JON KATZ, P.C.
UNDERDOG BLOG ARCHIVES - JUNE 2006
Attorney at Law
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Jon Katz, P.C. advocates for justice often in the most heated of arenas, whether it be before initially-skeptical juries, judges firing off questions at a machine-gun clip, or such highly-charged settings as the O'Reilly Factor. For a taste of our advocating style, click our recent Fox News interview below (O'Reilly Factor, Jan. 25, 2006, and rebroadcast during Super Bowl Sunday halftime), and click here for more news appearances.
Click above, and view with Windows Media Player. Rebroadcast courtesy Fox News.
UNDERDOG BLOG ARCHIVES - JUNE 2006
To the end that all lawyers, the courts, government, and everyone serve justice at every turn, at all times, and at all costs.
INDEX OF JUNE 2006 UNDERDOG BLOG ENTRIES:
Court's rejection of Guantanamo military commissions highlights danger to
everyone's Constitutional rights .
Court rejects Guantanamo military commissions.
28: Jon Katz, P.C.
appears on Free Speech
Radio News, supporting the New York Times's right to report on the SWIFT
June 27: Supreme Court upholds the right to hire counsel of one's choice.
June 26: Will the Supreme Court in the future have juries determine the existence of prior convictions for enhanced sentences?
June 25: When plea agreements lack sufficient specificity, the federal appellate courts may remand.
June 23: Hopefully, Betsy Ross rolls in her grave - Contact your Senators and Congress members to vote against the flag desecration Constitutional amendment.
June 22: On Wenyi Wang's behalf, Jon Katz, P.C. asks the White House for the name of the Chinese television cameraman who restrained her.
June 21: If judges would only walk for a day in a parolee's shoes: Supreme Court allows groundless searches of parolees.
June 20: Supreme Court returns to Washington to figure out definition of "testimonial" communication, but opens a can of worms with 911 calls.
June 19: Virginia's Supreme Court orders new capital sentencing trial where the defense claims mental retardation.
June 18: Maryland District Court commissioners wield too much power.
June 16: Watch this video showing police brutalizing a prosecutor's daughter; then ask how on earth Justice Scalia can claim that increased police professionalism justifies weakening the exclusionary rule. Plus, my own encounter with Justice Scalia.
June 15: Sending Hudson down the river: Further supporting the reasons for having feared the confirmations of Justices Roberts and Alito.
June 14: Bridging the gap between trial lawyer colleges and judges' limits: First person opening, cross-examining without question marks, and jury voir dire.
June 13: Engaging in battle without anger.
June 12: Orlando federal judge criticizes the 100:1 cocaine base:powder cocaine sentencing disparity.
June 11: Beyond the Sixth Amendment's speedy trial right: Dismissing federal prosecutions for running afoul of the Speedy Trial Act's seventy-day rule.
June 9: Not guilty - a phrase too many criminal defendants fear.
June 9: George Bush: Protecting the rights of the rich over the rights of everyone.
June 8: Wenyi Wang's prosecution: Update on the Bush administration's mirroring of China's flagrant violations of free speech rights
June 7: Washington, DC's DWI zero tolerance: As broken as ten months ago during Debra Bolton's arrest for drinking a glass of wine.
June 6: Not a consensual encounter, so Swift justifiably gets away.
June 5: Dunkin' Donuts and 6,200 other companies: Unnecessarily going beyond the federal employment verification laws.
June 4: After defending a drunk driving client, meeting up with a tax resister.
June 2: The police and I.
June 1: My time in jails; my time in court.
June 30, 2006
Court's rejection of Guantanamo military commissions highlights danger to
everyone's Constitutional rights .
This follows up on our June 29 blog entry about the Supreme Court's 5-3 (with Chief Justice Roberts' self-recusal) rejection of Guantanamo military commission tribunals, Although a majority of the Supreme Court agrees that such military commission tribunals exceed statutory authority and the Geneva Conventions (which are incorporated into the Uniform Code of Military Justice), this Hamdan case gives the president the option to try to obtain Congressional authority for such commissions.
Hamdan prohibits foreign detainees from receiving protections below those assured to United States military members through courts martial, as opposed to the military commission rules that would have permitted convictions leading to imprisonment and even death, before military personnel on the basis of evidence not heard by the defendant and of the grossest type of hearsay not admissible at all in a civilian court or at a court martial.
Each time our government is willing to shortchange even the most allegedly heinous terrorists of a full and fair trial, our own rights to a fair prosecution and trial are threatened. Be on the lookout for -- and please urge your Congress member to oppose -- any new presidential proposal to Congress to authorize such military commissions.
Meanwhile, stay tuned to whether the federal government will protect Mr. Hamdan's military lawyer, Lt. Cmdr. Charles Swift, from negative consequences for having successfully stood up to President Bush in the Supreme Court. See Seattle Post-Intelligencer article here. Absent such protections, no member of the United States military will be able to rely on zealous and independent representation from a military-appointed lawyer in a court martial. By Jon Katz.
June 29, 2006
The Supreme Court's ruling rejecting Guantanamo military commission tribunals is here. The case is Hamdan v. Rumsfeld, et al., ___ U.S. ___, No. 05-184, Oct Term 2005 (June 29, 2006). By Jon Katz.
June 28, 2006
Jon Katz, P.C. appears on Free
Speech Radio News, supporting the New York Times's right to report on the
Reporters from wide-ranging parts of the political and more-biased/less-biased spectrum interview us. On June 28, it was the Pacifica-related Free Speech Radio Network, which has a strong anti-Bush bias, as do I. Pacifica has played a critical role with the First Amendment with such activities as broadcasting Allen Ginsburg's "Howl" (which became the subject of a failed obscenity prosecution) in 1957, and fighting federal indecency rules in the Supreme Court after broadcasting George Carlin's "Seven Dirty Words" monologue. Pacifica fills a critical void, accepting no donations from major corporations, playing the best jazz and serving a wide range of the community (e.g., with Von Martin's excellent "Caribbeana" weekend program on its District of Columbia WPFW station), and presenting such programming as Democracy Now, which, while fully biased, is also fully fearless in standing up to power.
Free Speech Radio's June 28, 2006, interview of me was about an uproar from various Congressional members seeking civil and criminal penalties for the New York Times's continued insistence on revealing the Bush Administration's underhanded activities to the people, this time by reporting on the SWIFT program of monitoring overseas banking activities.
The broadcast is here (click "Listen to Real Audio"), and carries my being reminded of Spiro Agnew's "nattering nabobs of negativism" attack on the press, and the reaction of concern by some in the press. Hopefully the media will act fearlessly in the face of this uproar among some Congress members. By Jon Katz.
June 27, 2006
Supreme Court upholds the right to hire counsel of one's choice.
Yesterday, a 5-4 Supreme Court majority (with the opinion written by Justice Scalia) reversed a criminal conviction where a Missouri federal trial judge improperly forbade a California lawyer from being admitted to appear specially for the case along with local counsel to represent a drug defendant. The case is U.S. v. Gonzalez-Lopez, ___ U.S. ___, No. 05-352, Oct Term 2005 (June 26, 2006). The Court called the rejection of the California lawyer's special admission application a structural error that required reversal of the conviction, rather than engaging in harmless error review. Unless the trial court dismisses the case, which seems unlikely, Mr. Gonzalez-Lopez now will finally receive his choice of counsel.
Mr. Gonzalez-Lopez is defended by Joseph Low of California and local lawyer Karl Dickhaus, who are fellow attendees of the Trial Lawyers College. Unfortunately, four justices dissented: George Bush, II's appointees Chief Justice Roberts and Justice Alito, joined by Justices Thomas and Kennedy. Your vote for president and senator counts when it comes to Supreme Court nominations and confirmations. By Jon Katz.
June 26, 2006
Will the Supreme Court in the future have juries determine the existence of prior convictions for enhanced sentences?
