Wednesday, February 28. 2007Tuesday, February 27. 2007Scalia on Terry searches.
Terry wrongfully tramples on civil liberties. Justice Scalia recognizes Terry's flaws in permitting a frisk before an arrest. (Image from FBI's website).
In the Dickerson case discussed in today's previous blog entry, Justice Scalia criticized the reasoning of Terry for allowing a Terry frisk in the first place, as follows:
"I am unaware, however, of any precedent for a physical search of a person thus temporarily detained for questioning. Sometimes, of course, the temporary detention of a suspicious character would be elevated to a full custodial arrest on probable cause -- as, for instance, when a suspect was unable to provide a sufficient accounting of himself. [Editorial: The last sentence is very troubling, particularly when considering that any suspect has a right to remain silent under the Fifth Amendment and a right to refuse searches under the Fourth Amendment; the assertion of such rights cannot contribute to probable cause to detain or search.] At that point, it is clear that the common law would permit not just a protective 'frisk,' but a full physical search incident to the arrest. When, however, the detention did not rise to the level of a full-blown arrest (and was not supported by the degree of cause needful for that purpose), there appears to be no clear support at common law for physically searching the suspect. See Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 324 (1942) ('At common law, if a watchman came upon a suspiciously acting nightwalker, he might arrest him and then search him for weapons, but he had no right to search before arrest'); Williams, Police Detention and Arrest Privileges -- England, 51 J. Crim. L., C. & P. S. 413, 418 (1960) ('Where a suspected criminal is also suspected of being offensively armed, can the police search him for arms, by tapping his pockets, before making up their minds whether to arrest him? There is no English authority . . .').
"'Check the subject's neck and collar. A check should be made under the subject's arm. Next a check should be made of the upper back. The lower back should also be checked.
Too many judges, lawyers and cops accept Terry as the gospel, and often misconstrue Terry to defendants' detriment. In that context, Justice Scalia's criticism of Terry's analysis is all the more important to have at the ready. Jon Katz. Tuesday, February 27. 2007Plain feel searches: Ripe for challenge.
Terry v. Ohio, 392 US 1 (1968), is one more tool for police to trample on the Fourth Amendment right against unreasonable searches and seizures. Minnesota v. Dickerson, 508 U.S. 366 (1993), opens the door for cops using "plain feel" to pull non-weapon items from people's pockets during Terry frisks, on probable cause that the item is contraband. (Image from public domain).
In 1993, the United States Supreme Court opened the door for cops using "plain feel" to pull non-weapon items (rather than just suspected weapons) from people's pockets during Terry frisks (392 US 1 (1968)), on probable cause that the item is contraband. Minnesota v. Dickerson, 508 U.S. 366 (1993).
Fortunately, the Supreme Court agreed that the seizure of crack cocaine from Mr. Dickerson violated his Fourth Amendment rights in the foregoing case, since the cop, during a Terry frisk, recognized that the lump in his clothing "was contraband only after 'squeezing, sliding and otherwise manipulating the contents of the defendant's pocket' -- a pocket which the officer already knew contained no weapon." Minnesota v. Dickerson, 508 U.S. at 378.
In upholding the suppression of the drugs seized from Mr. Dickerson's pocket, the Supreme Court explained: "Where, as here, 'an officer who is executing a valid search for one item seizes a different item,' this Court rightly 'has been sensitive to the danger . . . that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.' Texas v. Brown, 460 U.S. at 748 (STEVENS, J., concurring in judgment). Here, the officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to 'the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby.' 392 U.S. at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, see id at 26, and that we have condemned in subsequent cases. See Michigan v. Long, 463 U.S. at 1049, n.14; Sibron, 392 U.S. at 65-66." Dickerson, 508 U.S. at 378.
