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Tuesday, July 31. 2007
Practicing life and law as a harmonious whole. Many times I have written about the importance and power of staying calm, whether in the courtroom or anywhere else. That is easier to do when we are physically removed from contentious situations (for instance, when floating down a river on an inner tube) than when we are in the heat of battle. A lot of anger expressed between and among people results from a feeling of being disconnected. We probably would act less angry if we believed that we harm ourselves as much by yelling at others as much as we harm the people we yell at. In the courtroom, we know that yelling at the opposition not only will weaken our ability to win and persuade, but may also bring down the judge's wrath and hammer on us. One place to prepare to be calm in the courtroom is not just the courtroom itself, but when driving. So many people take out their aggressions, anger and frustration while driving, where there is no referee except for the possibly passing cop or passengers who will shame their driver. Other drivers often seem all the more disconnected from us, with their faces often hidden by the backs of their head and their windshields and rear windows, and sometimes with their presence seeming impermanent, seeing that one or the other car ultimately will turn in a different direction or will pass the other car ultimately by a long distance. I remember many years ago getting very angry at another driver who almost ran a stop sign into my car, which was on the main road. I slammed on my horn, stuck my hand through my window, and flipped him a very emphatic bird in the spring evening. His reaction was to be fully physically startled to the point that I got concerned that he might get into an accident, nevertheless, with someone else. After flipping him the bird, I realized that he looked like he might be a very likeable and gentle person, who did not intend at all to hassle other drivers. I ultimately regretted my reaction, but this was long after; I never will be able to find this man. One thing that helps me stay calmer with everyone -- although I still fail the test sometimes -- is that a person I anger today may tomorrow be on my jury panel without my realizing it, and lie their way onto my jury by claiming not to have interacted with me before. That would be no good for my client. This past weekend morning on the road with my son, I tried to view each inch of the road, and of all the ground, as sacred, the ground being part of nature, and the road having been built and maintained by the sweat and toil of so many (rather than only having been built by well-heeled corporations contracted by government agencies permitting environmental degradation). I resolved also to try harder to view and treat everyone as sacred, even those whom I previously had viewed as major hemmorhoids. I also know the benefits of teaching my son calm through example. All of this has given me stronger feelings of calm, which has remained undaunted even after I encountered at least two particularly overly-aggressive drivers later in the weekend. While still an agnostic, I continue deriving inspiration for calmness from various religious practitioners and traditions, including Buddhism. My friend, mentor and Buddhist peacenik nun Jun Yasuda talked to me ten years ago about being more calm by giving up our desires, which would include our expectations of other people. Similarly, it is important to accept our impermanence in integrating harmoniously with everyone and everything around us, as exemplified by this Buddhist approach: "In Buddhist funeral services we always say, in true reality there is no coming no going no increase no decrease no birth and no death. This is a deep expression of our gratitude for existence as it is, our knowing that life in order to be life is always full of death, and death, in order to be death, is always full of life. Because of this understanding we don't see impermanence as a threat or a tragedy. We don't see aging and dying as necessary evils we brace ourselves to endure, but rather as fruitions we try to enter with calmness and appreciation." No coming, no going. No increase, no decrease. No anger, just calmness. Jon Katz.
Monday, July 30. 2007
Camera image from U.S. Geological Survey website. Tomorrow morning, July 31, FoxNews channel 5 in Washington, DC (not national FoxNews) will interview me about the developments in Michael Vicks's dogfighting prosecution, whose case I discuss here. The interview will last up to five minutes, will start no earlier than 7:00 a.m., and will end no later than 8:00 a.m. Only using the television to watch DVD's, I have no cable and no decent broadcast television connection. If you're in the Washington, DC, area, and think I am worthy, please feel free to set your VHS recorder to tape the interview. It goes without saying that I will be deepl;y grateful for such a kindness. Have a great week. Jon Katz.