The United States Supreme Court recently denied certiorari review of three defendants' federal sentences that exceeded the statutory maximum after the respective sentencing judge, rather than a jury, found that the defendant had a prior conviction that enabled a sentence exceeding the otherwise applicable maximum available sentence. The case is Juan Rangel-Reyes, et al., v. U.S., ___ U.S. ___, 2006 U.S. LEXIS 4513, Nos. 05-10706, 05-10743 and 05-10815, Oct Term 2005 (June 12, 2006)
The question remains whether the Supreme Court will review this issue in the future, particularly if it accompanies other appellate issues that the Court wishes to review. Some insight into that question may come from Justice Stevens's following statement agreeing with the cert. denial (which somehow did not get included on the Supreme Court's website), and Justice Thomas's dissent, that argues for having juries decide whether defendants have prior convictions making them eligible for sentences exceeding the otherwise applicable statutory maximums.
In this case, Justice Stevens wrote:
While I continue to believe that Almendarez-Torres v. United States, 523 U.S. 224 (1998), was wrongly decided, that is not a sufficient reason for revisiting the issue. The denial of a jury trial on the narrow issues of fact concerning a defendant's prior conviction history, unlike the denial of a jury trial on other issues of fact that give rise to mandatory minimum sentences, see Harris v. United States, 536 U.S. 545 (2002), will seldom create any significant risk of prejudice to the accused. Accordingly, there is no special justification for overruling Almendarez-Torres. Moreover, countless judges in countless cases have relied on Almendarez-Torres in making sentencing determinations. The doctrine of stare decisis provides a sufficient basis for the denial of certiorari in these cases.
Rangel-Reyes, ___ U.S. ___, 2006 U.S. LEXIS 4513.
Justice Thomas dissented from the denial of certiorari review, championing the right to have a jury determine the existence of such prior convictions:
The Court's duty to resolve this matter is particularly compelling, because we are the only court authorized to do so. See State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997) ("It is this Court's prerogative alone to overrule one of its precedents"). And until we do so, countless criminal defendants will be denied the full protection afforded by the Fifth and Sixth Amendments, notwithstanding the agreement of a majority of the Court that this result is unconstitutional. There is no good reason to allow such a state of affairs to persist.
Rangel-Reyes, ___ U.S. ___, 2006 U.S. LEXIS 4513.
If the Supreme Court ever issues a decision requiring a jury to determine the existence of such prior convictions, it will be essential to have a bifurcated trial whereby the jury first decides the guilt-innocence issues and sentencing-related factors (other than prior convictions), and then decides the existence of relevant prior convictions. To do otherwise would be to unconstitutionally prejudice the defendant by letting the jury know of prior convictions before the defendant is convicted. As to Justice Thomas's assertion of "the agreement of a majority of the Court that this result is unconstitutional," Justice Stevens's above statements seem to remove him from being in that majority in the future.
In any event, I support making prior convictions a jury issue. Too often, court records incorrectly list the resolution of a prior case. I would want the ability to argue the issue before a jury rather than to a sole judge. By Jon Katz.
June 25, 2006
When plea agreements lack sufficient specificity, the federal appellate courts may remand.
As I have said before, unfortunately, the federal sentencing system is so draconian that it strikes tremendous fear in many defendants against pleading not guilty and going to trial, even when they are innocent. It is critical that when plea negotiations take place, that they be from a position of strength.
When plea agreements are reached, specificity is critical. This was made crystal clear recently by the United States Court of Appeals for the Fourth Circuit in U.S. v. Allen, No. 04-4048 (4th Cir. June 14, 2006). In Allen, the defendant faced a fifteen-year mandatory minimum prison sentence for a firearm possession violation while having "three previous convictions ... for a violent felony or a serious drug offense." 18 U.S. Code § 924(e)(1).
Bravo to the trial judge who departed eight levels from the presentence report's recommended offense level, to arrive at sentencing guidelines of 63-78 months, despite the fifteen-year mandatory minimum sentence faced by the defense. The prosecutor appealed from the trial court's going below the prosecutor's recommendation of a 151 to 188-month sentencing range. Even though the prosecutor's sentencing recommendation shows the government was agreeing that the defendant had provided substantial assistance sufficient to sentence Mr. Allen below the fifteen-year mandatory minimum, the appellate court refused going below the mandatory minimum sentence absent the government's motion for such a sentencing departure under 18 U.S. Code § 3553(e). The appellate court reached this ruling even though the prosecutor had requested a substantial assistance downward departure under U.S. Sentencing Guidelines Manual § 5K1.1.
Fortunately, in remanding Mr. Allen's case for re-sentencing, the Fourth Circuit says that: "Given counsel for the government's concession at oral argument that he intended the § 5K1.1 motion to include, albeit sub silentio, a § 3553(e) motion as well, one would assume that the government has obligated itself to do so on remand." Allen further declares that: "Regardless of the sentence ultimately imposed, the court must fully and articulately explain its reasons for choosing a given sentence, especially if a departure or variance is involved." Allen (emphasis supplied).
The Fourth Circuit is known as one of the most conservative appellate courts, making precision with plea agreements all the more critical in this circuit that covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina. By Jon Katz.
June 23, 2006
Hopefully, Betsy Ross rolls in her grave - Contact your Senators and Congress members to vote against the flag desecration Constitutional amendment.
Seventeen years after a Supreme Court majority correctly forbade laws against desecrating flags (Texas v. Johnson, 491 U.S. 397 (1989)), Congress is closer than ever to amending the Constitution to ban flag desecration.
A Senate majority is leading the charge to amend the Constitution, to state: "The Congress shall have power to prohibit the physical desecration of the flag of the United States." The House also has a sizeable number of sponsors supporting the same language to amend the Constitution. Please contact your senators and Congress members now to vote against this amendment, which has been submitted under S.J. Res. 12 and H.J. Res. 10. Click the foregoing links to see the list of the amendment's sponsors. A vote may well take place very soon; please do not wait to voice your opposition.
From a practical standpoint, the flag desecration amendment movement invests too much energy (Constitutional amendments must pass in Congress and the states) in a problem that is minimal. How many of you have seen anybody burning an American flag lately (at least on United States soil)?
From an individual liberties perspective, the stakes are high, starting with the very vague and overbroad language of the amendment. The amendment does not define desecration. Does it include accidentally letting one's flag fall to the mud and stay there after a hurricane? Does it include flying flags as part of a cheesy car dealer promotion? The amendment does not define the flag. Does it include the many artists' renditions of the American flag, including this anti-war rendition on talkleft.com and the variation of the American flag that displays a proud Native American? The flag desecration amendment dishonors the very flag that it claims to support. The flag flies stronger every time that robust expression is protected in the United States, even when the flag is burned. This blog and our website recount many pathetic instances of government censorship in the United States, all counter to the First Amendment. If the flag desecration amendment passes, the censors will not stop there.
For more information on opposing the flag desecration amendment, see the ACLU's site. By Jon Katz.
June 22, 2006
On Wenyi Wang's behalf, Jon Katz, P.C. asks the White House for the name of the Chinese television cameraman who restrained her.
We last discussed Wenyi Wang and her courageous stand for human rights in China on June 8 and April 24. It is a true honor finally to have met Ms. Wang, and to have sent the letter below (and here) to the White House press office on her behalf.
Yesterday in federal court, where Ms. Wang is defended by Assistant Federal Public Defender David Walker Bos, an agreement was reached to dismiss her case in April 2007 on the condition of not committing any crimes during that period.
Falun Gong-run Epoch Times yesterday reported that Ms. Wang clarified that her insistence to the Chinese president at the White House lawn to stop persecuting Falun Gong "was referring to the Chinese Communist regime's policy of having hospitals to harvest organs from live Falun Gong practitioners." Whether or not such accusations are true, it appears that China's rampant executions are timed for organ harvesting, as addressed by BBC News in April 2006 and by the State Department as long ago as 2001. Fortunately, and remarkably, such high-level Chinese figures as a law dean and a deputy justice minister respectively support abolishing the death penalty and long-term incarceration followed by release. If China abolishes the death penalty, the United States will step one rung up as one of the world's most active executioners.
Jon Katz, P.C. strongly supports Wenyi Wang's fight against her unjust prosecution, without regard to her Falun Gong membership. Jon Katz, P.C. strongly supports the First Amendment rights of people of all political and social stripes, from rabid Republicans to radical leftists to the pro-lifers who demonstrate weekly against the Planned Parenthood down the hall from us to the pro-choicers who praise Planned Parenthood. Following is the letter we sent on Ms. Wang's behalf to the White House Press Office:
June 22, 2006
Re: CCTV Reporter at the White House on April 20, 2006
To the White House Press Office:
In my individual capacity and as the attorney for Wenyi Wang for the purpose of this letter, I respectfully request that you provide me the following information voluntarily and/or pursuant to all laws regarding freedom of information.
