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

Trial lawyers compete with a world of instant entertainment gratification, with most homes having multiple cable television channels with a clicker at the ready the moment interest wanes or a crappy commercial pops up. HD radio, Kindle, the Internet, and Amazon.com provide seemingly unlimited entertainment and distractions, to the point of being the opiate of the people.

What makes movie A have mile-long lines and movie B struggle to get even five attendees? Sure, some of the artistically greatest films will garner audiences that are fractions of attendance of blockbuster  movies that have great escapism and huge multilevel marketing budgets but little artistic value beyond the acting and special effects. Then again, some films like Forrest Gump  get huge audiences and also include  timeless messages told in the package of mainstream film.

Some films and novels talk to the audience on at least two levels, one to attract audiences of all ages, and the other speaking much deeper messages. "2001: A Space Odyssey" might qualify as such a movie.

How on earth can a trial lawyer compete with captive jurors' entertainment options? One way is to be entertaining -- in a sincere, caring and honest way of course -- while still getting one's serious and persuasive message across with a a gripping and persuasive story and themes that speak to the core of what motivates people.

As entertainment options increase in society, perhaps some get numb from the reduction in live human contact as more people get and stay more wired to the Internet and glued to Hollywood and Madison Avenue fare, even when dealing with them live, as many people answer cell calls and voice mails when on an outing family and friends, which often is a very annoying disconnect.

Persuasive trial lawyers, therefore, have an opportunity to satisfy the cravings of  jurors and judges for live, gripping human drama, with the lawyer giving full time and attention to the jurors. Live concerts and theater typically are more gripping and spine-tingling than CD's and films by the same performers and artists, as are paintings and  interviews viewed in person. Moreover, the trial lawyer and performer can and must interact with and respond to jurors and judges, whereas musicians recording in a studio have no gauge of how to adjust in the moment to what their audiences like and do not like.

This all relates to the path I endeavor to stay on and develop, of being in-the-moment, mindfulness, paying full time and attention, and t'ai chi.

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

Thanks to a listserv member for posting this opinion from Maryland's Judicial Ethics Committee, which says judges may not ask a criminal defendant to divulge his or her immigration status at sentencing nor at a bail hearing.

Today, the Fourth Circuit revisited Gall v. United States, 552 U.S. 38 (2007) and Rita v. United States, 551 U.S. 338 (2007), in ordering a resentencing where a sentencing judge "stated that while it did not agree with the Guidelines range, it was 'obligated' to give [defendant] Mendoza a Guidelines sentence unless 'a reason for a departure from those Guidelines, or a variance based on 18 U.S.C. § 3553' was present. Because prefacing a sentencing explanation with such obligatory terminology amounts to an impermissible presumption that a Guidelines sentence is appropriate, see Rita v. United States, 551 U.S. 338, 351 (2007), we believe the prudent course is to remand for re-sentencing. In doing so, however, we do not imply that the district court’s Guidelines sentence was substantively unreasonable or that Rita remands are warranted in cases where there exists no serious possibility that the district court treated the Guidelines as presumptively binding." U.S. v. Mendoza-Mendoza, __ F.3d _ (4th Cir., March 5, 2010).

A real tension exists between the First Amendment and the Constitution's protections of intellectual property.

Art. I, § 8 of the Constitution empowers Congress to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The First Amendment provides that "Congress shall make no law abridging the freedom of speech..."

In 1992, federal trial Judge Pierre Leval recognized, as follows, the tension between the First Amendment intellectual property protections:

"Even if there was some likelihood of confusion, I would still conclude that New York's cover did not violate Yankee's trademark rights. This is because the First Amendment confers a measure of protection for the unauthorized use of trademarks when that use is a part of the expression of a communicative message.

"Because the trademark law regulates the use of words, pictures, and other symbols, it can conflict with values protected by the First Amendment. The grant to  one person of the exclusive right to use a set of words or symbols in trade can collide with the free speech rights of others. When another's trademark (or a confusingly similar mark) is used without permission for the purpose of source identification, the trademark law generally prevails over the First Amendment. Free speech rights do not extend to labelling or advertising products in a manner that conflicts with the trademark rights of others. In these circumstances, the exclusive right guaranteed by the trademark law is generally superior to the general free speech rights of others. See Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989).

