Bill of Rights (From public domain.)

 

Sometimes the United States Supreme Court does true justice for criminal defendants. Miranda v. Arizona remains the best protection from the Court for suppressing coerced statements. U.S. v. Booker and its progeny led more judges to sentence below sentencing guidelines and prevented appellate courts from changing such departures. Crawford v. Washington put stronger teeth into the Sixth Amendment right to confront the witnesses against a criminal defendant, so long as testimonial evidence is involved.

 

Being only four years old, Crawford spells a radical overruling of the 1980 Ohio v. Roberts case that took an overly-crabbed view of the Confrontation Clause. Because Crawford is so relatively new, and because it departs so radically from what judges and the vast majority of lawyers learned in law school, judges must not only be educated about Crawford, but also divested of any temptation to do mental gymnastics to issue rulings more crabbed than Crawford dictates.

 

Crawford only gives cursory direction about the difference between testimonial evidence -- which receives Crawford's protection -- and non-testimonial evidence, which does not receive Crawford's protection. With oral arguments on November 10, 2008, the United States Supreme Court further visited the meaning of "testimonial evidence" in Melendez-Diaz v. Massachusetts (Supreme Court No. 07-591), which challenges a Massachusetts appellate decision that drug certificates of analysis "are akin to a business or official record, and therefore, would not be subject to the holding in the Crawford case."

 

Even pre-Crawford, I have obtained many successes defending against Maryland state drug prosecutions, based on Maryland's statutory law keeping drug certificates of analysis out of evidence if the defense files a demand for the chemist's testimony at least five days before trial and if the chemist does not appear at trial. The neighboring District of Columbia Court of Appeals views drug certificates of analysis as containing testimonial evidence under Crawford. The Virginia Supreme Court acknowledges the latter view in Thomas v. U.S., 914 A.2d 1, 20 (D.C. Cir. 2006), but rejects it. Magruder v. Virginia, 275 Va. 283 (2008). Nevertheless, the latter Magruder case gives the defendant the right to have the chemist testify, but does not seem to make clear whether such a right may be exercised merely by filing a demand for the chemist's presence at trial, versus requiring the defendant to take the responsibility of having the chemist subpoenaed to court.

 

Hopefully the Supreme Court's decision in Melendez will breathe more expansive life into Crawford. Considering the 7-2 vote in Crawford, with the seven-justice majority still sitting on the Supreme Court and the remaining two gone from the Court -- the Court should be expected to give Crawford stare decisis effect. Further supporting that the Supreme Court will not retreat from Crawford is Davis v. Washington, 547 U.S. 813 (2006), where an 8-1 majority of the currently sitting justices reversed a conviction obtained after the introduction of evidence from a police interview of an alleged crime victim after the crime already had occurred (but also where all nine justices affirmed a conviction obtained after introduction of evidence of a 911 caller's identification of the defendant as committing the reported crime that was then in progress). However, the foregoing considerations do not answer whether the Court will reverse the Massachusetts appellate court's decision in Melendez that drug certificates of analysis do not constitute testimonial evidence, and, therefore, fall outside the protections of Crawford.

 

Massachusetts' attorney general's office wants the justices to worry that a Supreme Court victory for Melendez will cause drug chemists to spend more time traveling to and being in court than testing alleged drugs. However, such concerns should not trump the Confrontation Clause. Nothing in the Constitution mandates the insane drug war that drains cash-strapped governments' coffers, so the drug war cannot be permitted to trump the Constitution, even though too many judges permit that to happen with the Fourth Amendment. Besides, as I repeatedly have urged, we need to legalize marijuana now and heavily decriminalize all other drugs. Following such an approach will reduce the number of drug prosecutions, and will thusly reduce the need to have so many tax-paid drug chemists in the first place.

 

Here are some useful links in the Melendez case: SCOTUS Blog's links in the case; transcript of the Supreme Court oral argument; SCOTUS Blog's coverage of the Melendez oral arguments; including Justice Scalia's questions favoring Melendez's argument that certificates of drug analyses constitute testimonial evidence; Melendez's brief; and Massachusetts' brief. Jon Katz.

 

 

When someone says "I want to get it over with," is the person doing nothing but merely chasing after an illusion?