Please provide me the name of the cameraman from China Central Television (CCTV) who was present at the White
House South Lawn ceremony on April 20, 2006, during Chinese President Hu
Jintao’s official visit.
The reason for this request includes my understanding that this cameraman
was the one who intervened when Ms. Wang called out for human rights to be
Clearly, such behavior is unacceptable by anybody other than appropriate
I look forward to receiving this information from you. Thank you.
Very truly yours, Jonathan L. Katz
THIS LETTER IS TRUE AND CORRECT:
June 22, 2006
cc: CCTV. By Jon Katz.
June 21, 2006
If judges would only walk for a day in a parolee's shoes: Supreme Court allows groundless searches of parolees.
The life of a parolee is no picnic. Parole generally is better than being in prison, but the parolee still belongs to the prison system, and can have parole revoked, and be returned to prison, for as little as missing one appointment with a parole agent, without any judicial intervention before such revocation takes place. This situation is in addition to the social stigma of being an ex-con. Before saying that parolees deserve such hardship, remember that many parolees were imprisoned in the first place for crimes no worse than being penniless drug addicts whose only real way to get their drugs was to sell for their provider (e.g., being paid one $20 rock of crack for every three rocks sold). Moreover, as DNA testing has shown now more than ever, plenty of convicts simply were not guilty in the first place, and were wrongly convicted either by jury mistake or by caving into a guilty plea to avoid a harsher result with a trial loss.
If the above scenario were not bad enough, this week the Supreme Court upheld California's law permitting warrantless and suspicionless searches of parolees, The case is Samson v. California, ___ U.S. ___, No. 04-9728, Oct Term 2005 (2006). In this instance, defendant Donald Curtis Samson was minding his own business, walking down the street with a woman and a child. A police officer knew he was a parolee, and took advantage of Mr. Samson's parolee status to search him without warrant or suspicion. The officer found a methamphetamine bag in a cigarette box in Mr. Samson's pocket. Six Supreme Court justices said this was Constitutional, in that parole is like serving one's prison sentence outside prison walls. This means that people are not only subject to absence of privacy within prison, but also as parolees in California and in any other state that wishes to adopt California's law permitting suspicionless searches of parolees.
With Samson, California police seeking an easy search can just target parolees. What if California police stop a driving parolee for speeding, search him without suspicion, find drugs on the parolee, and arrest the parolee and all the non-parolee passengers as suspects in jointly possessing the drugs? Ordinarily, Supreme Court caselaw gives car passengers lesser standing than the driver to contest the legality of the stop of the car and the search of the driver. What an unjust field day Samson may provide for California police. It's a governator movie gone berserk.
Praised be dissenting Justice Souter, and Justices Stephens and Breyer for joining him. Whither Justice Ginsburg, who usually joins dissents from the more serious court-majority violations of individual liberties? During Justice Souter's nomination hearings, fears ran rampant among civil libertarians that he might be a terror on civil liberties, and civil libertarians generally expected Justice Ginsburg would be one of the more liberal justices. Justice Souter turned out to be the least worst pick of those appointed by Reagan and Bushes I and II. President Ford probably never expected that Justice Stephens would go to the great lengths that he often has (but not always) to protect civil liberties. Justice Breyer often can be relied upon to uphold civil liberties, but he is too supportive of governmental authority to regulate behavior. Justice Ginsburg usually votes on the right side between the dissenters and majority on civil liberties matters, but not this time. By Jon Katz.
June 20, 2006
Supreme Court returns to Washington to figure out definition of "testimonial" communication, but opens a can of worms with 911 calls.
Revisiting Crawford v. Washington, 541 U.S. 36 (2004), yesterday the Supreme Court went into more detail about the type of hearsay communications that are testimonial, and, therefore, inadmissible at criminal trials under the Sixth Amendment. The case is Davis v. Washington, ___ U.S. ___, No. 05-5224, Oct Term 2005 (2006). In this 8-1 opinion, the court affirms the admission of a 911 call in a Washington state trial where the caller did not testify at trial, emphasizing the call's focus on then-present activity, as opposed to past activity, as well as the caller's frantic attitude and exposure to danger. The court concludes this particular 911 call is non-testimonial. In this same Davis case, the court reverses an Indiana conviction where the trial court impermissibly allowed into evidence an affidavit to the police by the defendant's wife (the wife never testified at trial) that responded to police questions about whether her husband had assaulted her. In reversing the Indiana conviction, the Supreme Court confirms that statements about past events "under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial," and, thus, inadmissible. Davis (emphasis supplied).
Unfortunately, this Davis case opens a can of worms with 911 calls, to encourage the police to seek additional information through 911 calls in the hopes that trial judges will still allow such official interrogations into evidence over the Sixth Amendment's Confrontation Clause; prosecutors will insist that Davis permits 911 calls into evidence, but, fortunately, Davis focuses on the extent to which the 911 caller is excitedly relating events as they are happening. Crawford and Davis are among the essential cases for criminal defense lawyers to carry into all trials, to minimize adverse misinterpretation by trial judges. By Jon Katz.
June 19, 2006
Virginia's Supreme Court orders new capital sentencing trial where the defense claims mental retardation.
The three jurisdictions where I practice law (Maryland, the District of Columbia, and Virginia) all present significant political reasons not to want to live there: the District of Columbia continues having taxation without Congressional voting representation; Virginia, per capita, is among the biggest killers through capital punishment; and Maryland also is fully active in putting people on death row, particularly with Baltimore County, whose State's Attorney believes in seeking the death penalty against all death-eligible defendants, in a cynical effort to avoid claims of a racist-applied death penalty. These serious human rights violations in all three jurisdictions are all the worse when viewed in the context of their shameful racist histories, with rampant de facto segregation having been practiced throughout District of Columbia society, and with legally mandated segregation having been practiced in Maryland and Virginia.
significant recent appellate ruling on capital punishment in Virginia is Atkins
v. Com. of Virginia, ___ Va. ___, 2006
June 18, 2006
Maryland District Court commissioners wield too much power.
In Maryland, the District Court system places too much power in the hands of court commissioners, who set initial bonds, decide whether to issue arrest warrants, and issue criminal charging documents. Md. Cts. & Jud. Proc. Code § 2-607. Unlike federal Magistrate Judges, Maryland District Court commissioners have no obligation to be attorneys or to have formal law school training.
Regarding court commissioners, Maryland is a land of rampant civilian-initiated criminal complaints and cross-complaints sworn out before court commissioners, particularly for assault cases. The word-of-mouth seems to have been around for a long time in Maryland that after assaulting someone or being assaulted, to visit the commissioner's office to accuse the opponent of assault, lest the opponent do the same first. Commissioners routinely issue warrants for arrest in such cases, without sufficient legal requirements to assure a sufficient inquiry into the credibility of the complainant. Proceedings before court commissioners should be recorded, but are not. This is a broken system that should be replaced by one that prohibits the issuance of such arrest warrants without the request of the State's Attorney's office. Currently, civilian-initiated assault charges overfill District Court dockets, often with prosecutors waiting until the court date to decide whether and how to pursue the charges.
Sadly, Maryland court commissioners are permitted to author criminal charging documents. This would be prohibited in the federal criminal system, which requires a greater separation of powers between the courts and other branches of government than does Maryland law. Once again, the State's Attorney's offices -- or, at worst, law enforcement officers, if authorized to do so by the State's Attorney's offices -- should be required to be the sources authorized to author criminal charging documents, to be issued subject to the approval of a court commissioner or judge.