"However, when unauthorized use of another's mark is part of a communicative message and not a source identifier, the First Amendment is implicated in opposition to the trademark right. In recognition of this potential conflict, the Second Circuit has construed the Lanham Act narrowly when the unauthorized use of the trademark is for the purpose of a communicative message, rather than identification of product origin. Thus, where the unauthorized use of a trademark is for expressive purposes of comedy, parody, allusion, criticism, news reporting, and commentary, the law requires a balancing of the rights of the trademark owner against the interests of free speech. See id., 875 F.2d at 998; Cliffs Notes, 886 F.2d at 493-95." Yankee Publ'g, Inc. v. News Am. Publ'g, Inc., 809 F. Supp. 267, 276 (S.D.N.Y. 1992).

When people call me about copyright infringement help, I say that I will be interested in defending the alleged infriger, and not the alleged victim of copyright infringement. That is not to say that I encourage people to run roughshod on others' intellectual property. It is to say, however, that I worship at the altar of the First Amendment, and believe that if the First Amendment is to have sufficient meaning, it is more important to overprotect free expression than to underprotect it.

In the foregoing regard, when defending against a copyright infringement lawsuit -- as with defending against all lawsuits -- it is critical to analyze arguments for dismissing the lawsuit on procedural grounds. The Supreme Court on March 2, 2010, addressed the extent to which courts may consider copyright infringement lawsuits filed by people who have not registered their intellectual property with the federal government. From my initial reading of the opinion, the Court refused to permit non-registration as an automatic bar to suing alleged copyright infringers. The opinion goes into much greater detail than that, here. Reed Elsevier v. Muchnik, __ U.S. _ (March 2, 2010).

How many Supreme Court justices have been interrogated by police? Probably none. How many have asserted their Miranda rights with the police, only to have the police repeatedly come back to them seeking a reversal of the waiver? Probably fewer. How many of them agree with a shelf-life of fourteen days for an assertion of the right to counsel in the face of police interrogators? Seven, including the so-called more liberal wing justices Ginsburg, Sotomayor, and Breyer. Maryland v. Shatzer, _ U.S. (Feb. 24, 2010).

With such an overwhelming majority opinion, Shatzer is likely to have an indelible mark for decades to come, unlike the fourteen-day shelf-life of assertions of the right to counsel in the face of interrogators.

On the one hand, lawyers can try to file pleadings and provide their criminal suspect clients letters that provide the following language suggested by a listserv member (whom I thank deeply):

"I, XXX, hereby assert my Fifth and Sixth Amendment rights to remain silent and to have counsel present at any and all of my interactions with the government or others acting on the government's behalf. I do not wish to, and will not, waive any of my constitutional rights except in the presence of counsel. I do not want the government or others acting on the government's behalf to question me, or to contact me seeking my waiver of any rights, unless my counsel is present."

On the other hand, what if interrogating police do not give the suspect or defendant access to such documents? Perhaps it is better to tattoo the foregoing paragraph on one's forearm, or to sing "I assert my right to remain silent" to the tune of another famous Miranda, namely Carmen. Jon Katz

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

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

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

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

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

Image from National Institute of Standards & Technology.

Breathalyzer tests are junk science. At best, breathalyzer machines should only be used to determine whether to obtain a more thorough blood alcohol screening, through a blood test (or a balloon test, according to one forensic chemist whom I respect very much).  This is imperfectly akin to a drug dipstick's positive result not being sufficient, and instead needing a lab test of the urine sample at that point.

Underlining the breathalyzer junk science is the Washington, D.C., police chief's revelation this past Friday that eight of ten Intoxilyzer 5000 machines in the city had been delivering inaccurate results between October 2008 and February 2010.

What does this mean for people already convicted for DWI from arrests during the October 2008 through February 2010 timeframe? It means they should contact their lawyers immediately about filing for relief from the court from this blunderous situation. Jon Katz.