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Friday, September 3. 2010

Seven lessons from a post-traffic ... Posted by Jon Katz in Criminal Defense at 00:00

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Seven lessons from a post-traffic stop conviction.

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond, pursuing the best possible results for clients. 301-495-7755. http://katzjustice.com.

Two nights ago while I was about to make a U-turn around a blocked-off street while police searched the Discovery Channel building after James Lee had already been killed, a woman crossing the street in front of me started asking if I could give her a ride. I said that I do not give rides to people I did not know. She responded: “Get going, then.”

Good reasons exist for refusing to give strangers rides: Protection against robbery and assault; and avoiding problems with the passenger if stopped by police for speeding or another moving violation, including passengers with drugs or weapons who throw the contraband to the driver’s side of the car when stopped, or who leave the contraband on the passenger’s seat or elsewhere nearby when asked to get out, leaving the police to arrest everyone in the car for the contraband.

Curiously, this was the first time in many years that a stranger had verbally asked me for a ride (as opposed to hitchhikers asking with their thumbs), and just earlier that day I had read the previous day’s Virginia Court of Appeals opinion -– discussed further below -- that re-underlines the risks of riding in cars with risky people. Atkins v. Com., __ Va. App. _ (Aug. 31, 2010).

Appellant Kentora Atkins was a passenger in a vehicle stopped for having a burned-out license plate bulb. Lesson one: Beware riding in a car with equipment defects that allow a traffic stop.

A police officer asked Mr. Atkins for his identification. Mr. Atkins first said he had none, and then handed over identification. Lesson two: The United States thankfully has not gotten as bad as European countries and other countries that require people to carry identification papers. Except for drivers, who are required to carry drivers’ licenses while driving, non-drivers have no obligation to carry identification, nor to display identification to the police.

The traffic stop got longer when the police hit on open arrest warrants for another passenger. Lesson three: Police might be empowered to detain everyone in a vehicle during a moving violation stop, including the time period that the police are checking for other occupants’ open warrants. That is another reason to beware whom you drive with in a car.

During the traffic stop, police officer Gallacio:

[O]bserved appellant bobbing up and down in the car as if he was bending over the seat. Then, appellant began to behave strangely as soon as he was removed from the car. His hands were balled into fists and he continued to move in circles, ultimately in the direction of the police vehicle. Appellant’s arms indicated he was a heavy drug user; his manner was very nervous. He did not comply with Special Agent Gallaccio’s request to remove his hands from his pockets. See Walker v. Commonwealth, 42 Va. App. 782, 792, 595 S.E.2d 30, 35 (2004) (finding appellant’s refusal to remove his hand from his pocket is a factor to be considered in finding reasonable suspicion).

Atkins concluded: “Given appellant’s behavior and demeanor, Gallaccio had objective facts sufficient to give him reasonable suspicion to stop appellant and investigate further.”

Lesson four: Beware having needle marks exposed for the police to see. In the presence of police, beware bobbing up and down, bending over carseats, balling fists, moving fists in circles, and putting hands in pockets.

Unfortunately, when Atkins allegedly struggled with a police officer after being told a weapons patdown was coming, he allegedly dropped a container of heroin. Lesson five: Police love when contraband drops from a person without the police having conducted any patdown or more intrusive search, possibly making the contraband harder to suppress.

Also unfortunately, the police found weapons in the car (Atkins gives Mr. Akins no standing to challenge the car search). He got convicted of the weapons, too. Lesson six: Possession of contraband is defined as knowledge, dominion and control, which allows for joint possession even for those who have never touched the contraband.

Lesson seven: Atkins was prosecuted and convicted in Virginia, where the jury recommends a sentence if the defendant is convicted, and where appellate caselaw for criminal defendants is generally less favorable than Maryland’s criminal appellate caselaw. Does that mean that criminals are going to immigrate to Maryland as a more hospitable place to commit crime? No. It does mean that Mr. Atkins may have gotten a geographic disadvantage from being prosecuted in Virginia rather than in Maryland.

Thursday, September 2. 2010

September 11 NY peace walk will be ... Posted by Jon Katz in Jon's news & views at 00:00

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September 11 NY peace walk will be an unforgettable experience.