In 1996, Maryland's highest court gave judges some additional things to consider in determining whether a drug seizure during a Terry frisk meets Dickerson's strict requirements that the seizure not take place with any feeling beyond a frisk required for seeking weapons, and that the seizure be upon probable cause:
"To be sure, Officer Ottey's testimony provided a general description of his experience in conducting drug searches. It did not disclose, however, the number of times Officer Ottey had identified crack cocaine through a layer of clothing during previous pat-down searches or describe how crack cocaine feels to the touch. That testimony, thus, did not tend to explain how Officer Ottey was able to identify crack cocaine by touch; it did not shed any light on the reliability of his opinion in that regard. In fact, aside from the opinion, the only other evidence of the officer's tactile acuity was his affirmative response to the question whether, in the past, he had found crack cocaine on defendants while patting them down.
The foregoing discussion in Jones v. State also applies to Fourth Amendment reviews beyond Terry frisks, including such situations as my client who was acquitted because the trial judge ultimately agreed that the cop who stopped him for having a dead taillight did not have sufficient information late at night to have formed probable cause that the two grams of material in a package on the floor was marijuana. Jon Katz. Monday, February 26. 2007Caught in disbelief over an acquittal.
A drug possession conviction requires probable cause to seize the alleged drugs; proof that the seized item constitutes illegal drugs; and proof beyond a reasonable doubt of knowledge, dominion and control over the alleged drugs. (Image from public domain.)
When I started doing criminal defense over fifteen years ago, many lawyers with more criminal defense experience than I told me that most criminal defendants have committed one or more of the criminal counts against them, most will be found guilty (particularly in federal criminal cases), and most will lie to their lawyers.
Nevertheless, the more I interacted with successful criminal defense persuaders -- and the more I won cases where the cards initially seemed stacked against my clients -- the more I felt that the acquittal ratio could be increased through a devotion by all criminal defense lawyers to keep learning, practicing, improving, and transcending local and national groupthink, rather than accepting any status quo. Sunwolf implores that "Reality is no obstacle," and that is not farfetched. John D. Delgado shows lawyers not to fear any reality of the case, to the point of being willing to ask the defendant right off the bat at trial, if s/he testifies, the question all the jurors want to know: "Did you do it?" Lisa Monet Wayne has shown lawyers how to overcome their fears of going to trial in difficult cases, and to turn the cases' facts into their own (including reducing a prosecution of possession with intent to distribute a few grams of cocaine to a reminder that a diner sugar packet weighs but one gram).
It is important for the criminal defense lawyer -- at trial -- to erase a belief in the client's guilt and to have a compelling story showing why the client is innocent. Sometimes reaching that compelling story comes from remembering how the criminal defense lawyer first reacted to the criminal charges, and how the lawyer arrived at a conviction that the prosecution's evidence is shaky at best.
Finally, the more a lawyer expects the client to lie to the lawyer and to the judge and jury, the more that will become a self-fulfilling prophecy. Asking a client to trust his or her lawyer enough to tell the lawyer the truth is a tall order, in part because the client usually does not know the lawyer from Adam when the representation begins. The lawyer must earn that trust, and convince the client that all confidential information from the client will be kept confidential unless the client authorizes the lawyer to reveal the information. When the resources are available, sometimes a skilled trial or psychological consultant's assistance will be needed to get to the root of any tendency by the client to lie, and to draw out honesty. Sometimes the client will be more truthful when the lawyer shares some relevant and even sensitive and painful personal information about the lawyer.
Once the lawyer shows confidence in the client -- combined with giving the client confidence in the lawyer and in the lawyer's skills, experience, and fearlessness -- the client will be more willing to plead innocent when the lawyer so advises, despite the rampant fear of so many criminal defendants about entering innocent pleas.