Finally, Maryland court commissioners wield great power by being authorized to set bonds on arrested persons. Even though defendants have a right to have such bonds reviewed by a District Court judge, before such a review, many defendants already have paid the bond or a percentage to a bail bondsperson to avoid spending one or more nights in jail. Moreover, Maryland law and practice currently do not provide for Public Defender or other indigent-defense counsel representation at initial bond hearings, thus often turning such hearings into insufficient reviews of the bond set by the commissioner, and often leaving presumed-innocent defendants in jail with unfairly high bonds.
following bond victory from a few days ago is sweet for my client, but
underlines that if he had been indigent, he would not have had counsel to
advocate to reduce the commissioner's high bond. Last week, my client and I
appeared for trial in District Court for a cocaine possession trial. The
prosecutor dismissed that charge before the case was called for trial, and had
my client arrested by the deputy sheriff on a warrant for importing a small
amount of drugs into Maryland. Fortunately, when the original charge was
dismissed, I convinced the
then went to speak with the
commissioner, who discouraged me from saying anything, insisting she would be
making an independent decision. I
my client ever appeared before the commissioner, I had already drafted an
emergency motion for the District Court to reduce the bond. Less than two
minutes elapsed between the commissioner's setting of a bond and my filing the
emergency bond motion. Fortunately,
less than two hours later, the judge -- with the prosecutor fully on board --
amended my client's pretrial release conditions to personal recognizance
(meaning no need to pay any bond), after I informed the court that my client
already had shelled out substantial funds
In sum, Maryland court commissioners wield too much power, and this power must be reigned in. By Jon Katz.
June 16, 2006
Watch this video showing police brutalizing a prosecutor's daughter; then ask how on earth Justice Scalia can claim that increased police professionalism justifies weakening the exclusionary rule. Plus, my own encounter with Justice Scalia.
Following up on my June 15 posting against the Supreme Court's tragic Hudson decision, watch this video of police brutality against a prosecutor's daughter arrested for disorderly conduct. This type of police abuse is all too common; yet, in justifying the erosion of the exclusionary rule (for suppressing evidence obtained unlawfully by the police), Justice Scalia trumpets "increasing professionalism of police forces."
How did Justice Scalia get convinced of such "increased professionalism" of police? He basically cites treatises for his proposition, but a judge can always find a treatise to support his or her position.
My only interchange with Justice Scalia was in 1988, when he came to speak at my law school. During the question session, I asked his view of then-Chief Justice Rehnquist's professed interest in speeding up the death penalty appellate and habeas corpus process in the federal courts. Justice Scalia said he had no opinion on it.
Praised be my fellow law school Amnesty International members, who collected over eighty signatures of the school's students, decrying the death penalty as a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. At the conclusion of Justice Scalia's lecture, before he went two blocks away to a fancy concluding wine and cheese law school reception -- while the general public in the street suffered from his many wrongly-reached majority votes to curtail Constitutional rights -- I walked up to him, and said: "Justice Scalia, here is a petition signed by over eighty law students that the death penalty is unconstitutional." He would not take it, saying that if I wanted to lobby him, to do so through oral argument (or ,I suppose, by filing an amicus brief); however, the Supreme Court only accepts one to two percent of certiorari petitions for oral argument. I told him I'd send the petition to his secretary in case he changed his mind. He said she would throw it out. Was she somehow a Radar O'Reilly, who knew to look out for my letter before it was ever sent? He said she throws out all correspondence seeking to influence his opinion.
Not long after this interchange with Justice Scalia, I read the Supreme Court's June 1987 decision in Booth v. Maryland, 482 U.S. 496 (1987), the later-reversed decision that banned victim-impact statements in capital murder sentencing proceedings. Imagine my head-scratching (a gross understatement), when I read the scathing dissent of this justice who several months thereafter refused my anti-death penalty petition, where he did not even give any citations to his claim that: "Recent years have seen an outpouring of popular concern for what has come to be known as 'victims' rights' -- a phrase that describes what its proponents feel is the failure of courts of justice to take into account in their sentencing decisions not only the factors mitigating the defendant's moral guilt, but also the amount of harm he has caused to innocent members of society." Booth, 482 U.S. at 520.
In this society that pays so much lip-service to democracy and free speech, lawyers must breathe life into such principles by emphasizing to the public that their vote for president will critically affect who sits on the Supreme Court, whose members often sit for decades and whose rulings reverberate for decades, at the very least. By Jon Katz.
June 15, 2006
Sending Hudson down the river: Further supporting the reasons for having feared the confirmations of Justices Roberts and Alito.
Today is a dark day for the Constitution's Fourth Amendment, with the issuance of Hudson v. Michigan, ___ U.S. ___ (June 15, 2006). On the micro-level, the case severely emasculates the previously firmly-rooted rule that generally requires police to knock and announce their presence before executing a search warrant on a house, in order to minimize violence by the occupants towards suspected burglars and to minimize the physical damage caused by a forced house entry. On the macro level, Hudson places too much value on the law enforcement function over the Fourth Amendment's prohibition against searches and seizures that lack probable cause or that are otherwise unlawful. Fortunately, of the five justices voting to affirm Mr. Hudson's conviction, concurring Justice Kennedy appeared to show more restraint than the remaining justices voting to affirm, suggesting that the Supreme Court will not run as roughshod over the Constitution as it otherwise might have. Kudos to the four dissenters -- Justices Breyer, Ginsburg, Stevens, and Souter. When I vote for president, I take strongly into account the type of judicial nominations the presidential candidate is likely to make to all the federal courts. In Hudson, all justices voting to affirm were nominated by presidents Reagan (Scalia and Kennedy), Bush I (Thomas), and Bush II (Roberts and Alito). By Jon Katz.
June 14, 2006
Bridging the gap between trial lawyer colleges and judges' limits: First person opening, cross-examining without question marks, and jury voir dire.
When I returned from two of the nation's greatest lengthy trial lawyer seminars -- the Trial Practice Institute in Macon and the Trial Lawyers College in Dubois -- a necessary next step was to apply what I learned to the real world of judges, prosecutors and jurors.
Both seminars included excellent practice sessions for telling our story throughout the trial, doing first-person openings and closings, jury voir dire/selection that starts telling our story even before opening statement, and storytelling cross-examination. What to do, though, when a judge throws roadblocks in the way of this path? Some ideas follow: When an opponent objects during my examination of a witness, I keep my eyes on the prize (the witness) unless the judge invites a reply or if I feel one is needed. This helps keep control of an opposing witness and comfort in my own witness.
A federal judge recently forbade doing opening statements in the first-person of the criminal defendant, in part because the prosecutor cannot cross-examine a criminal defendant who asserts the Fifth Amendment right not to testify. At least, though, the same judge confirmed that a prosecutor may not take on the role of a crime victim in the opening statement, either. The case is U.S. v. Lemieux, U.S. Dist. Ct. Crim. No. 05-104-P-H-02 (D.Me.) (order on opening statements issued June 12, 2006). Presenting a party or critical witness in the first person in opening or closing, when done right, can be a powerful way to convey a party's story to the jury without the impediment of legalese. When a judge prohibits the first person, a skilled lawyer will move right into the third person as if s/he is playing back a film. Meanwhile, a counterpoint to the foregoing Lemieux decision is the unpublished People v. Barsotti, 1997 Mich. App. LEXIS 526 (Mich. Ct. App. February 4, 1997), which confirms that: "A prosecutor [and, therefore, the criminal defense] is not required to state his arguments in the blandest possible terms...In addition, the prosecutor's use of a vulgarity while cross-examining defendant, although perhaps crude, was not legally improper." In other words, prohibiting first-person openings hamstrings a party's right to present a persuasive case.
Part of telling the story effectively throughout the trial involves a series of storytelling direct and cross-examination questions of witnesses, rather than examination with question marks (e.g., in questioning a cooperating government witness: "In jail, you've always had to watch your back" versus "Don't you have to always watch your back in jail?"). If the judge tells the lawyer s/he's testifying rather than questioning, as Roger Dodd effectively suggests, the lawyer can switch to: "In jail, you've always had to watch your back, haven't you?" Eventually, the judge may appreciate the eventual deletion of the added "don't you's", "didn't you's" and "wasn't it's" at the end of each cross-exam question, back to where the examining lawyer started from.
When judges or court rules permit real jury voir dire (enabling lawyers to ask questions of the potential jurors, rather than submitting proposed written questions to the judge), the jury can know some of the essentials of a lawyer's case (and sometimes much more than that) before opening statements even begin. However, the federal system and such states as Maryland mandate the latter approach unless the presiding judge decides otherwise. In jurisdictions where lawyer-directed jury voir dire ordinarily is not allowed, the lawyer can try to convince the judge that at least ten minutes of lawyer-directed voir dire, to follow court-directed voir dire, is so critical to the lawyer's case that s/he will agree to shorten the opening or closing by a similar amount of time. For more ideas on this approach, read Sunwolf's essential Practical Jury Dynamics and Jury Thinking.