Meeting my teacher and friend Jun Yasuda is a transformative experience in itself. Joining her for a peace walk is all the more incredible.

Once again, Jun-san helps lead a peace walk starting on September 11, and finishing Septmeber 21. This walk will begin on September 11 at Ground Zero, going through such places as Syracuse, Onandoga, Saratoga Springs, and the Grafton Peace Pagoda, ultimately finishing at Troy on the International Day of Peace celebration.

I will be in court almost every business day during the peace walk. If you go, please let me know.

Wednesday, September 1. 2010

Am I happy how the nearby Discovery ... Posted by Jon Katz in Jon's news & views at 00:00

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Am I happy how the nearby Discovery building hostage situation turned out?

Usually, about the most noteworthy things that happen on the streets outside my Silver Spring, Maryland, office – except for the time I was floored meeting Jane Goodall just a block away, near her then U.S. headquarters -- are such events as the closing of the Electric Shaver repair shop and museum, in the face of rising rents surrounding the downtown development that looks like so many other outdoor shopping mall-office-condo complexes that obliterate the truer, even if grittier, flavor of the surroundings they replace.

The Discovery Channel headquarters two blocks down the street from me replaced the Tastee Diner, which seemed to have stubbornly resisted earlier likely overtures to buy the diner’s real estate parcel for erecting a much larger building. Bill Griffith’s Zippy the Pinhead comic-strip chronicled the relocation of the Tastee a decade ago to a half block from my current office. The restaurant serves meat, and the vegetables did not taste so Tastee, so I have stayed away, but Bill Griffith likes diners, including in Connecticut to which he transplanted.

Early this afternoon while at the D.C. Superior Court, just eight miles down the street from me, I learned about an event more surreal than Zippy’s take on the relocation of the Tastee Diner. I learned that at the Discovery Channel building that replaced the Tastee Diner site, a man had taken hostages, streets were being blocked off by cops, I would be letting my staff leave for the day, and I would not get back to my office until after the alleged hostage taker, James Lee, had been shot and killed.

For the rest of the afternoon, I transferred my office business to the Bethesda, Maryland, conference center that is part of the company providing me offsite meeting space. On the way back to my office at around 8:00 p.m., closed was the entrance to Colesville Road, which passes by the north side of the Discovery Channel building.

Fortunately, nobody was physically wounded, nobody, that is, but the alleged hostage-taker James Lee.

On the one hand, I want to depict James Lee’s alleged actions as a rare aberration that does not justify tightening the criminal justice system, imposing harsher sentences, forcing more people into mental hospitals, and reversing the erosion of the death penalty machine,

On the other hand, we are all connected in one way or another. That does not automatically mean that others are at fault for Lee’s actions. On the other hand, the question remains whether he would have taken today’s actions had more people reached out to him with caring from the outset and through today.

On local news radio WTOP, a news announcer said that the Discovery Channel hostage situation had ended happily. At the auto shop at the end of the day, one of the staff seemed pleased about the skills of the shooter who killed Mr. Lee. Later in the evening, someone from out of state told me it was good that Mr. Lee got shot.

Am I disappointed that Mr. Lee got shot, and dead at that? Not necessarily, although I wish to know more, including whether the sharpshooter had an opportunity to incapacitate Mr. Lee by maiming rather than killing Mr. Lee; possibly not if the shooter was too far from him.

Do I feel that we would have a more peaceful and harmonious society if we reduced the disconnect that so many people feel among each other, if people did not so quickly feel “good” to learn that a hostage taker had been shot dead, and if we continued working harder and more caringly to finding nonviolent and non-incarceration approaches to so-called deviant behavior?

Yes, and that responsibility to reduce the disconnect starts with me.

Tuesday, August 31. 2010

Whether to buy an iPAD or Mac laptop. Posted by Jon Katz in Jon's news & views at 00:00

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Whether to buy an iPAD or Mac laptop.

It is time for me to buy a new laptop computer. What do you recommend for a lightweight laptop that withstands being dropped sometimes; runs quickly enough on the Internet and with DVD's/CD's; and runs with a good amount of power, speed and memory?