A few days ago, a client accepted my advice to plead innocent to a marijuana possession charge. A few colleagues who frequently appear in this particular Virginia District courthouse warned me about my supposedly low potential of winning this case, where the police officer stopped my client's car for a burned-out taillight, claimed to have seen my client reaching behind him as the officer approached the car, and claimed to have seen a green leafy substance in a bag on the rear floorboard in the direction where my client reached, containing "suspected marijuana". Our case theory was that possession was absent, due to a failure of the evidence to prove beyond a reasonable doubt that our client exercised knowledge, dominion and control over what turned out to be under two grams of marijuana, which is not enough to roll more than two regular-sized marijuana cigarettes/joints. My primary ground for suppressing the marijuana was that no cop has sufficient vision late at night in the rain to have any idea about the contents of the bag purportedly containing such a small quantity of marijuana.
Our trial was held before a Virginia District Court judge, because in Virginia misdemeanors (offenses jailable for no more than one year) must be tried in District Court without a jury before a de novo jury trial is available. Va. Const. Art. I, § 8; McCormick v. Virginia Beach, 5 Va. App. 369 (1987) (confirming the jury trial right for all de novo criminal appeals to a Virginia Circuit Court, as opposed to the federal Constitution's limit of the jury trial right to petty offenses). The United States Supreme Court has upheld the Constitutionality of two-tiered state systems that require a bench trial before a de novo appeal may proceed by jury. Ludwig v. Massachusetts, 427 U.S. 618 (1976), as has the Virginia Supreme Court in Manns v. Commonwealth, 213 Va. 322 (1972).
The judge initially denied my motion to suppress the marijuana, despite my arguments that included the cop's not even bringing the alleged marijuana and packaging with him to court, for the judge to reach his own conclusions about the officer's ability to have probable cause that he saw marijuana. Providing the judge the bag and the alleged marijuana would have let the judge see for himself that the officer actually seized the item first before having sufficient information to know the item was marijuana.
The judge refused to keep out the drug analysis report (I subpoenaed and questioned the chemist) despite my arguments about the failure to establish chain of custody, the inadmissible hearsay in the chain of custody report, and failure to produce the alleged marijuana into evidence.
During my closing argument, I reincorporated by reference all my previous arguments at trial. I then focused on the failure of the prosecutor to prove beyond a reasonable doubt that my client had possession -- i.e., knowledge, dominion and control -- over the marijuana. Drew v. Com., 230 Va. 471 (1986).
However, I did not get far into my closing argument before the judge stopped me in my tracks. I recognized that something good probably was coming down the pike, because judges are forbidden from finding guilt without providing sufficient opportunity for the defense to present a closing argument (although I once saw a Maryland judge violate this rule, only for him accidentally to have said "not guilty" rather than "guilty" and to have conceded that once those words "not guilty" passed his lips, he never could summon them back). The judge said that although he believed this was my client's marijuana, he did not believe that the police officer had sufficient grounds late at night to know this was marijuana (which I argued in the first place).
As the judge was talking, I told my client he had won, and shook his hand. My client was in disbelief. Once the judge finished talking, my client was still caught in disbelief. Therefore, I said to my client: "We have won, and you have been found not guilty. Let's get out of here." The last thing we needed was to stick around for the judge to have said that he was changing his mind.
Last month, I blogged about how I managed to continue practicing criminal defense in an unjust system. Such victories as this certainly make it easier to do so. Jon Katz. Sunday, February 25. 2007Getting to yes with North Korea
T'ai chi helps the negotiator to listen, and to push effectively without being pushy. (From the public domain, showing the single whip position of yang style t'ai chi.)
Sixteen years ago, a seasoned and able civil rights lawyer told me about the importance for a litigator to have strong negotiation skills, and not just strong courtroom skills. In that regard, he talked about the importance of knowing what the other side wants. Those words are second nature to me by now, but at that time, with no more than two court appearances under my belt (an asylum hearing and a deportation hearing in immigration court), those words rang like a new message.
Knowing what the other side wants is a true art, and requires being able to quiet one's mind, so that the negotiator may hear the other side through the opponent's words, through actions, between the lines, and through anticipating the other side's next moves, as would a master chess player or t'ai chi master. I have written about negotiation skills and strategy here, here, and here.
