Wednesday, January 31. 2007When jurors ask witnesses questions: A double-edged sword.
Jurors have awesome power. (Photo from website of U.S. District Court (W.D. Mi.)).
During the ongoing Lewis "Scooter" Libby Bush-Cheney-Plame-gate trial, federal trial Judge Reggie Walton is receiving and asking questions from jurors to ask the witnesses. For instance, as requested by one or more jurors, Judge Walton asked vice president Cheney's former press chief Cathie Martin why she did not stand up to a request to reveal to the press potentially classified information to back up Bush's claim in support of starting a Gulf War II that Iraq was attempting to obtain nuclear material.
Ms. Martin apparently testified that this request came from none other than vice president Cheney, "so I didn't know where I was going to go." The CNN online report on the trial says Ms. Martin testified that she "learned that Bush had declassified those portions of the report." However, did she learn about this declassification before or after revealing this information to the press, and did Bush declassify this information for anything other than self-serving reasons?
In federal criminal trials, judges have substantial discretion about the extent to which they will permit or prohibit juror-prompted questions of witnesses. DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 515 (4th Cir. 1985) (the parties were not prejudiced by the 95 juror-prompted questions -- half of them coming from the jury foreperson -- but "such juror questioning is a course fraught with peril for the trial court"); U.S. v. Collins, 226 F.3d 457, 461-65 (6th Cir. 2000), cert. denied sub nom Ward v. U.S., 531 U.S. 1099 (2001) (addressing the potential prejudice and benefits of juror questions in such terms as complexity of the case and prophylactic measures taken against the risk of prejudice).
Juror-initiated questions indeed can be double-edged swords. I think they should only be allowed if the criminal defendant agrees for them to be submitted at all. When judges allow the submission of proposed juror questions, they should be carefully screened by the judge, and should not be asked absent full consultation with the parties. The questions should only be asked by the judge, so as not to give the jury an impression of the extent to which the defendant favors or disfavors or fears the questions.
Unfortunately, if a party successfully objects to the asking of a juror-proposed question, this can open up a can of worms with the jury that can spill into the jury deliberation room and that can become the subject of juror questions to the judge during deliberations. If the parties do not object to the juror-proposed question for fear of earning the jury's wrath, then a Pandora's box may be opened for the opponent to ask a slew of prejudicial and damaging questions, to which any objection might be met with a particularly jaundiced eye from jurors. What if a juror proposes a question to be directed to the defendant, who has the absolute right to remain silent, and not to have that silence mentioned at all to the jury? If the judge tells the jury it can propose questions for any witness, but not for the defendant, that just highlights that the defendant is playing by a different set of rules, perhaps unfairly, in jurors' minds. Pandora can play dirty and devastatingly harmful tricks.
In a recent rather low-risk Maryland jury trial (a Circuit Court jury re-trial on a driving while impaired charge after a District Court bench trial's guilty finding of the lesser DUI charge (with a maximum penalty of no more than four months in jail)), the judge allowed jury questions. In part due to my client's low exposure to an adverse outcome from jury questions, and his low sentencing exposure, and after weighing the risks and benefits of this approach, I did not object to permitting submission of juror questions, in that jurors can sometimes stew more -- to the defendant's detriment -- over a question not asked than a question asked. Only about three or four questions were submitted by jurors. All but two were innocuous questions. Of the remaining two questions, one of them was a good one, which I was going to bring out through a defense witness anyway (that I was speaking Spanish -- not English -- to my client, so the interpreter's presence was not meant unfairly to beef up our argument that the police officer's exclusively communicating with our client in English amounted to a serious detriment to the prosecutor's proving the case beyond a reasonable doubt).
Another juror asked a potentially prejudicial question about my client's background that had nothing to do with the trial, and the judge did a good job at likeably informing the jury that it would need to decide the case only based on the evidence presented at trial (which still may have begged the question to the jury about why this proposed question was not answered in order to elicit such evidence). The jury returned with half a loaf for our client, by finding him guilty of DWI (carrying a sixty-day maximum penalty) and not to have knowingly refused the breath test (carrying another sixty-day maximum penalty, and perhaps underscoring that the jury accepted our arguments about the language barrier and/or about the officer's zeal to have our client sign a refusal to take the breath test before he even arrived at the police station). The Circuit Court judge gave our client no worse a sentence than in District Court, which made worthwhile the risk of a retrial before a jury.
