UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

For those interested in my trial techniques presentation at the October 23 Maryland Trial Lawyers Association criminal defense continuing legal edcuation seminar, here are my handouts for the presentation: Trial techniques overview, criminal trial outline, and introduction to protecting immigrants in criminal court.

Also, check out our website, this blog's archives, and our April-October, 2006, blog archives for additional in-depth legal information and analysis that we have been posting for seven years. Jon Katz

Persuasive talk is more than words, but is the very passion, rhythm, and music with which those words are presented. One of my favorite passionate vocal messengers is Gil Scott-Heron, who proclaimed that the revolution will not be televised:

"The revolution will not be televised.

The revolution will not be brought to you by Xerox

In 4 parts without commercial interruptions.

The revolution will not show you pictures of Nixon

blowing a bugle and leading a charge by John

Mitchell, General Abrams and Spiro Agnew to eat

hog maws confiscated from a Harlem sanctuary.

The revolution will not be televised."

Recently, I checked out what Gil Scott-Heron has been up to. I learned that he was jailed for two to four years this year in New York, having been sentenced for a probation violation finding.

I have insufficient information to give much of an opinion about this probation violation situation. Perhaps this unfortunate experience will lead Gil to spread all the more of a persuasive message about the dysfunctions of the prison and criminal justice system.

Letters of support can be sent to Gil at this address:

Collins Correctional Facility

Gil Scott-Heron, #06R3165

P. O. Box

340 Middle Road

Collins, NY 14034

Jon Katz

The news is so over-saturated, that sometimes I miss such important stories as the "ghetto" party hosted and attended earlier this month, off-campus, by some University of Texas law students.

Cox News Service reports that photos from the party "showed the students holding 40-ounce bottles in brown paper bags and wearing Afro wigs, gold teeth and such gang-related attire as bandanas, according to students who saw the images. Some of the party-goers wore name tags with names such as 'Tanika' or 'Jesus' to play on a black or Hispanic stereotype, the students said. The photos are no longer online."

The First Amendment fully protects the right to host and attend such a party, and also gives people the right to state their views about such a party, which I do here. 

Unfortunately, the legal community often has lagged too far behind in becoming more enlightened about race relations. For instance, bar association after bar association (including the American Bar Association, at least into the 1930's) barred black members right into this century. The University of Texas law school (until the Supreme Court forced integration in 1950) and the University of Maryland law school, to name just two, previously barred black law students, to the point that the late Justice Thurgood Marshall was ineligible to attend the University of Maryland law school, which sits in the same city where he grew up.

Until Washington's Cosmos Club accepted women members in 1988 when faced with the prospects of discrimination litigation, high-powered male lawyers hob-nobbed there for lunch, with women entering only at a male member's invitation. The Brethren reported that former Chief Justice Earl Warren -- for all he did to benefit individual liberties -- still ate at a lunch club with his law clerks, that barred blacks. The list clearly goes on and on.

Notice how party attendee and first-year law student Nick Transier -- who uploaded party photos to the Internet, but then removed them -- asserts "We had no intention by any measure to choose a group or class of people and make fun of them." How many times do we hear such excuses over actions that dehumanize others?

Race relations problems are not limited to the legal community, of course. Nevertheless, since lawyers and judges often are at the forefront of racial justice issues, it is particularly troubling to see such attitudes persist by students attending one of the top-rated law schools. Graduates from top-ranked law schools have more professional opportunities -- including federal judicial clerkships and federal judicial positions; it is important to know what members of the legal community are doing or not doing about race relations.

I am not one to advocate legal solutions to every social ill. I do very much favor shining the light on social ills, because such light-shining is necessary as part of solving the problems.

The National Lawyers Guild and its United People of Color Caucus condemned as weak the UT law school administration's response to this matter, and demanded that the "University take more aggressive steps to educate students and adopt an anti-racist curriculum." Law school dean Larry Sager met with some of the party's attendees, stated his views about the party, and said no disciplinary action was planned. This activity is First Amendment-protected, so disciplinary action at this government-run law school would violate the First Amendment. 

Where to go from here, then? Minorities and women still continue to be underrepresented at law firms, including in the partnership ranks; the Supreme Court has only one woman justice; and the list goes on. The legal community needs to become color-blind, and this effort becomes all the more a challenge the more that an old boy network culture permeates so much of the legal community. Jon Katz

Getting to yes is negotiating with an eye towards fulfilling some key goals of each party to the negotiations, rather than negotiating on positions. A recent negotiation further illustrated the benefit of this approach.