 

Let us consider the ultimate effort to get it over with: suicide. My spiritual guru and friend Jun Yasuda told me that one day a man walked up to her teacher, the late Nichidatsu Fujii Guruji, and proclaimed that he was going to kill himself. Perhaps against the advice of those at suicide helplines, Fujii Guruji laughed, and said something along the lines of: "You think it is that easy to get away from your problems?" Of course, Fujii Guruji and Jun-san believe in reincarnation. I did not learn whether this man ultimately decided not to kill himself; because of their belief in reincarnation, I do not know how much that question mattered to Jun-san and Fujii Guruji.

 

Whatever the inclination might be for people to confess their suicidal plans to Nipponzan Myohoji clergy, on a separate occasion, a man approached Jun-san, telling her his plan to kill himself. Her verbal reaction was along the lines of: "Great. If you are going to kill yourself, you will no longer need food, so you might as well fast." He did fast, and he returned to Jun-san telling her that during his fast he decided not to kill himself after all.

 

We are so cluttered up with excess junk, psychologically, physically, and spiritually. When a person fasts -- and the fast can be enhanced by a vacation from the Internet; phone; all other technology driven by electricity, batteries, and petroleum; and newspapers -- s/he has no choice but to slow down due to the reduced physical energy caused by the fast. With such slowing down comes the opportunity to empty the excess mind junk and spiritual junk. Competing with the benefit of slowing down is the tug-of-war often presented to -- but avoidable by -- trial lawyers with the constant demands to drive to all sorts of court appearances (and then often to wait and wait in court); to visit clients in jail and to meet with them in the office and offsite; to meet merciless court filing deadlines for motions, opposing motions, and appellate briefs; and to investigate and prepare for clients' cases, while still meeting the demands of the lawyer's personal life. The trial lawyer's time and personal challenges are well capture by my late friend John Johnson in his poem "A Meeting with Mother Earth," including this line: "The life of lawyering is filled with noise and turmoil. Peace is hard to find - even in seeking after justice. Modern mankind runs amok in anxious pursuit of an elusive technological happiness..."

 

No matter how much stagefright a lawyer might have about a case -- and it is critical for lawyers to adjust their lives and relationships with the world and themselves to diminish those fears -- a criminal defense lawyer's client is likely to be more fearful than that. The more the lawyer earns the client's trust, confidence, and comfort, the more the lawyer will help not only to reduce the client's fears, but to help the client make decisions from a position of strength, patience, and full willingness to share all ideas, concerns, questions and fears with the lawyer. For a lawyer to reach such a quantum level with his or her client, nothing substitutes for spending quality time with the client, with the lawyer listening empathetically, actively, respectfully, and deeply, and responding empathetically and with the best and directly gentle of bedside manners while seeing the client as the lawyer's equal. Investing such time and energy is a commodity that too many lawyers fear investing, lest they have insufficient time left to do their other work and to earn a living. However, nobody ever said that being a criminal defense lawyer is an easy ticket to financial stability. Moreover, the lawyer who puts clients ahead of money will earn more money or other good fortune in the end than the lawyer who does the opposite.

Continue reading "The illusion of "I want to get it over with" / Giving clients the confidence to be more patient than that."

Greenland dog image available for publc use here. 

' 

Ken Lammers and Scott Greenfield recently commented on the dropping of Underdog from my blog's title line.

 

I selected the Underdog moniker for this blog's 2006 maiden voyage, to capture the essence not only of me, my clients, and my criminal and Constitutional defense work, but also the immigration law work of my then-law partner Jay Marks. The moniker -- originally inspired by my hero and amazing teacher Steve Rench -- still fits, so I have returned the Underdog title to its rightful place on this blog's masthead.  

 

As to the title of this blog entry, thanks for the Talking Heads' inspiration for it. Jon Katz. 

Image from public domain.

 

 

Marijuana is great medicine. It is natural and green, and lacks the very undesirable side effects of so many other medicines, including anti-depressants. It can be ingested in brownies and cookies, to avoid being smoked. Pharmaceutical companies have no financial interest in having marijuana legalized, because if it becomes legal, people can grow their own quality marijuana weed.