I think this whole state of affairs highlights the importance, benefit and justice of permitting lawyer-directed jury selection/voir dire. The lawyer-directed voir dire process at least enables jurors to talk to the parties -- through the parties' attorneys -- without going as far as to let jurors indirectly question witnesses. Jon Katz.
ADDENDUM Having finished court early on February 1, I visited the overflow large-screen video viewing room for some of Scooter Libby’s trial at the nearby federal court. I did not catch any testimony, but instead watched arguments over the admissibility of statements to the press by former White House press secretary Scott McClennan, as part of the prosecution's efforts to counter Libby’s contention that some of the president’s people were trying to make him a scapegoat, or “throw him under the bus” as his lawyer phrased it.
During that brief forty-five minutes, I experienced nothing earth-shattering. The lead lawyers looked competent; the prosecutor looked like he had some ants in his pants at some points in addressing the judge -- and it was not in reaction to the judge's giving him a hard time, because the judge was not doing that -- but I have no basis of comparison to his demeanor during the rest of this case or elsewhere. In any event, the goal of winning a case is persuasion; so long as occational ants in the pants do not interfere with persuasion, then it is not an issue.
Mr. Libby has lawyers from several large corporate law firms defending him, according to the case docket. Unless his lawyers are working pro bono or low bono, his legal bill is huge and mounting. Hourly rates of partners at such law firms often are at $500 or more. Sometimes less is more; this case does not seem to be complex enough to require so many people at the defense table. Even with his more complex case, O.J. Simpson probably won his criminal murder trial despite having had so many lawyers rather than because of it. In any event, even though I am far from fond of the Bush Administration, I am rooting for Libby to win. This prosecution focuses on his alleged lies about when he learned Valerie Plame was a CIA agent.
In any event, as much as I want Bush out of office, I will be more than happy to see Mr. Libby acquitted. His indictment accuses him of lying to law enforcement and the grand jury investigating how and when Valerie Plame's CIA employment status got leaked to the press. I have uploaded the indictment here. So long as the criminal justice system remains as unjust as it has long been, it will be difficult for me to want to see convictions for such alleged crimes. Even if I conclude that Mr. Libby did tell any or all such lies, I still will feel the same.
In any event, it is curious that Mr. Libby decided to testify before the grand jury. All court witnesses have the option to take the Fifth Amendment, unless their testimony is fully immunized. Similarly, he had no obligation to talk with law enforcement. In any event, what is done is done.
Back to the ongoing Libby trial, for anybody wishing to attend, it is on the sixth floor of the District of Columbia federal courthouse. Camera phones must be checked at the entrance (which is better than the Alexandria federal courthouse, which prohibits all cellphones and palm pilots). The security people tell visitors to remove everything from their pockets before entering a bizarre pod-like area, where they must raise up their hands to be body-scanned. (I have not asked if the scanner leaves any of one's anatomy to the imagination; the security personnel claim the scanner is safe and emits no x-rays, but then again, some doctors in the 1950's claimed health benefits of tobacco).
The trial may be viewed in the trial courtroom or in the adjacent overflow viewing room that has a big-screen four-view monitor. People may not enter or exit the main courtroom when proceedings are taking place. I was unable to get a seat in the main courtroom -- although I visited the main courtroom during a break -- because all but two rows had "reserved" or press signs there. However, an employee of the court told me in the hallway that she would try to assure that people knew that five rows were available to the public. The only reporter I recognized was NPR's Nina Totenberg.
Meanwhile, here is Valerie Plame's and Joseph Wilson's federal civil Complaint against Libby, Rove and Cheney. Wednesday, January 31. 2007Tuesday, January 30. 2007Defending against drug-usage-based probation violation charges.
The United States has gone drug-testing mad. (Image re-posted under the terms of the GNU Free Documentation License.)
Probation and parole violation charges often include allegations that the defendant submitted one or more positive drug tests (usually involving a urine test) or that the urine was presumptively positive for drugs if the defendant was unable to produce a glass of urine (which often can reasonably be ascribed to physical health or diet issues, and more often to performance anxiety, particulalry if the probation agent is standing behind the defendant to assure the defendant is not trying to submit someone's clean urine sample; at least one psychological study found that people have more trouble starting to urinate when someone is standing nearby).
Here are a few ideas for defending against allegations of dirty urines:
- Consider issuing a subpoena to obtain all documents (including notes, procedural rules, and certification of the materials used and the person analyzing the urine) and everyone related to the urine tests.