My client was criminally charged with possessing marijuana and marijuana paraphernalia possession. The prosecutor refused to offer first-time offender diversion, and instead offered for my client to plead guilty to possession of drug paraphernalia, which is not jailable for the first conviction, but which can create problems later on.

I countered to the prosecutor my client's willingness to do a diversion program of sorts on his own, through a state-licensed weekly drug education program, together with a substantial number of community service hours.

The prosecutor at first would not budge. However, time was on our side. The prosecutor had a huge docket. I had plenty of time to talk with the three police officers in the case. I suggested to the prosecutor that such a case did not justify keeping three police officers waiting to start the trial, nor for the chemist to have to come to court. 

The prosecutor asked why our client would not "just plead guilty" to drug paraphernalia, since it was not jailable, and I told the prosecutor that a guilty verdict either for marijuana possession or for paraphernalia each could harm my client's job security. She said she would discuss my negotiation offer with the police officers, which often means the prosecutor will accept our counterproposal. That was the situation in this instance; the case was then placed on the inactive/stet docket, conditioned on completing the drug education program and community service.

Numerous times, prosecutors do not give me better negotiation offers in misdemeanor cases until I invest the time for negotiations backed up by our readiness to go to trial. The waiting can tax a client's discomfort/"I want to get it over with" factor, and those concerns must skilfully be addressed, while reassuring the client of the wisdom in taking the lawyer's recommended path. Jon Katz

This follows up on my October 22, 2006 blog entry about my speaking on a panel of criminal defense lawyers and judges at the Maryland Trial Lawyers Association's October 23 seminar entitled "Successful Strategies for Circuit Court Criminal Cases."

I spoke about trial techniques, opening statements, direct and cross examination, and immigration consequences of criminal convictions and sentences. I focused on using consultants to prepare for trial (my favorites are psychodramatist Don Clarkson and acting consultant Josh Karton); being in the moment at every step of the trial (I start with the lessons of t'ai chi) so that the opening statement, cross and closing often are quite different than the outlined arguments and are seamlessly integrated; persuading through storytelling at every stage of the trial; and protecting non-citizen defendants from the complex of immigration landmines from criminal convictions.

Also on the panel were Circuit Court judges from Baltimore City, Baltimore County, and Anne Arundel County; and two additional criminal defense lawyers discussing case preparation through the jury selection stage; and jury instructions, closing arguments and sentencing. 

One of the panel's criminal defense lawyers talked about dealing with the press and asserted potential publicity benefits to the lawyer from such news coverage. My view is to tread very carefully when discussing one's criminal defense clients with the press. Newspeople have their own agenda (and hopefully that is for the truth) that is separate from the defendant's interests, and are on tight deadlines that can interfere with giving an accurate picture of the defendant's case. While at first blush the lawyer may feel it important to talk with the press to help get the defendant's side across, once the trial is underway, the jury is not supposed to be following news of the case in the first place. Moreover, journalists have plenty of criminal defense lawyer talking heads available who have no involvement in the case.

Through Marks & Katz's in-depth experience talking with the press (more often as talking heads, rather than about particular clients), we have developed a sense of when to talk on the record, and when not to. We make ourselves freely available to provide legal analysis and views to the press for cases and issues that we are not directly handling. When the press calls about a client, however, our sole obligation is to our client (and not to get attention to our law firm), which often limits the extent to which we will talk on the record to the press. Just as the pause in a song can be as important as the note that is played, knowing what to say and what not to say to the press can be equally as important. Consequently, when a lawyer is eager to talk to the press about a client with the hope of gaining publicity, that may be all the more reason not to speak with the press much or at all, or to keep the discussion off the record (and to verify that the journalist has agreed to keep the discussion off the record).

Moreover, a journalist should not automatically be trusted, as they are humans, fallible, and competing against the 24/7 never-ending churning of news stories online and off. Additionally, beware when journalists try to create a soundbite by a lengthy yes/no question. Such a question is the journalist's soundbite, at best, and not the interviewee's words.

Many of the three Circuit Court judges' comments were candid and very relevant to criminal defense lawyers. That was quite a change of pace from a talk earlier this year by a District of Columbia appellate judge who was advertised as bringing an inside view from the court, and instead talked plenty from an inside view of the physical renovation of the court's new digs; that is not the type of insider's view I had in mind when I went downtown to hear this judge.

