Power of Pleading Not Guilty

"Not guilty" is a phrase too many criminal defendants fear. As each year passes, it is easier for me to convince a client to plead not guilty, since the client knows I have years of experience and gut feelings to back up such recommendations.

Here is an overview of one of the cases where our client hit a bullseye by accepting my advice to plead innocent: 

A police officer arrives at a car accident scene, sees our client there (not inside any car) among others, questions him, decides he was driving one of the two cars in the accident, and ultimately arrests him for drunk driving. 

We go to court, tell the prosecutor our client rejects her offer to plead guilty to drunk driving, and proceed to trial. I make some legal arguments and objections about efforts to show my client was a driver during the collision. 

Around fifteen minutes into trial, the judge calls me and the prosecutor back to his  office. After the police officer has already testified that my client said "he hit her," the judge asks if the prosecutor is going to have any further information to present to show our client was driving. The prosecutor has no further information to present, at least not as of this time. 

The judge advises the parties to try to "work out" the case. So as not to give the judge a chance to change his mind about the weakness of the prosecutor's case -- and I see a real risk that the judge will change his mind -- I convince the prosecutor to agree for my client to pay a fine for negligent driving, which is one of the least serious of Maryland's traffic laws. It carries no jail exposure and one point off one's license (three points if there is a collision). The judge gives a probation before judgment, which means no points will be assessed against our client.

Obtaining this victory required staying in court all morning and into the afternoon for our trial to start. Most misdemeanor courts handle trials last, so I schedule my calendar accordingly. Jon Katz.

SOME WINS COME AS IMPORTANT PARTIAL VICTORIES:

The Case of Turning 30 marijuana plants into a $100 fine.

The police obtain a warrant to search our client's home after finding some marijuana in his trash bag. They find over thirty marijuana plants in the basement. Jon Katz, P.C., with the help of top-notch marijuana cultivation experts, convinces the prosecutor to offer a guilty plea to simple marijuana possession. Then, at sentencing, we convince the judge, with the help of a physician, that our client used the marijuana because of medical necessity for severe sleep apnea. As a result, his penalty is limited to $100 plus court costs, and no jail nor probation. Read the full details at our Underdog Blog. 

ADDENDUM: On March 23, 2007, we convinced the trial judge to convert our client's case disposition from guilty to a probation before judgment. 

The Case of Converting a Drunk Driving Case into a Speeding Case I

Very early one morning, a police officer stops our client for speeding. The officer smells alcohol on his breath and is suspicious of drunk driving. After our client does several field sobriety tests (which everyone has the right to refuse), the officer claims probable cause to bring our client to the police station for a breath test, which our client refuses, as his is right. JON KATZ, P.C. joins our client in court for the trial date, only to have the judge say that if this is to be a trial, everyone must return another day, because his calendar is overbooked for a trial that day. Where, as here,  JON KATZ, P.C. advises our clients to go to trial where the outcome of a trial is unlikely to be worse than the outcome of a guilty plea (and also where the chance of an acquittal appears worth the risk of a worse sentencing outcome in the event of a guilty finding), we return to court for the new trial date. When the police officer does not show up at the court's start time -- and where the judge is one who likely would have granted the prosecutor a postponement to get the officer to court another day if he did not arrive that day -- JON KATZ, P.C. offers the prosecutor to save everyone's time by offering for our client, instead, to plead guilty to speeding in exchange for dropping the drunk driving charge. The prosecutor accepts, and Jon Katz, P.C., then proceeds to convince the judge to reduce our client's points in half for speeding, from two points to one. Although we had a chance of winning at trial for drunk driving, we also had a chance of losing, with the risk of up to a year in jail and enough points to revoke our client's license. We successfully seized the opportunity of the police officer's absence from court. 

The Case of Converting a Drunk Driving Case into a Speeding Case II

Here is a recent example of the necessity for fully preparing well in advance for trial, for being fearless about proceeding to trial, and for using time as a commodity in negotiations. This approach is needed for all trials, both large and smaller; the following example is from a federal drunk driving case.

Our client is caught speeding on a federal roadway, and ultimately is prosecuted in federal court for allegedly violating the state of Virginia's laws against driving while intoxicated and reckless driving (due to speed). The prosecutor is a gentleman, but still is the opposition pursuing enforcement of laws that set an unjustly low threshold on the blood alcohol level permitted in a driver's body, let alone the substantial unreliability of alcohol breath tests, alcohol blood tests, and field sobriety tests. The prosecutor calls me before the initial court appearance date, offering to "save the time" of me and my client, in case my client is interested in pleading guilty as a first-time offender on the initial appearance date (which would have involved the prosecutor's recommendation of, inter alia, a suspended sentence, a fine, and probation conditions). 

