UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

"In this war of all against all, who can withstand the might of the federal government?"

nospam@example.com (Jon Katz) — Thu, 09 Jul 2009 00:00:00 -0400

The Drug Enforcement Administration revoked Novelty, Inc's, registration to distribute list I chemical products. Novelty, Inc., v. DEA, et al., _ F.3d _ (D.C. Cir. June 22, 2009). Putting aside the questionable company name if it wants to be taken seriously by straight-faced government regulators, such a revocation clearly was devastating to Novelty, Inc. and its employees' payroll.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Novelty, Inc's petition for review from the DEA's revocation. Judges Tatel and Henderson voted for the denial. Judge Janice Rogers Brown -- who got 43 Senate no votes against her 1995 judicial nomination by Bush II -- fired off a blistering dissent that perhaps underlines Clint Bolick's pre-confirmation assertion in Reason (10/27/03) that "Brown is strikingly libertarian in her writings and decisions, which is one reason she has outraged both liberals and conservatives during her distinguished career."Novelty, Inc.

Judge Brown's concluding paragraph of her dissent says it all:

"No, old-fashioned law will not save Novelty and the jobs of its employees. It does not matter that no Novelty executive has ever been convicted of a crime. It does not matter that notwithstanding Novelty’s millions of sales, the best evidence the DA can point to of diversion is one—one!—instance from over six years ago. It does not matter that the DEA inspected Novelty’s records for years and never peeped about a problem before deciding to bring down the full weight of the Executive Branch on Novelty’s head. It also is irrelevant that Novelty has credibly offered to overhaul its internal processes to comply with the DA’s whims. When an agency has gone rogue, and when judicial review is gutted, the only thing left is the Law of the Jungle, the weak versus the strong. And in this war of all against all, who can withstand the might of the
federal government?"

Thanks to Judge David Tatel for at least acknowledging serious DEA-based problems that led to the revocation of Novelty, Inc.'s registration:

"I agree with Judge Henderson that Novelty’s other objections to the Deputy Administrator’s decision are without merit. The Deputy Administrator correctly concluded that even if DEA agents violated the First Amendment [prohibiting Novelty, Inc., from videotaping the DEA inspection] during their inspection of Novelty’s warehouse, the exclusionary rule is inapplicable to administrative proceedings of the kind at issue here. See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998) (“[W]e have repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials.”). Novelty complains that the Deputy Administrator failed to articulate the level of tolerable risk, but the Raber letter gave perfectly adequate guidance. Finally, neither Novelty’s complaint that the Deputy Administrator conducted a biased campaign of enforcement against independent distributors of list I chemicals nor its complaint of unconstitutional prejudgment bias finds support in the record. Especially given the Deputy Administrator’s rejection of much of the government’s evidence, my concerns with her reasoning fall short of the level at which “a disinterested observer may conclude that [the Deputy Administrator] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it,” Cinderella Career & Finishing Sch., Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) (internal quotation marks omitted)."

Deeply disturbing, Congress over many decades -- backed by the Supreme Court and the federal circuit courts -- has delegated too much lawmaking and adjudicative authority to federal agencies. Were Judge Brown placed on the Supreme Court, she perhaps would require substantial effort to give full stare decisis effect to Supreme Court cases granting such sweeping legislative and judicial authority to federal agencies. So would I, but the closest I will ever get to the Supreme Court bench is sitting in the lawyers' observation gallery. Jon Katz

What if a person cannot find a restroom?

nospam@example.com (Jon Katz) — Wed, 08 Jul 2009 00:01:00 -0400

Bill of Rights (From public domain.)

In court recently, I watched a public urination bench trial after my case finished. The county code carries up to six months imprisonment for such a violation.

The cop got straight to the point by testifying that he was patrolling a parking garage in one of the higher-end commercial districts in the county, and saw the defendant get out of his car, pull out his ____ (using a two-syllable word beginning with a "p" more commonly heard in a raucous bar), and urinate (but he used the three-letter word for it).

