Recently I blogged here and here about the junk science of horizontal gaze nystagmus in drunk driving cases.

Lawyers USA recentlly interviewed me in relation to the recent Illinois HGN case --  Illinois v. McKown (IL, Feb. 19, 2010) -- that I blogged about on March 18.

The article references my interview as follows:

Jon Katz, a criminal defense lawyer in Silver Spring, Md., said that he uses a variety of tactics to challenge arresting officers' HGN testimony.

Last year, the Maryland Court of Appeals held that a state trooper's testimony about a defendant's performance on a HGN test constituted expert testimony subject to the rules governing the admissibility of expert testimony  (Maryland v. Blackwell, 971 A.23 296).

Katz said that sometimes, he can "keep that [HGN] testimony out of evidence merely by the prosecutor not notifying me in advance that they're going to have an expert witness."

He has also successfully argued that to be qualified as an expert "at a minimum there has to be a training course patterned after the type of course approved by the NHTSA."

 

Image from National Institute of Standards & Technology.

 

An officer arrested a man for DWI on private property, and was not sure whether he would mention the possibility of taking a breathalyzer test, not knowing whether Virginia's implied consent law for taking a breathalyzer test applied. After the defendant's arrest but before the officer mentioned any breath test, the defendant offered to take a breathalyzer test:

 

When they arrived at the detention center, as the officer was reading the Miranda warnings to him, appellant “brought the subject up and said that he was willing to blow and he wanted to blow.” Up to that point, the officer had not decided whether he would even bring up the breath test, as he was not sure that the implied consent law applied when, as here, a suspect was arrested on private property. However, as the officer put it, appellant “made the decision” for him when appellant volunteered to take the test after being informed of his Miranda rights. Officer Weinstein administered the test, appellant blew into the Intoxilyzer, and the breath test resulted in a BAC reading of .09.

 

Roseborough v. Virginia, __ Va. App. _ (Feb. 16, 2010).

 

The Virginia Court of Appeals ruled 6-5 to affirm Mr. Roseborough's conviction, concluding:

 

We find the officer did not need to resort to the implied consent law to obtain a breath sample because appellant explicitly asked to take the breath test without being informed about the implied consent statute. Thus, as the officer did not rely upon Code § 18.2-268.2(A) to obtain the sample, that statute was irrelevant here and did not require the exclusion of the certificate of analysis.

 

We find the trial court did not err in admitting the certificate into evidence, and, therefore, we affirm appellant’s conviction.

 

The Roseborough dissent responded:

 

Because the accident did not occur on a “highway of the Commonwealth,” the statutory exception to Code § 19.2-81 did not apply, making appellant’s warrantless arrest for driving while intoxicated invalid, as it did not occur in the presence of the arresting officer.28 Therefore, the certificate of analysis of appellant’s breath test was not administered pursuant to Virginia’s implied consent statute, and the trial court erred in admitting it into evidence on that basis.

 

In any event, one moral of the story is not to offer police things they do not request, let alone offering them things they do request.

 Just two days after posting this blog entry, I happened upon this monk and mandala at the Sackler Gallery. A ceremony is scheduled for March 21, 2010, at 11:00 a.m. to dump the remains of the mandala into or on the ground near the museum.

 

Last week, my teacher, through his writings, Beop Jeong left his body.

 

This week, it turned out that Beop Jeong's will asks that his books not be published any further, "saying he does not intend to take what he called the 'debt of words' that he spread during this past lifetime to his next." In so doing, his extensive writings became a mandala masterpiece that is dumped into the lake as soon as it is completed, signifying the impermanence of life.

 

Beop Jeong's words go beyond literary artworks to being important lessons about non-duality/non-attachment and of living harmoniously with the world. Yet one of the first things I thought about when learning of his will was how to get my hands on his writings before they become true rarities; that was my attachment talking.

Phillip Moffitt is a former chief of Esquire magazine, who left his job there nearly a quarter century ago to focus more on his internal development. As he recounts:

 

"In those years that I was editor in chief with Esquire, I was also the chief executive officer. So, I had two jobs and it was a seven day a week situation. And with the amount of demand of attention on worldly matters – this constant demand of attention outward – I started losing what I call the inner felt sense of life unfolding inside. My life ended up being all about the outside with meeting all these obligations and creating all this work. The internal sense of I as a human being, growing in my understanding and development of what I call the mystery of life, really started feeling missing in my experience. So it wasn't that I was … the usual thing is oh, he's emotionally not available, or she's emotionally not available because they work so much. I wasn't having that kind of a challenge at all. I was available to my friends and things like that. I had a relationship and so forth. I did not have this inner sense."

 

Congratulations to Mr. Moffitt for having turned to such internal development. Nevertheless, another way to develop internally is to learn to maintain calm in the eye of the storm, which means that we can develope internally right now, right where we are.

 

ADDENDUM:    Here are some relevant links to Phillip Moffitt's journey: See Diana deRegnier's interview with Mr. Moffitt here and here. Here are links to Mr. Moffitt's Life Balance Institute, Spirit Rock Meditation Center (where he teaches), and his book Dancing With Life.

Yesterday, the United States Senate unanimously voted to reduce the federal crack:powder sentencing disparity from 100:1 to 20:1 as to certain quantities of cocaine. The bill is S.1789. See the full text of the passed bill here. The next step is for the House to vote on the measure.

 

The sentencing disparity reduction does not seem to apply to transactions involving over 280 grams of cocaine base, which is also commonly referred to as crack. Consequently, this leglislation does not seem to provide relief for those charged as drug kingpins involving cocaine base.

 

The legislation does not provide retroactive relief to those already convicted for cocaine base sentences.

 

In any event, this legislation looks like a move in the right direction to chip away at the years-long crack:powder sentencing disparity, to hopefully one day get retroactive relief in the disparity, and to perhaps convince President Obama to start giving some retroactive relief in reducing sentences to narrow the sentencing disparity.

 

ADDENDUM: Thanks to Sentencing Law and Policy (here and here) and FAMM for posting on this story.

Image from National Institute of Standards & Technology.

 

Last August, I addressed merger of DUI and DWI per se.

 

As an update, last January, Maryland's intermediate appellate court ruled that "when a defendant is convicted of both DUI and DUI per se, arising out of the same act of driving, the lesser sentence, in this case the one for DUI per se, merges into the greater sentence, in this case the sentence for DUI, under the rule of lenity." Washington v. Maryland, 2010 Md. App. LEXIS 11 (Md. App. Jan. 28, 2010).

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 National Institute of Standards & Technology.

 

On March 3, I blogged about attacking horizontal gaze nystagmus testimony.

 

Thanks to JR for commenting to that blog entry with a link to Illinois v. McKown (IL, Feb. 19, 2010) which in part says:

 

"A properly trained police officer who performed the HGN field test in accordance with proper procedures may give expert testimony regarding the results of the test. We also agree with the trial court’s conclusion that a testifying officer may use the HGN test results as a part of the basis for his opinion that the defendant was under the influence and impaired."

 

 

McKown had so many experts on each side as to make one wonder whether the parties somehow expected that the case would generate important appellate caselaw. Among the experts testifying for the defense was ophthalmologist Joseph Citron, MD, JD. Dr. Citron apparently is certified in field sobriety tests and available to testify about FST's beyond the horizontal gaze nystagmus. He is in Minnesota at 404-261-2911, 404-386-1100, or 404-784-5297. e-mail: JoeCitron@aol.com. Lawyer Darren Kavinoky lists him here.

 

McKown reversed and ordered a new trial, for the prosecution's failure or inability to lay a proper foundation to admit horizontal gaze nystagmus testimony.

Death penalty: Always unjust.

 

Paul Warner's admitted murder was beyond heinous. However, he also had counsel who were asleep at the wheel when they did not challenge the prosecutor's severely erroneous NCIC criminal record that was shown to the sentencing jury.