- If a dipstick test was used, then a further test needs to be done for accuracy. Some probation offices do not save the dipstick nor urine sample for the defendant to re-test. Such disposal may be sufficient grounds to suppress the urinalysis.
- If the urine was tested by a chemist, the defendant can challenge chain of custody of the urine, the testing methods used (including whether the urine got contaminated with other people's urine or other substances in the lab), and the qualifications of the tester.
- In Maryland, the drug test results do not come into evidence without live chemist testimony at a hearing to revoke probation or work release where the defendant demands the chemist's presence to testify at least five days before the hearing. Md. Ann.Code, Cts. & Jud. Proc. art. § 10-914.
- Toxicologists can be key witnesses and consultants on this. One place to look is http://www.markskatz.com/criminalexperts.htm . Jon Katz. Tuesday, January 30. 2007Rev. Robert F. Drinan leaves the planet.
Robert F. Drinan, S.J. (From the public domain).
Human rights activist and lawyer Robert F. Drinan, S.J. died this past Sunday.
His vision of justice was uncomplicated and determined. He served ten years in Congress, and it took a direct Papal order against priests serving such posts for him to leave Congress. His political views on such issues as abortion and birth control apparently deviated very much from the
I met Father Drinan a few times, starting with his talk at my Amnesty International chapter twenty years ago. He seemed to have no ego, and was very approachable. He was a very engaging speaker. Even while in Congress, Father Drinan lived a simple life in a simple room in
ADDENDUM: Here is Colman McCarthy's excellent January 30, 2007, piece on Father Drinan.
Monday, January 29. 2007Chemist reports are testimonial hearsay evidence under Crawford.C Chemist reports are hearsay evidence. (In the public domain).
Last month. the District of Columbia Court of Appeals held that a drug chemist's report -- for drug prosecutions -- is testimonial hearsay evidence that generally requires the chemist's live testimony to be admissible in evidence. Thomas v. United States, 914 A.2d 1 (D.C. 2006).
The Court of Appeals upheld the provision of D.C. law requiring a defendant to file a written demand with the prosecutor for the presence and testimony at trial of the drug chemist, apparently to prevent unnecessary time burdens on drug chemists. The Court focused on the importance of assuring that failure to file such a demand not be the result of a mere passive waiver. The defendant here did not timely demand the presence of the chemist, which was the sole reason the court did not find the matter preserved for appeal.
Thomas has substantial implications for neighboring jurisdictions that attempt to reduce the instances of chemist and breath technician testimony, absent a subpoena to testify. For instance, District of Columbia law requires a drunk driving defendant to make a sufficient written showing about the need for the presence of an alcohol breath technician at trial, or to subpoena the officer. The first activity might be deemed sufficient if it were to lead the prosecutor's obtaining the officer's presence in court. However, the second activity (serving a subpoena on one or more law enforcement personnel), likely will not be deemed sufficient under Thomas, particularly when considering that it is far from a simple task for a defense lawyer to convince a police officer to accept service of a witness subpoena.
Were Thomas to apply in Virginia, which it should, this would result in the invalidation of Virginia's laws that make the drug chemist's report and breath technician's results admissible in evidence absent the defendant's issuance of a subpoena to testify. Virginia goes one step further by making field tests of suspected marijuana admissible into evidence at trial uness the defendant successfully files a motion to have the suspected marijuana tested.
If Thomas applied in Maryland, Maryland's approach of requiring defendants to give advance written notice to produce the chemist or breath technician likely would be considered sufficient under Thomas. However, for drunk driving cases, one of the early questions would be whether Crawford will categorize as testimonial hearsay the certified records certifying the breath testing equipment as sufficiently operating. This sounds like testimonial evidence to me. Jon Katz. Monday, January 29. 2007Alice Coltrane leaves the planet,
Last year, Alice Coltrane performed around the country for the last time. (From the public domain).
On November 16, 2006, I blogged about the late jazz legend John Coltrane. I wrote about the ways I seek inspiration to prepare my clients' cases, and how John Coltrane created his masterpiece A Love Supreme after spending a long time in a little-used area of his new house.