Among the many benefits of the Trial Practice Institute and the Trial Lawyers College is the opportunity to learn with other lawyers deeply devoted to justice, with some of the most amazing teachers (found both among the staff and attendees), in environments where taking risks harms no client and where deep trust and lifelong new friendships develop that foster such risk-taking and sometimes profound personal development and growth. Essential to rounding out such experiences is to get back to the courtroom as soon as possible to apply the newly-acquired strengths to the rough-and-tumble of the courtroom, where the seminar attendee might have changed tremendously, but now is in a room full of people (and an entire local population) who have not undergone such a metamorphosis. By Jon Katz.
June 13, 2006
Engaging in battle without anger.
Some opposing lawyers are so unpleasant that I advise my clients in advance about them, and explain that their expressed anger and irritation and intimidation tactics often are feigned or exaggerated, and, when not feigned, often result from the opponents' fear, with a bunch of fire-spewing from a cowardly ersatz wizard behind a curtain in Oz. At first blush, it is irritating to know that so many opposing lawyers and others do not give a damn about justice and fairness, but that is human nature to have so many people like that
Whenever dealing with opponents, I do my best to apply the lessons of t'ai chi, and Cheng Man Ching, who developed the t'ai chi chuan short form that I practice, and to apply his lessons of eliminating any anger towards the opponent. To do otherwise is to bring on tension, fear, and, ultimately, weakness. Not to be crass, but not many people would get angry at the tiger making the attack. The main reason that people get angry at other people's viciousness is feeling disappointed, at the very least, that the opponent does not appear to give a damn about fairness and justice. We are stronger when we reduce our expectations of others, while still trying to motivate them towards our side, and while still keeping hope that one day they will see the light of justice and fairness.
During the last few days, I have dealt with a couple of very unpleasant opponents, to say the least. Applying the lessons of t'ai chi with them has served me well. For more about this approach, see here and here. By Jon Katz.
June 12, 2006
Orlando federal judge criticizes the 100:1 cocaine base:powder cocaine sentencing disparity.
Kudos to U.S. District Court Judge Gregory A. Presnell for strongly attacking the stark federal sentencing disparities between cocaine base (sometimes called by the non-legal term "crack") and cocaine hydrochloride (cocaine in its powder form). The case is U.S. v. Hamilton, U.S. Dist. Ct. Crim. No. 6:05-cr-157-Orl-31JGG (M.D. Fl. 2006) By Jon Katz.
June 11, 2006
Beyond the Sixth Amendment's speedy trial right: Dismissing federal prosecutions for running afoul of the Speedy Trial Act's seventy-day rule.
On June 5, 2006, the Supreme Court ordered the dismissal of a federal prosecution where the trial judge did not give sufficient justification for excluding ninety-one days from the federal Speedy Trial Act's general requirement that criminal defendants go to trial within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. Zedner v. U.S., ___ U.S. ___, 126 U.S. 1976 (2006).
In Zedner, the Supreme Court ruled that a defendant may not prospectively waive the application of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. Zedner further provided that the Speedy Trial Act is intended to protect not only defendants, but the public, as well, see also Barker v. Wingo, 407 U.S. 514, 519 (1972), thus requiring a trial court to explain on or in the record the justification for excluding any time period from the seventy-day time limit set forth in 18 U.S.C. §§ 3161(c)(1) for taking a case to trial. The case must be dismissed for commencing after seventy days so long as the trial court does not sufficiently articulate the reasons for excluding any time period from the seventy-day deadline for starting a trial, and so long as the defendant moves to dismiss the case prior to trial or before entering a guilty plea. Zedner v. U.S., 126 U.S. 1976. Zedner does not explain the circumstances under which such a dismissal will be prejudicial or non-prejudicial.
Meanwhile, even absent the Speedy Trial Act, the Sixth Amendment of the Constitution requires weighing the following four factors to determine whether a criminal defendant's speedy trial right has been violated: "the length of any delay, the reason for the delay, the defendant's assertion of his right, and prejudice suffered by the defendant." U.S. v. Von Neumann, 474 U.S. 242, 246 (1986) (citing Barker v. Wingo, 407 U.S. 514 (1972). Barker confirms that: "In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused." Barker, 407 U.S. at 519. In other words, although some criminal defendants will benefit from having more time to prepare for trial by waiving certain speedy trial rights, the courts will balance the public interest against the defendant's interest in postponing the trial, sometimes to the defendants' detriment, particularly in the Eastern District of Virginia, which is known as the rocket docket By Jon Katz.
June 9, 2006
Not guilty - a phrase too many criminal defendants fear.
It might seem counterintuitive that sometimes it is harder for an able criminal defense lawyer to convince a client to plead not guilty than to plead guilty. Particularly when a client who feels s/he has committed a crime sees the prosecutor with a s__t-eating grin when proclaiming a plea offer of "no jail time" (all too often, whether or not intentionally, too many prosecutors do a backdoor end-run around the prohibition against communicating with represented opponents about the case absent counsel's approval to do so, by speaking (and sometimes bickering) loudly enough to the lawyer so that the client will hear), the defendant may think that the lawyer is taking such risks only because it is not the lawyer facing jail. The competent lawyer, meanwhile, explains to the defendant that even if the judge accepts a recommendation of no jail, jail can come later down the line from any finding of a probation violation, and a conviction today can mean a higher sentence for any future convictions, let alone the potential collateral consequences of a conviction to prospects for employment, educational opportunities, professional and personal licensing, and immigration benefits.
The fact remains that criminal defendants have no obligation to make a prosecutor's job easier by pleading guilty or by assisting in any other way. This fact gets obscured by the draconian federal sentencing system that favors doing the opposite, unless the defendant's roll of the dice in pleading not guilty results in an acquittal. When a criminal defendant has competent counsel, It is generally wise to plead not guilty when the sentence is unlikely to be more adverse if the defendant is found guilty through a trial rather than through a guilty plea. When the criminal defense lawyer recommends a guilty plea to a client, it must be with the intent of reducing harm, and must come from a position of strength.
Yesterday, my client accused of possessing cocaine accepted my advice to go to trial. As a result, we won, after the prosecutor rested her case after the judge kept sustaining my objections to the testimony of the first police witness about his grounds for stopping my client's car. In this instance, the officer testified that he stopped the car after setting a pace for speeding. However, his car was new at the time, and the police had never verified the speedometer's calibration. The judge correctly found it irrelevant as to whether the speedometer was calibrated several weeks after the car stop.
Whether an acquittal comes in a misdemeanor case like this one or a bigger case, the rush of victory always is wonderful. In this instance, the police stop of my client's car for speeding just eight miles over the speed limit seemed a subterfuge -- which the appellate courts, unfortunately, generally permit -- to investigate for crimes beyond any moving violations. When Bruce Springsteen wrote about how wonderful it feels to be riding on the open road, in "Born to Run", perhaps he had not yet suffered a harassing police traffic stop. On the other hand, upon winning an acquittal in this case, I said to myself, what a wonderful world. By Jon Katz.
June 9, 2006
George Bush: Protecting the rights of the rich over the rights of everyone.
George Bush has spent his entire life in wealth and privilege. While some privileged politicians can relate to the struggles of ordinary people, including Ted Kennedy (regardless of his faults, which I shall not minimize), president Bush seems too out of touch with the needs of ordinary people; consequently, the rights of criminal defendants and so many others suffer severely as a result. It is in that context that Bush pursues the ongoing Gulf War II, approves secret transfers of terror suspects to countries that do not respect human rights (to say the least), and approves the continued denial of basic rights to the Guantanamo inmates. Before you begin enjoying the weekend, turn on your speakers for a sobering rap against Bush, presented by Billionaires For Bush. By Jon Katz.
June 8, 2006
Wenyi Wang's prosecution: Update on the Bush administration's mirroring of China's flagrant violations of free speech rights.
