UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

 Bill of Rights (From public domain.)

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

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

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

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

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

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

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

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

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

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

In addition to my own clients, frequently I receive calls from people asking for help to expunge their criminal records when I had never been in court with them in the first place. For my pre-existing clients, I gladly do the work where they are eligible for expungement. For the second group, I ordinarily decline, in part because I would need to charge (and often do not wish to do so) to overcome the case learning curve that the original trial lawyer has overcome, and because the work is too much of a thankless and sometimes tedious task -- especially if the expungement were denied --- unless I was involved earlier in obtaining the favorable result that led to eligibility for expungement in the first place.

Here is a brief rundown about expungement practice, procedure, and strategy in the state jurisdictions where I practice:

Where I practice -- absent any statutory benefits for youths -- expungement and sealing is not available without no prosecution action, a dismissal, an acquittal, or, in Maryland, a stet disposition or probation before judgment.

- Maryland's expungement application process is the simplest, generally requiring the completion of two triplicate one page forms and a $30.00 filing fee.

- In 2006, the District of Columbia loosened its sealing law, that previously generally prevented sealing absent proof by clear and convincing evidence of actual guilt. The D.C. Public Defender Service has a free information packet on the Criminal Record Sealing Act of 2006, with sample motions for those wishing to file pro se, by calling or visiting PDS. 

- Virginia's sealing procedure requires filing an entirely new lawsuit and filing fee for such relief. Earlier this month, the Virgnia Supreme Court confirmed that sealing is precluded after a dismissal following a judicial finding of guilt or facts sufficient to prove guilt.  Brown  v. Virginia, __ Va. _ (June 4, 2009).

- In federal court, any sealing eligibility is very limited.

Criminal defendants need to know that expunging and sealing does not prevent police, prosecutors, or judges from knowing about their criminal charges and dispositions. At least in Maryland, though, expunging can create a substantial hassle for such people to obtain their criminal charge and disposition history. Sealing does not eliminate any information harvested by private parties before the expungement/sealing date.

Among others, people who will be applying for immigration benefits from the United States or seeking a U.S. security clearance, should consult with a lawyer before getting their records sealed or expunged. If they do get their criminal case records sealed or expunged, they should in advance obtain multiple certified copies of their case disposition, and probably at least one or two certified copies of some or all of their court case file. The immigration authorities, and possibly the security clearance officials, likely will want to see documentary proof of the case disposition. Jon Katz.

On June 17, 2009, the Fourth Circuit issued an opinion in a drug conspiracy case, addressing the following particularly important issues, in U.S. v. Marc Jeffers. __ F.3d _ (4th Cir., June 17, 2009):

- The Fourth Circuit rejected Jeffers's request for plain error review on the absence of a jury instruction about the possibility of multiple unrelated conspiracies. Jeffers said:

"We have heretofore explained that '[a] single conspiracy exists, when the conspiracy had the same objective, it had the same goal, the same nature, the same geographic spread, the same results, and the same product.' United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995) (internal quotation marks omitted). Error will be found in a conspiracy instruction 'if the proof of multiple conspiracies was likely to have confused the jury into imputing guilt to [the defendant] as a member of one conspiracy because of the illegal activity of members of the other conspiracy.' United States v. Roberts, 262 F.3d 286, 294 (4th Cir. 2001)."  Jeffers, slip op. at 10-11.

Jeffers further said:

"As we observed in Banks, a drug conspiracy may 'result[ ] in only a loosely-knit association of members linked only by their mutual interest in sustaining the overall enterprise of catering to the ultimate demands of a particular drug consumption market.' Id. As such, there was no instructional error — much less plain error — made by the trial court in this respect." Jeffers, slip op. at 12.

- The Fourth Circuit rejected Jeffers's contention that the "trial court failed to instruct the jury that it had to determine the quantity of cocaine base attributable to him." Jeffers said: 

"In United States v. Collins, in 2005, we held that, in order to properly apply the sentencing provisions of § 841(b)(1) in a § 846 drug conspiracy prosecution, the jury must determine that the threshold drug quantity was reasonably foreseeable to the defendant. See 415 F.3d 304, 314 (4th Cir. 2005). In this prosecution, the district court instructed the jury that it had to find that ‘the object of the unlawful plan was to distribute or possess with intent to distribute at least 50 grams of a substance containing a detectable amount of cocaine base.’" Jeffers, slip op. at 14.