The judges all agreed that they generally limit jury selection to judge-directed voir dire that eliminates proposed questions that address jurors' potential discomfort with such critical concepts as the necessity to acquit absent a unanimous reasonable doubt finding. Jurors should not be permitted to wait until jury instructions to realize they cannot follow such a critical instruction; by that time, they are more likely to remain silent on the matter, and a mistrial will be more possible if jurors do speak out at that stage, unless a sufficient number of alternate jurors remain.

The judges expected that more potential jurors will lie to stay off a jury than to stay on a jury. However, I believe that plenty of potential jurors lie to get onto a jury, particularly for trials that seem particularly interesting or high-profile (perhaps sometimes hoping to be able to sell the juror's story to a writer after the trial concludes) . One of the judges surmised that potential jurors are no more likely to lie to a judge conducting voir dire than parties' lawyers conducting voir dire.  However, I pointed out Dr. Sunwolf's groundbreaking treatises convincingly showing how harmful juror biases are more likely to be revealed through lawyer-directed voir dire. Potential jurors are less likely to admit an inability to follow a judge's instructions when speaking to the authority-figure judge, sitting in an elevated position, than making such admissions to a mere mortal lawyer. I encouraged the judges to permit at least limited lawyer-conducted voir dire (e.g., five-minutes' worth or more) and jury questionnaires to make up for the lack of lawyer-directed voir dire.

All three judges expressed concern for potential adverse immigration consequences to non-citizen defendants. One of the judges will sometimes encourage the parties to reach a case disposition that will reduce such adverse consequences. Judicial training conferences include presentations by immigration judges and government immigration lawyers. Immigrant-side lawyers are needed, as well, at such training; I will check out the situation.

The Baltimore City judge suggested that lawyers encourage legislators to increase resources in order to have more judges, prosecutors, and public defender lawyers available to handle the staggering backlog of criminal cases in that courthouse, which often leaves criminal defendants waiting well over a year to go to trial. After the program, I suggested to the judge my preferred alternative of reforming the laws (e.g., drug laws) so that the number of prosecutions will be reduced in the first place. I give the judge -- a former federal prosecutor -- credit for not waving off my comment as merely coming from a radical lawyer. Instead, she spoke of prosecutors' ability to reach such a goal through their criminal charging decisions, and also talked about a gap that often arises between police aggressively arresting and charging crimes on the one hand, and prosecutors finding alternatives to going to the mat on every single case.

One of the judges encouraged lawyers, for guilty pleas and not guilties on agreed statements of facts, to keep out factual allegations from the record that would not be admissible at trial. He also encouraged lawyers to seek judicial intervention to edit such allegations out of presentence investigation reports, lest such allegations come back to haunt the defendant during parole consideration time. He also addressed the very important option of not seeking a presentence investigation report for sentencing in the first place; if a defense lawyer wants a sentencing hearing separately from the trial date, this judge is flexible for doing so (e.g. to get sentencing witnesses to court, or if the lawyer is exhausted at the end of trial) without needing to obtain the delay through requesting a presentence investigation report, which often will contain information more harmful than helpful to a defendant.

Another judge talked about a lawyer's risk of losing credibility with judges by asking for an unrealistically low sentence. My view is that it is critical to defend one client at a time rather than having such concerns about being seen as seeking an unrealistically low sentence. The same judge said that just as lawyers discuss judges, judges also talk amongst themselves about lawyers who appear before them; this sounds like ex parte judge-judge communications.

Speaking of ex parte communications, perhaps even deeper and vaster candor will shine from judges' seminar discussions when the audience is populated both by criminal defense lawyers and prosecutors in the audience, rather than one or the other. Jon Katz

Sometimes I blog about some of the cases I handle. Critical to that work is our support staff. This month, we welcome my new primary secretary, Aleida, who comes to us with previous legal secretarial experience, criminal defense experience, and a big heart. We also welcome secretarial assistant Juana, who comes to us with prior receptionist experience, a caring demeanor, and full fluency in Spanish. They both round out two secretaries who primarily assist my law partner Jay Marks.

I consider myself very fortunate to have such a strong team to assist my clients. I believe strongly in integrating my support staff into all stages of preparation and execution of my clients' defense, including producing and organizing case documents, brainstorming (non-lawyer assistants can be very beneficial for developing case ideas, as they often can see issues from a juror's point of view better than a lawyer can), working directly with our clients, and going to court from time to time. Jon Katz