 

Today he is scheduled for state-sponsored murder in Virginia, with Governor McDonald -- who was apparently Virginia's attorney general during at least some, if not more, of the litigation in Mr. Powell's case -- having rejected clemency.

 

Each year, we learn of horrific wrongful convictions sometimes lasting for decades before the wrongful conviction is discovered, and sometimes never discovered. If the convicted person is executed before the wrongful conviction is discovered, that is particularly tragic.

 

Many people's gut reaction might be not only to execute Mr. Powell but to make him suffer as close to the way his victim suffered as possible, and possibly more so. That might satisfy some people's initial cravings for mob justice, but it does nothing to serve real justice nor to assure that other capital defendants get fair trials, fair sentencing, and fair appeals.

 

Mr. Powell is not going anywhere if his death sentence gets commuted, just as he has gone nowhere since his initial arrest.

 

Stop capital punishment now. Please make your voice heard.  

 

If capital punishment is to be permitted -- and I want it abolished -- it is critical that there be competent defense counsel and a fair trial. Linda Carty is due to be executed soon. Her backers insist she received ineffective assistance of counsel.

 

The above-displayed video for Ms. Carty's cause is very moving. Here is a petition that you may sign. Please spread this petition and the website to stop her execution.

 

ADDENDUM: Thanks to John Gibson for making me aware of the above-posted YouTube video.

 

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).

 

Brown traces the history of Virginia's amended definitions of marijuana, with the current definition being: "'Marijuana' means any part of a plant of the genus Cannabis whether growing or not, its seeds or resin; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or its resin. Marijuana shall not include any oily extract containing one or more cannabinoids unless such extract contains less than 12 percent of tetrahydrocannabinol by weight, nor shall marijuana include the mature stalks of such plant, fiber produced from such stalk, oil or cake made from the seeds of such plant, unless such stalks, fiber, oil or cake is combined with other parts of plants of the genus Cannabis." Va, Code §  54.1-3401.

 

ADDENDUM: Cheech and Chong might have dissented from including in the marijuana definition the very items that smokers first remove. At around the age of nine, I learned from Cheech and Chong, "No stems, no seeds that you don't need. Acapulco Gold is ..... Bad A** Weed." Hear Cheech and Chong's rendition here.

 

 

 

 

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.

 

- Here are informative obituaries by JoongAng Daily, Daum.net, and the Korean Herald (which provides the quote in the title of this blog entry).

 

- Here is the only video I have found of Brother Jeong, commencing at 8:26.

 

- This blogger wishes that Beop Jeong was more widely available in Western languages.

 

- Zhou Xiangchao discusses Beop Jeong's Flowers Blossom in the Mountain and May All Beings Be Happy.

 

- The Musings and Abstractions blog includes this partial quote from Beop Jeong:

 

"Do not spend this moment in vain.
These moments pile up and become an entire life.
Do not be to tense.
If you are, you lose your resiliency,
and then it is difficult to maintain consistency.
You have to be joyful in the living of life.
Everyday begin again.
Again and again, wipe yourself off and rise up from this tired old quagmire.”

 

ADDENDUM I: Here is a tribute page, in Korean, uploaded after Beop Jeong's passing.

 

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.

Photo from website of U.S. District Court (W.D. Mi.).

 

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.

Continue reading "Competing with the mass media for successful courtroom persuasion"

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."

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.

 

 

The foregoing statute of limitations applies to juvenile court matters, as well. In re Anthony R., 362 Md. 51, 763 A.2d 136. Jon Katz

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.

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.

 

 

 

During my decades of obsession over civil liberties and human rights, I have staked too much of my feelings of well-being or ill-being on things happening outside myself, when instead it is critical simultaneously to fight for social justice while also reaching and maintaining internal well-being, balance and harmony. I have seen the glass as half empty or less when a Supreme Court majority has damaged the Constitution, without taking enough time to be thankful for those in the dissent, and to even not be attached to upset when all nine justices appear to rule in such a way. I approached temporary hours-long depression in 1984 over the movie audience's cheering when a character in Scarface got his live skull chainsawed in half, with the blood spurting everywhere. I have obsessed over bigotry, too often reacting with verbal brute force rather than with persuasive responses.  

 

T'ai chi, Taoism , and nonduality  teach me to look inside myself for balance and a sense of well being. To do otherwise will make my sense of well-being dependent on too many external factors beyond my control and take me away from the now.

 

I have written before on non-duality/non attachment in terms of being a more effective lawyer and person here, here, and here. Here are some more ideas on the topic:  

 

- A life of simplicity and frugality might work fine for a person in good health with no financial obligations to others. However, what if the person gets cancer, loses a leg to gangrene, or develops severe asthma? Will it be fun any longer to live as a hermit in the mountains, in a cave with bats, or as a wandering mendicant? I suppose the answer here is to prepare reasonably for the future without obsessing over the future, and to live simply so that others may simply live, without needing to go to the extremes of living in a hut or as a hermit.  

 

- Nonduality underlines the artificial boundary between life and death. If there is an afterlife of complete awareness without a body, what will one in the afterlife do to avoid utter boredom, assuming that in any afterlife one is unable to pick up and turn the pages of a book, to travel, or to enjoy athletics? I suppose those who believe in hell – which I do not – will say that an eternity of boredom is better than an eternity in hell, and that one must obsess today over right actions in order to avoid going to hell. I suppose that if I asked Thich Nhat Hanh about how to avert boredom in any afterlife, he would likely counsel not to become attached to such a possibility that may never arise.  

 

- Nonduality can help prisoners transcend their physical confinement, whether the prisoners be confined to government-run jails or prisons, or imprisoned in their own personal lives.  

 

- If Ram Dass took so long to overcome substantial  depression and upset over his very serious stroke, after decades of knowing how to transcend that,  how much harder would it be for other people to transcend such difficulties as quickly and effectively as did Ram Dass? Perhaps part of the answer lies in reading Ram Dass’s Still Here, in which he talks about how he transcended his stroke by finally bridging the gap between what he already knew about not becoming attached to bodily ailments and how to transcend such ailments.

 

 

- Why fear death? To fear death attaches us to our bodies and to this world. To fear death forgets that millenia passed before we even were conceived. Rather than being fearful of our ultimate passing from the earth, we can be grateful for finally having become human beings after the passage of so many millenia.

 

 

Thich Nhat Hanh wrote a great book on releasing fear of death: No Death, No Fear.

 

 

Further inspiration for fearlessness of death on the non-dualistic path is this passage from Zen in Martial Arts: The Present Moment: "A Japanese warrior was captured by his enemies and thrown into prison. That night he was unable to sleep because he feared that the next day he would be interrogated, tortured, and executed. Then the words of his Zen master came to him, 'Tomorrow is not real. It is an illusion. The only reality is now.' Heeding these words, the warrior became peaceful and fell asleep."

 

 

Similarly, Zoketsu Norman Fischer said: "In Buddhist funeral services we always say, in true reality there is no coming no going no increase no decrease no birth and no death. This is a deep expression of our gratitude for existence as it is, our knowing that life in order to be life is always full of death, and death, in order to be death, is always full of life."     

In that regard, t'ai chi master extraordinaire Benjamin Pang Jeng Lo once said: "Normally, we think if [our opponent] has 100 pounds of force or power, I better have 150. But then if I get 150 pounds of force, he may have accumulated more himself. Or there’ll be somebody else with more. So next time it will be my 150 against his 200. Then I’ll need to go to 250… and still, there’s always going to be somebody with more than me. So I need to reverse my approach. I need to take my own power down to 0. Then there’s no chasing or spiraling. Nothing can change. If he has 100, I have 0. If he has 150, I have 0. If he has 200, I still have 0, on and on, whatever he has, I’m always beneath it, it doesn’t change or affect me. I’m not chasing his attributes, or competing, or catching up, or exceeding him. That’s Taijuquan.”