Sadly, Alice Coltrane -- who was married to John Coltrane for a few years, until his death -- passed away two weeks ago. Alice Coltrane -- also eventually known for many years as Swamini A. C. Turiyasangitananda -- was a very talented musician, and was devoted to Eastern spirituality. More about Ms. Coltrane is here. Jon Katz. Sunday, January 28. 2007Defending alleged prostitutes and their customers.
Here are some thoughts about defending against prosecutions of prostitution other than street-level prostitution. Some of these ideas also apply to defending alleged street-level prostitution cases.
In defending escort prostitution cases, it may be helpful to obtain information about the area’s hobbyist (consumer) and provider (prostitute) culture. Resources to check out include http://www.bigdoggie.net and http://hips.org (I am a former board member).
I understand it is very common for hobbyists and providers to try to minimize arrests and convictions by using euphemisms for services sought and provided (e.g. “speaking all languages”) and by leaving payment in an envelope on top of a table, rather than mentioning it. Then, an available argument to the criminal defense lawyer is that the money was paid for the escort’s opportunity cost of spending time with the customer rather than being elsewhere, that sexual activity was not part of the consideration for payment, and that there was no prostitution even if there was the hope that the escort might be attracted to the customer and be interested in sexual activity.
To buttress this argument, escorts do exist -- possibly the majority -- who do not provide any sexual or physical contact at all. I have seen one weekly newspaper that boldly proclaims "non-sexual" in all ads for escorts, which might become a factor in defending a prosecution for someone hired or hiring from such an ad.
I take it that embarassment contributed to the 1995 dismissal of the sting prosecution in Howard County, Maryland, against some workers at a massage parlor who some undercover cops permitted not only to masturbate them, but apparently to do it to completion, which means such police truly were mixing business with misplaced pleasure. See an article on this scandalous mis-use of police resources here.
Not heeding the lessons of this
Four days after the Washington Post covered the Spotsylvania County prostitution sting, public heat and laughter and ridicule ran high, and the sheriff suspended having detectives accept sexual favors in their prostitution investigations. Sheriff Howard D. Smith said: "I thought I was doing the right thing." Before his White House tapes were released, so did Nixon. Jon Katz. Friday, January 26. 2007“It took a few people willing to risk everything."
Andrew Goodman, James Chaney, and Michael Schwerner. Murdered for registering African-American voters in Mississippi. (Government photo).
When I learn more about people who have courageously stood up for justice at great personal risk and cost, I am reminded why I joined and remain a member of the National Lawyers Guild, despite some of my fierce disagreements with the group (see here and here). This is the only lawyers group I know of that few if any people join to burnish their resumes, but that they join with a strong, and usually fierce, devotion to justice as they define it (even though my sense of justice is not going on a mission to North Korea without at least confirming to the government that the visitors still have strong reservations about the nation's human rights abuses).
Thanks to the Guild's home office for informing listserv members that courageous civil rights activist Mendy Samstein has passed away.
I do not remember hearing about Mr. Samstein before, and know that the Guild is one of the best lawyers'/legal workers' sources for learning about the civil rights movement; many of its members have deeply devoted themselves to the civil rights movement.
As covered in his New York Times obituary, among his many civil rights activities, Mr. Samstein organized hundreds of college students, most of them white, to register black voters for the Mississippi Summer Project in 1964. Today, registering minority voters no longer is dangerous nor controversial; people like Mr. Samstein made this current reality possible.
Mr. Samstein survived a 1964 bomb blast of a house in Mississippi. After seeing news footage of Mr. Samstein crawling out of the rubble, Abbie Hoffman was inspired to join the voting registration campaign in the South. The violence against Mr. Samstein continued, including being beaten by police at a stoplight. In 1966, he told an interviewer: “I curse this country every day of my life because it made me hate it, and I never wanted to.”
Civil rights activist Bob Moses recently told Mr. Samstein's family that the 1960's civil rights achievements in Mississippi were not obtained by huge numbers of people. “It took a few people willing to risk everything." Achieving justice demands such sacrifices. Jon Katz. Friday, January 26. 2007Nixon's man who "knows too damn much" dies.Do you need a Bay of Pigs invasion? Call this man. How about breaking into the office of Daniel Ellsberg's psychiatrist? Call this man. Time to wiretap the Democratic National Committee offices? Call this man?
Now this man -- E. Howard Hunt -- has died, as have so many other Watergate figures, including Nixon. Hunt lived the life of a government operative outside the law, and his boss Nixon was a master at operating outside the law. One difference between the two of them: E. Howard Hunt spent thirty-three months in prison for Watergate, while Nixon received a pre-emptive pardon against prosecution.
