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

Prosecutors commonly obtain National Crime Information Center ("NCIC") reports of defendants' criminal records.

A colleague recently pointed out the unfairness of judges rejecting attacks on NCIC reports, because he asserts that the FBI, which runs the NCIC, disclaims responsibility for accuracy in NCIC reports. Certainly, since the NCIC states that it relies on information provided by state and federal criminal databases nationwide, NCIC reports cannot be any more accurate than the people inputting the data that gets picked up by the NCIC system.

For Virginia cases, another lawyer -- Lloyd Snook of Charlottesville's Snook & Haughey -- suggests reading the unpublished case of Argenbright v. Commonwealth, which he says affirmed a sentence that relied on an NCIC report to enhance a sentence for a third theft offense under Va. Code § 18.2-104, and also discussed Va. Code § 19.2-295.1. He suggested objecting to NCIC reports on the grounds of hearsay, due process, the Eighth Amendment, and statutory grounds;  to seek a continuance to check out each entry in the NCIC report; and to renew the NCIC report objection at trial, and in response to any preliminary sentencing report. Lloyd also talks of the need to redact from the jury's view any charges that were entered nolle prosequi, and cites Byrd v. Commonwealth, 30 Va.App. 371, 517 SE 2d (1999). He argues for redaction of probation violations -- citing Jaccard v. Commonwealth, 268 Va. 56, 597 S.E.2d 30 (2004) -- and for redacting prison release dates. 

Too bad Paul Warner Powell's lawyers did not object to the jury's seeing his NCIC report at the sentencing phase of his capital trial. On the one hand, his admitted murder was beyond heinous. On the other hand, the integrity of the capital punishment system -- which, of course, has no integrity -- is all the more suspect when the defendant's lawyers are asleep at the wheel, particularly here where the NCIC report for Powell incorrectly indicated a prior capital murder conviction. Sadly, the Virginia Supreme Court, in a 4-3 opinion, denied his ineffective assistance of counsel claim nonetheless. Powell v. Virginia, __ Va. _ (2010). He is scheduled for state-sponsored murder-execution on March 18, 2010.

Praised be Virginia Supreme Court Justice Keenan, who wrote in part in his dissent:

I would hold that the jury’s receipt of incorrect information of such magnitude negates any reasonable. In my opinion, such a serious mistake in a capital murder case may well cause the public to question whether our courts adequately ensure the fair application of our death penalty statutes. When a jury has determined that a defendant should die for the commission of a heinous murder, the public should be able to have confidence that this determination was made without fundamental errors having occurred in the sentencing process. A central premise in support of the death penalty is that society exacts this penalty only in rare instances, and only after the penalty has been determined with full and fair adherence to constitutional, statutory, and evidentiary safeguards. Because those safeguards failed in this case when a very able prosecutor made an unintentional error, I would grant a writ of habeas corpus limited to the award of a new sentencing proceeding.

Powell v. Virginia, __ Va. _ (Keenan, J., dissenting).

Image from public domain.

In Virginia, so long as one-half ounce or less is involved, distribution and possession with intent to distribute marijuana is only punishable as a misdemeanor rather than as a felony. Va. Code § 18.2-248.1.

What happens, then, if the police catch a suspect allegedly with 0.52 ounces of marijuana and the defendant sings that s/he intended to distribute it? Such was the conundrum of Milton Brown. The chemist report claimed the marijuana found on him weighed 0.52 ounces, which is just .02 ounces over the misdemeanor-felony threshhold. Virginia's Court of Appeals kept the conviction as a felony, saying:

In the present case, Brown does not contest that the plant material is marijuana and that at least some portion of plant material was part of a plant of the genus Cannabis. Moreover, Brown implicitly concedes that the evidence is sufficient to find him guilty of simple possession of marijuana. Brown’s argument relies on Hill and its analysis of the version of Code § 54.1-3401 in effect at that time; that is, before critical and significant changes were made to this code section by the General Assembly. Under its current structure, Code § 54.1-3401 provides that any stalks, fiber, oil or cake that were also present with the plant material are necessarily “combined with other parts of plants of the genus Cannabis” to meet the definition of marijuana for purposes of statutory construction. Therefore, any stalks that may have been present in the plant material at issue in this case are considered marijuana under the statute and it was proper to include them in determining the total weight.

Brown v. Virginia, __ Va. App. _ (March 16, 2010).