Does this cop have children? Has he thought of a milder word for this part of the male anatomy? I am all for free speech and have no interest in helping prosecutors present stronger trials for public urination charges through using words suggesting a broader and more effective vocabulary. However, were this my witness, I would have reviewed with the witness what words s/he planned to use for the obligatory testimony about the defendant's anatomy.

The cop continued being graphic in a barhall way. On cross examination about what the cop really saw, the cop proclaimed something along the lines of: "I will be happy to demonstrate if the girls turn around." So much for political correctness, particularly with the use of "girls" as opposed to women, and the prosecutor is a woman. The judge nixed that idea, and the trial proceeded.

The defendant waived his right to remain silent, and gave a much different story from the cop's, also humorous so long as he won. He testified that he drank substantial amounts of water at the health club, got caught in massive traffic to a restaurant business meeting, felt the call of nature on the way to the meeting and parking garage, and used a small empty soda bottle to answer the call as he was stuck on the street in traffic. He was very late on his arrival at the garage, left the filled urine bottle in his luxury car passenger floor, and went to his meeting, where he drank some beers and used the restroom twice. On his return, he decided to rid his car of the urine by going to the passenger's side where the bottle rested, and emptying it to the ground, rather than searching for a garbage can, and even though he knew cops were nearby.

The judge acquitted after explaining that it was not an easy decision, with the cop's unwavering testimony on the one hand, and the defendant's detailed explanations of his efforts to keep urine off the interior of his BMW on the other hand. Had the standard of proof not been beyond a reasonable doubt, I think he would have convicted. Here, the judge reasoned that the cop might have mistakenly saw what he thought was the defendant exposed and urinating, based on the liquid hitting the ground as the defendant bent down (the defendant testified he bent down to minimize splashback). The judge said that the defendant had plenty of time to cook up his detailed testimony, but also that his testimony made enough sense about why he did what he did, including pouring out the urine right away on return to his car, seeing how much it disgusted him to have a bottle of urine in the car.

On a related note, a colleague with a separate upcoming public urination prosecution under the same Maryland county code is ready to argue that the state indecent exposure law precludes a prosecution under the county code for public urination. This is curious, in that for a defense against indecent exposure for public urination, I would argue that it is not indecent if the defendant merely was answering nature's call when no realistic indoor locations existed to do the same. Moreover, to apply the indecent exposure laws in such a broad fashion, what is a hiker to do on a rustic trail without outhouses?

In any event, with local and state governments strapped for cash, one would hope that public urination SWAT teams would become relics of the past. Jon Katz

A formal arrest is not required to exclude silence in the face of police questioning.

nospam@example.com (Jon Katz) — Tue, 07 Jul 2009 00:00:00 -0400

At a recent drunk driving bench trial -- in Maryland, where defendants facing over ninety days of possible incarceration for one count may opt for a bench trial followed by a de novo jury trial on appeal, or a jury trial in the first instance -- the police officer testified that my client was silent when the officer asked my client on the roadside about what he had imbibed earlier that evening.

I objected to that line of testimony, on the grounds that my client had a Fifth Amendment right not to answer the question, and to have his silence excluded from evidence. The judge overruled my objection, on the basis that a Terry stop -- Terry v. Ohio, 392 U.S. 1 (1968) -- was in progress, and not an arrest. In my view, the judge's latter ruling erroneously mixed up the caselaw that on the one hand generally does not require Miranda warnings during the initial investigational phase of a stop for a vehicle moving violation, and on the other hand does not permit a suspect to be burnt by asserting the right to remain silent by having that silence come into evidence, whether or not Miranda warnings have been given. See below for the caselaw on both of the latter two points. To permit suspects' silence to come into evidence before Miranda is triggered will encourage police to delay arresting a silent suspect in order to be able to testify about a long litany of questions to which the suspect remained silent (including "Did you kill Joe?, "Why did you kill Joe?, and "Why did we find your fingerprints on a knife at Joe's apartment?").