Time, though, can be a valuable negotiating commodity, one which all criminal defendants are wise to use to their best advantage. I secure the prosecutor's confirmation that the guilty plea offer would be left open through the trial date, and know that the available magistrate judges -- if we waive the right to a jury trial and a trial by a District Court judge  (the drunk driving charge is jailable up to one year, and thus not a petty offense) -- likely will not harm my client much more by a guilty finding at trial than through a guilty plea. 

A few days before trial, the prosecutor leaves me a voice mail about my client's interest in pleading guilty. Before I have a chance to call him back, he calls me again about the case. I wonder if I smell blood on the opposition. 

When I call the prosecutor back, he tells me the breath technician is out of the country, and that -- absent a guilty plea -- he will move to dismiss the case, with the intention of recharging the case later on. Whether or not the prosecutor will be successful with such an approach (see, e.g., Fed. R. Crim. Proc. 48(a) ("the government may, with leave of court, dismiss an indictment, information, or complaint") and 18 U.S.C. § 3161 (factors for determining whether one's speedy trial rights have been violated)), the risk still exists that the prosecutor will decide to proceed to trial, anyway. A conviction for reckless driving is still possible, because the breath technician is not needed to prove reckless driving based on the alleged speed. The risk of a conviction for drunk driving is lower with the breath technician's unavailability, but is still a possibility through the testimony of the arresting office, who remains available for trial, about our client's behavior after being stopped for speeding.  

In any event, the prosecutor offers to drop the drunk driving charge in exchange for pleading guilty to reckless driving, whereby the prosecutor will not seek executed jail time. I explain to the prosecutor that such a conviction will expose my client to adverse results with the authority that issued his driver's license. We go back and forth, and the prosecutor finally offers to dismiss the drunk driving charge in exchange for a guilty plea to speeding -- amended from reckless driving -- whereby the prosecutor will seek only a fine and no probation period and no jail time (sadly, speeding on a federal roadway is still jailable in this instance). 

My client accepts the speeding plea offer, and walks out of court with a fine and court costs to pay, and nothing more. Time and negotiations are on our side. Jon Katz (January 3, 2006).

ADDENDUM: The foregoing discussion is an example of the importance of going to court with a lawyer for all jailable matters, and for numerous non-jailable criminal matters (e.g. for non-jailable drug paraphernalia charges, for public drunkenness charges, and for charges of possessing an open alcohol container, all or some of which can pose probation and parole violation problems, stiffer sentence exposure for any future convictions, adverse employment and security clearance problems, and adverse immigration consequences for those who are not United States citizens).

The foregoing discussion also points out the benefit of keeping guilty plea offers open until the trial date, which is more often possible in the bench trial courts where I appear than for cases set for jury trials. When the plea offer is kept open until the trial date, it ordinarily is wise not to accept the plea offer before the trial date, because sometimes a bettter plea deal can be reached on the trial date, and sometimes the prosecutor will not have essential witnesses or evidence available to obtain a guilty verdict.

In another recent example of the benefit of waiting until the trial date when a plea offer is left open until the trial date, my client was charged in federal court with driving on a license that was previously suspended for a Virginia reckless driving conviction. The prosecutor left open a plea offer for driving while suspended whereby no executed jail time would be sought. The magistrate judge was unlikely to do worse than that upon a trial guilty verdict, so I went back and forth a few times on the trial date with the prosecutor and arresting officer about the possibility of pleading guilty to speeding in exchange for a hefty fine and no jail time or probation. It worked. Time, again, was on our side.

The Case of Obtaining Dismissal-Diversion with Well-Argued Motions

On March 22, 2007, we obtained a diversion-dismissal agreement with a prosecutor only after all parties and the judge had invested substantial time into the hearing on my motion to suppress evidence in an assault case. The thrust of my motion was that the police unlawfully kept my client detained even after an unduly suggestive on-scene identification of him. I argued that absent the unlawful ongoing detention, my client would have been released, nobody would have known his name or address, nobody would have known who to prosecute, and, therefore, none of us would be in court on my client's case. The judge was skeptical about this argument, where two prosecution witnesses at the hearing positively identified my client (which was easy to do, with him being the only non-lawyer at the counsel tables) as the assailant, and testified that the police did not ask them for an on-scene eyeball identification.  

The motions hearing in this assault case started at the end of the court's docket. The prosecutor asked his witnesses many questions about the alleged assault rather than just about the identification, and this helped me very much in further crystallizing my trial strategy. Ordinarily, it is advisable to hold motions hearings prior to the trial date. Such an approach, for instance, provides time to obtain and subpoena any needed additional evidence and witnesses, and to obtain a transcript of key testimony of opposing witnesses. In this instance, the motions hearing immediately preceded the trial, because it was a bench trial for a matter jailable no longer than 180 days in a jurisdiction ( Washington , DC ) that does not ordinarily afford jury trials where the maximum possible sentence is not longer than 180 days.  