Recent testimony to the importance of patient and skilled negotiating comes from this month's breakthrough in China in the nuclear arms negotiations with North Korea. All is not yet solved, and distrust remains between North Korea and the United States, but they apparently have been investing the time to get to yes.
Sometimes, successful negotiating requires one or more mediators or negotiating parties. In this instance, China's participation may have played a pivotal role. As the New York Times reports: '''If they renege on this,' said one senior Bush administration official, who would not speak on the record because the deal had yet to be signed, 'they are sticking their fingers into the eyes of the Chinese.'''
I am very interested to know the extent to which internal debates took place in the Bush Administration (and in the North Korean government, if any government officials there feel permitted to debate without the potential penalty of prison or worse) about the extent to use diplomacy rather than baring and even using fangs. I am also interested in knowing the extent to which the deal with North Korea was reached through skilled negotiation or more mediocre negotiation skills and strategy. Then again, maybe North Korea's very possession of nuclear weapons made the United States more willing to spend time negotiating than was the situation with Saddam Hussein's Iraq, which had no nuclear weapons when Gulf War II started.
A colleague once said that lawyers at one of the prosecutors' offices that I frequently deal with have in the past (and possibly in the present) been trained that their plea discussions are offers -- apparently sometimes of the take-it-or-leave-it kind -- rather than plea "negotiations". However, even with that office, sometimes only after the dust has settled by the courtroom being cleared of most of the docket for my trial to start, on several occasions I have negotiated favorable settlements through negotiating on goals rather than positions.
For me, a critical ingredient to successful negotiations is the willingness to agree to disagree, rather than ranting and raving about the unreasonableness of the other side's proposals and positions. With North Korea and the United States, that must not have been easy at all.
In any event, for litigation, a case is more likely to settle (sometimes with a result better than a guilty finding, in criminal cases) when the lawyer fully prepares the case to go to trial, and the opposite is true when the lawyer has only prepared the case to be negotiated. Sometimes such full trial preparation wears the opponent down, to help open the doors to a negotiated result. For litigation, the purpose of negotiation should not be any fear of going to trial, but instead an effort by both sides to hedge their bets. Time, patience, intuition, empathy, deep listening, flexibility, selflessness (to a point), and substantial firepower are among the critical ingredients of successful negotiations in litigation. Jon Katz. Friday, February 23. 2007Maryland's highest court gives too much detention power to searching police.
Chief Judge Bell is Brown's sole dissenter
The United States Supreme Court has not decided the extent to which the police may seize non-residents visiting a home being searched by police pursuant to a valid search warrant. However, on February 7, 2007, the Maryland Court of Appeals provided police a green light to seize such visitors at least to make some initial inquiries. Brown v. State, __ Md. _ (Feb. 7, 2007). As a result, Maryland's highest court upheld the conviction of such a visitor whom the police seized, asked if he had any weapons or drugs (hopefully he was Mirandized, but Brown is silent on that (Cotton v. State, 386 Md. 249, cert. denied, 126 S. Ct. 212 (2005) requires such Mirandizing for such a seizure)), and heard him reply that he had one-quarter pound of marijuana in his waist.
Brown relies heavily on Cotton v. State, 386 Md. 249, cert. denied, 126 S. Ct. 212 (2005), which states: "In executing a warrant such as that issued here, the police for a premises known to be an open-air drug market where the police are likely to encounter people who may well be dangerous, they are entitled, for their own safety and that of other persons, to take command of the situation and, except for persons who clearly are unconnected with any criminal activity and who clearly present no potential danger, essentially immobilize everyone until, acting with reasonable expedition, they know what they are confronting. It really cannot be otherwise."