Monday, July 30. 2007
When my friend and mentor Jun Yasuda was doing a days-long dry fast (with just one drink at the midpoint) in 2000 for Mumia Abu Jamal on or near his prison grounds , an interviewer asked her on day five of her fast, in her very cold tent, how she expected to influence many people by doing her action so far from the nearest city and often with few people seeing her other than the prison workers. Jun-san responded: "Numbers don't matter. What matters is your commitment to peace. Gandhi was just one person, and he did very simple things. He walked to the ocean [in protest of a British monopoly on salt]. He fasted. He was one person. But he was very conscientious. We should be too. Think of one person fasting outside the White House. That act has spiritual power. More, maybe, than big numbers." I first learned about Jun Yasuda soon after Gulf War I started, and when I was feeling torn about doing business as usual during a war that I strongly felt was started too prematurely, at my then corporate law firm in downtown Washington, D.C., which, fortunately, I left in July of that year to join the Maryland Public Defender's Office. To try to get some balance, during lunchtime I would visit the White House-facing Lafayette Park two blocks away, to be with the anti-war demonstrators. On one of my visits, I saw a Nipponzan Myohoji Buddhist nun drumming to the beat of the odaimoku, composed of the words "Na Mu Myo Ho Ren Ge Kyo" (here being chanted by my subsequent and current friend and teacher Sister Takako Ichikawa, who is at Nipponzan Myohoji's Washington, DC, temple, whose webpage I maintain here). Having taken to Japan and Japanese, particularly with my business trip there five years before, I found an opportunity to speak with this intriguing woman, Jun Yasuda, who was fasting on green tea for a month for peace. She was at once soft-spoken and driven to spread the message and spirit of peace. Jun-san invited me to the celebration of the end of her fast. When I arrived, I asked her thoughts on the overlapping of Bush I's order that same day to end the Gulf War, which coincided with Jun-san's pre-planned day to end her fast. Her only response was to give me a knowing smile, unless it was a smile of recognition that the miso soup was ready. True to her proclamation that "numbers don't matter -- what matters is your commitment to peace," Jun-san became my key teacher for being peaceful internally and externally. Although I never became a full pacifist and believe strongly in individuals knowing how to self-defend against physical attacks, I have turned my focus on Jun-san and her teachings many times when I have been tempted to react with anger at opponents, rather than with powerful calm. Fortunately, particularly by now, I usually avoid expressing such anger. I have written here and here about how critical and powerful have been the peaceful and harmonious path to me, both personally and professionally. Often I am helped on this path by others who have struggled to attain and maintain internal and external peace while so much turmoil, injustice, unfairness, and violence surrounds them. Although I do not primarily pursue this path from a religious perspective, many, but not all, of these role models do, as did Martin Luther King, Jr. Here is an overview of some of these people. In 1999, I joined Jun Yasuda and other peace marchers at the last day of a New York prison peace walk, for several hours across from the United Nations, praying and drumming for peace and holding banners for peace. There, I met a woman who told me about sometimes spending time at Jonah House, a peace community in Baltimore. I had heard of Jonah House, and had been interested in meeting the people there. She gave me the e-mail contact, and I got on Jonah House's e-mailing list. By the end of that year, not only did I meet everyone at Jonah House, but I joined with Ramsey Clark to defend four Plowshares activists, two of whom lived at Jonah House, those being Susan Crane and Philip Berrigan. Defending the Plowshares activists brought me not only the ability to overlap my strong desire to defend pro-justice activists -- although to this day I still do not agree with their approach of hammering on armaments -- but led me to a lifetime of deeper learning about living and following the peaceful path, without ever changing my religion. I have written here about the Plowshares activists who I defended: Elizabeth Walz, Susan Crane, Stephen M. Kelly, S.J., and the late Philip Berrigan. They all are remarkable people who are willing to pay the high price of living their convictions of taking the radical peaceful path to stop war. While defending the Plowshares, I also met their many supporters, friends and, in Phil Berrigan's instance, family members. One of them is Elizabeth McAlister, who is Phil's widow. As I stood outside the courthouse after both sides had rested, with the jury to deliberate the next