World leaders who don't give a damn about individual liberties may sleep more easily, knowing that the Bush administration will kowtow to them (at least if the administration considers them critical to the "national interest") by arresting and prosecuting anybody having the audacity to interrupt world leaders basking in a White House lawn photo opportunity, by daring to bring them back to earth by demanding they protect basic human rights. Add the First Amendment to the rights that the Bush administration treats as no more sacred than toilet paper. (Sadly, it is very possible that other presidential administrations of any party would have done the same thing; it is not enough to vote or impeach the rascals out of the White House if similar rascals will fill the void).
Here is updated information on the federal government's prosecution of Wenyi Wang (see our April 24 blog entry) for shouting for human rights in China during president Hu Jintao's speech on the White House lawn. It took some digging to find Ms. Wang's case file, because the federal court lists her under a different first name, as "Wen Wang." In true Orwellian-ese, the prosecution alleges that Ms. Wang did "knowingly and willfully intimidate, coerce, threaten or harass Chinese President, Jinto [sic] Hu, a foreign official in the performance of his duties," in alleged violation of 18 U.S.C. § 112(b). Fat chance. All Ms. Wang did was to exercise her First Amendment right to demand that human rights be protected in China, and the prosecution's "factual" allegations show nothing more than that. Fortunately, at least, on May 3, 2006, the trial court removed Ms. Wang's pretrial condition to stay away from Washington, DC.
If convicted, Ms. Wang faces up to six months incarceration and a fine. Sadly, as discussed in our May 5 blog entry, because the potential sentence is not higher than six months in jail, Ms. Wang will have no right to a jury trial, and will be tried by a magistrate judge, rather than before one of the District Court judges, who are appointed for life by presidential nomination and Congressional confirmation.
Ms. Wang awaits a June 21, 2006 preliminary hearing in Courtroom 2 at 1:45 p.m., which will be open to the public (as opposed to the cloaked and daggered approach of the Bush administration). Her case number is Crim. No. 1:06-mj-00182-DAR. Ms. Wang is represented by Assistant Federal Public Defender David Walker Bos. The prosecutor is Assistant United States Attorney Michael Truscott. If you oppose this prosecution, please tell president Bush and the United States Attorney in the District of Columbia, at the following addresses: George Bush, 1600 Pennsylvania Ave., NW, Washington, DC 20500; United States Attorney Kenneth L. Wainstein, 555 Fourth Street, NW, Washington, DC 20530. By Jon Katz.
June 7, 2006
Washington, DC's DWI zero tolerance: As broken as ten months ago during Debra Bolton's arrest for drinking a glass of wine.
In October 2005, a wide swath of the public was justifiably up in arms over the District of Columbia's unjust zero tolerance approach to drunk driving that led the police (probably erroneously) to believe that it could arrest Debra Bolton for having had a mere 0.03 alcohol breath test after having had just a glass of wine with her restaurant meal. Legions of people threatened to abandon Washington restaurants in favor of those in Maryland and Virginia, and rightfully so. The District of Columbia City Council met to consider emergency legislation on the matter. However, today, eight months later, the law remains unchanged and broken, but the District of Columbia's restaurants remain as full as ever. D.C. Code § 50-2201.05.
Neighboring Maryland and Virginia take a more just (but still overly harsh) approach, with a presumption that of no drinking and driving violation for a blood alcohol level of .05 or less, and no presumption either way from a blood alcohol level over .05 and under .07 in Maryland, and over .05 and under .08 in Virginia. .Md. Cts. & Jud. Proc. Code § 10-307; Va. Code § 18.2-269. The District of Columbia sorely needs to follow in Maryland's and Virginia's footsteps of presuming no drunk driving violation for a blood alcohol content of .05 or less. More about the unfairness of the region's drunk driving laws is here. By Jon Katz.
June 6, 2006
Not a consensual encounter, so Swift justifiably gets away.
Once again, another Defendant unjustifiably had to agonize over a trial loss and loss before Maryland's Court of Special Appeals before having his Constitutional rights vindicated by Maryland's highest court. The case is Swift v. Maryland, ____ Md. ___, No. 98, Sept. Term 2005 (2006). In this case, appellant/defendant Swift was doing what he had the right to do: walk on the streets late at night, and even turn his head around from time to time. A police officer approached Swift, asking to talk with him, and for his identification. Bless the officer who stopped Swift at least to have admitted at the suppression hearing that when Swift tried to leave when the officer was checking for open warrants, the officer told him to stay during this check. In other words, by this point this was not a consensual encounter with the police (when are they ever consensual, other than when calling the police for help or attending the Police Athletic League fundraiser?).
Consequently, although Swift first put his hands up on the officer's car, arguably as a non-verbal consent to the officer's request to search him, he had the right to bolt away, which he did, since he already had been unlawfully seized by the time the officer was checking for outstanding warrants on Swift. Therefore, the search that followed the re-seizure of Swift was unconstitutional, so the discovery of cocaine on him after the re-seizure also was unconstitutional. Although Mr. Swift's lawyer apparently conceded no standing by Swift to argue to suppress the gun he allegedly dropped or threw away, in that it was found on the ground, I would have argued to suppress that, too, as being the fruit of the poisonous tree of the initial unlawful detention. Sadly, although a criminal defendant has an automatic right of appeal to the Maryland Court of Appeals from an initial trial in the Circuit Court, the Maryland Court of Appeals generally gets to pick and choose which cases to review. Had the Court of Appeals denied review to Swift, he would have been stuck with an unconstitutional felonious drug possession conviction. By Jon Katz.
June 5, 2006
Dunkin' Donuts and 6,200 other companies: Unnecessarily going beyond the federal employment verification laws.
During the latest Congressional immigration debates, many people have proclaimed that they favor legal immigration but oppose illegal immigration. Because Congress makes the immigration laws, such statements abdicate immigration policymaking to Congress, when constituents should be making their voices heard. The vast majority of Americans have benefited directly or through their ancestors from immigration laws that were much more open than those in place today. The get-tough-on-immigrants camp's rallying cry that immigrants "must play by the rules" ignores that the rules are too narrow, onerous, and unfair in the first place.
Our law firm looks forward to the day that immigrating to and staying in the United States become so favorable to immigrants that all lawyers' immigration law practices shrink accordingly. Until that day comes, we push to open the borders much more widely.
Consequently, I have a new reason to avoid Dunkin' Donuts and plenty of other companies (aside from its delicious but unhealthful and non-vegan offerings), both (1) because of the signs in many of their shops that proclaim ``We follow the law! This company hires lawful workers only" (the signs appear to reply to various customers erroneously concluding that Dunkin' Donuts employees whose first language is not English are in the United States unlawfully), and (2) because Dunkin' Donuts is requiring its franchisees "to participate in the [now-voluntary] Basic Pilot Program, which allows employers to verify a worker's status using online databases [which often are inaccurate] from the Social Security Administration and the Department of Homeland Security." Boston Globe (May 30, 2006).
For many years, federal law has unjustly turned employers into immigration law enforcers by requiring them to verify and keep records of employees' authorization to work in the United States, and by providing for civil and criminal penalties for doing otherwise. 8 USCS § 1324a. The Basic Pilot Program participants go well beyond following this unjust law.
Even if Dunkin' Donuts' foregoing immigration policies arise purely out of bottom-line capitalism, then consumers opposed to such policies can vote with their wallets, not just in relation to Dunkin' Donuts, but also to the 6,200 employers participating in the Basic Pilot Program, including Baskin Robbins and AMC movie theaters. My Google search did not find names of other participants in this program. By Jon Katz.
June 4, 2006
After defending a drunk driving client, meeting up with a tax resister.
Last Thursday, I re-met up with an interesting gentleman after defending a client accused of drunk driving in the Alexandria federal trial court, This courthouse forbids cellphones and palm pilots (in case they hide bomb detonators?), and loudly proclaims on an outside plaque and tortoise and hare sculpture that this is indeed the rocket docket, which can end up turning the Sixth Amendment speedy trial right against the very defendants that the right is intended to protect.
By happenstance, on the way back to my office, I bumped into this multi-talented man who has paid no income taxes since before I first and last met him fifteen years ago. When I expressed surprise that he has not been prosecuted all this time, particularly where the federal government has doggedly pursued such disparate people as Leona Helmsley and Tony Serra for alleged tax crimes, he pointed out the distinction between a tax evader (who does not fully report all income) and his tax resistance approach, which is to file complete tax returns, but to say that taxes will not be paid, to avoid financing the military.