The three-judge Cotton dissent -- with former Maryland United States Attorney Battaglia writing -- insisted:
"It is disingenuous to assert that the danger posed to police under such circumstances was of such magnitude as to warrant the detention of all persons merely present in some capacity on the premises. Surely, the overwhelming number of officers on the small property dispelled any such need to engage in a wholesale detention. In light of the overwhelming number of officers at the scene and the diminutive size of the property, the Majority cannot in good faith argue that the threat to police outweighed Cotton's interest in being free from a warrantless seizure."
Now, in the subsequent Brown decision, Judge Battaglia and Judge Greene -- both who dissented in Cotton -- joined in the judgment only, without standing by the court's reasoning. Their silence makes it unclear whether they joined the judgment merely by considering Cotton to be controlling stare decisis. Kudos to Chief Judge Bell for dissenting (sadly, the sole dissenter), stating in full: "I adhere to the views expressed in the dissenting opinion in Cotton v. State, 386 Thursday, February 22. 2007Chain of custody revisited.
The Defendant in Jones v. State unsuccessfully challenged chain of custody of DNA evidence. (Image from NASA's website).
Several times, I have won drug possession trials in Maryland by successfully challenging the prosecutor's failure to establish that the drugs tested by the testifying chemist were the same items seized by the police.
A recent appellate case provides an overview of Maryland chain of custody law:
"The proponent of a particular tangible item of evidence must establish its 'chain of custody,' i.e., must 'account for its handling from the time it was seized until it is offered into evidence.' Lester v. State, 82
Jones v. State, __ Md. App. _, 2007 Md. App. LEXIS 8 (Jan. 30, 2007). Jon Katz.Thursday, February 22. 2007More evidence on marijuana's benefit as pain medicine.
Marijuana remains federally banned for prescription purposes, while doctors remain free to administer cocaine and morphine for medicinal use. (The image's copyright holder permits its reposting for any purpose).
Marijuana is medicine, as confirmed by many studies.
In February 2007, an additional study was added to the arsenal of proof of marijuana's medicinal benefits. A peer-reviewed article in Neurology concludes that: "Smoked cannabis was well tolerated and effectively relieved chronic neuropathic pain from HIV-associated sensory neuropathy. The findings are comparable to oral drugs used for chronic neuropathic pain." Americans for Safe Access discusses the study here and here. Jon Katz. Wednesday, February 21. 2007Flex Your Rights' ongoing discussion of Barry Cooper's video.
Drug dog image from the NIH's website.
FlexYourRights has an ongoing discussion of Barry Cooper's Never Get Busted video here. I have written about Never Get Busted here and here.
Following is a February 20 posting I placed on the FlexYourRights site on this topic:
Barry Cooper says he terrorized families as a cop.
On this thread, Barry Cooper has said:
- "An asshole cop like I was and the majority of cops WILL SEARCH YOUR CAR WHEN GIVEN A REFUSAL!!!" http://www.flexyourrights.org/cooper#comment-1778 .
- "[M]y family and I were terrorized by law enforcement just as I use to terrorize families when I was a cop." http://www.flexyourrights.org/cooper#comment-1791 .
After admitting to the above two egregious practices when he was a police officer, Mr. Cooper says "Please view [buy] my dvd."
I applaud Mr. Cooper for admitting to such past police behavior. However, I feel all the more uncomfortable buying his DVD with his above-listed admissions, without hearing from him (e.g., on his website, and without being implored to buy his video for his explanation for such behavior) why he acted that way as a cop, what made him recognize such behavior was wrong, and what he is doing and will do (beyond selling his DVD) to try to persuade cops -- from rookies to the most experienced cops -- to encourage them not to act that way.
I feel so strongly about this, because police misconduct is rampant (http://markskatz.com/blog2/serendipity/archives/129-Police-misconduct-Falsified-search-warrants-and-beating-of-arrestees..html ), and too many of my clients suffer from it. Such misconduct will not stop or abate enough until everybody insists on and achieves a radical and positive overhaul of policing and police hiring/ training/supervision/discipline; and a radical and positive overhaul of the criminal justice system (including heavily decriminalizing drugs (and legalizing marijuana, at the very least), eliminating mandatory minimum sentences, and eliminating criminal penalties for activities as minor as prostitution).