day, Liz invited everyone to give me a group hug. The Plowshares and their supporters are all about hugging, spiritually and literally, and I deeply felt their positive spirit. That evening, during a gathering of the Plowshares' supporters, I spoke with Liz about my struggle about this being the first time I would not give a closing argument at a criminal trial. Before trial, Phil Berrigan and Elizabeth Walz went pro se, with Anabel Dwyer as their standby counsel, Susan Crane went with Ramsey Clark as her attorney, and Steve Kelly went with me as his lawyer. The defendants had decided to stop participating in the trial after the judge prevented any substantive testimony from their depleted uranium expert witness. Instead of lecturing me about my duty to follow my client's wishes, Liz encouraged me to look within me for the answer. This helped me incredibly at feeling more peaceful the next morning when, in reply to the judge's invitation for me to make a closing argument, I said "Good morning everyone, good morning Steve [who, joining the decision of all defendants, stayed in the courtroom lockup, with the judge piping the proceedings to them by speaker]. Defendant Steve Kelly chooses to make no closing argument." Before the defendants stopped participating at trial, and during the case in chief of the first defendant, Susan Crane, in walked witness Bishop Thomas Gumbleton as a character witness to Susan's peacefulness. I had spoken with Bishop Gumbleton before trial, to arrange his appearance and testimony. The bishop title had never gone to his head, and he invited me to call him by his first name. When he walked into the courtroom, all the dozens of Plowshares' supporters stood in profound respect for him, in a fashion that seemed to go well beyond being thankful for someone as high-level in the Catholic Church as a bishop understanding and supporting Plowshares actions of hammering on armaments and pouring the activists' blood on them. Apparently as a price of expressing such views and taking part in one or more direct actions himself, Bishop Gumbleton eventually became a bishop without a parish. His peacefulness is captured on this video. Among the Jonah House members during the Plowshares trial were Dominican Sisters Carol Gilbert and Ardeth Platte. They both served federal prison time, along with Sister Jackie Hudson, for a subsequent Plowshares action against nuclear weapons in Colorado. Here is an excerpt from a documentary on their Plowshares action, on which you will hear Carol Gilbert speaking. Here is a video of their return to the site, where you will hear Ardeth Platte speaking. Ardeth Platte has a very infectious calm and serenity about her. One day she was telling me about her experience at a peace action outside the Pentagon during holy week. One particular Pentagon police officer would see the protesters there every year. Ardeth told me that she felt she had touched his heart this time around. She only had love for him, and no animosity that he was spending his working hours protecting the war machine that she so much wants to dismantle. Carol Gilbert, like numerous other Plowshares activists, does not seem to fit any stereotype of someone who would risk prison for an action that might not even draw much public or press attention. She seems to share Jun-san's view that "numbers don't matter -- what matters is your commitment to peace." She exudes kindness. Phil Berrigan passed away in late 2002, and I write briefly about it here. At Phil's wake, I saw little sadness and much joy, although I figure the sadness still was there. There, I finally got a chance to meet his brother Dan, who, like Phil, remains without any big ego and with a big heart, without his worldwide fame changing that. Here is a video about the Catonsville Nine action that I first associated with Dan and Phil. A more recent peace action in which some Jonah House members participated is in video here. Their powerful demonstration was in support of the Guantanamo prisoners' rights. About a dozen chained themselves to the White House fence, which was the concluding point of the demonstration. Those who did not pay a fine for their arrest were convicted this month in separate rapid-fire bench trials in federal court, and sentenced to time served. Prompting me to write this blog entry at this time was learning about the recent passing of Harmon Wray, a peace activist whom I have never met. Thanks to Susan McDonald at Research & Writing Blog for blogging about him. Harmon Wray's very peacefulness is captured in this video, in which he proclaims: "The worst thing you can do for your country is support it when it fails to live up to what it says it believes in.” A commitment to non-violence "takes more guts in many ways than military action does.” Each day, I do my best to learn to live peace with the lessons and examples from the above-discussed pacifists, even though I am not a full pacifist myself. Jon Katz.