Concurring Judge Niemeyer added his "continuing objection to our application of United States v. Collins, 415 F.3d 304 (4th Cir. 2005), which remains inconsistent with well-established conspiracy law, as defined by 21 U.S.C. § 846 and governing Supreme Court decisions, such as United States v. Shabani, 513 U.S. 10, 13-14 (1994). See United States v. Brooks, 524 F.3d 549, 565-79 (4th Cir. 2008) (Niemeyer, J., dissenting). Our court should have seized this opportunity to correct the problem, although, I suspect, it will have to be the Supreme Court and not our court that does so." Jeffers, slip op. at 23. 

- Jeffers confirmed that:

"A sentencing court is obliged to make factual determinations by a preponderance of the evidence. See United States v. Brika, 487 F.3d 450, 459 (4th Cir. 2007). We review such a court’s findings of fact for clear error, reversing such findings only if we are 'left with the definite and firm conviction that a mistake has been committed.' United States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008) (internal quotation marks omitted)." Jeffers, slip op. at 17.

- Jeffers found a Rule 16 discovery violation through the government's refusal to permit Jeffers to copy discovery, and instead only to examine some of it. However, Jeffers found no showing of sufficient prejudice to merit appellate relief. Jeffers, slip op. at 19-20.

- The Court denied Jeffers's Brady challenge, and confirmed the following approach for evaluating such challenges:

"In order to establish a Brady violation, Jeffers is obliged to show that the non-disclosed evidence was (1) favorable to him, (2) that it was material to his defense, and (3) that the prosecution possessed it and failed to timely disclose it to Jeffers. See United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001). Evidence will be deemed 'favorable' if it is either exculpatory or if it can be used as impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). Such evidence is properly considered as 'material' if there is a 'reasonable probability' that its timely disclosure would have produced a different result. See id. at 682. A 'reasonable probability' exists if the failure to make such a disclosure "undermines confidence in the outcome of the trial." Id. at 678." Jeffers, slip op. at 22.

Jon Katz.

In Cheng Hsin: Principles of Effortless Power Peter Ralston makes total sense in declaring that problems between people "are really a parallel to what occurs in martial interaction and in fighting." If this is so, how can a trial lawyer afford not to learn, study, practice and apply martial arts in court? Choose the martial art you want, but forego martial arts in court at your own peril. 

Early on in his martial arts life, Ralston  discovered -- whether he is speaking hyperbolically or not --that when he lost the fear of getting hit while sparring, and stopped focusing on whether he would win or lose, he stopped getting hit. Cheng Hsin: Principles of Effortless Power. Ralston writes that he ultimately reached even greater martial heights, already in the 1970's, by visualizing his opponents' next moves before those moves were even made, and then advancing further to moving without knowing why he had moved in that particular way, but then realizing that the particular move gave him a sparring advantage over a martial arts opponent. Ralston also speaks of realizing by the 1970's about the level of nothingness, connectedness and oneness in which we all live. 

Two weeks ago, I mentioned the foregoing passage about fearlessness of getting hit, to a much more advanced t'ai chi practitioner who had recommended the book to me, after we had been doing sensing/pushing hands. He responded by asking me why, then, was I tensing up so much that morning against being pushed. For the next six days, I focused more of my t'ai chi practice on applying the t'ai chi lessons of fearlessness, yielding, neutralizing, using no more than four ounces to push a thousand pounds, and not deviating from the t'ai chi principles in fighting (e.g., not grabbing with the fingers, and not moving in all sorts of non-t'ai chi directions to avoid being pushed). When sensing/pushing hands the following Saturday with this same fellow practitioner, I was getting pushed less, yielding and relaxing and sinking more, and better understanding the long and never-ending road of learning t'ai chi.

T'ai chi master Cheng Man Ch'ing -- whether speaking literally or figuratively -- said that a baby laying in the wilderness cannot be harmed by a person's spear or a tiger's claw, because the baby knows no fearlessness. Certainly, one finds greater strength by maintaining the fearlessness, joy, and wonder of a child; to do otherwise can be fatal.