Although I have not used Apple products before -- and have felt non-plussed by the excessive chatter about iPhones and iPads each time a new version is introduced -- now I need to make a practical decision whether to buy any of the following Apple products. A colleague recommends the following items, with the following information; I welcome your input:

- This colleague uses an old MacBook Pro, and an iPAD. Perhaps he uses the iPad as an alternative to upgrading his old MacBook. He is able to store discovery on the iPAD, including videos. He has found less resistance from detention facilities to bring the iPAD than a laptop. Do iPAD's run DVD's and CD's?

- My colleague likes his 3G iPhone, although it can be slow sometimes. The free case is needed to resolve dropped calls in the iPhone4. There is a heavy battery case by Mophie when the ordinary battery is not long-lasting enough. A local iPhone user suggests bewaring using an iPhone while AT&T remains the provider of phone service.

How well does an iPAD integrate with a PC versus with a Mac notebook computer? Thanks for your thoughts.

Monday, August 30. 2010

Law Crossing adds Jon Katz to its ... Posted by Jon Katz in JK in the news & live. at 00:10

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Law Crossing adds Jon Katz to its weekly Law Star Hall of Fame.

Each week, Law Crossing adds a lawyer to its Law Star Hall of Fame. The website has added me to its list with a review entitled "Jon Katz: An Eclectic Attorney in an Otherwise Predictable Legal System."

Law Crossing's review heavily repackages some of my clients' online feedback and information from my website, but better-known information sources also too often skip independent fact-checking, although the review says nothing that concerns me. For instance, when I first became my own boss, in partnership with my former law partner Jay Marks, the Maryland Daily Record posted a story about our law firm that seemed to have relied exclusively on the brief news release that we sent out. Some journalists do follow up with a call to fact check.

Monday, August 30. 2010

DC's medical marijuana law will be ... Posted by Jon Katz in Drugs at 00:00

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DC's medical marijuana law will be worth limited fanfare unless people urge D.C. to expand the list of permitted medical marijuana uses.

Image from public domain.

Through my excitement over the District of Columbia’s becoming an additional medical marijuana jurisdiction, I did not focus on the problem that other than the following “qualifying medical conditions” allowing use of medical marijuana, any other qualifying condition must be approved by a rulemaking of the District of Columbia government for a condition that is:

(i) Chronic or long-lasting;

(ii) Debilitating or interferes with the basic functions of life; and

(iii) A serious medical condition for which the use of medical marijuana is beneficial:

(I) That cannot be effectively treated by any ordinary medical or surgical measure; or

(II) For which there is scientific evidence that the use of medical marijuana is likely to be significantly less addictive than the ordinary medical treatment for that condition.

The already qualifying medical conditions allowing use of medical marijuana are:

(A) Human immunodeficiency virus;

(B) Acquired immune deficiency syndrome;

(C) Glaucoma;

(D) Conditions characterized by severe and persistent muscle spasms, such as multiple sclerosis;

(E) Cancer.

Consequently, particularly if you are a District of Columbia resident, please contact the D.C. government during the 45-day notice-and-comment period that started August 6, 2010, to urge an expansion of the statutorily-listed conditions that permit medical marijuana use, because the initial draft medical marijuana regulations initial draft medical marijuana regulations do not add any conditions to the above list of five that are permitted for medical marijuana use.

For your convenience, here is a petition from Safe Access D.C. that you may sign and submit online to comment.

I also suggest submitting your own personalized comments to Mayor Fenty or other council leaders on the draft rulemaking. The proposed rulemaking directs that comments may be made as follows:

Comments on this rule should be submitted, in writing, to Arthur J. Parker, Chief, Rulemaking Section, Office of the Attorney General, Legal Counsel Division, 1350 Pennsylvania Avenue, NW, Suite 409, Washington, DC, 20004, within forty-five (45) days of the date of publication of this notice in the D.C. Register.

Sunday, August 29. 2010

Further tales from a formerly ... Posted by Jon Katz in Persuasion at 00:00

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Further tales from a formerly overweight vegan trial lawyer.

T'ai chi near the Reflecting Pool, Washington, D.C., August 28, 2010 (Copyright Younghee Katz).