E. Howard Hunt: Even he was entitled to a zealous criminal defense.
Shortly after the Watergate break-in -- which actually consisted of a first break-in to install wiretaps and a second to remove them -- Nixon recognized that “This fellow Hunt,” “he knows too damn much." Nixon went down two years later, when Hunt already was serving his thirty-three month prison sentence.
As Watergate figures get older, and die, the Watergate office, hotel and co-op apartment complex still stands. The 1967-built Watergate's design is strange, as if the architects had a warped vision of a futuristic building to come. As I understand it, the break-in took place in what for over a decade has been a non-descript-looking orthopedic surgeon's practice which I have twice visited. From my understanding, no plaque, marker, or other indicator designates the spot; there is rent to be charged.
I have seen at least three of the key Watergate figures. Four months before his downfall, I saw Nixon entering the Washington Hilton for a news conference or other gathering, on my first visit to the city. My parents bumped into Dick and Pat fourteen years later, and Nixon cheerfully gave his autograph for me and my brothers, with his "Best wishes." Around ten years ago, I saw G. Gordon Liddy conferring with someone in the hallway of the old courthouse in Upper Marlboro, Maryland, several miles down Pennsylvania Avenue from the White House. He seemed pleased to have been recognized; he was powerless, so there was no reason to tell him my unsolicited view on his role in Watergate.
Then, a few days before Bush II launched Gulf War II, I went to an anti-Gulf War II demonstration. At the nearby Mall area, I saw the most important of the Watergate figures I have seen: Carl Bernstein. To him and Bob Woodward, I owe limitless thanks. Jon Katz. Thursday, January 25. 2007Physical pain arising from internal pain and anger. Rage all around us: "The Rage of Achilles" by Giovanni Battista Tiepolo.
Numerous times I have talked about the importance of relating well with our clients.
In that regard, recently, I learned about John E. Sarno, M.D., who is a Professor of Clinical Rehabilitation Medicine at New York University. Dr. Sarno believes that most back pain is rooted in psychology rather than in physiology, and calls this situation tension myositis syndrome (TMS). He also believes that TMS may also be the cause of various other pain disorders. Dr. Sarno says that the brain causes TMS to protect "you from the unconscious rage and other bad feelings you might have." I know someone -- whom I trust very much -- who has benefited tremendously from Dr. Sarno's teachings.
Dr. Sarno says that: "One reason why I've concluded that we all have rage inside of us is because there are other 'equivalent' physical states that seem to be serving the same psychological purpose -- conditions that are analogous to back pain. I'm referring to [gastroesophageal] reflux, which is very common; irritable bowel syndrome; headaches; common allergies; hayfever; and asthma. I'm referring to common skin disorders like eczema and others. The skin is a great area that the brain uses to create symptoms. These conditions all serve the same purpose: to keep one's attention focused on one's body."
While I have long known about the interrelationship between physical health and mental health, Dr. Sarno more closely relates physical pain to internal rage and anger than I ever had thought possible. If Dr. Sarno's views are accurate and are not exaggerations, this raises a question about (1) the extent to which clients' physical ailments will tell trial lawyers additional information to help us relate to our clients -- and for judges and juries to relate to our clients -- beyond exploring only their psychological backgrounds, experiences, and psychological feelings, and (2) whether a medical expert will sometimes be beneficial to help achieve such an understanding. If some clients' physical ailments may be masking their addressing some of their rage and anger, then they may not even know enough about their rage and anger to relate it to their lawyers.
The jury is out about how Dr. Sarno's findings might assist me in better relating to my clients, I plan to report back after reading his books. Jon Katz. Wednesday, January 24. 2007The Constitution is more valuable than gentility.
Chief Judge Robert M. Bell dissented that George Junior Spry's taking twenty minutes to disperse did not constitute disorderly conduct.
The Constitution is more valuable than gentility. However, courts repeatedly uphold police efforts through the disorderly conduct laws to enforce gentility and public obedience to police.
A recent example is Spry v. Maryland, No. 42, Sept. 2006 Term, __ Md. _ (2007). In Spry, all judges of Maryland's highest court, except for Chief Judge Bell, affirmed a disorderly conduct conviction for a man due to his taking twenty minutes to disperse after being told by the police to disperse. The man finally dispersed, yet, the next day police arrested him for disorderly conduct after he did not disperse quickly enough for their taste.