Sunday, July 29. 2007
Multiple sclerosis patient obtains critical relief from marijuana. Walter Cronkite speaks plainly about the excessive costs of the drug wars. In a recent question and answer session, an audience member asked Republican presidential candidate Rudy Giuliani about his views on medical marijuana. Predictably and sadly, Mr. Giuliani panned the idea, and proceeded to say how he was very experienced prosecuting marijuana, and how dangerous it is to have a medicine that is smoked. I doubt Mr. Giuliani is alone in this view among presidential candidates, and many other politicians join him. The time is beyond ripe to educate and persuade all political candidates, government officials, and everyone else to listen to sick people who benefit from medical marijuana, to listen to scientists' and researchers' findings on medical marijuana, to enable scientists and researchers to continue their research work (for instance, by permitting ongoing research with volunteers using sufficient supplies of marijuana that is legally distributed and of sufficient quality and potency), and to consider the source of the scientific studies and findings. While doctors continue administering and prescribing highly addictive and often dangerous drugs with harmful side effects -- including morphine, codeine, and a slew of other drugs -- politicians continue playing politics with marijuana, which is particularly benign by comparison, but which is very beneficial to sick people for such afflictions as multiple sclerosis, nausea and loss of appetite caused by chemotherapy, blindness caused by glaucoma, sleep apnea, orthopedic pain, and the list goes on. Unlike the rampant supply of synthetic medicines that lines pharmaceutical companies' pockets, marijuana (which can be homegrown with quality results, and, therefore, takes profits away from pharmaceutical companies) is natural, and should not be dismissed so quickly. Marijuana's medicinal benefits go beyond THC to its numerous other cannabinoids (see here and here). Why should sick people be at the mercy of scientists reinventing the medicinal wheel if mother nature already provides so many medicinal benefits with marijuana? Many anti-medical marijuana crusaders make a disingenuous argument about the absence of marijuana safety and effectiveness studies that would pass FDA muster. Harvard emeritus medical professor Lester Grinspoon retorts that such an assertion fails to acknowledge that millions of dollars are required to qualify a drug for approval by the FDA, which is the same FDA that is controlled by the anti-medical marijuana White House. Such money will not be available unless the government is willing to provide it; pharmaceutical companies certainly will not want to provide the money, in that marijuana needs no patent and will compete against pharmaceutical companies' products. Dr. Grinspoon points to the powerful anecdotal evidence about marijuana's effectiveness, and discusses the day when such groundbreaking medicines as penicillin were proven through anecdotal evidence. Mr. Giuliani expressed concerns about marijuana being smoked. In that regard, marijuana is also very effective when consumed in non-smoked form, including delicious hashish brownies and hashish cookies. This eliminates problems of secondhand smoke and having others put up with the funky smell of burning marijuana. In any event, in May 2006, a UCLA researcher found no lung cancer risk from smoking marijuana. Furthermore, a benefit of smoked marijuana is that the patient feels the immediate effects of the smoked medical marijuana and is thereby able to regulate how much is inhaled at any one time, once relief is felt. I have written repeatedly about medical marijuana, including here, here here. and here. Let the people, politicians, and government officials know the truth about medical marijuana. Jon Katz. ADDENDUM : Despite a recent claim of a connection between marijuana and psychosis, NORML policy analyst Paul Armentano says if there were such a connection, "we would have seen the negative effects they were warning about if they were significant." "Where is the explosion in cannabis-related mental illness? ... The paper says, 'You are right, we haven't seen it. Maybe it is a delayed reaction.'"
Friday, July 27. 2007
Photo from website of U.S. District Court (W.D. Mi.). The Sixth Amendment to the United States Constitution guarantees the right to a speedy trial in criminal litigation. Fully honoring the speedy trial right, a trial judge in the county where I live and work recently dismissed a prosecution due to long delays in finding an interpreter for the defendant sufficiently to understand -- and to testify during -- the serious criminal proceedings against him for alleged sex offenses against a seven-year-old girl. Too often, I see prosecutors, police, and even judges being flippant and insensitive in countless other ways about litigants' abilities to speak and understand English as a second language. I challenge them to try to learn a second language flawlessly, and to see how well they can understand that language in a court of law, let alone to testify in that language or to have the case involve their life and liberty. I know how hard this is to do, having spoken French in-depth for over thirty years, and still needing to revert to the subtitles in French-language films. Thanks to Judge Katherine D. Savage for breathing life into the Constitution's speedy trial guarantees by dismissing the prosecution for the lengthy delays in obtaining a qualified interpreter in this sexual assault case. Admittedly, finding such an interpreter was made all the harder by the small number of people who speak the now-dismissed defendant's primary language. However, once it was known how challenging it would be to find such an interpreter, such efforts as calling other courts around the nation for interpreter recommendations clearly was not enough. For a defendant with such liberty interests at stake, it was not unreasonable even to look abroad for an interpreter. Such an expense is reasonable compared to the personal costs of being imprisoned, and the taxpayers' costs of imprisoning people. Thanks to the dismissed defendant's criminal defense lawyer who successfully argued to get his case dismissed for the violation of his speedy trial rights. I have known this lawyer for a dozen years; she is one of the kindest and most decent people I know. For over fifteen years, I have know the prosecutor in the case, who at least can identify with criminal defendants more than plenty of other prosecutors can, by her having been a Maryland public defender lawyer for many years before joining the county state's attorney's office. Jon Katz.