 

 

By divine coincidence last October during Master Lo's annual teaching visit to the Washington, D.C., area, a seat remained at Master Lo's table for lunch at a local Chinese restaurant, even though I was one of the last to arrive. There, I asked Master Lo whether he saw a connection between non-duality in Buddhism and non-chasing in t'ai chi. He did, but that is about as far as I got with him on that topic as he was engaged in talk with those sitting closer to him.

 

Concerning the concept of no coming and no going, Tibetan studies professor Ringu Tulku writes that the concept "that all phenomena are devoid of coming and going ... means that an enlightened bodhisattva sees the truth, the way things are. This is seeing directly without adding any concept or philosophy. Within this clear vision there is not the slightest doubt about anything, so there is no need for clinging or running away. A realized bodhisattva has no dualistic view. Within this sheer and naked seeing, spontaneous compassion arises. Once we no longer feel compelled to cling to ourselves and fixate on our own problems all the time, we can look around and see everything clearly. We can perceive others' lives and understand how and why they experience their problems. Although we see that others are suffering greatly, we know that their suffering is almost needless. They are not doomed to be in pain, because their suffering just comes from a wrong way of seeing and reacting. If they could see how things truly are, they would not suffer anymore. This is the understanding of an enlightened being." Ringu Tulku, Daring Steps Toward Fearlessness: The Three Vehicles of Buddhism at 58 (Snow Lion Publications, 2005). Jon Katz

 

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).

Image from National Institute of Standards & Technology.

 

Horizontal gaze nystagmus tests are junk science, but not all judges have the same view. Here are some items to consider in attacking horizontal gaze nystagmus tests:

 

“The cases and literature indicate that, in addition to alcohol, many other factors have been mentioned as a possible cause of nystagmus. They include: (1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff's syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension;   (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; (38) antihistamine use. See State v. Witte, supra; State v. Clark, supra; State v. Superior Court, supra; Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney's Textbook of Medicine §§ 84.63 and 84.64 (1990), and other cases and treatises hereinbefore mentioned.”

 

Schultz v. Maryland, 106 Md. App. 145, 180, 664 A.2d 60 (1995).

 

“If the Government introduces evidence that a defendant exhibited nystagmus when the officer performed the horizontal gaze nystagmus test, the defendant may bring out either during cross examination of the prosecution witnesses or by asking the Court to take judicial notice of the fact that there are many causes of nystagmus other than alcohol ingestion.”  United States v. Horn, 185 F. Supp. 2d 530, 533, (D. Md. 2002).

 

“We take judicial notice that the results of HGN testing, if the test is properly given by a qualified officer, are admissible to indicate the presence of alcohol in a defendant.” Schultz v. Maryland, 106 Md. App. 145, 174, 664 A.2d 60 (1995).

 

 “ [B]efore HGN testimony can be admitted into evidence the witness must be offered to the court, and accepted by it, as an expert in the field of administering the HGN test.” Maryland v. Blackwell, 408 Md. 677, 696, 971 A.2d 296 (2009) . Jon Katz 

 

 

 

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.

"[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection."  Simmons v. United States, 390 U.S. 377  (1968).

 

Consequently, it is critical to fully prepare a defendant's potential testimony for a suppression hearing.

As I have blogged before, criminal defense lawyers need to remain cognizant of the ever-developing complex morass of immigration risks from criminal convictions and sentences.

 

In that regard, thanks to the National Immigration Project for presenting this page of links about such risks. Two of the best non-state-specific links at the foregoing website are the pages on Grounds of Deportability and Inadmissibility Related to Crimes, and Removal Defense Checklist for Criminal Charge Cases.

Unfortunately, last September, a Ninth Circuit panel upheld a warrantless home search where the subject of an arrest warrant never got into the searched home. The panel justified the search under the protective search and plain view doctrines. U.S. v. Lemus, 582 F.3d 958  (9th Cir., Sept. 22, 2009)

 

Thanks to Judge Kozinski joined by Judge Paez for his scathing dissent from February 18, 2010, from the Ninth Circuit's refusal to review this case en banc.

 

ADDENDUM: Thanks to a listserv member for posting on Lemus. For whatever the reason, the panel's opinion is filled with so many contractions as to make the opinion sound too informal when considering the serious impact this case has on Mr. Lemus's life and on Fourth Amendment precedent in the Ninth Circuit.

NOTE: Following is an article that I recently submitted for publication in the newsletter of the Maryland Criminal Defense Attorneys Association:

 

Here are some thoughts for persuading judges, jurors, and prosecutors for negotiations, trials, sentencings, and probation/parole violation hearings involving marijuana: 

 

 

- In all likelihood, a small minority of convicted Maryland marijuana defendants will be sentenced under the medical marijuana sentencing scheme. Therefore, medical marijuana arguments alone are not enough in seeking favorable outcomes in medical marijuana cases.

 

 

- I have previously written in MCDAA newsletters, about medical marijuana defenses (see http://katzjustice.com/underdog/permalink/Marks-Katz-obtains-Maryland-medical-marijuana-sentence-on-multiple-plants..html and http://katzjustice.com/underdog/permalink/MarijuanaGrowDefense..html) and probable cause arguments involving marijuana smell (see http://katzjustice.com/underdog/permalink/MarijuanaSmell..html).

 

 

- In the criminal justice system, marijuana gets lumped in all too often with more harmful drugs. It can be important to distinguish marijuana as meriting less concern than more harmful controlled substances, distilled as the “it’s just marijuana” argument.

 

 

Federal and state legislatures nationwide have acknowledged that marijuana is less harmful than plenty of other controlled substances by creating less harsh sentencing schemes for marijuana than with such controlled substances as cocaine and heroin. In Maryland, marijuana gets treated less harshly than cocaine and heroin for maximum possible penalties for misdemeanor and felony possession, by omitting marijuana felony possession from the mandatory minimum second felony offender drug scheme, through lighter treatment in the voluntary sentencing guidelines, and through mere fines for proving medical necessity in marijuana possession cases.

 

 

- All judges, prosecutors, jurors, and police are going to have preconceived notions about marijuana, through such factors as past personal marijuana use and personal observation (if any), observing its effects on friends and family members, and considering propaganda from all sides of the issue.

 

 

- Arguments from the marijuana legalization/decriminalization side include:

 

 

-- Marijuana is less dangerous than alcohol.

 

 

-- The entire marijuana plant offers strong medicinal, industrial, environmental, and personal benefits. The industrial and environmental benefits are perhaps most visibly promoted, unfortunately to the point of overhyping, by marijuana champion Jack Herer in The Emperor Wears No Clothes, which is available in full-text at http://www.jackherer.com/chapters.html.

 

 

          As to marijuana’s personal and medicinal benefits, Harvard medical school emeritus professor Lester Grinspoon is a high-profile proponent with strong academic bona fides to back him up. He started studying marijuana in the 1960’s expecting to prove marijuana's harm but then found the opposite to dominate. Eventually, he decided it a good idea to try for himself the marijuana he had been studying. He became a big fan of personal marijuana use ever since. Grinspoon says of marijuana: “Over the years, I have come to understand that marijuana is not just for fun, it’s not just for medicine, but there are other ways in which this high is useful … I began to realize that this drug, this plant, is truly remarkable, that it can be used to enhance various aspects of life." “Pot Shots: The Faces of Marijuana in Boston,” by Chris Wright, Boston Phoenix, http://www.bostonphoenix.com/boston/news_features/other_stories/multipage/documents/01815009.htm.

 

 

Grinspoon said: “I came to realize that I was the one who was misinformed [about marijuana] — that despite my training in science and medicine, I had been brainwashed like just about every other citizen of this country." “Pot Shots,” supra.

 

 

Grinspoon also said of marijuana: "Marijuana expands the breadth of variables one can bring to bear on a situation. It allows the intellect to visit parts of one’s consciousness that are usually off-limits … Cannabis has helped me make some important life decisions. This is something I’m glad I didn’t have to go through life without." “Pot Shots,” supra.