Chief Judge Bell confirmed that the disorderly conduct law does not include a provision showing the amount of time a person may take when a police officer lawfully orders the person to disperse. Kudos to Judge Bell for dissenting. Jon Katz. Tuesday, January 23. 2007Collective memories must be sharpened and broadened to stop injustice.
U.S. government photo. Napalm was one of the horrors of the Vietnam war. Here is the horrifying picture of Kim Phuc and other villagers after a napalm attack. Here are Kim Phuc's resulting physical scars.
The vast majority of American solidiers in Iraq, Afghanistan and elsewhere not only do not recall the countless American military atrocities in Vietnam as they happened, but were not even born yet. What a splendid way for the military to have recruited with a cleansed slate on Vietnam, let alone the invasions of Grenada and Panama, and the list goes on. Rambo's asking his father if "we get to win this time" in Vietnam probably is better known by those under forty than the horrors of My Lai and mini-My Lais.
Enter former Senator Gary Hart to remind us how critical are our collective memories at this time of civil liberties violations that approach and probably collectively exceed the civil liberties violations during the 1950's Communist witchhunts. His words are tremendously sobering in this December 2005 piece about the Bush Administration's continued reversal of the many post-Nixon Congressional efforts to reign in executive branch abuses committed in the name of national security. Mr. Hart's 1980's Donna Rice scandal makes his words no less important to heed.
Mr. Hart's short article particularly drew my attention to the CIA's Phoenix program in Vietnam, in which American soldiers captured and killed countless innocent Vietnamese based on information from South Vietnamese army officers and village chiefs, where sometimes the finger-pointing was to settle a private score and had nothing to do with fighting the perceived "enemy" of the American military. In December 2003, investigative journalist Seymour Hersh wrote about the Phoenix Project and its relationship to today's covert United States intelligence operations in Iraq. Much of his piece still rings true today.
One of my best friends -- who, like me, was obsessed from an early age with the world's injustices and who was determined to change that -- talked to me during law school in 1988 about how complacency (and fear for job security and social status security) was so prevalent at the expense of activism for justice. Since that time, with some people spurred on in part by the subsequent recession and wars, plenty of people are refusing to be complacent and are speaking out for civil liberties and human rights.
Let us remember that today's injustices from government officials, employees and legislators in the United States come from all over the political spectrum. It will be a terrible mistake to expect that merely replacing Bush with a Democrat will automatically make the United States a civil liberties paradise.
The Internet -- despite all the disinformation among the reliable facts on the Web-- has made it easier than ever to learn about past injustices so that they not be repeated. Jon Katz.
ADDENDUM: More on the Vietnam atrocities are found through the Winter Soldier Investigation here (text); here (Winter Soldier Investigation video); here (part one of Winter Soldier Investigation excerpts); and here (part two of Winter Soldier Investigation excerpts). Monday, January 22. 2007Standing "with with our noses almost touching."
Anwar Sadat, Jimmy Carter and Menachem Begin sign the Camp David peace accords (1978).
In late 1992, I took a detour driving back from Florida to Washington, DC, to visit Plains, Georgia, because I was still fascinated with Jimmy Carter -- warts and all -- who returned to Plains after his presidency. As luck had it, I met President Carter briefly, as he left the annual December 31 barbecue lunch at the back of a downtown store. He seemed in a hurry, so we had little more than time for a brief chat and his suggestion to take a photo, so that he could move on.
This man whom so many characterized as a weak president has long been a very strong and no-nonsense man, including his apparent penchant not to spend too much time eating barbecue on December 31. He appeared to many to be a weak president, in large part due to some fierce fires that started and raged during his presidency, including runaway inflation and interest rates, the hostage crisis, and the energy crisis. Offsetting that were his smashing success obtaining the historic peace accord with Egypt and Israel and his putting human rights closer to the front-burner of presidential affairs. After leaving office, Carter has had substantial successes bringing fierce opponents to the negotiating table and inspiing everyone to work for the poor and for social justice. I have not yet reached a conclusion about his recent and controversial book Palestine Peace Not Apartheid, but will have one once I have obtained and read it.