As much as I believe that the United States and the rest of the world are overmilitarized, over-triggerhappy, and overviolent, a combat veteran is all the more prepared for the challenges that constant trial battle brings to one’s physical and mental health.

The dovish person that I am, I opt for daily t’ai chi practice as part of my approach for keeping powerfully calm in the eye of the storm. When at my best, I do t’ai chi shortly after waking up, to be better prepared for any bows and arrows coming my way as early as the beginning of the day, and I do t’ai chi at night to get a better night’s sleep and day’s resolution after dealing with all the day’s bows and arrows, including those that I have shot myself.

The health of trial lawyers is constantly tested by drafty and cold-producing courtrooms, windowless jails with inhospitable visiting hours, merciless court filing deadlines, constant battles, taking care of existing clients and law office administration while in trial for multiple long days (sometimes hundreds and even thousands of miles from one’s office), and the list goes on.

The elementary foundation for keeping healthy as a trial lawyer or in any other life path is an easy-to-apply balance of good diet, rest, and exercise. For whatever it is worth, here are some things I have learned about doing so:

Getting a good diet.

Before law school, I tended to fluctuate between the right weight and being up to five or ten pounds overweight. Starting with law school right up to a few months ago, I have battled the stomach bulge of ebbs and flows between just right and just plain wrong.

Unlike college, at law school I prepared all my own meals and was in just one law school building rather than a sprawling campus that required plenty of walking each day. Two years later, for ethical reasons, I stopped eating meat, fish and fowl entirely for the rest of my life. The Atkins diet followers probably speak much sense about being able to keep weight down by eating plenty of meat and few carbohydrates, but the heavy meat eating is not good for the health of the animals being slaughtered and eaten, likely does a number on one’s heart and overall health (including from all the growth hormones and antibiotics infesting meat, contamination and rancidity exposure in meat, and mercury infested fish), and does not seem to provide sufficient balance from non-meat food sources.

In mid-2001, I became a 99% raw vegan. This article talks about how I quickly shed and kept off excess weight.

Four years later, in 2005, I tried to see whether I could maintain my weight by reintroducing some cooked food to my eating. I ebbed and flowed back and fourth weightwise, including some excessive weight gains for nearly the next five years.

Over one and one-half years ago, I cut out rice, pasta and bread from my eating. I still often got too heavy. Then, around two months ago, I eliminated dried fruit and packaged juice, which have too high concentrations of sugar. I substantially reduced my intake of nuts, seeds, and tofu. The pounds shed, and within two to three weeks, I was satisfied with eating this way.

When I was a 99% raw vegan, I ate substantial amounts of dried fruit, raw nuts, raw seeds, raw tahini/sesame seed butter and raw almond butter. Some raw foodists get very hardcore about defining what is raw, and it appears that most or all nuts and seeds require some heating to remove shells, unless some very hard labor is performed to do the whole task by hand. When a 99% raw foodist, whenever I saw myself exceeding optimal weight, I reduced the fat I ate, and that did the trick.

Many factors lead to overeating and getting overweight. One theory is that the body keeps sending out hunger signals until one consumes a good amount of essential nutrients found in vegetables and other foods. Consequently, if a person tried eating just bread and milk for nutrition over a one-week period, the person might gain plenty of weight.

Another theory is to just follow portion control and calorie counting. However, portion control requires feeling satisfied with no more hunger pangs, and it seems that getting essential nutrients contributes to feeling satisfied. In that regard, folks like South Beach Diet proponents seem to focus on the types of food one eats, as did Michel Montignac, who apparently took a similar path to the South Beach Diet as an overweight pharmaceutical company executive before the South Beach Diet came into being.

Possibly an ideal way to maintain a good diet is to have a personal chef who purchases the ingredients for one’s every meal, and prepares and presents the meal to the eater. Such an approach can be expensive, and is impractical for those who eat lunch on the run on trial days, and who do not get home on time to eat dinner.

It is important not to binge on food. The temptation to binge can be reduced by not skipping breakfast, lunch and dinner; by eating smaller amounts more than three times daily; by avoiding eating within two hours before going to bed, when the metabolism might be less likely to go to work much on one’s late-night eating; and by eating lightly at night. If one craves unhealthy food or too much food, the craving is likely to subside by waiting at least an hour after feeling the craving.