At the end of the day during our motions hearing, the judge instructed the parties to return the next day, when just before the lunch break, the judge informed both parties of concerns he had about the strengths and weaknesses of each side on my motion to suppress evidence. When the judge broke for lunch, I saw this as a fresh opportunity to reinvigorate my efforts to dispose of the case without a trial or guilty finding. I suggested to the prosecutor that a diversion-dismissal agreement (with conditions on my client for obtaining the dismissal) would help both parties hedge their bets. By avoiding collapsing the motions hearing into our trial itself, I gave the prosecutor more opportunity to consider my diversion proposal. Had the motions hearing and trial been collapsed together, jeopardy already would have attached with the commencement of testimony, and diversion probably would not have been considered by the prosecutor, in that the diversion program delays the case several months to a status conference, at which the case may be set for trial if the defendant has not satisfied the conditions for obtaining a diversion dismissal. About fifteen minutes before court was to have resumed, we had a diversion-dismissal deal. One of my colleagues who brainstormed the trial with me came to the courtroom after the lunch break specifically to watch the trial, only for me to tell him that the fruits of our brainstorming would not be played out at trial.  

The key to obtaining the diversion-dismissal result in this case was investing time, persuasion, and skill. Prosecutors often can obtain convictions without thorough trial preparation. However, criminal defendants' lives and liberty are on the line and need thorough case preparation from their attorneys. For that reason, for instance, I visited the scene of the alleged assault prior to our motions hearing and trial date, and spoke with the complainant at the scene. Sometimes taking the trouble to visit the scene and to speak with witnesses yields gold, sometimes not. However, the only way to know if gold will be yielded is to search for it, and sometimes the gold will not make itself readily apparent until as late as the trial date.

The case of helping the prosecutor clear the prosecutor's docket.

Our client is charged with possessing marijuana, and the prosecutor asks at the outset of the morning what I wish to do with my client's case. I reply: "I wish to help you thin out your heavy docket in a way that mutually satisfies us." This is a Getting to Yes goal-oriented approach, as I blogged about here. 

This case was in Virginia, where my client faced up to thirty days in jail for the marijuana possession charge. As I waited for our case to be called for trial, the arresting officer agreed to speak with me so long as the prosecutor was present. He proceeded to tell me that he stopped my client for speeding. He said he patted down my client down for his own safety, which he said he routinely does. Yow! The Supreme Court limits patdowns to situations where a police officer has reasonable, articulable suspicion to believe that the patdown will find contraband, ordinarily a weapon. This police officer was running afoul of this Terry decision.

Before I spoke with the cop and before the drug chemist arrived by my subpoena (Virginia law provides for the drug certificate of analysis to be admissible in evidence if the chemist is not subpoenaed to testify), the prosecutor refused my suggestion of a deferred disposition for marijuana (to dismiss the case in six months or a year, without any finding of guilt upon satisfaction of agreed conditions for the dismissal, but to permit the defendant to be found guilty and sentenced without necessitating a trial in the event of a finding of a violation of the dismissal conditions). Shortly after the cop left the room after telling me about his inclination to pat down people, the prosecutor offered a deferred disposition for drug paraphernalia. To this day, I do not know whether it had anything to do with what the police officer told me about the incident. On the other hand, this underlined how fully preparing a case to go to trial makes it more likely to settle, while preparing a case to settle makes it more likely to go to trial.

 I caught up with the cop as he left the courthouse, and asked him how he thought his routine patdown approach jibed with the Supreme Court's Terry decision. He told me he knew about Terry. He said that lawyers previously attacked his routine patting-down policy in court, and claimed that none had been successful in gaining any ground about that approach. He spoke of one factor being his age of forty and the need to check more spry eighteen-year-olds for weapons. For my case, I could have advised my client to go to trial, but I expected that the officer would have thrown in some winnable specifics for having reasonable and articulable suspicion that my client was armed (which he was not), which included my client's alleged significant nervousness, and the nighttime roadside location. Suppressing this patdown -- which was followed by my client's allegedly fessing up that the hard object in his pocket was a pot pipe -- was no shoe-in.

Marijuana needs to be legalized, and Terry frisks need to be replaced with probable cause patdowns. Until such changes take place, I will continue seeking creative solutions for clients, including this one that will avoid a guilty disposition. Jon Katz.

The Cases of Negotiating from a Position of Strength 

When Jon Katz, P.C. negotiates, we focus on doing so from a position of strength. See here for details. 