To justice for all. Jon. Wednesday, February 21. 2007On Valentine's Day, 11th Circuit upholds ban on selling sexual devices.
Supreme Court Justice Anthony Kennedy penned the superb Lawrence v. Texas opinion, but the Eleventh Circuit interpreted Lawrence too narrowly.
The United States suffers from a severely bipolar relationship with sex. On the one hand, the 1960's and 1970's unleashed revolutionary sexual liberation, and the pendulum continues swinging in that direction on balance. On the other hand, Puritanism continues to invade sexual mores in America.
Sexual devices have become commonplace, but Alabama and some other states criminalize their sale and production. On Valentine's Day of this year, the United States Court of Appeals for the Eleventh Circuit upheld this sexual device sale ban as Constitutional. The Eleventh Circuit distinguished the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003), which overturns the 1986 Supreme Court case that upheld a law criminalizing private sodomy by consenting adults. The Eleventh Circuit says that Lawrence protects private behavior, but that the Alabama law prohibits commercial public behavior. However, by upholding this Alabama ban on the sale of sexual devices, the Eleventh Circuit has effectively deprived people of their right under Lawrence to have access to such products and to use such products. Consequently, under Lawrence , the ban indeed is unconstitutional.
Fortunately, as detailed here, some courts have banned sexual device bans. Jon Katz. Tuesday, February 20. 2007Our military law practice.
Pentagon (From National Reconnaissance Office's website).
Washingtonian magazine includes me in its most recent listing of the area's top military lawyers. My litigation work involving the military has involved defending military members in criminal court (including addressing the landmines that a conviction might have on their security clearances and careers), defending civilians arrested on military grounds, suing the military, and defending critics of the military. The common thread that leads me to do such work is my commitment to defending all people accused of crimes and defending the Constitution. Lawyers dealing with military issues come from a variety of viewpoints, including such birds of a feather as a former fellow member of the local ACLU board of directors who is a dean among military lawyers, and a fellow Washington-area lawyer who for many more years than I has fought for civil rights causes.
My clients in the military area are quite varied, including active and retired military members who are fully pro-military, people with Constitutional lawsuits against the military (see here and here) whether or not they are pro-military, and those opposing the military outright (see here and here).
In one of our most recent bits of military news, for over three years, I have been litigating with Atlanta lawyer David Bederman to overturn the Uniformed Services Former Spouses’ Protection Act (USFSPA). Last week, David filed a superb certiorari petition seeking Supreme Court review of this law that permits divorce courts to treat veterans' retired pay as divisible marital property. This litigation involves numerous critical Constitutional issues. The case is Adkins, et al. v. Gates, U.S. Supreme Court cert. petition No. 06-1132.
I have written numerous times about military issues, including blog entries found here and here. Jon Katz. Monday, February 19. 2007Trouble in my natal state: Teacher wrongfully convicted over sexual Internet pop-ups.
(Image from Energy Information Agency's website).
In public school, a mean sport often was to hassle substitute teachers. That all seems like child's play compared to the trial of Connecticut substitute teacher Julie Amero, with a conviction over enabling students to see sexy Internet photos that may very well have appeared on screen through pop-up ads that had nothing to do with the substitute nor with any websites intentionally visited. The prosecutor failed to provide information to rule out that the images arose due to such pop-up ads, which means that this case should have been dismissed without ever going to a jury.
Bless Sunbelt Software for stepping in to try to undo this unjust mess. As Sunbelt Software's president said: "This was a Windows 98 SE machine with IE 5 and an expired antivirus subscription," Eckelberry said. "It hadn't been updated since August, and there was no anti-spyware, no pop-up protection, no firewall and no content filters. Regardless of whatever happened, this machine was a machine that should not have been on the Internet."