Last January, I blogged about Longshore v. Maryland, 399 Md. 486, 537-38, 924 A.2d 1129 (2007), which found no harmless error in the introduction of evidence of a suspect's refusal to permit a search. Just as the suspect in Longshore was not under arrest at the time of such refusal -- and the appellate courts have not even found a Constitutional right to be told of the right to refuse a search -- but still had a right to preclude the jury from learning that he had refused a search (and even that he had been asked permission to search, where, as here, he refused it), nor is silence (as well as the questions that lead to silence) in the face of pre-arrest police questioning permissible at trial during the prosecution's case in chief.

To be sure, if a criminal defendant testifies at trial, s/he then risks being questioned concerning pre-arrest silence. Greer v. Miller, 483 U.S. 756 (1987).

As to the role of Miranda with Terry-stage questioning, it is unfortunate that police are not obliged to give Miranda warnings during each and every Terry stop. The Fourth Circuit has articulated the situation as follows: "A person subjected to custodial interrogation is entitled to the procedural safeguards prescribed by Miranda, and therefore, any statements a suspect makes during custodial interrogation are inadmissible in the prosecution's case in chief unless prior Miranda warnings have been given. See Stansbury v. California, 114 S.Ct. 1526 (1994) (per curiam); Berkemer v. McCarty, 468 U.S. 420 (1984). A suspect is 'in custody' for Miranda purposes if the suspect has been formally arrested or if he is questioned under circumstances in which his freedom of action is curtailed 'of the degree associated with a formal arrest.' Stansbury, 114 S.Ct. at 1529 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam))." U.S. v. Leshuk, 65 F.3d 1105, 1008 (4th Cir.1995).

Cops need to know that during the prosecutor's case in chief, no prosecution witness may testify about a suspect's silence. Jon Katz.

Persuading and fighting more successfully by humanizing opponents.

nospam@example.com (Jon Katz) — Sun, 05 Jul 2009 00:00:00 -0400

Lately, I have gotten many new weekly ideas for persuasion and trial combat, through weekend t'ai chi push hands gatherings, daily solo practice, and ongoing viewing of videos and reading of books by today's and yesterday's t'ai chi masters. Here are some recent ideas:

- Learned at Sunday t'ai chi push hands practice today: Do not be too late in yielding nor attacking.

- Also learned at t'ai chi- Several efforts may be needed to find the opponent's stiffness or gravity center to push against, sometimes including through pushing and yielding a few times on the same part of the opponent's body.

- T'ai chi push hands, the Art of War, and trial practice are about moving when the opponent starts to move, and arriving before the opponent.

- Chinese speakers are advantaged to read the t'ai chi texts untranslated. At the park with my son Friday night, I asked a Chinese-speaking woman what the three Chinese characters in T.T. Liang's classic said, and she exclaimed "T'ai chi ch'uan". In reply to my doing CMC's t'ai chi form, she proceeded to demonstrate the form she knows. She speaks little English. We spoke through t'ai chi.

- We are all connected, and should not see life via us v. them, leftist v. reactionary, and cops v. good people. Then, we will be more self-aware, self-fulfilled, intuitive, empathetic, persuasive, grounded, and non-alienating.

- T'ai chi keeps me straying less from the latter path, and coming closer to more effective trial battle, better personal health, and harmony.

- T'ai chi teaches that we are weaker in battle when we fear our opponents, which causes us to tense up. We must see our connection to them. This concept runs counter to the common efforts of soldiers and others to dehumanize opponents.

- When we humanize opponents, we must be all the more committed to our cause to inflict injury on our opponents.

- The goal of battle -- whether political, in court, or physical -- should be to harmonize the situation to one's advantage.

- A trial lawyer has no business taking a case if s/he will avoid harming the opponent where such harm is necessary for serving the client.