A former military professional, Carter probably avoided committing troops to battle (aside from the failed attempt to rescue the hostages) more out of substantial restraint and caring for peace and world justice than out of any fear of going to battle. In the January 2005 Esquire, Carter said: "The hostage crisis lasted almost a year. Most of my political advisers were urging me to launch an attack against Iran. I could have, in effect, destroyed Iran with one strike. And it would have been politically popular to do so. But in the process, I would have also killed thousands of innocent Iranians. And it would have undoubtedly resulted in the execution of our hostages... My family tied me back to the human element in the most important international, diplomatic and military decisions I had to make. And in the end, I was thankful that although my profession was that of a military man - commander in chief of the armed forces, prepared to defend my nation with maximum force if I had to - I was able to go through my entire term in office without firing a bullet, dropping a bomb or launching a missile."
This past Saturday, I heard President Carter emotionally relate how he convinced Anwar Sadat to reverse his decision to leave Camp David in mid-negotiation. This situation relates to my criminal defense practice in highlighting that any interest in being popular must take a backseat to the interests of a criminal defense lawyer's clientss, and how criminal defense lawyers must always walk around with sharpened proverbial weapons ready in their backpockets just in case.
About one week into the 1978 Israel-Egypt peace negotiations at Camp David, Egyptian leader Anwar Sadat prepared in midstream to return to Egypt. Carter relates that after kneeling down and praying, he went to Sadat's cabin and told everyone to leave. In the context of a personal friendship between the two men and a connection between their respective children: "Sadat and I stood with our noses almost touching," "and I told him that he had betrayed me and betrayed his own people and if he left our friendship was severed forever and the relationship between the United States and Egypt would suffer."
Sadat stayed -- maybe he would not have stayed had the availability of American economic and military aid not been at risk -- and the parties signed a peace treaty twelve days after the talks began. Carter's no-nonsense approach with Sadat -- mixed with his caring and perceptiveness -- carried the day. Similarly, successful criminal defense also repeatedly calls for a similar approach.
Another lesson I learned from this period in history is from the first meeting in 1977 between Begin and Sadat in Israel. I watched on television as they emerged from their meeting and optimistically confirmed that at least they had agreed to be able to disagree. When an opposing prosecutor tries giving me grief about a proposal I make to negotiate a settlement or about proceeding to trial, I sometimes suggest that we approach the matter in a similar vein to Begin and Sadat's agree-to-disagree approach. Sometimes, when all else fails, a firmer approach than that is needed in dealing with opponents when they act unreasonably. Jon Katz. Sunday, January 21. 2007A farewell to Art.
Art Buchwald left the planet last Wednesday.
I read his columns from time to time, and found him good-natured with a joie de vivre. I later learned that he suffered from clinical depression, but he kept writing his columns, right through last month. He was well liked, apparently more for himself and the way he liked so many people, than for his columns or fame.
Mr. Buchwald probably had the ability to use a sharper tongue. By being more warmly humorous than caustic, he probably got his views across more effectively to more people. Perhaps both types of political observers are needed: those to whom a large cross section of the public will listen, and those who will use a sharper pen to more pointedly rally like-minded people and some who are on the fence.
I admired Mr. Buchwald, and very much enjoyed bumping into him one day near his office, which was near my law school. He was good-natured then, too, and gave me the time for a short chat. I next heard him speak at a reception for a human rights organization. The third and final time I saw him was at a local bookstore around eighteen months ago, where he was scheduled to speak. Unfortunately, I arrived late, and he was slowly walking out. I said hello, and he said hello back, sounding weak; I don't know if it was the late hour, his general health, or both.
He once joked that although he had contemplated suicide before, he was concerned that another more famous person would die the same day and bump his passing off the front page of the New York Times. I did not check whether he got on the New York Times's front page last week, but he certainly is on mine. Jon Katz.
ADDENDUM: "Hi. I'm Art Buchwald and I just died." Art Buchwald's video obituary on the New York Times's site, where he hopes that, after his death, "everyone would say what a wonderful guy I was." Friday, January 19. 2007Aiding and abetting theft is deportable.
Cesar Chavez: A champion for the empowerment of workers and immigrants. Since the beginning, photographic tributes to Cesar Chavez and Martin Luther King, Jr., have been prominently displayed in our law firm's reception area, giving us continued inspiration to keep fighting for justice and the underdog. Our law firm strongly opposes the government's draconian laws enabling deportation for even the most petty, wrongfully-decided against the innocent, ancient, and first-time offenses.