Getting good exercise.

My t’ai chi teachers were taught by students of Cheng Man Ch’ing, a t’ai chi superstar who apparently had a stomach paunch for many years before he passed. One of my teachers said that it is better to do t’ai chi than to have a perfect physique to behold. At the same time, senior Cheng Man Ch’ing student Ben Lo is svelte at around 84-years-old, and my teacher Julian Chu –- who studied with Ben Lo –- also has no paunch, and makes the time both to be great at t’ai chi and to run marathons.

For me, it is very important to do both t’ai chi and to get aerobic exercise. I emphasize getting sufficient t’ai chi practice each day before turning to aerobic exercise. Nevertheless, it does not take much effort to add aerobic exercise through such approaches as taking the stairs instead of the elevator, parking farther from one’s destination, and taking a walk during lunchtime.

Consider all the non-work and non-family-time ways in which one spends time that could instead be replaced by exercising, including couch potato time and too much time in front of the Internet. Thankfully, we have opted for no cable or broadcast television at our home.

Getting good rest and staying asleep.

Ideally, one will get enough rest simply by going to sleep and awakening at similar times each day, and by getting too tired to stay awake past one’s usual bedtime. Physical exercise can help this.

An overstimulated mind can have more trouble getting right to sleep at night. The overstimulation can happen from television, time on the Internet, and lights that are too bright. Instead, one can spend the last hour before sleeping with more quiet activities, including reading, and spending quiet time with household members.

Of course, it is not enough to fall asleep, but to stay asleep. I know of many people who have trouble sleeping the night before trial, and sometimes many nights before trial. Some people start waking up at 3:00 a.m. or earlier thinking about work. Perhaps insomnia problems will subside the more one focuses on a good balance of work during worktime, sleep during sleep time, some personal time each day not devoted to work, and good diet and exercise.

Some or many of you hopefully have no trouble with a good balance of diet, rest and exercise. If that describes you, you probably have not read this far into this article. However, if you have read this far, I invite you to comment on this article. There is a reason that hundreds of millions of dollars are spent each year on diet books, dieting programs, and liposuction; personal exercise trainers; and sleep disorder centers.

Friday, August 27. 2010

Hemp House. Posted by Jon Katz in Drugs at 00:00

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Hemp House.

Image from public domain.

Check out the North Carolina house made from hemp. Thanks to the late Jack Herer's page for featuring a video of the house and its owners.

Thursday, August 26. 2010

Think twice about how much to use ... Posted by Jon Katz in Drugs at 00:00

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Think twice about how much to use censoring FaceBook.

As I understand it, high schoolers, if not also college students, are widely seen as in nowheresville if they do not have FaceBook accounts.

What happened to people’s cynicism about overcommercialism and overconformity, including the inundation of advertisements on the righthand side of the FaceBook page that is specifically tailored to the userid and password that you insert?

FaceBook repeatedly gets criticized for its many obstacles to privacy. Now comes a new reason to rail against Facebook, after it revealed that Facebook will not allow advertisements with marijuana leaf pictures, even when the advertisement presents the leaf image to support marijuana legalization. Who wants to heavily patronize Facebook when it imposes such bans?

Firedoglake has a petition against this FaceBook ban here . The JustSayNow campaign has devised a logo for everyone’s use with a “censored” stamp over a marijuana leaf.

Despite Google’s history of cozying up to the Chinese government's censorships and repression machine, at least it has agreed to run the marijuana leaf ad banned by Facebook.

If nobody else has come up with the idea, if people are not going to abandon Facebook wholesale, it will be a great idea to have a Facebook-free day when nobody logs onto Facebook. That will heavily displease Facebook’s advertisers, which may be the only people that Facebook ends up truly listening to.

Wednesday, August 25. 2010

A trial judge must not ignore jurors ... Posted by Jon Katz in Criminal Defense at 00:00

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A trial judge must not ignore jurors patting testifying cops on the back midtrial.