 

Here are some good links I recently found by medical professionals that detail the medicinal benefits of marijuana:

 

- Taped interview with Donald Abrams, M.D., on medical marijuana.

 

"Short Term Effects of Cannabinoids in HIV Infection." This title relates to a study that is outlined here at the website for the Multidiscipliary Association for Psychedelic Studies. More details on the study are here.

 

"Cannabis in painful HIV-associated sensory neuropathy." This is an abstract. The full text is available by subscription here.

 

Marijuana, the AIDS Wasting Syndrome, and the U.S. Government: Letter to the editor for New England Journal of Medicine.

 

"Medical marijuana and the Supreme Court."

 

Here is a link to an article suggesting possible dangers from marijuana, but advocating further study.

  

- "Adverse effects of medical cannabinoids: a systematic review." The report says, in part:

 

"Short-term use of existing medical cannabinoids appeared to increase the risk of nonserious adverse events. The risks associated with long-term use were poorly characterized in published clinical trials and observational studies. High-quality trials of long-term exposure are required to further characterize safety issues related to the use of medical cannabinoids."

 Jon Katz. 

 

Imagine not just reading our Underdog blog, but working at Underdog's central headquarters. I humbly ask Underdog's readers to send the finest candidates our way to fill an additional part-time legal assistant position. Full details about the position are here.

 

Our office is less than a mile from our nation's capital. It does not get any better than this for those seeking such work. Thanks for those who spread the word of this job opening at our law firm. Jon Katz. 

   

Bill of Rights (From public domain.)

 

When I was born in 1963, the Cold War raged, the Cuban Missile Crisis had diminished from its flashpoint only six months earlier, and the Hollywood movie studios'  pathetic capitulation to the House Un-American Activities Committee ("HUAC") had unraveled starting around six years earlier and accelerating at rapid speed in 1960 with Kirk Douglas's insistence that Universal Studios name blacklisted Dalton Trumbo as the screenwriter of Douglas's Spartacus film production. Clearly, the 1954 censure of Communist witchhunter Senator Joe McCarthy had not stopped the blacklisting train.

 

As Arthur Miller's 1953 Crucible shows, out of fear, society constantly engages in witchhunts and the suspension of others' basic rights in an effort to mollify those fears. We see it today with the United States government's campaigns against terrorism and illegal drugs. We saw it with the Communist witchhunts and before that with the United States government's World War II imprisonment of those with Japanese ancestry for no other reason than their Japanese ancestry. Eight months before McCarthy's censure, Senator Estes Kefauver and associates even went as far as skewering horror comics. No time period is immune from such governmental madness. We must stand up to it at all times, even when the price of doing so is high. .

 

Why did the Hollywood film studios banish those who were thought to have been Communists at some time and those who refused to name names before the HUAC? Was it a fear that doing otherwise would have invited further government censorship? Was it the same kind of fear that led the Hollywood movie studios to institute the move ratings system?

 

Hollywood blacklisting started in earnest in 1947 with the HUAC hearing of the so-called "Hollywood Ten", all of whom at first refused to testify, and got prison sentences as a result. During the more than ten years that followed, blacklisted screenwriters were able to continue working under pseudonyms and by paying people to front as the writers of the material. Actors and actresses, however, could not be helped by pseudonyms and fronts. Some moved to Europe to escape the blacklists.

 

Multitalented actor Zero Mostel, for instance,  was blacklisted in the 1950's, and returned in the 1960's with a triumphant vengeance with stellar performances in the film A Funny Thing Happened on the Way to the Forum and Fiddler on the Roof. Some articles say he painted while blacklisted. Painting apparently was his first love. (As an aside, Mostel was friends with -- and apparently shared a painting studio at one time with -- my late great uncle and talented painter Alex Redein; I learned of this only after both had passed.)

 

The wounds inflicted on the victims of Hollywood's blacklists were re-opened with the Oscar's very controversial lifetime achievement award in 1997 to Elia Kazan, who named names to the HUAC. Sadly, the United States Supreme Court, in the late 1950's, affirmed the conviction of a subpoena recipient for refusing to answer HUAC's questions. No case seems to have overturned that opinion. Barenblatt v. Crowley, 360 U.S. 109 (1959).