 

 

- Arguments from the marijuana opposition include assertions that today’s marijuana is more potent than the marijuana smoked even a generation ago; marijuana is a gateway drug to more harmful controlled substances; marijuana is not FDA-approved and not enough is known yet about its safety; and alcohol is dangerous enough, and we do not need more dangerous drugs legalized.

 

 

    Here are rebuttals for each of the foregoing four claims:

 

 

-- The more potent that marijuana becomes, the less marijuana people need to smoke to obtain the same high or other benefits. Unlike wine, beer and other alcohol, marijuana use is not about finishing a serving of marijuana in one sitting. A marijuana cigarette may be extinguished for later use, and marijuana used in pipes gets burnt in small amounts and the rest can be saved for later. Marijuana used in baked goods also can be consumed in more than one sitting, as well.

 

 

-- One scholarly study that helps debunk the argument that marijuana is a gateway to more dangerous drugs is “Predictors of Marijuana Use in Adolescents Before and After Licit Drug Use: Examination of the Gateway Hypothesis,” by Ralph E. Tarter, Ph.D., et al., American Journal of Psychiatry (Dec. 2006), http://ajp.psychiatryonline.org/cgi/content/full/163/12/2134.

 

 

-- Harvard medical school emeritus professor Lester Grinspoon  estimates that at least $200 million is needed for studies to get a drug approved by the United States Food and Drug Administration. Absent huge financial donations from the likes of Bill Gates and George Soros to meet the FDA’s drug-study protocols, nobody is going to pay for such a study. Marijuana is unpatented, so pharmaceutical companies will have no interest in paying to get FDA approval for marijuana. With the FDA approval process too expensive for marijuana, Dr. Grinspoon points to persuasive anecdotal evidence of marijuana's strong benefits and low risks as medicine. “Commentary: On the Pharmaceuticalization of Marijuana,” by Lester Grinspoon, MD,

International Journal of Drug Policy, 12 (5-6) (2001), pp. 377-383, http://rxmarijuana.com/Pharmaceuticalization.htm.

 

 

 

-- As to the claim that we do not need to legalize additional dangerous substances, in what ways is marijuana more harmful than alcohol, nicotine and caffeine, with all being profoundly addictive, and marijuana nowhere near as addictive? How many people have died from a marijuana overdose, if such overdoses even exist? What percentage of people become violent after drinking many beers versus the percentage of people who become all the more mellow after smoking (or eating, in baked goods) even a small amount of marijuana?

 

 

 

- Recently, I spoke with a forensic chemist who typically testifies for the criminal defense side in drunk driving cases, about marijuana laws and the extent of marijuana’s benefits and harms. He believes very strongly in keeping marijuana illegal -- even for medicinal use -- and that its benefits are far outweighed by its risks and harms. 

 

 

This forensic chemist talked of the presence of over 150 chemicals in marijuana, and of marijuana's harms being like shooting a shotgun, having a minority of the pellets being beneficial -- not being sure which of those pellets are beneficial -- and having a substantial number of the pellets dangerous. He analogized to asbestos, which was used for many years before anyone found any harm from asbestos.

 

 

- Regardless of how accurate the above-mentioned forensic chemist is or is not about marijuana’s dangers, the late pharmaceutical and marijuana expert John P. Morgan, M.D., made a strong argument that marijuana is comparatively safe, in reference to alcohol and other recreational drugs, and its potential benefits are enormous. As to drivers under the influence of marijuana, he believed they often slow down. Even if marijuana turned out to be very harmful, which Dr. Morgan discounted, he would have found that to be all the more a good reason to have marijuana -- along with all other drugs -- legalized, regulated, and better controlled through the marketplace, and removed from the dangers of the current illicit drug market. “Why Marijuana Should Be Legalized: An Expert's Perspective,” http://www.youtube.com/watch?v=9KLy150NR_U&eurl=http://www.celebstoner.com/news/marijuana-news/marijuana-advocate-author-dr.-john-p.-morgan-1940-2008.html.

 

 

 - Local martial arts practitioner and massage therapist Matt Stampe takes the following balancing approach with marijuana use:

 

 

-- "[M]y Chinese doctor used to grow her own herbs and they really were helpful. I don’t see why marijuana which is 'yin' energy could not be included with other powerful herbs.

 

 

-- "As a licensed massage therapist- I have mixed views on the legalization of marijuana. First it is still a toxin to the lungs, second it affect QI 'chi' flow in the body, and can damage the 'Shen' or Mind and 'Jing' or essence of reproduction. Marijuana does pose a threat to our society in that is can make people dumb, create accidents, and make bad decisions. However I do stand for its healing benefits and some of the results for AIDS, Cancer, and other uses that help the individual and economy."

 

 

- When defending students at parallel student disciplinary proceedings for marijuana possession, it may be beneficial to remind the student disciplinary panels that in 2006, nearly two-thirds of voting University of Maryland students voted to soften penalties for marijuana in student disciplinary proceedings. http://cannabisnews.com/news/21/thread21731.shtml. The school administration left the vote as advisory only.

 

 

- In such jurisdictions as Prince George’s County, where prosecutors routinely reduce marijuana felony possession charges to simple possession for quantities under two ounces, watch out for judges who will be inclined to sentence more harshly when considering the marijuana quantity involved and when considering the later-amended felony possession charge on the charging document.

 

 

Both for making a preemptive strike under such sentencing situations, and for arguing to prosecutors and factfinders that large quantities are for personal use only, consider that marijuana is very economical to buy in bulk for personal use, making it significantly less expensive than purchasing in small quantities. Pricing information on marijuana is routinely carried in High Times magazine. Pricing information together with testimony from a suitable medical doctor (about marijuana dosages) can help counter arguments that marijuana amounts over an ounce are intended for distribution.

 

 

- Some dealers of marijuana and other drugs throw in small baggies for resale purposes. Therefore, the mere possession of small empty baggies along with one large bag of marijuana is not sufficient by itself to prove intent to distribute.

 

 

CONCLUSION

 

          Although many of the foregoing views are applicable to arguments for reforming the drug laws, many of these arguments can also be effective in negotiating marijuana cases (and in some instances other drug cases), arguing the cases at trial, and arguing at drug sentencing.

 

 

          A criminal defense lawyer’s arguments that marijuana should be treated as a less harmful drug than cocaine and heroin should not diminish the same lawyer’s effectiveness in arguing for other clients that stronger drugs also should be dealt with more heavily with probation supervision and treatment than with lengthy incarceration.    

The Chinese script for the character "mu," which means nothing. Why are so many intricate brush strokes needed to convey nothing? (The copyright was relinquished by this animated symbol's creator. The symbol also is available here.)

 

NOTE: Please see my February 22, 2010, addendum at the end of this article. I am seriously questioning whether the video segment highlighted in Elephant Journal's below-discussed blogpost was doctored or otherwise edited by someone outside of Fox News.

 

Someone recently asked me what I think about Tiger Woods’s marital scandal. I responded that the story does not interest me. It is a private matter involving a major celebrity who apparently tried to lead a very private life before this scandal.

 

To better update my answer, I was certainly intrigued that in his public statement two days ago, Mr. Woods mentioned his Buddhist upbringing: “Part of following this path for me is Buddhism, which my mother taught me at a young age. People probably don't realize it, but I was raised a Buddhist, and I actively practiced my faith from childhood until I drifted away from it in recent years. Buddhism teaches that a craving for things outside ourselves causes an unhappy and pointless search for security. It teaches me to stop following every impulse and to learn restraint. Obviously I lost track of what I was taught.” 

 

The Chinese Mu symbol, and link thereto, at the bottom right of my blog,  underlines the profound overlapping benefits I have derived from t’ai chi and Buddhism . I add the overlapping benefits of Taoism to the mix, as well. 