Of all people, how should a substitute teacher have known that her classroom had a computer that should never have been turned on in the first place, if she was going to avoid a prosecution?
The incident took place at Kelly Middle School in Norwich. The principal, Scott Fain, said he was surprised that Ms. Amero was prosecuted, but also said "We've never had a problem with pop-ups before or since." One could say the same thing about a group of people playing Russian roulette; the same bullet that kills the loser will not have harmed those who preceded or followed the decedent. Pop-up ads are widespread, including sexual pop-ups. In Ms. Amero's case, she contends that a hairstyle site was visited by students, leading to sexual pop-up screens; this is entirely plausible. Moreover, I very much hope that the non-duplication of this incident is due to the school's finally installing software against spyware and pop-up screens.
More troubling is this juror Mark Steinmetz's comment after the guilty verdict: "So many kids noticed this going on," Steinmetz said. "It was truly uncalled for. I would not want my child in her classroom. All she had to do was throw a coat over it or unplug it. We figured even if there were pop-ups, would you sit there?" Since when is it a crime not to throw a coat over a computer showing sexual images that one did not cause to be placed there in the first place?
If Americans are so concerned about the quality of public school education, people should think twice about chilling teachers from walking into the classroom in the first place with such outrageous prosecutions and convictions as this one. Jon Katz. Monday, February 19. 2007Folk Songs of the Far Right.
Turn on your speakers to the upside-down world of Bush's war launched on non-existent Iraqi nuclear weapons, and followed with NSA domestic spying. (Image posted pursuant to GNU Free Documentation License.)
Thanks to a fellow National Lawyers Guild member for posting this link to "Folk Songs of the Far Right." The biting satire includes "Papa's Got a Brand New Baghdad." and "NSA Surprise" (or should that be called "Deja Vu All Over Again"?). Jon Katz. Sunday, February 18. 2007Everyone is my teacher.
The Dalai Lama said: "Tolerance can be learned only from an enemy; it cannot be learned from your guru." (Image from the public domain).
If a trial lawyer wants the jury to judge the lawyer's client fairly, the trial lawyer needs to judge the jury fairly, preferably by being non-judgmental in the first place, except to the extent that judgment calls are required in selecting and arguing to a jury. This reminds me of the following instances of people judging entire geographic cultures, and the importance that a trial lawyer avoid doing so.
A few days ago, I met a fellow customer at the health food store, talking about the Blood Diamond movie. I heard a New England twang, and she told me she moved to the Washington, DC, area five years ago from Rhode Island. She said that the East Coast has intellectuals, but she did not see the Washington area as part of the East Coast. This, she said, is the South. She did not like this area much, and hoped to move back to Rhode Island.
Seventeen years ago, I met a fellow vegetarian and progressive lawyer. He wanted out of Washington, DC, and to move to the San Francisco area. One of the factors affecting his decision was seeing on the subway one morning a Republican (I think he wore a Republican button) reading the Washington Post, and looking self-satisfied in that period of George Bush I. This vegetarian lawyer took and passed the California bar, packed up his belongings, and started a new life outside San Francisco. I bumped into him in Washington eleven years later. He was very satisfied with his transition to California.
Eighteen years ago, I met a support staff member at my first law firm who grew up in Texas. I mentioned that this is the farthest south I ever had lived, and that I could not imagine feeling comfortable living any farther south. For her, this was the farthest north she had ever lived, and she could not imagine feeling comfortable living any farther north.
Over fifteen years ago, I became a criminal defense lawyer. I moved from a white collar civil corporate law firm world, working out of a fancy office suite where the most austerity I saw in a workday would come during a visit to a drab government agency office, or seeing the many homeless people on the street. At that law firm, three more senior associate lawyers on separate occasions misguidedly referred to criminal defendants as scum; as much as I felt discomfort working with people harboring such feelings, they were amplifying the views of many others in society.