 

Moving beyond the entertainment world, in 1951, the United States Supreme Court upheld a conviction under the Smith Act for efforts to activate a Communist party in the United States. Dennis v. U.S, 341 U.S. 494 (1951). The parallels are striking with the federal government's current relentless prosecutions of those allegedly involved in peripherally assisting organizations advocating terrorism.

 

As the Constitution continues being shredded, how much will you stick your neck out for what you believe is right, anytime the government tries to urinate on people's basic rights? Jon Katz. 

 

 

INTRODUCTION

When I told t'ai chi Master Ben Lo that, time permitting in the morning, I sometimes circle the courthouse where I am scheduled and conclude with t'ai chi, he asked if some people think I am crazy. I told him of my temporary police detention last June, when I was a suspected t'ai chi terrorist. He suggested that I not practice t'ai chi in airports. Of course, practicing t'ai chi is anything but crazy. It is the Supreme Ultimate.

 

The editor of a state criminal defense lawyers association newsletter recently solicited articles. In the ongoing spirit of my applying t'ai chi to criminal defense and everything else I do, I submitted the following article that incorporates material from my previous blog entries with some additional ideas and realizations:

 

MAINTAINING CALM IN THE EYE OF THE STORM

 

 

Consider being in trial against the most underhanded prosecutor you have ever battled against or, perhaps worse, a prosecutor with a reputation for fairness acting the complete opposite. Add to that a judge who merely wants to move the case along, even if that means only allowing the span of a lunch hour to review a mountain of Jencks material. Complete the picture with a bunch of lying witnesses fingering the wrong person, your client.

 

 

What is the most powerful way to approach such a state of injustice? Critical ingredients are calm, non-anger, and fearlessness. To go to battle in a state of mental and physical limpness will amount to a limp performance. To go to battle tense, stiff, or angry will give the opponent a huge area of the defense to push against and to topple, and will close off the channels of energy and strength. To be mindfully calm, on the other hand, gives the opponent nothing to push against, and gives one tremendous strength.

 

 

In the West, for too long the power of calmness has been underrated, perhaps as a hallmark of laziness, weakness, and the antithesis of non-stop capitalism. The transcendental meditation craze that particularly flourished in the 1970’s helped make calmness a normal goal. Today, yoga is widely embraced as a way to reach calm. Over a decade ago, I chose the t’ai chi path.

 

 

Soon after joining the Maryland Criminal Defense Attorneys Association in 1991, I met the late Victor Crawford, who had a law office in Rockville. By then, he had been practicing the Chinese internal martial art of t’ai chi for many years. Vic was no touchy-feely, wooly-headed new-ager, which intrigued me all the more about what drew him to t’ai chi. Curiously, one of Vic’s main teachers did not fit that mold either; he is Robert Smith, who, while working with the CIA in Taiwan in the 1950’s became the first Western student of a legendary t’ai chi master named Cheng Man Ch’ing. Eventually, at my request, Vic gave me the names of some local t’ai chi teachers, with a note that I was about to embark on a journey that would open amazing doors. The doors t’ai chi opened were many. For trial battle, t’ai chi has provided me the best anchor for powerful calmness that I have found.   

 

 

At first glance, t'ai chi might look like overly-simple slow-moving calisthenics for those who do not want to, or cannot, break a sweat. In reality, this martial art involves slow movements, a soft body, and an emptied mind on the one hand, and mindfulness, strength, and quick reflexes on the other, which all are critical to effective trial battle. The physical movements of t’ai chi better prepare practitioners to be calm and powerful at all times. T’ai chi is suitable both to make strong people stronger and to reverse weakness in the unhealthy.

 

 

When applying t'ai chi to trial work, the practitioner neither chases an opponent's power nor hides from it. Instead, the practitioner uses the opponent's power and energy to the best advantage, while seeking to sense the opponent's strategy and planned attack, to give the opponent nothing to push against, to find the opponent's weaknesses, and to neutralize the opponent. This fighting aspect of t’ai chi is called pushing hands, or, better still, sensing hands, because the idea is to keep the opponent close enough to be able to sense the opponent’s strategy, next move, strengths and weaknesses. The phrase sensing hands also is more apt than pushing hands, because the most accomplished t’ai chi practitioner uses mind energy over physical energy to win a battle.