 

UPDATE: See ADDENDUM I below. It seems Elephant Journal was barking up the wrong tree. @elephantjournal is very prolific on Twitter, and has several times on Twitter accused Fox News of censoring Mr. Woods’s Buddhist references from his public statement from this past Friday, and has blogposted in greater detail on this matter.  Not one to accept such accusations blindly, I did find the following part of Mr. Woods’s statement omitted from the Fox News Alert YouTube page's purportedly complete video of Mr. Woods's statement. The excised portion goes beyond Buddhist references, so perhaps the Fox News folks did the edit only to reach an eleven-minute video (but should have made that clear, if that was the case). I have not figured out whether the FoxNewsAlert page is run by FoxNews, or by someone else who possible edited out this text with the intention of having FoxNews accused of the editing. Here is the text that is omitted from the video on the FoxNewsAlert YouTube page:

 

“Part of following this path for me is Buddhism, which my mother taught me at a young age. People probably don't realize it, but I was raised a Buddhist, and I actively practiced my faith from childhood until I drifted away from it in recent years. Buddhism teaches that a craving for things outside ourselves causes an unhappy and pointless search for security. It teaches me to stop following every impulse and to learn restraint. Obviously I lost track of what I was taught.

 

“As I move forward, I will continue to receive help because I've learned that's how people really do change. Starting tomorrow, I will leave for more treatment and more therapy. I would like to thank my friends at Accenture and the players in the field this week for understanding why I'm making these remarks today.

 

“In therapy I've learned the importance of looking at my spiritual life and keeping in balance with my professional life.”

 

I have looked on Google for any possible response from Fox on Elephant Journal’s accusation, but have found none thus far. UPDATE: See ADDENDUM I below.

 

 

ADDENDUM I: February 22, 2010. For the following reasons, I am seriously questioning whether the video segment highlighted in Elephant Journal's above-discussed blogpost was doctored by someone outside of Fox News, unless the Fox website was updated as a result of Elephant Journal's above-discussed accusations:

 

 

- The video about which Elephant Journal complains was uploaded by a YouTube subscriber named FoxNewsAlert. FoxNewsAlert is likely not run by Fox, in part when considering how infrequently FoxNewsAlert uploads videos (sometimes weeks apart) versus the FoxNewsChannel YouTube page, which uploads videos at least one video daily.

 

 

- The FoxNewsAlert Tiger Woods video blatantly shows a visual time-counter skip from 11:11 a.m. to 11:13 a.m. ET, which gap contains the omission of Mr. Woods's Buddhism reference.

 

 

- Fox News's website carries an Associated Press article covering the Dalai Lama's response to a journalist's questions about Mr. Woods's reference to his Buddhist upbringing.

 

 

- Fox News's website carries the full text of Mr. Woods's apology.

 

 

- Purportedly uploaded February 19, 2010, is the Fox News website's complete video of Mr. Woods's apology. 

 

 

- As an example of the need to remain on guard on the reliability of all media, including the so-called mainstream media, a USA Today blog reported on the Elephant Journal's foregoing blog entry apparently without doing any independent fact checking.

 

 

Consequently, Fox appraently did not try to hide or delete any of Mr. Woods's statement.

Thanks to a listserv member for posting on last Friday's 24-page denial by D.C. federal trial Judge Richard J. Leon of Evil Angel, et al's, motion to dismiss their obscenity prosecution. U.S. v. John Stagliano, et al., Criminal Action No. 08-93 (RJL) (D.D.C.).  

By unanimous per curiam decision today, the United States Supreme Court said that where Judge A is present during jury voir dire and Judge B hears a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), in the same trial, Judge B may still overrule the Batson challenge where the prosecutor claims that the potential juror was stricken only based on demeanor, even though Judge B did not have an opportunity to observe the potential juror's demeanor. Thaler v. Haynes, __ U.S. _ (Feb. 22, 2010). 

 

 

Tongue Fu and Verbal Judo.

 

I recently told a former police officer who is now a forensic psychologist about Cheri Maples, who found a way to inject the Buddhist approach of mindfulness into her training of police officers, including encouraging them to talk directly to other police personnel with whom they had beefs, rather than to let it boil into gossip and worse.

 

 

He suggested I also check out Tongue Fu and Verbal Judo .

 

 

The Verbal Judo program is run by George Thompson. VJ’s website says the program is about “defusing conflict and redirecting behavior with words… Verbal Judo was originally developed for police, corrections, and security professionals and is now a required course in numerous states. More recently it has been tailored for other organizations (e.g., mental health, the gaming industry, hospitals, businesses, schools) and for use by civilians to protect themselves from verbal assault and physical violence.” . The Verbal Judo books are available here.

 

 

The Tongue Fu website says: “The goal of Tongue Fu!® is to learn how to conduct yourself with confidence so you keep from being abused verbally. If provoked, however, you will be able to use these martial arts for the mind and mouth to skillfully protect yourself. Never again will you have a mental meltdown and feel helpless in the face of aggression.”

 

The Tongue Fu site links to several books, including Tongue Fu itself.

 

 

Particularly curious about Cheri Maples, Verbal Judo and Tongue Fu is that Eastern approaches to reaching harmony and resolving conflict are geared towards members of the so-called mainstream establishment. To what extent are the establishment’s gatekeepers accepting such approaches, or treating them still as experimental or downright weird? Certainly, to the extent that these three groups are truly using mindfulness, judo and kung fu, mindfulness has withstood the test of centuries of time, and judo has been around since the nineteenth century. As to kung fu, 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.

It appears that various public defender offices and public defender leaders range from on one end of the spectrum doing public defender work as a calling, working very long hours, and coming to the aid of colleagues anytime they stand up to a judge for what is right; to the other end of the spectrum seeing the work as just a job, not working more hours than they see the pay justifying, preferring to get along with prosecutors and judges as much as they get along with them at happy hour and the golf course, and scratching their heads when a colleague puts his or her job and liberty on the line to stand up to a judge.

 

Kudos to Public Defender Revolution’s author for standing up to a judge by refusing the judge’s order to proceed to trial without a postponement, where proceeding without a postponement would have been ineffective assistance of counsel. Kudos to PDR not only for so standing up, but for figuring out a way to do so effectively, including through finding, engaging, and working with a lawyer to represent PDR, found through PDR’s state criminal defense association.

 

Thanks to @skellywright for posting on PDR’s blog entry.

 

 

 

Bill of Rights. (From the public domain.)

 

 

Sometimes courts wrongly underprotect students' First Amendment rights. Of course, as to private schools, the First Amendment is not even implicated to those who run such schools.

 

Sometimes courts get it right, as with last week’s denial of a dismissal to a civil defendant/ high school principal for disciplining a student for posting a Facebook page with more than unflattering comments about one of the teachers at the school. Evans v. Bayer, __ F.Supp.2d _ (S.D. FL, Feb. 12, 2010).  

 

In Evans, high school student Evans never used school property to produce nor display the Facebook page, and actually had the Facebook page removed before the school administration ever saw it.

 

Suffice it to say, last Friday, a federal magistrate judge made an excellent decision to refuse dismissal of this suit, in which Evans seeks relief against principal Bayer. Here are links to this case:

 

- The court order denying full dismissal of the case.  

 

- Evans’s court complaint in the case.

 

- Bayer’s failed motion to dismiss the case.   

 

- Evans’s opposition to Bayer’s opposition motion. Jon Katz

 

 

ADDENDUM I: Thanks to a listserv member for circulating an article on this Evans case.

 

 

ADDENDUM II: Following is some particularly noteworthy language from the foregoing Evan case:

 

 

As noted, this is not a novel situation and has been dealt with by other courts. But here we have speech that was made off-campus, never accessed on-campus, and was no longer accessible when the Defendant learned of it...