- T'ai chi rejects absolute pacifism, it would seem. In the hands of masters, t'ai chi can inflict severe injury and death, with little physical force. For good reason, late t'ai chi master T.T. Liang -- who left the planet in 2002 at the age of 102 - believed that t'ai chi promotes less violence, though.

- We inflict damage daily, including on the environment with our cars, on laborers living in misery for Wal-Mart prices, and on eaten animals.

- T'ai chi, of course, is not about the ends justifying the means. We must be aware of the damage we inflict, knowingly and unknowingly. Jon Katz.

Give me a serious discussion on civil liberties over July 4 pomp and circumstance any day.

nospam@example.com (Jon Katz) — Fri, 03 Jul 2009 00:00:00 -0400

NOTE: Following is a reprint of what I wrote for July 4 in 2007 and reprinted in 2008:

Whenever I look around on July 4, the scene is long on fireworks, beer, and merrymaking, and too short on discussion of what Independence Day is all about.

The Declaration of Independence was hardly signed by a bunch of pacifists. The signers must have realized that the bloodshed among the warring sides would lengthen and intensify with the signing of the Declaration of Independence, and it did. Violence begets violence, and the rampant violence that led to Britain's surrender did not take place in a vacuum. Instead, it has fed into all subsequent American wars and smaller military actions. The United States' repeated victories in wars (and the Vietnam War probably would not have dragged on so long were it not to become America's first war defeat) likely has made the United States all the more militaristic and cocksure militarily.

By now, the United States government thrives on control backed by force, the threat of force, and punishment, not only through military might, but also through an overgrown and overbearing criminal "justice" system of police, laws, money, prosecutors, courts, and prisons; an overgrown national security system that leaves us little privacy, security, or sufficient liberty; and an overgrown spying and "intelligence" system.

Fortunately, a strong movement continues in favor of civil liberties and government by the governed rather than the reverse. The movement includes the American Civil Liberties Union, fearless and skilled criminal defense and Constitutional lawyers, and the drug legalization movement.

July 4 is meaningless without an ongoing struggle for civil liberties. Now is the time to join that struggle. Jon Katz.

As we approach our first anniversary.

nospam@example.com (Jon Katz) — Wed, 01 Jul 2009 00:15:00 -0400

Last July, my decade-long former law partner Jay Marks and I opened our separate law firms. The good karma with which we made this transition -- including sending out a joint news release -- has continued to this day, and dates back to our first meeting at a six-year-old birthday party in Connecticut in 1969. His immigration law firm and my criminal defense firm -- three blocks apart -- continue to thrive and to keep great joint relations.

In these days of so many acrimonious law firm splits, I thank Jay, his staff, and my staff for making the transition as seamless and friendly as signing a new lease; installing phone lines, paint and new carpet; printing up new stationery; updating my website; buying some new furniture; and loading up the moving truck. T'ai chi master T.T. Liang, who lived to 102 and never a pushover in any way -- which is an understatement -- had ten guiding principles, including to make a thousand friend and not one enemy.

I also thank my staff for being my dream team, all with excellent previous law firm experience, keeping me on top of my game, taking good care of clients when I am in and out of court, and arriving on time like a Swiss watch. David has been with my law firm from the day we moved in, and begins law school next month. Letam joined us last December as our part-time assistant, while attending the University of Maryland, where she will graduate next May. Shannon joined us last month as a full-time legal assistant, having graduated in May from the University of Maryland. It is a great feeling to know that when I am in court, everything is being taken care of well at the office, and I thank my staff every day for the wonderful work they do and the great karma they bring with them.

Also new to my current law firm, since last fall, is my Virginia branch office in Tysons Corner, Virginia. Through the northern Virginia office suite company that rents to me, I have meeting space available in both Tysons Corner and in Arlington, across from the courthouse. A map of the greater Washington, D.C., metropolitan area shows how close northern Virginia is to Washington, D.C., and the Maryland counties bordering thereon, and I am thankful that the last law firm I worked for required me to take the Virginia bar exam, after having already been a member of the Maryland and D.C. bars.