I subsequently looked up the tax resister issue, to learn that at least two very different philosophies guide the non-payment of taxes for political reasons. One philosophy focuses on peace and on divorcing the protestor from financing the military. Another philosophy appears to attract anti-government right-wingers.
While I am not a full pacifist, it is never comfortable knowing that a portion of my annual tax payments will be spent on an overkill supply of weapons, soldiers, and their advisors. This tax resister spreads his message of tax resistance openly, effectively and in an even tone. Although I do not advocate not filing and paying income taxes, this man is an inspiration for staying on the path of peace. By Jon Katz.
June 2, 2006
The police and I.
Starting with kindergarten in 1968, the teachers and assemblies drilled into us that the "police are your friend." (Ah, the fantasies of Fairfield, Connecticut, suburbia). Around that time, walking by a man being arrested by the shopping strip near my home, a stranger proclaimed to me that "crime doesn't pay;" I accepted the stranger at his word, and gave the matter no critical thought at this age of six or so. Then I saw Serpico, which gives a critical counterpoint to the "Fairfield cops are tops" button: police, being people, run from the good to the rotten, and everything in between (mostly in-between). Then I saw the still and moving images of cops beating the crap out of peaceful civil rights demonstrators in the South (and including assaulting them with firehoses), beating the crap out of demonstrators outside the 1968 Democratic convention in Chicago (with the subsequent Chicago Seven/Eight trial), and, live in this decade, violating the First Amendment rights of anti-globalization demonstrators in Washington, DC. Because police (many of whom are very inexperienced in defusing tension and who have too narrow life experience and intellectual ability, being drawn, after all, from the general population, and who often constantly deal with the fear of the unknown and real or perceived threats) are given all this power, a gun, a badge, the power of arrest, electric shock guns and gizmos, slapjacks and nightsticks, peer pressure to fit in, and (too often) insufficient understanding that they are there to serve the people rather than to dominate over and control them, flagrant police abuse is bound to happen again and again and again until we the people push and push and push for more humane policing, which will more easily be reached once we legalize marijuana, heavily decriminalize all other drugs, and legalize prostitution and gambling,
Fortunately for me and all nearby, I came of age before the DARE program infested the schools; my stomach would have turned and erupted too much. DARE continues with Nancy Reagan's overly simplistic message of "Just say no to drugs." Which drugs? Certainly not the ones prescribed en masse by physicians and manufactured by the huge pharmaceutical manufacturers who keep legions of lobbyists so well paid. And don't forget the most popular over-the-counter drugs: caffeine, tobacco, and beer/wine/alcohol. Instead of taking this overly simplistic, pro-law-enforcement approach, I strongly advocate a harm reduction approach, which focuses not only on the harm of abusing drugs, but that also reduces the out-of-proportion and unjustified harm inflicted on so many users of drugs by the criminal enforcement system, often because they were not well-heeled enough to get their recreational drugs lawfully by prescription. Sometimes drugs, themselves, reduce harm, from marijuana for glaucoma and to soothe a savage soul (and to fulfill countless other medicinal benefits), to many other drugs.
When a police officer recently acted all irritated that my client would "dare" to waste the officer's time to go to trial on a pot pipe charge rather than plead guilty, I told him I was not pleased that a member of the police from my own county where I live and work, had insufficient respect for a defendant's right under the Constitution to force the government to try to prove the defendant's guilt beyond a reasonable doubt. Perhaps the officer was just parroting a tagline he'd heard: "If you don't like it, move out of the county." Au contraire. The last time I checked, the police work for the people, not the other way around. In any event, at trial, my client came out no worse than if he had entered a guilty plea; I don't believe in pleading guilty if the likely outcome of going to trial is no worse, and acquittals do not come without "not guilty/innocent" pleas.
Consequently, it probably will not surprise you that, in reply to a former client who left me a voicemail late last night that he had been robbed, and asked for advice on dealing with the officers taking the report, I said that I am too biased about the police and prosecution role to be of any real benefit to him, and suggested the names of two other lawyers who would probably not share my discomfort.
Nor would you be surprised by the following scenario. One late afternoon, I returned to our law firm to find a police officer's card placed under the door, without comment. I left him a voice message that he could call me if he wanted to discuss anything (perhaps about one of my clients, for all I know -- I'll always listen; it's another thing whether I will divulge any information). He called back, and told someone else in the office that the Planned Parenthood had been broken into, and he wanted to visit our suite to see if the perpetrator tried to break into other suites. I left a responding voice mail that I would talk with him, but that he was not to enter our suite. Among the practical reasons (let alone philosophical reasons) for telling him not to enter was that there was no good reason for our criminal defense, immigration, and other clients to see that we just let in police carte blanche . Lo and behold, the next morning, what does this police officer do? He enters our suite. I complain to him for entering after I left a message not to do so, and he readily responds that our secretary let him in. (Just wait until you experience the police divide and conquer efforts). He was on our turf, and had no authority to stay if told to leave. When he answered affirmatively that he was armed, I told him that we do not permit weapons in our suite, and told him I would talk to him in the common-area hallway.
The police officer recounted that Planned Parenthood had been broken into, the officers caught the person they believed was the perpetrator, and he was there to check out the floor's remaining suites to see if the perpetrator had tried the same with officers. Let me get this straight -- the officers believed they caught the perpetrator, so the case was solved; why investigate further UNLESS it was to get even more convictions and a higher sentence against the alleged perpetrator? No dice. I told the officer that he was not permitted back in the suite. He tried to up the ante by saying that he would just go to management and get the door frame pulled off the wall; he said the door frame's not ours. I quickly typed and faxed off a message to the building management and the chief of police that we have leaseholder rights over the entire suite, including the doorframe, and that under no circumstances would the police be permitted to return absent a warrant (insufficient grounds existed to obtain a warrant).
Police are people, too, mind you, and many are well-meaning, even though it often is well-meaning people that wreak havoc on the Constitution (including the communitarians). That's what I love about the Busted video. It shows how to assert one's rights to the police without getting nasty about it. I love the scenario where the man stopped for a moving violation immediately stops, gets out of the car, and locks all the doors. When the police ask why he did it, he pleasantly replies: "Just a habit." And, with that habit, the police have fewer, if any, legal grounds to snoop around inside. I also love the scenario where the police knock on a house door, the woman hosting the party exits the house, and closes the locked door behind her, all pleasant as could be. When the police say they "need" -- notice that they say "need" rather than "pretty please"; police don't say "pretty please" -- to check out the house to make sure all is okay, having responded to a report of noise (yes, parties produce noise), the hostess smiles and says: "Look officers, I know you're just doing your jobs, but without a warrant, I can't let you in" (lest I disappoint my high school civics teacher -- there's a good citizen).
That's right. It is patriotic to insist that the police follow the Constitution, and always will be. You want to search my house, officer? Not without a warrant. You have a warrant to search my house? I have no obligation to assist that search (but no right to prevent the search, either). You want to talk with me? I opt not to talk. No anger, sarcasm, or attitude needed; just the joy of celebrating the Constitution, justice, and the true American way. By Jon Katz.
June 1, 2006
My time in jails; my time in court.
My daily fights for justice for my clients bring me to court constantly for trials, pretrial matters, and other procedural matters, about which I have written extensively here. Unfortunately, because of the overly draconian federal rules that turn the presumption of evidence on its head by presuming a huge universe of defendants too much of a flight risk pretrial to even give any bond (e.g., for possessing as little as 50 grams of cocaine base (aka crack cocaine) (that's the same weight as 50 sugar packets at a diner); the Supreme Court has upheld the Constitutionality of this approach), state bonds that often are too high (I am delighted when my first jail visit becomes my last, when intervening successful bond hearing battles win my clients' freedom), and clients who have been convicted (sometimes before my involvement with the case, sometimes not), I often visit jails and prisons.
All jails are dehumanizing places, even the low-security, fenceless prison where Martha Stewart served her time. They often are worse than that, including the Maryland Penitentiary in downtown Baltimore, and the nearby Maryland Supermax prison, where to this day I wonder if two of my previous clients who spent time there became delusional only after being thrown in the prison system.