Defending non-U.S. citizens in criminal court often presents a minefield of risks for the defendants' immigration status. I neutralize and dilute many of these mines by working in tandem with our immigration law partner Jay Marks. My basic outline on this issue is here.
The value of a green card/United States permanent residency, versus obtaining citizenship, has diminished substantially with the many convictions that bring immigration risks, and the reduction in various social services available to green card holders that are available to United States citizens. Convictions frequently even strike the innocent, both through wrong guilty findings by juries and judges (let alone from wrongful arrests and prosecutions), and by guilty pleas entered not because of guilt, but to avoid much harsher outcomes at trial as a result of lying snitches and other lying witnesses, mis-identification, and the list goes on.
Confirming this risky criminal-immigration minefield is the Supreme Court's January 17, 2007, holding that aiding and abetting theft is deportable. The case is Alberto Gonzales v. Duenas-Alvarez, No. 05-1629, 549 U.S. __ (Jan. 17, 2007).
Many convictions of the innocent result from people being in the wrong place at the wrong time without having committed a crime at all. For instance, it is no crime to be a passenger in a stolen automobile without knowing that the car has been stolen, but, in such places as Maryland, it is a crime to be in a car with knowledge that it is stolen. Md. Crim. Code § 7-203. Such a law is ripe with risks of wrongful arrests and convictions of passengers who do not know the cars are stolen, by juries and judges wrongfully inferring the passengers' knowledge of the theft. A passenger's innocent presence in a stolen vehicle also risks a conviction for stealing the car or for aiding and abetting the theft of the car. The Supreme Court's Duenas-Alvarez decision enables deportations for convictions for aiding and abetting theft.
How do we end the injustice of wrongful convictions and deportations even for a fifteen-year-old conviction for stealing a dictionary from Borders? This can only be done through a multi-pronged approach of changing people's attitudes (please start learning, talking and writing now), insisting that our legislators reform the laws accordingly, insisting that our federal and state executive branches of government administer the criminal and immigration laws more fairly, reforming the entire criminal justice system, and bringing voter referendums for legal changes to improve the whole situation. A modest proposal? Jon Katz. |
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JON KATZ IS AV-RATED /WASHINGTONIAN TOP 800 LAWYERS-LISTED/SUPER LAWYERS-LISTED/AVVO.COM 10.0-RATED. Since 1991, criminal defense/ drug/ drunk driving lawyer Jon Katz has fought for victory for criminal defendants and drunk driving/ driving while intoxicated/ DUI/ DWI defendants in felony prosecutions, misdemeanors, and criminal traffic cases. He defends clients in all Maryland, Washington, D.C., and Virginia state and federal courts, including Montgomery County (Rockville and Silver Spring), Fairfax County, Northern Virginia, Arlington County, Alexandria City, Prince George's County (Upper Marlboro, Hyattsville, Greenbelt & Andrews Air Force Base), Howard County (Ellicott City), Frederick County, Anne Arundel County (Annapolis, Glen Burnie & Ft. Meade), Prince William County (Manassas), Loudoun County (Leesburg), Charles County (La Plata), Baltimore City, Baltimore County (Towson, Catonsville & Essex), Washington County (Hagerstown), and the Eastern Shore (including Ocean City).  QuicksearchGoogle the Site
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Friday, July 3 2009 As we approach our first anniversary. Wednesday, July 1 2009 Virginia Super Lawyers adds me to its list. Wednesday, July 1 2009 Fourth Circuit denies en banc review in the Whorley obscenity case. Monday, June 29 2009 More on strength through non-attachment and non-resistance. Sunday, June 28 2009 Supreme Court tells judges to follow its rulings. Friday, June 26 2009 Of sealing, expunging, and shielding. Thursday, June 25 2009 Internet connection problems lead to fewer Underdog postings. Thursday, June 25 2009 Non-attachment: An essential practice. Monday, June 22 2009 New drug conspiracy opinion from Fourth Circuit. Wednesday, June 17 2009 Add your comments.Please comment if a posting sparks your interest or gets your goat. To comment, cookies must be activated, and Internet Explorer is ideal. We will err on the side of not deleting comments that are relevant even if they might offend. CategoriesBlogrollLimited to relevant, updated blogs. Criminal DefenseAbolish the Death Penalty Prosecutors/Cops/Narcs - Know the OppositionMore LawAbolitionist: Animal Rights Beyond the law420 Magazine Beyond blogs Twitter link: @jonkatz5.
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