Continue reading "Applying t'ai chi to trial lawyering. "

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

 

Too many monolingual people seem to think that if they speak louder or repetitively that ultimately they will be understood by a person who does not speak the speaker's language. Too many people think that if a person understands such phrases as "Do you speak English" or "Fire, fire" that this means the person speaks the tens of thousands of other words and phrases needed to have a sufficient command of the English language.

 

Nothing beats struggling with learning a second language to understand how hard it is for others to learn English, including figuring out how to conjugate verbs in the past, present and future tenses, struggling to understand native speakers who talk a mile a minute, and memorizing and pronouncing a jumble of strange-sounding words. It seems that the vast majority of Americans stop studying another language once such study is no longer required for obtaining a degree or for strengthening a college application; yet plenty of the same people want to surmise that it is easy for others to learn English as a second language.

 

When I have a non-English speaking client, I ordinarily arrange for a witness to come to court to testify about my client's limited English, in order to challenge any assertion by the prosecutor that my client understood the English being spoken to him or her. Recently, I won a license suspension hearing related to a drunk driving charge, on the basis that Maryland's convoluted and lengthy advice of rights form for taking the breathalyzer test was either not translated at all into Spanish, or that a Spanglish speaker struggled to tell my client the words on the advice of rights form. See below for further details on that hearing.

 

In my experience, cops use a hit-or-miss approach to try to communicate with people who speak little to no English. Some police forces have some fully fluent people available to help, but then I argue that the absence of such interpreters' court testimony makes the interpretation inadmissible hearsay evidence. Some judges let prosecutors get away with asking cops "Did he appear to understand you" and "Did he tell you he did not understand you or needed help interpreting your English?" Where I practice law, a huge percentage of native Spanish speakers come from countries where the cops constantly and often brutally trample on people's rights, and do not serve the interests of ordinary people. (Hmm, that also describes too many cops in the United States.) Silence from people coming from such countries does not necessarily mean the English is understood, but instead can be a self-preservation technique.

 

Being human, judges need to be educated about the nuances falling between the scale of a person who speaks fifty to five hundred English words in order to achieve basic survival on the one hand, and a person who arrives in the United States below the age of ten and soaks up English like a sponge. A huge percentage of people fall within the first half of that range of English-speaking ability. Moreover, most people are better able to speak a second language in an understandable fashion than to understand what is being said to them. People speak the words they understand, but the listener does not necessarily know all the words s/he hears in a second language.

 

With that backdrop, here is an outline of questions I asked my client on the road to victory in my recent license suspension hearing related to a drunk driving arrest:

 

- Where were you born?

- At work, what language does your boss speak?

(Here the answer was that the boss speaks English. Instead of saying "Oh, sh_t" to myself, I followed up with: "How are you able to understand your boss's English at work?" Answer: "A co-worker interprets for me.")

Continue reading "When cops speak Spanglish to a non-English speaker. "

 

 

My t'ai chi teacher Len Kennedy once said: "When you are fatigued, do t'ai chi." On another occasion, I learned the following from Len: Internally, during one of "those meetings," the t'ai chi practitioner does t'ai chi, through relaxing and sinking into one's chair or into the ground if standing; by relaxing actively through being fully aware of what is happening around the t'ai chi practitioner without getting sucked into nonsense; and by emptying the mind and body of stress and wasted energy in order to deal with the matter at hand.

 

Len Kennedy learned t'ai chi from Robert W. Smith, who was t'ai chi megamaster Cheng Man Ch'ing's first Western student. Recently, I found this response to nihilism from Professor Cheng, as recounted by Fred Lehrman:

 

"I remember sitting one morning several years ago with Professor Cheng and several students in the Asian Library at Columbia University. The Club of Rome Report had just been released by MIT, and one of the students had bought in a clipping from the New York Times outlining the hopelessness of solving the compounded problems posed by overpopulation, food shortage, energy resource depletion, atmospheric pollution, radioactive waste, etc. The student was quite upset, and asked professor Cheng what he thought of the situation, and how we could get out of it. The Taiji master turned the question around and asked the questioner what his ideas were. The student gave his answer, and sat expectantly, awaiting correction from the Sage. Instead, Professor Cheng turned to another student at the table, and asked, 'What do you think about what he said?' This continued until each student had commented on the others ideas, and it was clear that the subject had been exhausted. There was really no way to solve the problem. Professor Cheng went back to reading his book.