Yesterday, I visited potential clients at the jails in Clarksburg and Upper Marlboro, Maryland. Both places present rather spotless and modern visiting areas and hallways for visitors. The inmates, though, suffer daily dehumanization, boredom, and misery from being forced there. I imagine that the guards often experience the same, with the difference being that they get to go home at the end of the shift, and they have the choice to change jobs (not always an easy choice if similar pay and benefits are not readily available). The Clarksburg jail opened a few years ago, thus converting an easy drive to the Rockville jail into a twenty-five mile hike to Clarksburg. The visitors' areas are completely antiseptic, too antiseptic; for a non-public defender lawyer to get a contact visit with a client (without the glass partition), advance permission must be sought.
The Upper Marlboro jail has been around since the 1980's, at least. Every time I go, the hallways smell like chicken soup, mixed with different amounts of sweat. The officers are very accommodating to give me a contact visit, as each housing unit has a contact visit booth and three non-contact booths. A judge once told of the predecessor jail, where I suppose because of its design and security setup, inmate-upon-inmate assault apparently was more common. He told of an inmate who was killed as a result of being forced to give oral sex to another inmate, choking on the inmate's semen. Being an inmate brings daily misery.
One of my clients, a wonderful man and a political activist, refused to give a random urine sample while in prison. He proclaimed himself a political prisoner in making his refusal. He was sent to segregated housing as punishment; at least he was not forced to provide any urine, but this highlights how little privacy inmates have (let alone the shrinking privacy we all have).
My one run-in with jailers came nearly ten years ago. I was on my way to be interviewed at the last law firm with which I ended up working before opening our current firm eight years ago. On the way, I stopped at the Maryland Correctional Institution in Jessup to meet a client. Seeing an imposing dog by the metal detector, I inquired whether it was a drug dog; it was. Not interested in trading my privacy rights to that level, I said I'd return when the dog was not there.
Tensions were high at this prison at the time, I imagine, coming soon after a then-recent Maryland high court decision reversing the drug felony conviction of a man who had drugs in his trunk, which the prison officials ordered searched when he opted to leave the prison grounds rather than submit to a random car search before proceeding to the parking lot. The court rightfully ruled that he had the right to leave, and that there was no lawful basis to search his car.
I could have just left without saying anything; I certainly was offended by this invasion of privacy. At the time, I was still with the Maryland Public Defender's Office. A managing prison officer made a big and loud deal of my refusal to be sniffed for drugs. He acted incredulous that I would not agree to be sniffed; cops often act incredulous when they stop a car and the driver refuses to talk (even though such refusal is a Constitutional right). He huffed and he puffed, and he threatened to call my boss, which he did.
All hyped from this situation, I continued to downtown Washington for my law firm interview. In part because I was so hyped, the interview became somewhat of a sparring match, in that the litigation partner at this civil litigation firm (I felt it important to have some civil trial experience added to my criminal defense experience) was peppering me with questions about my ability to transition from criminal defense to civil litigation, and I peppered him back with my responses and own thoughts. Figuring a few minutes into the interview that I'd not get the job, so that I'd learn more about the firm, anyway, I was surprised to hear when the litigation partner needed to leave, that he thought I had some of the essential ingredients to be successful there, including being aggressive. I got hired two days later.
Intervening between the prison dog incident and being hired at my last law firm came the next day, meeting with my boss and her assistant. They surmised the prison might not let me back without taking a drug test first, which would have been clean as a whistle. When I said I wasn't inclined to agree to a drug test, my boss said "This is your career," which it clearly was not. It reminds me of a quote I heard from the great trial lawyer Tony Serra, to which I have long ascribed, that we must follow our consciences at all times.
Too many people through their twenties, and some into their thirties, did not experience the days when our lives were not so hypergoverned with being monitored by cameras, drug dogs, and metal detectors. As time marches on, more and more security personnel will have less personal experience with that, as well; our liberties will continue to suffer more as a result. By Jon Katz.
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JON KATZ, P.C.
JON KATZ, P.C.
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OUR BLAWG: www.katzjustice.com/justiceblog.htm
See also our other legal links, articles, and homepage.
- Arbitrary and Capricious - By an anonymous public defender.
- Capital Defense Weekly - Capital punishment is unjust as a punishment and in its application.
- CrimLaw - A prosecutor and former criminal defense lawyer as of September 2006.
- CrimProf - Do they encourage all professors to give fair exams and to grade fairly (not easily, just fairly)?
- Defending Those People - "Those people" often are your friends, family members, co-workers, and neighbors.
- Diary of a Criminal Solicitor - By a British criminal defense lawyer. There's no comfort being reminded that criminal defendants' rights are repeatedly abused in every nation.
- DUI Blog - When it comes to drunk driving laws and enforcement, the nation's gone MADD in the worst way. See our drunk driving defense article here.
- FourthAmendment.com - The site's author, John Wesley Hall, is a Little Rock, AK, attorney. Another Little Rock attorney, Bill Clinton, underlined that it's certainly not only Republican presidents who trample on the Bill of Rights. Were that not so, why did Clinton make sure to witness an execution during his 1992 presidential campaign?
- Grits for Breakfast - By a writer and researcher whose blog primarily focuses on criminal defense.
- Law Of Criminal Defense - Another blog from John Wesley Hall, who also presents FourthAmendment.com and co-presents TalkLeft.
- Magistrate's Blog - From an anonymous English judge. Please let us know of any equally frank blogs from any judges in the United States.
- Sentencing Law and Policy - Plea bargaining was the most distasteful part of becoming a criminal defense lawyer. Sentencing ran a close second.
- Truth About False Confessions - If the police assert a suspect confessed voluntarily, without coercion, and having fully waived the right to remain silent and to have the presence of counsel, see if the police can back it up with a reliable, unedited videotape of the discussion showing everything happening in the interview room, including how small the room is, how many police tower over the suspect wearing their guns and handcuffs, how booming their voice are, how often the suspect is permitted breaks/ food/drink, and the extent to which the suspect has been given the opportunity for deep sleep in a comfortable bed after a home-cooked meal. In other words, the un-coerced confession is a rarity, and courts repeatedly do injustice by permitting coerced statements into evidence.
- Underdog Blog - To the end that all lawyers, the courts, government, and everyone serve justice at every turn, at all times, and at all costs.
- White Collar Crime Prof - Achieving justice demands aggressive defense of both blue collar and white collar criminal cases.
- Abolish the Death Penalty - From the National Coalition to Abolish the Death Penalty
- Appellate Law and Practice - Rare is the jury trial conviction that should not be appealed.
- Becker-Posner Blog - Federal judge and University of Chicago economics professor discuss government and economics.
- Cato-At-Liberty - Raising timely public policy issues, including the United States' shameful concentration camps for those of Japanese ancestry, legislation on online gambling, and farm subsidies. The Cato Institute (not from the Green Hornet) claims to be libertarian.
- Criminal Waste of Space - Musings of a California appellate judge on such matters as Dick Cheney's marksmanship, lack of public confidence in American governors, and admitting his press overexposure.
- Drug War Rant - In his 1980's Steal This Urine Test, Abbie Hoffman recommends crank calls to drug testing companies. By now, it could take decades to make a daily crank call to a different drug testing entity (including all the hospitals that are part of the action).
- Judge Jones's Blog - Two Texas judges provide information on court procedure, including a clothing prohibition on football sweatshirts, rock band pictures, and Harley shirts, but allowing Ralph Lauren Polo shirts. How is this not content-based gagging?
- Legal Reader - Notable legal newsbites.
- Loose Robes - Its blogmaster says: "After twenty-four years in the criminal justice system -- as defense attorney, prosecutor, and judge -- I stepped away and looked back in dismay. My overall feeling was not one of accomplishment, of a job well done. My sense, rather, was one of relief that I was getting out of the pit. I had burned out."
- Sui Generis - Civil rights and other issues.
- TalkLeft - Proclaiming to be the "Online Magazine with Liberal coverage of crime-related political and injustice news." As to liberalism on criminal justice, count me in.
- Volokh Conspiracy - A bunch of professors and others discussing Constitutional, criminal and other legal issues.
- Blawg - Includes link to our Underdog Blog.
- DMOZ Criminal Blog Directory
LINK SUBMISSIONS - We welcome suggestions for links to quality blogs, by contacting jon[at]katzjustice[dot]com .
JAY S. MARKS(Admitted in MD/DC/IL)
JONATHAN L. KATZ (Admitted in MD/DC/VA)
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