During a midtrial lunch break in a Maryland jury trial for a drug felony prosecution, two jurors patted a testifying police officer on the back and said "good job".

The trial judge denied the defense lawyer's motion for relief, and Maryland's intermediate appellate court affirmed the conviction. Praised be the good job of Maryland's highest court for today reversing the conviction, due to the trial judge's inaction on the matter. Dillard v. Maryland, __ Md. _ (Aug. 15, 2010).

Tuesday, August 24. 2010

Judge orders convicted marijuana ... Posted by Jon Katz in Drugs at 00:00

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Judge orders convicted marijuana defendant to write report on “the nonsensical character” of medical marijuana in California.

Image from public domain.

Marijuana is beneficial medicine from nature rather than from synthetics. Sadly, Nevada Judge Dave Gamble ordered a California man convicted of selling marijuana to write a report about "the nonsensical character" of California's medical mrijuana laws, with the judge's calling marijuana a gateway drug, which it is not.

Thanks to the ABA Journal for posting on this story.

Monday, August 23. 2010

May cellphones be searched without a ... Posted by Jon Katz in Criminal Defense at 00:00

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May cellphones be searched without a search warrant?

May cellphones be searched without a search warrant? Yesterday, Arkansas blawger John Wesley Hall addressed caselaw supporting the need for a search warrant before the cellphone may be searched.

Sunday, August 22. 2010

The power of a sound, smell, touch, ... Posted by Jon Katz in Persuasion at 00:00

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The power of a sound, smell, touch, and taste.

Psychedelic Furs - Love My Way

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond. 301-495-7755. http://katzjustice.com.

Vision may be powerful, but among the five senses, it can be felt most distantly of the five senses. Next comes hearing, as I see hearing as a more intense experience than seeing, and eardrums might agree.

Touch, taste and smell can evoke the most intense of responses and memories. How often do trial lawyers get a chance to persuade people through touch, taste and smell? Does it ever happen? How often do trial lawyers persuade with music, probably not unless the lawyer is singing a song to the jury, which can be a risky proposition. That leaves talk and visuals.

Sound, touch, taste and smell can bring deeply-vaulted memories to the very surface. For instance, one day the dentist was about to stick a small piece of cotton in my cavity during the process of filling it, and I went ape-sh*t in response, because the cotton was soaked in ether, which a few years before sunk me into an awake-seeming nightmare when used to put me asleep during my tonsillectomy. Once the dentist started reassuredly whiffing the soaked cotton on his nose without passing out, I realized I was not going to be put asleep by the balls, and proceeded with the procedure.

Through this blog entry, I am unable to present any smells, touches or tastes. Left with sound and visuals to present, I here post the music video of the Psychedelic Furs performing “Love My Way”. No matter how much the song got overplayed in 1982, and no matter how much it has been borrowed for commercials, for me "Love My Way" captures part of the key essence of rock music in the early 1980’s during a time before the Internet and before compartmentalized digital audio recordings overtook the flow of analog audio recordings. For me, the song transports me back nearly 28 years.

Friday, August 20. 2010

Further persuasive inspiration from ... Posted by Jon Katz in Persuasion at 00:00

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Further persuasive inspiration from music.

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond. 301-495-7755. http://katzjustice.com.

As I have said before, for me jazz is improvisation, spontaneity, feeling, being in the moment, tight interaction, entertainment, pushing the limits of excellence, creativity, expanding into new frontiers, fun, inspiration, and discovery. That also is what my criminal defense work is about, albeit with frustration. I continue turning to music for personal and professional inspiration.

Here are some of the recent musical inspirations that I have found:

Above , the totally talented Anthony Braxton –- whom I experienced in 1983 in Boston in a double-billing with Gil Evans -- speaks in awe of the late, great trumpeter Woody Shaw.

Woody Shaw plays his spectacular Rosewood composition here, in 1979. I went to experience Woody Shaw on the Boston Harbor jazz boat in mid-1983. Arriving too late to easily find a seat with a stage view, my friend and I took a seat slightly behind the stage. A kindly man encouraged looking harder for a seat seeing the stage, to hear the music better. We finally found seats where he recommended. Woody Shaw came onstage, and I was floored that he was the man recommending seeking better seats (by then, he unexpectedly looked much different than the pictures on his albums). During intermission, I told Woody how much he and his music had meant to me. I asked him about his trumpet, and he handed it to me, which I had not sought nor expected. I pretended as best I could to be calm with his priceless Yamaha trumpet, and handed it back as quickly as I could like a hot potato.