 

"After a pause, the first student, more upset than ever, asked again for some word from the teacher. Professor Cheng leaned forward, and put his book down next to the cup of hot tea which had just been refilled for him. 'What will happen to the world? I don’t know. Look at this vapor; it comes from the tea, it goes into the air, and right about here' – he pointed in the air – 'you don’t see it anymore. Where does it go?' He sat quietly for a moment while we pondered the empty space left after the world had destroyed itself. 'Don’t worry about it,' he said, 'Nothing gets lost.'"

 

Read the rest of Fred Lehrman's powerful essay here.

 

Such lessons from Cheng Man Ch'ing keep me inspired to practice t'ai chi, doing the form morning and night without fail, and applying the t'ai chi principles to everything I do. Tea anyone? Jon Katz. 

 

 Image from public domain.

 

A wonderful fringe benefit of my marijuana defense work has involved meeting key players who bring sense to overcome so much of the nonsense of anti-marijuana crusaders. In addition to meeting such players through NORML annual meetings, I have worked with marijuana smell expert Richard Doty, and marijuana grow experts Chris Conrad and Jon Gettman. I have met medical marijuana M.D. Lester Grinspoon by phone, which was a real trip, as his was one of the first names I learned of in the ongoing movement to legalize marijuana. It has also been an honor to know NORML founder Keith Stroup and the late Don Fiedler, who was both a great criminal defense lawyer and past NORML national director.

 

Teaming with marijuana cultivation experts Chris Conrad and Jon Gettman, I won a Maryland medical marijuana sentence of just a fine followed by a probation before judgment (which means my client has no conviction in the case) on a prosecution for over thirty marijuana plants.

 

In addition to being a marijuana grow expert, Jon Gettman is a former NORML national director. Jon and I spoke recently, and he graciously permitted me to upload his 2002 article with Virginia caselaw to beat intent to distribute prosecutions in favor of simple possession convictions, which carry drastically lower sentencing exposure. Jon. who lives in Lovettsville, Virginia, also provided me his updated resume. Check out his webpage entitled DrugScience.org.

 

Thanks, Jon, Chris, Keith, Don, Lester, Richard, and the rest of you who have poured your heart and souls into replacing myth with facts about marijuana. Jon Katz. 

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

 

When I started law school in 1986. my legal research class included researching weighty tomes with such titles as Supreme Court Digest, F.2d Digest, and A.2d Digest, which used key numbers to find various categories and subcategories of the law. It was part of what made law school unpleasant, to say the least. Next the instructor showed us how Lexis online legal research could shorten the time and tomes for obtaining the same legal research answer. However, at the time, Lexis was only available by dialup hookup; Al Gore had not yet discovered the Internet for legal research purposes. Moreover, at the time, Lexis was an expensive drug to use at a private law firm, so the digests still came in handy. I learned from those digests, annotations to statutes, the American Jurisprudence encyclopedia and other legal encyclopedias (including Corpus Juris Secundum) that the summaries of court cases found therein often were incorrect, or else were not always very precise nor applicable to the legal issue at hand.

 

Most current judges probably learned to do legal research in a similar fashion, because flat-fee Internet-based legal research did not come into being until around ten years ago, and most judges probably began law school more than ten years ago. My legal research instructor -- a bit of an overly intense person, but overall a caring and good educator -- for good reason admonished to rely on case descriptions in legal digests and statutory annotations at one's own peril. He said to review the actual court opinion being referenced, and I have always taken that approach.

 

However, in the heat of trial battle, unless the judge has an online legal research terminal in front of him or her at the bench -- which is the case in federal courts and many state courts, but apparently not in the misdemeanor/District Courts in Maryland and Virginia where I often practice -- sometimes statutory annotations are all that is available to the lawyers and judge at trial, unless the judge affords the lawyers a break to get online themselves or to call their colleagues and assistants to do the research at the office.