In T'ai Chi Dynamics, Robert Chuckrow -- one of Cheng Man Ch'ing's more junior students -- theorizes that had Professor Ch'ing lived beyond his seventy-five years (passing away in 1975), he might have taught his most senior students to achieve even higher levels of martial accomplishment, to the point that more force than four ounces would be needed to move an opponent who uses hard energy. Similarly, at the last push hands gathering that I attended two Saturdays ago, another fellow practitioner advised that I follow through more when pushing and pressing against my opponent, in that this extra physical follow-through can be necessary to put the opponent off balance. I imagine all this can be done while still applying all the t'ai chi basics, including being as soft as a water, wind, or cotton, but as devastatingly powerful as a tidal wave, hurricane, or needle hidden within the cotton.

In Cheng Hsin: Principles of Effortless Power, Peter Ralston talks of the power of the muscular softness involved in internal martial arts to being akin to the softness of an electrical wire through which the powerful electricity runs through.

Clearly, a judge will be more willing to tolerate a lawyer doing cross examination, for instance, that appears to use respectful words and a respectful tone of voice, that still packs a wallop. How can a judge, under such circumstances, tell a lawyer to "stop badgering the witness"?

How can clients and witnesses be taught a crash course in using the benefits of the internal martial arts when being cross examined by the opposing lawyer? One of the most important principles for such witnesses to apply is to relax and sink any tension into the tan t'ien, "located approximately two inches below the navel and in the center of the pelvic area." Let tension roll off the back as does water off a duck's back. Be no worse than centering one's gravity so that the person is no more likely to fall down from a push than a weeble, which at worst wobbles but does not fall down.

Relaxing and sinking is one of the five t'ai chi principles, with the other ones being keeping the body upright, turning from the waist, separating the weight into yin and yang, and keeping the wrists softly unbent.

Thanks to Lee Scheele for posting the following on relaxing and sinking:

"Attributed to T'an Meng-hsien, 

as researched by Lee N. Scheele

'The Song of Peng

What is the meaning of Peng energy?

It is like the water supporting a moving boat.

First sink the ch'i to the tan-t'ien,

then hold the head as if suspended from above.

The entire body is filled with springlike energy,

opening and closing in a very quick moment.

Even if the opponent uses a thousand pounds of force,

he can be uprooted and made to float without difficulty.'"

Last night I stopped by the annual D.C. Bar-sponsored meet-the-judges reception at the District of Columbia Superior Courthouse. I am of two minds about attending such gatherings, which I rarely attend. On the one hand, the situation is somewhat artificial because the lawyers' conduct rules prevent me from talking about my most burning concerns and questions without my opposing lawyers' presence. On the other hand, there is an artificiality, particularly in a land where democratic ideals are so widely touted -- whether or not necessary -- of having a mere human sitting up on an elevated judge's bench in black robes with the power to lock up people and render other devastating decisions at a moment's notice. T'ai chi teaches to know others by getting close up to them, so I attended.

The gathering was in the jury lounge, complete with a musical trio, unlimited wine and soft drinks for the admission price, and servers walking around with appetizers when leaving them on a table to get soggy would have done just fine. The jury lounge location was a strange juxtaposition to say the least. 

I did not learn anything revealing about any of the judges. Then again, I did not make any effort to do so. I got more out of talking about some case strategy with some of my colleagues. Then I left.

In the interim, among those speaking to the crowd was Judge Royce Lamberth, who is the chief judge of the U.S. District Court for the District of Columbia. Pricking up my ears the most were Judge Lamberth's comments about the court's overloaded docket thanks in part to the Guantanamo cases, from which I gather he means the the Guantanamo habeas corpus cases; and the court's docket currently including prosecutions for tons of cocaine rather than just kilograms. (Here is the federal government's take on the cocaine tons prosecutions during the closing weeks of the Bush Administration).

Judge Lamberth discussed the Guantanamo cases publicly as long ago as last March, and at that time had some choice words for all political parties for what he described as serious delays in filling vacancies on his court. Last night he forecast the possibility -- or maybe just his hope -- that Guantanamo cases would occupy significantly less of the court's docket come this October, and said that visiting judges from other jurisdictions had been assisting on the non-Guantanamo cases, due to a shortage of enough judges in his courthouse to handle them.