 

 

One of the most recent decisions regarding internet student speech is instructive. In Layshock v. Hermitage School District, the Third Circuit examined whether a school district can punish a student for expressive conduct that originated outside of the classroom, when that conduct did not disturb the school environment and was not related to any school sponsored event. Nos. 07-4465, 07-4555, 2010 WL 376184, at *1 (3d Cir. Feb. 4, 2010). Justin Layshock created a fictitious profile of his school’s principal on Myspace, another social networking website. Layshock used the principal’s photo from the school website and gave fake answers to various questions. The profile

was created after school hours and off-campus, at Layshock’s grandmother’s house...

 

Regardless of the standard used, Evans’s speech falls under the wide umbrella of protected speech. It was an opinion of a student about a teacher, that was published off-campus, did not cause any disruption on-campus, and was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior. Therefore, the Court finds that Evans had a constitutional right. The next inquiry is whether it was a clearly established right.

 

Here is a full video of the Howard Zinn tribute that I attended last Tuesday night, arriving when Bernice Johnson Reagon sang with her spectacular voice, and then hearing Amy Goodman captivate as she always has when I have heard her in person. I got there after Ralph Nader spoke.

 

 

The last time my blog addressed Valentine's Day, it was about the strange juxtaposition of Valentine's Day and the Eleventh Circuit's 2007 upholding of a ban on selling sexual devices, and the Fifth Circuit's 2008 overturning of Texas's ban on selling such devices. Today, Valentine’s Day overlaps with the new year in Korea, Tibet, and China, at the very least.  

 

Today's blog entry looks more inwards, on the connection between Valentine's Day (beyond the heavy commercialization of the holiday) and being more persuasive and personally powerful. 

 

When I arrived at the Trial Lawyers College in 1995, the power of love was a big theme. As if the love theme had not been enough for me to adjust to, hugging became rampant there early on. Before that, I already understood the power of romantic love, and understood how critical it is to care and fight for social justice, but it took some getting used to seeing all the hugging and "I love you's” at the college.

 

I tend to feel that caring, compassion, and empathy are powerful enough to help a lawyer be powerfully persuasive with jurors, judges, opposing lawyers, opposing witnesses, the lawyer's own clients, and the lawyer's own witnesses. For instance, if I defend a man whom I am convinced has committed the murder he is accused of committing, it is easier for me to feel compassion and caring for him than love for him. What about if I believed my client was as heartless and potentially as violent as Hitler? I asked my mentor Jun Yasuda what she would do had she lived in the 1940's and bumped into Hitler, since I knew her response would not have mirrored my response of shooting him dead first and asking questions later. Whether or not I agreed, Jun-san explained that everyone has several personalities including good parts of their personalities; she mentioned Hitler's having been a painter. Jun-san would have asked Hitler why he was so angry. She said she might have started by offering him a massage, looking at it as soothing the soul of a savage beast, I suppose. 

 

I grew up too distrustful of other people, thinking too many people were only out for themselves, and did not give a damn about how many heads they stepped on and crushed to get ahead. I was obsessed about bigotry. When I was studying karate in college, I became obsessed with a fellow student's telling me she had returned to karate study after a man across a Greyhound bus aisle menacingly showed her a knife. I was obsessed over human rights violators, judges who seemed to urinate on the Constitution, police who abused their power, politicians who played lip service to the Bill of Rights while shredding it, and even over Muzak and other perversions and dumbing down of art. Through all those obsessions, I thought outwardly too much, rather than in my own growth and personal health.

 

Then, in rapid succession, I met Jun Yasuda in early 1991, and six months later left the corporate law firm where I had worked for three years to join the Maryland Public Defender's Office. It was easy from the get-go for me to be caring, compassionate, and empathetic to my public defender clients. I was convinced I was on the side of the angels in the criminal justice system, with it being all the more satisfying helping indigent people post-Gideon. However, it has taken me much more effort to shed my preconceived notions about police, many prosecutors, many judges, and many others in the criminal justice system.

 

Once we have compassion, caring and empathy for those in the criminal justice system, the next step is to be open, comfortable, and trusting with them to the extent possible, in part because the magic mirror makes people unlikely to treat me with trust, comfort and openness to the extent I do not do the same with them. Such an approach may not come anywhere near second nature when it is not clear whether the jurors or judge give a damn about justice or the truth.

 

Recently, I read a passage on the website of a colleague who at once said that he goes to court ready to be thrown into the lockup if need be in standing up to judges, but that he is not judgmental. Although I tend to side with my trial guru Steve Rench that a lawyer can be powerfully persuasive without needing too often to risk a judge sending the lawyer to the lockup, my colleague who talks about the lockup makes an excellent point that we can be tremendously powerful for our clients without judging others. With all the judging and pre-judging that too many police, prosecutors and judges engage in, it takes all the more effort not to judge them, but that is necessary.

 

Suffice it to say, I did not grow up seeing the world as a sufficiently cheerful place, but, for many years, as a place with too many shades of gray, with some bright colors added from time to time. 

Continue reading "Valentine's Day reminds of the persuasive power of love and compassion."

When I have a lengthy jury trial scheduled, I ask the potential jurors (where lawyer-directed jury voir dire is permitted) and ask the judge to ask the potential jurors (where lawyer-directed voir dire is not permitted) how they feel about being away from their daily routine to sit on the jury. Many potential jurors have very sincerely said that they feel it is an important duty that they welcome and accept. Numerous others want out, and now.

 

My multi-day (and multi-week) jury trials have been particularly interesting and of particular consequence, as opposed to a dry and annoying trial to decide which millionaire receives the lion’s share of the late parents’ estate. Furthermore, in today’s economically-depressed, job-depressed, job-stressed, and job-risky climate, watch out all the more for potential jurors freaking out about their job security and lost pay and profits (for those who own their own businesses or work on commission or get paid per job) who will not be well-focused on the trial, will throw wrenches in the engine of the jury deliberations, and will outright screw parties to the trial.

 

Thanks to a listserv member for providing this link that illustrates this problem in detail, stemming from a civil trial where the jurors rebelled so terribly that both sides ultimately agreed to dismiss the jury and let the judge decide the case.

 

Even when the economy improves, it remains critical for lawyers, judges and the court system to look out fully for the needs of jurors. Unless a juror has a secure government job where assignments do not mount up and get backlogged while on the jury, and unless a juror is retired or independently wealthy and loves the jury experience, watch out for jurors who get preoccupied about all the things they cannot get done while serving on the jury, including checking in on children in daycare; engaging in job hunting; checking frequently with their offices and customers; transporting children and other family members to doctors and back home; checking in with their significant other, particularly if trying to work out a falling out; taking regular breaks for smoking, snacks and the bathroom; and getting outside in the sun to escape the commonly stuffy, windowless, and often depressing courtrooms where many jurors can get traumatized by hearing, seeing and experiencing the deeply traumatic human drama often covered in the most minute and sometimes annoying and excruciating detail in the courtroom.

 

The least that lawyers can do to accommodate jurors is to be fully prepared and to present their evidence, testimony, cross examination, and opening and closing arguments sensitively and with an eye towards making their cases interesting, persuasive and relevant to the jurors, and with an eye towards helping the jurors remember the most important facts, figures and concepts in the trial, where for many if not all jurors, they are being fed information, facts, figures, allegations, and noise at a dizzying pace.

 

For more on the jurors’ perspective, see SunWolf’s books on jury dynamics.

For those interested, here are some local D.C.-area events I recently learned about; thanks to the listserv member who circulated this information. The common thread with all is that Ralph Nader will be speaking. I will try to go to tonight's Howard Zinn tribute, in case you will be there. I have not read much of Zinn's writings, but Amy Goodman has always been particularly interesting every time I have seen her in person, and she has the makings of an effective trial lawyer.