The Case of Negotiating on the Battlefield

A couple walking their dog find a dead body near the roadside. The man who eventually gets accused of the killing hires JON KATZ, P.C., to fight for his liberty. The prosecutor refuses to enter a reasonable settlement agreement, so Jon Katz, P.C. proceeds to trial with full firepower, from a dramatic opening statement to illustrate our client's innocence, to relentless cross examination, to the full preparation of expert witnesses on DNA evidence and cell phone technology. On the third day of trial, when one of the jurors is delayed by over ninety minutes, Jon Katz, P.C. pushes full speed ahead to re-energize settlement negotiations with the prosecutor, which finally succeed. This experience re-emphasizes that sometimes it takes going full force into battle before a mutually agreed settlement can be reached. 

The Case of the Signpost Ahead

The police -- keeping watch  on a large Bush-Cheney sign -- see a minivan pull up. The driver takes an alleged bayonet --that is never produced at trial -- to the sign and cuts out a large rectangular chunk. Meanwhile, his passenger gets out of the car and later gets back in. The police arrest the driver and passenger.  

Jon Katz again steps in to defend a colorful political activist.  At trial, the prosecution starts disintegrating. The police admit the alleged bayonet was found in plain view in the minivan. The judge, therefore, grants Jon's request to throw out the concealed dangerous weapon charge. The police testify that the driver was cutting the sign in broad daylight, near one of the city's busiest intersections. Jon argues that, therefore, there is no need for a conspiracy nor a conspiracy, because the driver is acting on his own without making any effort to hide his actions. The judge acquits on conspiracy. 

Left with the property destruction count, Jon argues that the sign was abandoned, and therefore valueless, where the commercial property owner never showed up to testify that the Bush-Cheney supporters had any permission to place the poster there. The judge reasoned that the poster didn't lose its value where the posters thought they had permission. 

The result of this overcharging by the police: acquittal on two counts, and a one-year probation before judgment without executed jail time for property destruction, together with a restitution and community service order. In seeking the most lenient possible sentence, Jon Katz argued that this incident, just one month before election day, took place when opponents of Bush and the Gulf War were still angry over the 2000 election Supreme Court outcome and the ongoing war, and that the driver had since found a way to channel his activism into the positive outlet of Habitat for Humanity.  

The Case of Miranda to the Rescue

Late one evening, the police stop our client for allegedly disobeying a flashing detour sign. The police officer smells alcohol on our client, and suspects driving under the influence of alcohol. The officer writes in his report that soon after asking our client to do field sobriety tests (e.g., the one leg stand and the walk and turn test), our client says without prompting: "We both know I'm too drunk to do these tests." If this statement comes into evidence, the prosecutor will have a much stronger case, even though our client refused a blood alcohol test 

At trial, we have a judge who is personable, but who also has a tendency to overrule most objections. Consequently, we make few objections, until the prosecutor tries to ask the police officer about our client's alleged admission that he was drunk. Specifically, after the arresting officer is on the witness stand for a few minutes, the prosecutor asks the police officer "What else did the defendant say at the scene?". Jon Katz, P.C. promptly objects, and the judge sustains the objection. The prosecutor keeps trying to ask the same question a different way, Jon Katz, P.C. keeps objecting, and the judge keeps on sustaining. 

The prosecutor could have gotten Jon Katz, P.C.'s objection overruled had the prosecutor laid the foundation that the police officer had not yet testified about every relevant statement made voluntarily by our client at the scene (the most important one being that he was drunk). If the prosecutor followed this approach, Jon Katz, P.C. would have invoked Miranda, and argued that the alleged admission of drunkenness was made through questioning while in custody and without waiver of our client's Miranda rights to remain silent and to have a lawyer present. 

By keeping out our client's alleged admission of drunkenness, we successfully argue that he was not guilty of the lead charge of driving under the influence of alcohol (which carries up to one year in jail and enough points to revoke a license). Instead, our client is only found guilty of driving while impaired by alcohol, which carries a maximum of sixty days in jail and eight points off one's license (which will not automatically jeopardize a license). Even though our client was found guilty less than five years before for drinking and driving, we convince the judge not only to keep our client out of jail, but not even to impose supervised probation. This case highlights that the most exhilarating victories in criminal defense tend to come once the defendant takes the risk of going to trial.  

The Case of Every Breath You Take: Beating the Breath Technicians at Their Own Game

When most people are in bed, a police officer stops our client allegedly for running a red light. The case quickly changes to a drunk driving prosecution. The officer is dissatisfied with an odor of alcohol coming from the car, and our client's allegedly insufficient performance on field sobriety tests including standing on one leg and walking heel-to-toe for nine steps in each direction (hardly physical exercises that people practice even in gym class). 

The officer brings our client to a police breath test equipment operator, who claims to find a 0.15 blood alcohol level. Jon Katz, P.C. immediately goes to work, to include challenging the reliability of the test results. The trial judge is at first skeptical about our argument