Thanks, Jay, and thanks to my staff for a great first year. Jon Katz

Virginia Super Lawyers adds me to its list.

nospam@example.com (Jon Katz) — Wed, 01 Jul 2009 00:00:00 -0400

Jonathan L. Katz

only 5% selected each year

visit superlawyers.com

For whatever it is worth, Super Lawyers has added me to its 2009 list of Virginia criminal defense lawyers, on top of my inclusion in 2008 and 2009 in Super Lawyers' criminal defense lawyer listing in Maryland and Washington, D.C.

Super Lawyers' selection process does not sound very rigorous, although Super Lawyers tries promoting it that way.

Super Lawyers promotes paid display ads and expanded listings for those rated on its pages, even to get one's photo included in the company's online lawyer listings. I have not paid them a dime. At least Super Lawyers does not bill to be listed, yet. Martindale-Hubbell, on the other hand, bills to display a lawyer's peer review rating (see here and here). Jon Katz

Fourth Circuit denies en banc review in the Whorley obscenity case.

nospam@example.com (Jon Katz) — Mon, 29 Jun 2009 00:00:00 -0400

Bill of Rights (From public domain.)

On March 9, 2009, I blogged about the Fourth Circuit's decision upholding a conviction and steep sentence on counts for obscenity and child pornography in the form of Japanese anime drawings and allegedly obscene e-mails. U.S. v. Whorley, 550 F.3d 326 (4th Cir. 2008). Concurring in part and dissenting in part, Judge Gregory joined the majority in affirming Whorley's conviction for receiving obscenity in the form of the drawings, and Whorley's conviction for violating 18 U.S.C. § 2252(a)(2) (generally prohibiting receipt of visual depictions "involv[ing] the use of a minor engaging in sexually explicit conduct" and displaying such conduct). It is remarkable and most unfortunate that all three judges upheld the foregoing 18 U.S.C. § 2252(a)(2) count, because I believe Ashcroft v. Free Speech Coalition clearly prohibits a child pornography conviction for Whorley's receipt merely of sexually explicit drawings rather than of still or moving photographs of actual minors. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

Here is an uPdate on Whorley's ultimately failed en banc petition, filed on January 2. 2009:

- Whorley's en banc petition (here is the prosecution's opposition thereto) challenges all counts upon which he was convicted. It does not challenge his sentence.

- Judge Roger Gregory was the only judge to vote in favor of granting en banc review. Judge Gregory partially dissented from the original Whorley opinion. He dissented from Whorley's conviction for sending purely textual emails about his sexual fantasies involving children. He also dissented from Whorley's conviction for violating 18 U.S.C. § 1466A(a)(1), which generally prohibits receipt of material that "depicts a minor engaging in sexually explicit conduct; and is obscene." The basis for his conclusion is not Ashcroft v. F.S.C., but instead his interpretation of statutory language and his conclusion that an actual minor must be depicted to violate 18 U.S.C. § 1466A(a)(1).

- The order denying en banc review was issued in published form on June 15, 2009. The en banc denial order only mentions obscenity, even though two counts on which Whorley was convicted were based on the apparent age of the image depicted therein, and the remaining two counts were for obscenity. Much has been made about the "pure speech" involved in one of the two obscenity counts on which Whorley was convicted, and that "pure speech" count is the focus of Judge Gregory's dissent from the denial of en banc review, with his using a footnote (n.3) to dissent from Whorley's conviction under 18 U.S.C. § 466A(a)(1).