 

Monday, February 15

6:00 pm  - Ralph Nader, Amy Goodman, Bernice Johnson Reagon, David Zirin, Rich Rubenstein, to speak at the Howard Zinn Tribute 

Busboys and Poets Restaurant, 2021 14th St NW Washington DC 20009, (202) 387-7638

Tuesday, February 16

11am - Ralph Nader on "Peace and Justice Strategies: Can Some Super-Rich Save Us?"

Montgomery College, Rockville Campus Performing Arts Center, Rockville, MD

Wednesday, February 175:30pm - Ralph Nader and Bruce Fein on "The Decline and Fall of the Rule of Law: Corporate Control and the American Empire."

Gaston Hall, Georgetown University Main Campus, Washington, DC

Friday, February 196pm - Ralph Nader and Kike Arnal

Discussion and signing of In the Shadow of Power. http://www.artbook.com/9788881587605.html

Busboys and Poets Restaurant, 2021 14th St NW Washington DC 20009, (202) 387-7638

 

 

 

To those calling my office today:

 

Our office is open today on Presidents Day, but without my staff, who have a day off on this federal holiday.

 

I have meeting times available this afternoon and most other later afternoons the rest of the week around my court schedule.

 

The best place to reach me today is my main phone number at 301-495-7755, extension 224. Messages to my voicebox go straight to my pager, and emails to jon[at]katzjustice[dot]com go to my Blackberry. I look forward to assisting you.

 

Bill of Rights. (From the public domain.)

 

Last August, I wrote about  Brady v. Maryland, 373 U.S. 83 (1963).  In its key holding, Brady proclaims: "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87. Therefore, Brady is a sword for the criminal defense in seeking exculpatory evidence, and a shield for seeking court relief when Brady is violated.

 

This week, Virginia's intermediate appellate court determined that Brady had been violated in a criminal prosecution, but still affirmed after determining that the defendant had not suffered sufficient prejudice to merit appellate relief. Coley v. Va., __ Va. App. _ (Feb. 9, 2010).

 

Coley provides the following Brady law overview:

 

“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). The United States Supreme Court has held that Brady obligations extend not only to exculpatory evidence, but also to impeachment evidence, Bagley, 473 U.S. at 676, and that a Brady violation exists even when the government fails to divulge evidence that is “known only to police investigators and not to the prosecutor.” Kyles v. Whitley, 514 U.S. 419, 438 (1995). “[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Id. at 437.

 

“There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

 

Evidence is material “‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Id. at 280 (quoting Bagley, 473 U.S. at 682). However, it is not necessary to demonstrate “by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Kyles, 514 U.S. at 434. A conviction must be reversed if the accused shows “that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435.

 

Coley v. Va., _ Va. App. _.

 

Many prosecutors should be expected to define Brady much more narrowly than the defense, whether because of honest differences of opinion, insufficient understanding of the caselaw and professional conduct rules addressing exculpatory evidence, pressures from (and perhaps even incorrect training from) supervisory prosecutors and police, procrastination or overwork, disorganization, and failure to analyze and pursue potential exculpatory evidence. Hopefully dishonesty will not come into play with the non-disclosure of exculpatory evidence, but criminal defense lawyers must leave room for that risk from police and prosecutors.

 

In any event, it makes sense for criminal defense lawyers in each criminal trial matter not only to demand exculpatory evidence early on -- and as frequently as needed thereafter -- from prosecutors, in writing and orally, but also to provide prosecutors some written definitions of exculpatory evidence with citations to caselaw and applicable professional conduct rules. Jon Katz 

 

Bill of Rights. (From the public domain.)

 

 

 

Is escorting constitutionally protected? Before courts can reach that question, a definition of escorting is needed. As it turns out, the definition of an “escort” runs the gamut from a dinner and conversational companion who provides no touching nor erotic services, to massages, to private partially-nude and fully-nude stripteases, to erotic direct physical contact running from erotic massages to more than that.

 

For escorts who provide stripteases, they may seek some protection from U.S. Supreme Court caselaw providing some First Amendment protection for erotic/exotic dancing. City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000). However, even the foregoing Erie case provides governments with a roadmap to require exotic dancers to wear pasties and g-strings. Moreover, the U.S. Supreme Court permits governments to try to zone adult entertainment to specific locations, and such zoning laws may not be amenable to escorts who provide outcall services. Los Angeles v. Alameda Books, Inc., 535 U.S. 425  (2002).

 

Thanks to a colleague for recently referencing a 1988 Ninth Circuit case that gives little to no First Amendment protection for escorts against government regulation. IDK, Inc. v. County of Clark, 836 F.2d 1185 (9^th Cir. 1988). IDK’s 2-1 panel majority held:

 

“The county's regulation governing the licensing and operation of escort services neither reaches a substantial amount of activity protected by the freedom of expressive association nor appears vague in all possible applications. Therefore, the escort service's facial challenge fails. We emphasize that our holding does not mean that the regulation is incapable of unconstitutional application in particular situations and does not immunize the regulation from challenges to its application. Facial invalidation is "strong medicine" which should be used "sparingly and only as a last resort." Broadrick [v. Oklahoma], 413 U.S. [601] at 613 [(1973)]. We conclude that this regulation does not reach a sufficient amount of the activities protected by the Constitution to justify a dose of that medicine.”

 

IDK, Inc., 836 F.2d at 1198.

 

Dissenting Judge Reinhardt takes a better approach, concluding:

 

“The Clark County regulation requires that licenses be obtained for the exercise of first amendment associational rights, and gives licensing officials broad discretion to grant or withhold such licenses. However, it fails to meet the strict standards that the first amendment imposes. It is written in terms that invite arbitrary and discriminatory enforcement. It is not the least restrictive means of achieving the county's goals, and it encompasses associations that are unrelated to those goals. It is "unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct." Coates [v. Cincinnati], 402 U.S. [611] at 614 [(1971)]. For these reasons, I respectfully dissent from the majority's decision.”

 

IDK, Inc., 836 F.2d at 1206. Jon Katz 

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

 

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

 

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

 

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

 

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

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

 

For over ten years, I have written many things online about the benefits I have derived from the Trial Lawyers College. I will always be grateful for the opportunity I have had to participate at the college, and to its many participants with whom I have shared profound friendship and support to this very day.

 

Just as I have sung many praises about the college, I think it is important to put the college into a current perspective, particularly as to those who weigh my writings in deciding whether to attend a TLC program.

 

Perhaps TLC – is the acronym a mere coincidence with tender loving care? -- is an idea whose time has expired in its current form (see my discussion below about Cheng Man Ch’ing). Together with the National Criminal Defense College/Macon, the TLC helped me make myself a much better person and lawyer, but would today’s TLC have been as beneficial for me as when I attended in 1995?  

 

Unfortunately, as opposed to the NCDC, which for years has not been associated with any one strong personality, the TLC and Gerry Spence have been too inseparable from each other. Maybe the TLC would not have gotten off the ground and survived so long without Gerry’s heavy involvement, but the TLC could have become a much greater place had his dominance subsided to share more room with additional leaders of the TLC. Instead, sadly, the opposite happened, with staff/faculty eventually primarily coming from among TLC attendees, and with the elimination in one way or another of participation by a vast number of staffers/faculty who had not been attendees.

 

Of course, the NCDC is an institution, whereas one of the first things Gerry warned us of –- and I have always agreed wholeheartedly -- in 1995 was against the TLC becoming institutionalized, which by now the TLC keeps snowballing into more and more and at a dizzying speed.

 

Perhaps a non-institutionalized trial lawyer training ground will not survive on its own for too many years without becoming institutionalized. However, the more the TLC becomes entrenched and snowballed in institutionalization, the more the TLC becomes something much different than it was when I attended in 1995, for the worse.

 

There comes a time when organizations whither away once their charismatic leader is no longer with the organization. A case in point is the great t’ai chi master Cheng Man Ch’ing, who brought t’ai chi ch'uan yang style to the West and away from just the aristocracy first followed by only Chinese people.