As to the alleged tons of cocaine being prosecuted, I say that where there is a demand for drugs, there will be a supply. How many people would be turning to cocaine, marijuana and numerous other unlawfully-sold drugs if they had the funds and access to qualified physicians to prescribe them medication to assist their psychological and physical problems; if the funds and access to quality mental health counseling; and the funds, access, and will to live a balanced and harmonious life? How much are criminal prosecutions really going to suppress illicit drug use after all these decades of failure on this front?

In any event, I briefly spoke afterwards with Judge Lamberth. I have not appeared before him, but found him to be easy to talk with and apparently interested in interacting off the bench with lawyers. Had a prosecutor been present and had the lawyers' professional conduct rules allowed, I would have repeated to him my formula for eliminating bursting court dockets: Legalize marijuana, heavily decriminalize all other drugs, eliminate mandatory minimum sentencing, eliminate the death penalty, and eliminate per se rules of guilt in drinking and driving cases. On the one hand, judges are not lawmakers. On the other hand, many lawmakers will listen more to such lobbying from judges than from me. Jon Katz.

Bill of Rights. (From the public domain.)

Before this month, rarely a business day passed without an Underdog posting. This month has seen some business days without postings.

When I am not working or spending time with my family, I am spending increased time practicing t'ai chi ch'uan. At first, when I started practicing t'ai chi in 1994, I thought t'ai chi development needed at least one daily full round of the 37-posture yang style short form, as developed by Cheng Man Ch'ing. The form takes around eight minutes. Then, last fall, t'ai chi master Ben Lo advised me to practice in the morning and evening, increasing my practice to sixteen minutes daily.

Next, two months ago I started learning sensing/push-hands t'ai chi practice well beyond the few times I tried it out for a few short moments, rarely missing a Saturday morning practice now at Lincoln Park, a few blocks from the Capitol. Through talking with one of the advanced practitioners and reading Wolfe Lowenthal's t'ai chi book Gateway to the Miraculous, I learned that doing the t'ai chi form once in the morning and once in the evening is not much more than a warmup. Thereafter, I have increased my daily t'ai chi practice to an average of 45 minutes to ninety minutes total, as I describe here. My daily t'ai chi commitment is akin to the time spent driving to and being at a health club. The beauty of t'ai chi is that the time driving to the health club can instead be used to exercise wherever a person happens to be.

My increased t'ai chi practice helps me achieve further in such essential t'ai chi practices as fully relaxing, sensing my surroundings and opponents' actions better through quieting the mind and emptying overclutter in the mind, and rooting the soles of the feet to the ground like a plant that cannot be pushed over. Particularly with the summer weather, I am doing more of my t'ai chi practice outside, not only in the morning after I awake, but in the evening before going to bed. Where before I usually fell asleep easily but sometimes started waking up before I planned and with an unquieted mind, I am sleeping more soundly for a longer time and am spending more sleeping and waking hours with a much more quieted mind that is no less active than needed.

T'ai chi is not only a martial art, but according to the late physician and t'ai chi master Cheng Man Ch'ing, t'ai chi is unparalleled at making the strong stronger and the weak stronger, and at making one healthy in the first place so as to reduce the need for acupuncture and any other medical treatment. For those who believe in the benefits of acupuncture, which focuses on the flow of one's chi, t'ai chi focuses on the same.

Professionally, t'ai chi continues providing me tremendous and increasing benefits. Some of the benefits come from my daily practice, including the increased relaxation, calmness, and mental sharpness that are a far cry from the dread I often felt in the pit of my stomach early on in my criminal defense career when walking into courthouses and recognizing head-on all the injustice being inflicted on too many people, including the many unjust bail orders that lead to many defendants coming to court in chains rather than through the front door.

Additional benefits come from speaking with fellow t'ai chi practitioners and reading some excellent t'ai chi books. Wolfe Lowenthal provides great lessons in fearlessness and equanimity, which is a topic I frequently blog about. One of my t'ai chi teachers is a lawyer who found the time to teach t'ai chi while a big firm law partner and while the chief lawyer at a huge corporation, all the time exhibiting total calm when I have seen him, together with his having fun pushing and bumping into me to illustrate his answers to my longtime questions about whether t'ai chi really works as a martial art. The foregoing t'ai chi benefits help me not only as a lawyer, but as a person; of course, to become a better lawyer, one must simultaneously become a better person.