- To my knowledge, the Supreme Court obscenity caselaw still does not -- but should, in my opinion -- completely bar obscenity convictions for words alone. To be certain, the Supreme Court has at least drawn the line at ruling that the Carnal Knowledge film is not obscene as a matter of law. Jenkins v. Georgia, 419 U.S. 13 (1974). However, Jenkins does not create any safe harbor for words one way or the other. Moreover, Jenkins does not create any safe harbor for any type of nudity, other than that Carnal Knowledge shows Anne Margaret's bared backside and part of an unclothed breast, which should bar bared buttocks and partially bared breasts from obscenity prosecutions and convictions. <span style="

More on strength through non-attachment and non-resistance.

nospam@example.com (Jon Katz) — Sun, 28 Jun 2009 00:00:00 -0400

As Peter Ralston says, problems between people "are really a parallel to what occurs in martial interaction and in fighting." Therefore I keep practicing the martial art of t'ai chi daily, and t'ai chi fighting/pushing hands weekly.

The t'ai chi practitioners whom I push hands with on the weekends -- right up to the highly skilled -- are all selfless and patient in helping me advance to higher levels of martial art ability, and I try doing the same with those who are newer to t'ai chi pushing/sensing hands than I. Yesterday, I learned the most from three advanced practitioners one after another, as the attendees split into two facing lines to move from opponent to opponent around every seven minutes. My first two opponents kept uprooting me two Sundays ago, and were difficult to push; I spent the following days focusing more on rooting into the ground and to relaxing and sinking my ch'i to my tan t'ien. Yesterday, the first told me that some people get frustrated at being pushed; for me, better that I get pushed during practice while strengthening my fighting skills, rather than being treated with kid gloves in practice but without any gloves in the ring by judges, prosecutors, and opposing witnesses. Here are other lessons I learned yesterday:

- Keep the hands substantial but the arms as soft as string that can send the hands like a rope hurling a rock.

- Treat the opponent's hands and arm as mine. Therefore, offer no resistance. Do not be limp, either. Imagine the opponent and myself as water from two glasses combined, and not as oil and water combined. These foregoing two lessons underline the importance of being a more effective fighter by detaching oneself from preoccupation with winning or losing, and instead to focus on harmonizing any present imbalance as best as possible. This is the power of non-attachment to winning or losing, to anger or happiness, to comfort or pain, or to praise or vilification. This is about visualizing victory, and then being in the moment to perform at one's best in the moment.

- Relax and sink in advancing and in yielding. The fighter should put his or her mind in his or her hands when pressing and pushing.

- The more the center is in the tan t'ien, the less one can be pushed above the waist.

To dispel any inclination for me to consider the power of t'ai chi as a bunch of metaphysical fictitious hogwash, yesterday I once again experienced with my own senses that there are no tricks involved in advanced practitioners' ability to withdraw from my push just slightly ahead of my hands reaching their body, because of the ability to sense my movements; ability to stay rooted to the ground and to remove gravity centers from above the waist, to make it hard to push them; and to push me with little force.

Because problems between people "are really a parallel to what occurs in martial interaction and in fighting," I will continue practicing fighting not only in the courtroom, but also with martial arts. As t'ai chi megamaster Ben Lo says, first and foremost relax and practice. Jon Katz

Supreme Court tells judges to follow its rulings.

nospam@example.com (Jon Katz) — Fri, 26 Jun 2009 00:00:00 -0400

Bill of Rights (From public domain.)

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

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

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

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

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

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

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

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

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

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

Of sealing, expunging, and shielding.

nospam@example.com (Jon Katz) — Thu, 25 Jun 2009 00:05:00 -0400

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

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

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

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

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

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

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

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

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

Internet connection problems lead to fewer Underdog postings.

nospam@example.com (Jon Katz) — Thu, 25 Jun 2009 00:00:00 -0400

Since last Sunday, my home Internet connection has been dead. A technician hopefully will fix the problem tomorrow. As a result, there was no Underdog entry last night.

Non-attachment: An essential practice.

nospam@example.com (Jon Katz) — Mon, 22 Jun 2009 00:00:00 -0400

- One day I was speaking with a law school professor, and asked if he knew a particular person from his home town. Know him? The professor exclaimed: "What a pr*ck."