 

Cheng Man Ch’ing reportedly chose a few senior students to carry on his t’ai chi school after his passing. Early on after his passing, that did not work. Instead, his senior students, and some junior students, started their own t’ai chi schools, with many doing amazing things along the way after they grew their own independent roots and spread their own wings, with many of them still teaching at their own schools to this day, over thirty years later.

 

I imagine everyone who has benefitted from the TLC is very grateful to Gerry Spence –- who remains the TLC’s board chair but no longer its president -- but there is no monolithic path from here for TLC alums.

By now, plenty of government and corporate decisionmakers grew up when privacy rights were already much more nostalgia than anything else. Too many people under forty have endured school metal detectors; rampant observation cameras in retail outlets and restaurants, and on the streets (only thirty years ago, such technology was too cumbersome and expensive to be rampant); limited privacy on the Internet; reverse tracking of their movements through their cellphone and GPS usage; and rampant drug testing even to obtain a job as a store cashier.

 

Even twenty years ago, I listened in deep discomfort as a then-recent college graduate told me that to participate in team sports, she was required not only to provide a urine test(s), but to be observed totally naked when providing the urine sample, lest she be hiding someone else's urine somewhere. She seemed to have very much accepted that this is the way life is, as if to do in Rome what Romans do; but this was not always the way things were, and if our society is to have democratic protections, we should be participating in the making of society’s rules and norms from the get-go.  

 

Counter the foregoing college athlete's acquiescence to drug testing against the American soldier who faced court-martial proceedings for refusing to be observed giving a urine sample. She had no problem giving a sample, but was unwilling to be watched, unclothed, while emitting human waste. Her response about her ability to deal with incarceration over her refusal was that she had a stack of National Geographics waiting to be read, anyway. (Beware that civilian jails likely will only allow reading material that is purchased from the commissary or mailed from the publisher or distributor).

 

Enter Colorado parolee Chad M. Thomas, who allegedly and unsuccessfully tried to fool the mandatory parolee urine testing by arriving with a Whizzinator, which at once is a male organ prosthetic available in various flesh tones, plus a contraption to keep clean urine (obtained from drug-free people) heated to body temperature. Were drug testing for parolees, probationers and pretrial supervisees private, the prosthetic part of the Whizzinator would have been unnecessary. Instead, Mr. Thomas’s parole agent apparently felt there was monkey business amiss. Unfortunately for Mr. Thomas, he allegedly offered the parole agent a bribe to let him use and discard the Whizzinator, which elevated the problem from a potential return to prison for a parole violation, to a felony charge of bribery.

 

Had Mr. Thomas merely provided his own urine sample -– even if it would test dirty –- while armed with a lawyer to advocate that he was back on the road with drug education (of course, said advocacy is not always provided from public funds for indigent defendants until closer in time to the parole violation hearing), his situation would not be so dire.

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

 

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

 

Thanks to a fellow lsitserv member for this link.  

What makes a lawyer in court, a lawyer's client, a television interviewee or anyone else think that verbal diarrhea is preferable over covering the subject to the extent needed, and no more? As much as I oppose fishing and other activities for catching animals for food and sport, trial lawyer Terry McCarthy makes utter sense when saying -- about cross examination -- once you catch the fish, bag it and don't play with it.

 

I have overtalked many a time, and probably even some of the greatest lawyers do it now and again. Hopefully by treasuring the power of silence, I will more often than not get it right.

 

A balancing act is involved between talking and talking during closing argument -- and during oral argument, which does not require using up the entire allotted time if not needed -- and having uncomfortable silences when trying to summon something to say. Of course, uncomfortable silences might be a cue that it is time to end the closing argument, or else the lawyer can share why the silence has arisen (e.g., "I am at a loss for words how to respond to the outrageous assertion by [opposing counsel] concerning [A, B and C]") so as not to lose credibility with the jury/listener, and so as to eliminate or reduce the listener's irritation at the lawyer for forcing the listener to endure what might otherwise seem to be the lawyer's plodding along to the listener's torture.

 

Over two years ago, I cited excellent examples of the power of silence and simplicity in argument, through Count Basie, Larry Pozner, and Hamlet. Another great example of the power of silence is yogi Baba Hari Dass, who went silent many decades ago and communicates by a chalkboard hung around his neck. Such communication helped Baba-ji free himself from excessive verbal and written noise so he could focus on living the yoga life. This is very much the opposite of sending multiple daily text McMessages from a cellphone followed by McTwitter.

 

Now to this list of inspirations for the power of silence and spoken simplicity I add Beop Jeong, a septuagenarian Korean Buddhist monk who lives/lived for years mainly as a hermit in the mountains, turning out an average of one essay per month for publication to offset his general unavailability to the public.

 

In one of Beop Jeong's infrequent returns to be among people, the story goes that a woman in mourning came to him. She poured her heart out to him. Instead of responding with words, he kept his full attention, mindfulness and compassion on her and on nobody and nothing else, including serving her food and tea. She felt more comforted by that than a whole bunch of words.

 

In Beop Jeong's May All Beings Be Happy is talk about refraining from speaking about great new ideas right away, lest that weaken the ideas, or prevent them from further developing their full strength. Certainly, trial lawyers do not have the luxury of saving ideas for the next day if in the middle of a closing argument that must finish the same day. However, Beop Jeong's lesson is a reminder that ideas that seem great at first blush are not always any greater than when we write down details of a seemingly great dream immediately upon awakening at 3:00 a.m. from the dream, only to realize at 8:00 a.m. that the writing was nothing better than gibberish.

 

I used to not understand the idea of the power of haikus, design minimalism, and feng shui. Now, I say hail haikus, the power of brevity, and the power of silence.  

 

ADDENDUM I: Google did not help me find out if Beop Jeong is still alive, although he sees birth and death as interrelated and unable to stand alone. 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."  

The 2006 Wisdom House Publishing Catalogue talks of his having "lived" in the mountains:

 

"From the humble, solitary confines of his wood hut located somewhere deep within the Korean mountains, Beop Jeong stands as one of the most well known Korean Buddhist Masters. Beginning his literary career working withing Jogye Buddhist Order and writing in protest against the SouthKorean dictatorshin of the 1960s, he would later leave everything behind to rekindle his life as a solitary mountain monk. Combining lessons for spiritual practice with a strident objection to the mundane values of the modern world, his works have maintained their popularity for over three decades, owing to the invigorating power they have in influencing the lives of his readers."

 

ADDENDUM II: After writing this blog entry, I went looking for my copy of Beop Jeong's May All Beings Be Happy, and could not find it. It is not readily sold everywhere, but I tried nevertheless to exercise the same non-attachment to the book that Beop Jeong and Buddhism teach. Interestingly, I tracked this Buddhist book down to the area's best bagel place -- where I ate last weekend with my boy --  that is kosher for its religious Jewish customers. The juxtaposition reminds me of the many Jewish people who have added Buddhism to their lives, which is a topic covered in many parts of Rodger Kamenetz's The Jew in the Lotus, which was born from his joining several rabbis to Dharamsala at the invitation of the Dalai Lama, who wanted to learn more about diaspora survival of religion and culture.

 

ADDENDUM III: Thanks to a former student of Baba Hari Dass, who may be posting a comment here, for sending me an email about his encounters with Babaji going back to the early 1970's, and for providing me the URL for the Hanuman Fellowship, which includes some of Babaji's words, and some of his photos. 

 

ADDENDUM IV: Regarding my foregoing reference to Beop Jeong, one of his passages about silence in May All Beings Be Happy is in "People of Few Words," which includes the following: 

 

- "Trust goes to those who know how to treat silence carefully." 

 

- "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." 

 

- "The Buddhist sutras say, 'When there are few words in the mouth, idiocy turns into wisdom.' We must be able to endure the impulse to speak."

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

 

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

 

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

 

 

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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