Woody's official website says: "Like many geniuses, however, Woody's journey would involve periods of prolonged struggle and hardship, yet through his sacrifice and dedication to the evolution of Jazz music, he added to the vocabulary of the trumpet and created a musical language which was all his own." The same month as my law school graduation, Woody died of kidney failure at age forty-four, which is three years younger than my current age. He accomplished so much in such a short time.

What happens when musicians act? Round Midnight has one answer, putting sax great Dexter Gordon (see here, too) in the leading role. For good measure, Martin Scorsese is included in the cast.

In court, I do not have the luxury of turning up a stereo or bringing in my horn. When I immerse myself in my entire being and experience, though, the music is present all day everywhere I go.

Thursday, August 19. 2010

Third Circuit puts public college ... Posted by Jon Katz in First Amendment at 00:00

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Third Circuit puts public college speech codes in their place.

Bill of Rights (From public domain.)

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond. 301-495-7755. http://katzjustice.com.

One benefit of attending a government-run college versus a private college is that the Constitution applies to the first but not the second.

Consequently, when my alma mater Tufts, a private university, initially placed a student on probation (and later reversed that shameful decision) for distributing an abhorrent and sophomoric t-shirt with fifteen alleged reasons why beer was better than women at Tufts, the Constitution was not available to give him relief. I certainly wrote a rant to the dean of students over this before the probation had been reversed.

Conversely, when University of the Virgin Islands (a government-run university) student Stephen McCauley was disciplined for allegedly harassing a student who alleged criminal assault against Mr. McCauley’s friend, Mr. McCaualey had the First Amendment available to him. McCauley v. U.V.I., et al., __ F.3d _ (3rd Cir., August 18, 2010). Yesterday, August 18, the Third Circuit held that two provisions of UVI’s speech code “are largely subjective and lack limiting constructions to save them from violating the First Amendment.”

McCauley provides in-depth analysis showing why public university students have more expansive First Amendment rights against student discipline than do students in public high schools and elementary schools. For instance, McCauley says:

[O]ur Circuit recognizes that “there is a difference between the extent that a school may regulate student speech in a public university setting as opposed to that of a public elementary or high school.” Id. at 315. Public university “administrators are granted less leeway in regulating student speech than are public elementary or high school administrators.” Id. at 316 (emphasis in original). “Discussion by adult students in a college classroom should not be restricted,” id. at 315, based solely on rationales propounded specifically for the restriction of speech in public elementary and high schools, see id. Cf. Sypniewski, 307 F.3d at 260. “Certain speech . . . which cannot be prohibited to adults may be prohibited to public elementary and high school students.” DeJohn, 537 F.3d at 315 (emphasis in original); cf. Healy, 408 U.S. at 180.

We reach this conclusion in light of the differing pedagogical goals of each institution, the in loco parentis role of public elementary and high school administrators, the special needs of school discipline in public elementary and high schools, the maturity of the students, and, finally, the fact that many university students reside on campus and thus are subject to university rules at almost all times.

Thanks to a fellow listserv member for having brought McCauley to my attention.

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Since 1991, criminal defense lawyer Jon Katz has fought for victory for criminal defendants and drunk driving/ driving while intoxicated/ DUI/ DWI defendants in felony prosecutions, misdemeanors, and drunk driving cases. He defends clients in Maryland and Virginia state and federal courts, including in Montgomery County (Rockville and Silver Spring), Fairfax County, Prince George's County, and the rest of the D.C. Beltway and beyond.

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Nothing on this blog and elsewhere in the katzjustice.com website is legal advice. Any discussion of our cases, victories, and client feedback is no indication of possible results for current and future clients. Jon Katz is admitted to practice before the courts listed here. A competent lawyer should be consulted privately for any legal advice. Here is further disclaimer information and the terms of use for this website.

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