- With difficult judges, trial master Steve Rench applies the basic and effective lesson of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion's sole and to pull it out, rather than trying to slay the lion.

- A person arrives home one evening, looking forward to be greeted by her dog, and instead the dog starts angrily attacking her, and never changes from thereon in. How does the person avoid feeling devastated?

In the foregoing three scenarios, the person being affected by the challenging situation has an opportunity to attach to the image of a reprehensible person, an impossible judge, and a dog turned bad. Similarly, the affected person has the opportunity to empty the mind, the feelings, and the vessel, in order to acknowledge that we are all connected in one way or another, that it is difficult to compartmentalize a single person or non-human animal as awful or great, and that true happiness is not found by searching for it externally. How else can one win in the courtroom, in the battlefield, and in life by doing anything other than working towards such non-attachment?

T'ai chi teaches non-attachment in terms of harmonizing an imbalanced situation rather than about vilifying and trying to decimate the opponent. Buddhism covers non-attachment through non-dualism, including the concepts of no birth/no death, no coming/no going, and no increase/no decrease. The more we give up our desires and the more we give up our expectations of others, the more we can successfully practice non-attachment. And therein lies the rub. How can one deeply love another without feeling attachment? How powerful can people be if they feel no love? How can one immerse himself or herself into years of academic study, years of a work project, and years of investing one's assets and still feel no attachment when the heart is shattered, the academic study bears no diploma, and the investing collapses? That may be easy for someone content to live in a cave without possessions and ready to do a good deed for parentless lion cubs by donating his or her flesh to them so they may eat another meal. But what does everyone else do?

It is hard to live without attachment to anything. On the other hand, too many people are too attached to their bodies, to the point that many will rush to plastic surgeons to fight ageing, let alone fighting against their own ultimate mortality. Too many people are attached to the fear of a roller coaster even when it is clear that the roller coaster at worst might turn the stomach. Too many people are attached to their comfort zone. Too many people are attached to anger. Non-attachment to youth, the illusion of immortality, comfort, fear, fear of death, and anger are very achievable levels of non-attachment, but certainly far from easy to reach.

When I began practicing criminal defense eighteen years ago, I was angry at the criminal justice system that inflicted so much injustice. I was dumbfounded that even a lawyer for animal rights causes had no interest in hearing my deep reservations about prosecuting after he recommended that one could not beat being an assistant United States attorney if I wanted to get on the path of criminal defense. I was jolted to reality when I learned how many criminal defense lawyers do not see themselves as crusaders for any cause rather than as advocating as best they can for each client. All of this was attachment.

Practicing t'ai chi in the courtroom reminds me of a scene from a World War II movie where an American soldier, hidden from view of his opponents, guns down opposing soldier after opposing soldier, calmly chomping on his unlit cigar at every step of the way. As much as we must be sensitive about any violence, had this soldier lost his calm to anger, fear or yelling, he would have been a dead duck. His calmness, together with his shooting skill, gave him strength. So much for anti-tobacco crusades. This fictitious character's cigar holds deep meaning for me.

Continue reading "Non-attachment: An essential practice."

New drug conspiracy opinion from Fourth Circuit.

nospam@example.com (Jon Katz) — Wed, 17 Jun 2009 00:00:00 -0400

Bill of Rights. (From the public domain.)

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

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

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

Jeffers further said:

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

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

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

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

- Jeffers confirmed that:

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

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

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

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

Jon Katz.

Human conflict paralleling martial arts.

nospam@example.com (Jon Katz) — Mon, 15 Jun 2009 00:00:00 -0400

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

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

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

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

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

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

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

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

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

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

"Attributed to T'an Meng-hsien,

as researched by Lee N. Scheele

'The Song of Peng

What is the meaning of Peng energy?

It is like the water supporting a moving boat.

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

then hold the head as if suspended from above.

The entire body is filled with springlike energy,

opening and closing in a very quick moment.

Even if the opponent uses a thousand pounds of force,

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