When I made my dream of criminal defense come true, first with the Maryland Public Defender's Office, I jumped into a rough-and-tumble world where I finally got out of my now-windowless office all the time for court, jail visits, and offsite investigation and trial preparation. By this time, it was critical not to delay any longer in living my life with the full understanding that everyone is my teacher -- both friend and foe, and everyone in between -- from clients, to support staff and supervisors, to colleagues on the same side, to judges, to prosecutors, to cops, to adversarial and supporting witnesses, to personal friends, to family members, to those living and working around me, and everyone else. I also learned the magic mirror lesson that jurors and judges are unlikely to trust and feel comfortable with a lawyer any more than the lawyer trusts and feels comfortable wtih the jurors and judges. Consequently, Will Rogers probably would have been a great trial lawyer, because he claimed to have liked everyone.
An important goal, then, for a trial lawyer is to learn to listen deeply to, connect with, and engage with the people around the lawyer, and not to move to the West Coast, Mars, or silence to avoid them. In doing so, the lawyer will shed stereotypes, become more tolerant of others, recognize how interconnected we all are, probably feel more at harmony with the people living and working in the lawyer's community, and ultimately be more successful for the lawyer's clients and as a person.
Moreover, when a trial lawyer connects successfully with jurors, the jurors might be all the more ready to connect and engage with one another during jury deliberations despite any of their outward differences. For a trial lawyer to move to the West Coast to escape Republicans is to enhance disconnect with jurors rather than connecting with them. Furthermore, as the Dalai Lama confirmed, "everyone is my teacher, starting with my enemy." If I move to a place where everyone seems to be more like me (unless it is an inward move to change myself to recognize how much I am similar to people who initially seem much different than I), not only will I feel imbalanced being without more of a variety of people and their thoughts and feelings, but I will be deprived of their teachings and lessons, and my clients will be deprived accordingly. Jon Katz. Friday, February 16. 2007Author of reversal of Chicago Seven conviction passes.
Thomas E. Fairchild penned the reversal of the Chicago Seven conviction, and ran against Joseph McCarthy. (Image from Wisconsin court system's website).
Even though I was in the single digits at the time, the Sixties counterculture and many people influenced by it heavily influenced me to care deeply about justice, to question authority, and to advocate erring on the side of protecting people's right to do their own thing over creating a genteel society.
The Chicago Seven arrest and trial exemplifies much of what the Sixties counterculture was all about and the tug-of-war between those for and against the established power structure, during a period where plenty of establishment people and organizations were vocally fed up with the Vietnam War, leading to plenty more establishment people being fed up with Nixon (but not enough to keep him out of office in the first place) and Watergate.
The two most flamboyant defendants in the Chicago Seven trial (in addition to the eighth defendant, Bobby Seale) were the late Abbie Hoffman -- who remained a rabble rouser until his final days -- and the late Jerry Rubin, who by the 1980's stopped being a radical and embraced the business world wholeheartedly. Hoffman wrote and published Steal This Book in 1971. Eleven years later, I walked into a used bookstore in Cambridge, Massachusetts, and asked for Steal This Book. The man in the back room heard me, and said: "Funny you should request it, because it was in my hand at the time you asked for it. Here." I asked the price. He said, "Steal it." So I did.
On February 12, 2007, another pivotal figure in the Chicago Seven trial passed. Former United States Court of Appeals (7th Cir.) Judge Thomas E. Fairchild died at 94. He penned the 1972 opinion reversing the Chicago Seven conviction. He ran, unsuccessfully, against horror and Senator Joseph McCarthy. President Johnson appointed Fairchild to the United States Court of Appeals in 1966.
Who presided at the Chicago Seven trial? None other than Julius Hoffman, a former law partner of Chicago boss-mayor Richard Daley, whose city hosted the 1968 Democratic convention during which the Chicago Seven were arrested. Fascinating information on the Chicago Seven trial is here. Jon Katz. |
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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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