 

In the above context, ten days ago, I experienced dark comedy as a prosecutor kept referring the trial judge to the state annotated code's explanatory note about the amendment to a statute that was a basis of one of my evidentiary objections. Here,  (1) the statutory language was clear on its face to the issue being argued, (2) the explanatory note apparently was written by the publisher of the code and not by any entity legislative body, and (3) even if the explanatory note was written by an entity of a legislative body (e.g., the committee that drafted the update to the statute), plain language in a statute cannot be trumped by the interpretation of some legislative committee engaged in legislative history mental gymnastics. In any event, the judge rejected the prosecutor's arguments and we moved on.

 

Criminal pattern jury instructions where I practice include references to caselaw in explaining the language of the instruction, and in warning when to be cautious about using a particular instruction. In Maryland, appellate and trial judges generally seem to give tremendous respect to the drafters of the criminal and civil pattern jury instructions. On the one hand, the drafters seem to include some very capable minds and dedicated people, but they are only human, and their work cannot cover every single scenario that might arise at trial.

 

In the District of Columbia, as well, it appears that a committee of lawyers puts substantial time into the criminal pattern jury instructions, and includes commentary with case references, However, when Maurice Lee went to trial for an alleged 2002 murder, the trial judge refused to give the jury an instruction on mitigating circumstances as to second degree murder where neither party had requested that the jury be afforded the option to convict Mr. Lee on the lesser offense of voluntary manslaughter. Last week, the D.C. Court of Appeals reversed Mr. Lee's second degree murder conviction, finding that the judge erred by refusing to instruct on mitigating circumstances. Lee v. U.S., __ A.2d _ (D.C., Nov. 6, 2008). Lee  says that the trial judge was unintentionally hoodwinked by out-of-date commentary to the then-existing pattern jury instruction:

 

"Regrettably, the Bostick decision has never made its way into the lengthy Redbook commentary accompanying the standard instructions on murder and manslaughter. As a result, the trial judge was influenced here by language in the commentary that appears to condition the need to instruct on mitigating circumstances on the presence in the case of a lesser included offense instruction on manslaughter. But Bostick rejected that proposition and is indistinguishable from this case, because here, as there, the refusal to instruct on mitigating circumstances denied the defendant the proper legal framework within which to have the jury evaluate the evidence of heat of passion caused by adequate provocation. See Bostick, 605 A.2d at 918 n.8 (reversing because the jury had not been given “full instruction on provocation, including the requisite burden of proof on the government”)." Lee v. U.S.

 

Moral of the story: Annotations to legal codes and caselaw, and commentaries to jury instructions cannot meet the value of finding, reviewing, and Shepardizing court opinions. To do otherwise will place criminal defendants' liberty in unacceptable jeopardy. Jon Katz. 

 Image from Bureau of Engraving and Printing's website.

 

What are the United States' largest socialist programs? This year's nearly trillion dollar bailout of AIG and other financial institutions is one. The social security system is another. Certainly, the criminal justice system is a major socialist enterprise, as well, which helps explain why so many economic conservatives want to downsize or eliminate the drug war. 

 

In these belt-tightening times, the criminal justice system is particularly overgrown. The system needs to be shrunk substantially, in large part through legalizing marijuana, gambling and prostitution, and by heavily decriminalizing all other drugs. Drug prosecutions occupy a huge chunk of court, police, and prosecutorial time, so marijuana legalization and heavy drug decriminalization already will help to heavily shrink the nation's criminal justice system.

 

How expensive is the criminal justice system? As the ACLU blog points out on November 7, 2008:

 

The introduction to "Smart on Crime: Recommendations for the Next Administration and Congress." -- produced by an organization that includes the ACLU -- "ends with a prescient reminder that during these very challenging economic times, there are critical cost savings that can come from reforming a system that incarcerates 2.3 million people (that’s more than 1 out of every 100 adults in the U.S.) at a staggering cost of more than $60 billion per year."

 

The ACLU blog quotes as follows from the foregoing "Smart on Crime" study:

 

At a time when the nation is facing its worst economic crisis since the Great Depression, it is essential to review the cost of the criminal justice system to all Americans. Such a review should not only account for the cost in terms of dollars and cents, but also in terms of human lives and capital, which are our nation’s most valuable resource.

 

On the