If a misdemeanor prosecution seems to have started too long after the alleged crime, perhaps that is true.

In Maryland, generally and with some exceptions, no misdemeanor prosecution may commence over one year beyond the date of the alleged crime. Md. Code, Crim. Law art. § 3-308(b). This statute of limitations applies where the applicable misdemeanor statute does not make punishment available in the penitentiary rather than in the local jail. In re Anthony R., 362 Md. 51, 763 A.2d 136 (2000). The statute must specifically state that penitentiary sentencing is available in order for the one-year statute of limitations not to apply.

As I said last month, the Trial Lawyers College is not the only game in town for trial lawyers to get great training and to recharge their batteries.

Enter the Three Sisters Trial Boot Camp, presented by Joane Garcia-Colson, Mary Peckham, and Fredilyn Sison, together with two mental health professionals. I have known Fredi for several years, and she would be a particularly strong draw for me to attend this program, which is only open to women, so that settles that about my abilty to attend.

The Three Sisters' website provides the following basic rundown of the program: "TRIAL BOOT CAMP, May 13-16, 2010, Palm Springs, CA. Join other talented and dedicated women trial lawyers for a long weekend of self-discovery, development and growth to enable you to reach your full potential as an effective and daring advocate in the courtroom. Together we will explore: - Issues confronting women lawyers; · Celebrating your uniqueness as a female lawyer; · Embracing who you are as a woman in your practice; · Communicating in the courtroom with an emphasis on Voir Dire; · 3 D Presentation; and, · Recognizing and working with clients with mental health issues."

Seemingly antithetical to a free and democratic society, lawyers' ethics rules require lawyers to hold their tongues to a point about judges in ways that do not apply to lawyers' comments about non-judge politicians. Then again, the Constitution guarantees a republic rather than a democracy, even though the United States has some significant democratic elements; the appellate courts have never granted people unfettered liberty; and the obligations for lawyers to measure their criticisms of judges seem to be part of an unwritten quid pro quo for the anticompetitive protection of lawyers' incomes that comes from bans on the unlicensed practice of the law. Some might say, also, that as officers of the court, lawyers cannot be permitted to verbally pillory judges as much as non-lawyers are permitted to do.

Clearly, a black robe does not automatically convert a person who is unqualified for a judgeship into a qualified judge. Yet, lawyers are still required by governing ethics rules to treat judges with decorum both inside and outside the courtroom. This did not prohibit a legion of lawyers, for instance, pushing hard and spiritedly against Ronald Reagan's nomination of Robert Bork to the Supreme Court, but might have prohibited lawyers from calling him a jack*ss.

How does a lawyer reconcile strong views that a judge is incompetent, bigoted, or heartless, with the requirement that lawyers treat the court and judges with decorum and respect? One great suggestion came recently from an experienced criminal defense lawyer/ listserv member, who said, in advising the importance for new lawyers (if not all lawyers) to develop credibility with judges and the courthouse staff: "Respect the robe even if you do not respect the person in the robe."

This reminds me of a comment about a late Supreme Court justice who deeply respected the office of the presidency, whether or not s/he respected the individual occupying the office. The respect for the governmental office -- rather than respect for the person holding the office -- might help explain why some people serve presidents and other officials whom they find abominable in their jobs, if the respect for the office is strong.

In any event, lawyers give a judge respect less grudgingly when the judge treats lawyers with respect, as well.

On January 21, 2010, I blogged about Buddhist monk Beop Jeong, who conveyed many profound things of relevance beyond Buddhists, including: "If an idea comes to you, and you hastily speak of it, it does not ripen inside. Because of this, one's insides remain empty. In order to allow the meanings of our words to ripen inside, we must be able to purify these meanings, waiting until they have passed through the filter of silence." 

When I blogged about Beop Jeong, I wrote, in part: "In response to my inquiry about Beop Jeong's current situation, a U.S.-based staffer at Korean book seller Han Books replied on January 19, 2010: 'We hear that he is seriously ill, but haven't heard that he's passed away.'"  

Today, two months later, Brother Jeong has crossed over to the next world, from lung cancer, which is ironic considering that he spent so many years as a hermit in the mountainous clean air. I send him all good karma, and pray Na Mu Myo Ho Ren Ge Kyo.

I have by now found more Internet information on Brother Jeong than when I last blogged about him, including, the following:

- Here is a short biography, plus a list of Beop Jeong's writings.