Around 1997, I wrote about the overlapping benefits I derive from applying the lessons of t'ai chi, the Trial Lawyers College, and the path of peace. As I continue to apply these lessons, I learn that the thick skin I have developed over the years to toughen myself in coping with and fighting injustice, unfairness, heartlessness, and inhumanity did not help me sense often enough when others felt harm by words and actions that often roll off my back like water on a duck. This foregoing path that I have taken helps me shed unnecessary armor to better empathize when, for instance, a client feels all bent out of shape when a court starting time changes, and to better sense how everyone around me is reacting to -- and may react to -- me, others, and everything else taking place. This is critical in persuading and living inside and outside of the courthouse.  

I continue benefitting professionally from blogging. Blogging keeps me motivated daily to review appellate court opinions, to continue developing the art of persuasion in every aspect of trial and appellate litigation, to continue to know myself and others, and to get the word out when it needs to get out about justice and injustice. Therefore, I will continue making time to blog. At the same time, blogging is a solitary practice, sitting in front of a computer, sedentary. T'ai chi is anything but sedentary. It is alive. It is the supreme ultimate.

For many years, David Carradine and his Kwai Chang Caine character were virtually one and the same for me. I did not think about whether Carradine was the best actor for the role, nor how realistic or not Kung Fu presented effective martial arts. His character presented an alternative to the brute force, hard style of fighting that predominated in the West at that time, and an alternative to the daily hustle-bustle of life.

From what I can tell from t'ai chi books and Internet sites, kung fu (1) is the same as the Chinese gung fu and (2) means accomplishment, rather than referring to any one specific martial art. Curiously, long before I started studying t'ai chi nearly fifteen years ago, one of Caine's Kung Fu television teachers taught him about cultivating and applying the chi.

David Carradine has left the planet, and all the speculation and investigation over the cause of his death will not bring him back. If he is aware of the current earthly goings-on, I send a wish for a peaceful and harmonious passage full of good karma. Jon Katz

Although a relative warned me, when I considered law school, that many lawyers are dissatisfied by the tediousness of practicing law, an essential part of practicing criminal defense -- if not all litigation battle -- is to meticulously obtain, review, analyze, synthesize, and apply the applicable evidence and law. It often is like panning for gold, sometimes with the appearance of gold specks being few and far between. When a lawyer is passionate for his or her client and the client's cause, such otherwise tedious work becomes no more distasteful than stretching before taking a long distance run or regularly changing a car's oil.

Praised be the legal team for Charceil Davis Kellam for successfully panning for such gold, and thereby obtaining a reversal of her three-strikes life sentence for an alleged third drug felony conviction. U.S. v. Kellam, et al.,, _ F.3d _ (4th Cir., June 3, 2009). The Fourth Circuit ruled that the federal three strikes law obligates the prosecution to prove beyond a reasonable doubt the existence of two applicable prior convictions, and the identity of the person so convicted.

In this instance, the prosecutor introduced certified court documents of prior drug felony convictions. However, the prosecutor did not produce conviction orders signed by judges, photographs of the convicted defendant, nor fingerprints of the convicted defendant. Although the Fourth Circuit did not say that all of the foregoing items are required at once to obtain a three-strikes sentence, it did show that the absence of all of them are fatal to obtaining such a sentence if the defendant does not stipulate to the prior convictions. Additionally problematic for the prosecutors in Kellam's sentencing was that at least one of the certified documents included aliases that apparently did not match the names in the then-pending indictment against Kellam, and had partially redacted the social security number and birth date.

The Fourth Circuit ordered a resentencing. On the one hand, Kellam's alleged relevant prior convictions were in state courts in Virginia and Maryland, which does not pose a geographic problem for the prosecutor to try to obtain more documentation to support a three strkes conviction. On the other hand, the more time marches on, the greater the chance that such documents will have become misfiled, lost or destroyed. Jon Katz.