ADDENDUM II: I am honored that Matty Wegehaupt, who translated Beop Jeong's May All Beings Be Happy, left a comment here yesterday. On March 13, he left further brief views on Beop Jeong.

The Drug Policy Alliance's website makes an excellent point that the prohibition of one drug inevitably leads to people finding an alternative.

The prohibition on drinking for those under 21 leads to more excessive drinking for underage folks when they can get their hands on liquor, whereas those over twenty-one know that their next beer is a simple few blocks away at the convenience store. Perhaps fewer people under 21 would smoke marijuana if it were lawful for them to drink alcohol -- seeing that marijuana may not be much harder for underage people to buy than alcohol, and it is easier to hide in one's pocket (although I advocate more marijuana smoking than alcohol drinking, and better yet, neither, once marijuana becomes legal). Do more people under 21 even smoke nicotine than if alcohol were legal, seeing that they can legally purchase and use tobacco starting at the age of eighteen?

For all of marijuana's benefits and risks, it is natural, at least when not sprayed with chemical pesticides or adulterated with fillers or by falling on dirty floors or getting in unclean hands and contaminated equipment while being processed, packaged, and repackaged.

On the other hand, a popular form of fake marijuana -- K2, or Spice, which is currently lawful in most states and sold by many retail shops -- apparently consists of a chemical(s) sprayed on vegetable matter, to look like marijuana. Why play with nature like this, particularly after centuries if not millenia of anecdotal evidence of the relative safety and benefits of marijuana? K2 would likely have no popularity were marijuana not criminalized by the law and demonized by employers and school athletic departments.

Do not blame K2's inventor for sales and use of Spice. CBS online quotes him as saying "People who use it are idiots."

Certainly, the discovery and history of K2 is nowhere nearly as fascinating as the discovery and history of LSD. By the same token, K2’s discovery, reported similarities to marijuana as to the high (but apparently falling short of  marijuana’s high and general effects), and generally free availability on the legal open market are fascinating. As CBS online recounts: “Dr. John Huffman [not to be mistaken with LSD inventor Albert Hofman], a Clemson University organic chemistry professor, was researching the effects of cannabinoids on the brain when his work resulted in a 1995 paper that contained the method and ingredients used to make the compound. That recipe found its way to marijuana users, who replicated Huffman's work and began spraying it onto dried flowers, herbs and tobacco.”  

By imperfect analogy, today we see people making and selling their own K2 using Huffman’s research, just as independent chemists found a way to make and sell their own LSD –- which remained legal for part of the 1960’s before the drug laws caught up -- using Albert Hoffman’s research.

Additional useful commentary and information on K2 is available at the Drug Policy Alliance’s blog, Live Science, and the University of Kansas’s newspaper.

In any event, what will drive people to smoke K2 over marijuana other than its availability at retail stores and its showing up in urine tests as something other than cannabis? Speaking from supposition rather than experience beyond having smoked marijuana a few times in high school and college, it appears that a chemical compound will be unable to match the natural superiority of marijuana. Albert Hoffman found a way to make a chemical hallucinogen, LSD, more popular than natural hallucinogens, but K2 is hardly a threat to marijuana’s marketability. Aside from those needing to pass drug tests, perhaps K2 will be popular with people who already have prior criminal convictions and  are concerned about more serious sentences for subsequent marijuana convictions due to not having a clean criminal record.

Maybe K2 will get banned in more states. New legal highs are likely to follow.

ADDENDUM: March 12, 2010: On March 10, somehow only my draft and not final version of this article originally got posted, perhaps because there were technical difficulties saving the final version. I have now fixed that.

Read enough search warrant applications, and "CI" (confidential informant) will rear its head again and again.

Praised be Virginia's Court of Appeals (albeit by only 2-1) for reversing a conviction that resulted from a so-called reliable confidential informant's tip that the defendant was about to arrive armed at the Harris Teeter for a drug deal, but where insufficient grounds were stated for such a belief:

"Under the totality of the circumstances, we hold that the CI’s tip in this case did not provide the officers with probable cause. The CI did not provide his basis of knowledge, nor did he provide such detailed information that it could be inferred he had personal knowledge of the criminal activity. Finally, his history of reliability was not so unusual on its own to support a finding of probable cause. For these reasons, we hold that under the totality of the circumstances, the police officers lacked probable cause for the warrantless search of the vehicle and appellant." Byrd v. Virginia, __ Va. App. _ (March 9, 2010). Jon Katz