Friday, July 27. 2007
 The Statue of Liberty is worth little if immigrants' rights are not vigorously protected. On July 26, 2007, on Constitutional grounds, a federal trial judge overturned the bulk of Hazleton, Pennsylvania's anti-immigrant ordinances, concerning such matters as housing and employing people who are not United States citizens. The trial court's opinion and order are over two hundred pages long, so I have only had a chance to skim the opinion. The opinion includes in-depth discussion of pre-emption of local ordinances by federal laws, unconstitutional aspects of Hazleton's anti-immigrant ordinances that go beyond federal pre-emption issues, standing of the various plaintiffs to sue Hazleton in this matter, and the ability of some of the plaintiffs to appear anonymously, due to their being in the United States without legal authorization to do so. The case is Lozano, et al., v. City of Hazleton, Civ. No. 3:06cv1586, __ F.Supp. 2d _ (D. M.D. Pa., July 26, 2007). In the opinion's Appendix is a helpful thirteen-page overview of the history of regulating immigration in the United States. The opinion also is helpful to inform challenges to other similar ordinances sprouting out in many parts of the United States. Aside from Native Americans, all others residing in the United States are born abroad or are descended from immigrants. Unfortunately, too many immigrants and descendants of immigrants in the United States believe that some immigrants were created more equally than others, as a justification to bar the "less equal" immigrants. Often such views are based on racial prejudice. Jon Katz.
Friday, July 27. 2007
Sometimes depositions get ugly. (Image from Library of Congress's website). Before joining the Maryland Public Defender's Office, where I worked from 1991 to 1996, I had an interview to switch to another corporate law firm. The interviewer represented depositions as a litigation career plateau. I was aiming much higher than such a plateau. Until then, I had sat in on a deposition, but had not taken one yet. What made the deposition interesting -- which involved a dispute by one or more banks -- was that the deponent was a former bank officer who apparently had been convicted and served some prison time related to the litigation for which he was being deposed. Clearly, I was thirsting for something more socially and personally meaningful than such litigation, and got it once I joined the public defender's office. When I left the public defender's office, I decided I would learn how to litigate civil cases -- to add to my criminal defense work -- which was particularly critical for the First Amendment defense work I do. By now, I have taken around one hundred depositions, which may only be held for civil cases in the jurisdictions where I practice. With no judge present at depositions, some litigators and deponents get more nasty and underhanded than would ever happen before a judge. I sometimes can eliminate such nonsense by such approaches as the following: 1. "You are setting yourself up for a sanctions motion. Please help me avoid wasting my time on that." 2. "Behind you on the bookshelf is a copy of the rules governing depositions in our governing jurisdiction. Would you like to borrow it?" 3. "You are raising your voice at me apparently as an attempted impermissible end-run to intimidate my client. My client is here to answer questions, and nothing more. If you want to raise your voice at me, have at me out of my client's presence, and I'll have at you back, if I choose." While I generally get more exhilaration in trials than in the deposition room, some depositions can have their moments, including getting a chance to engage fascinating people with questions that are much more open-ended than would be prudent at trial. However, none of those depositions have been as fascinating as those here and here, which I assume are both staged. Turn on your speakers, unless you don't want to hear expletives hurled about. I love how the second video's character called Joe J__ (I assume it is not the real Joe J___, but I do not know what the real one sounds like) responds to a cantankerous deponent with "We'll see about that." That response could work well in some trial cross examination instances, too. If you have any other interesting deposition or trial video clips, please post them here in the comments section. Jon Katz.
Thursday, July 26. 2007
Imagine there's no countries
It isn't hard to do
Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace... We all live in one world. The least governments can do is to issue every applicant a photo identification, regardless of immigration status. New Haven, Connecticut, started doing just that on July 24, 2007. Please encourage your local, county, state and federal governments to follow suit. I grew up just twenty miles from New Haven, and previously associated it with the nation's best pizza, Toad's Place, and WPLR radio. Now, at the head of the list, I happily add identification cards for all, and a past pro-drug policy reform police chief who rejected the DARE program. In appreciation, I plan to spend some money in New Haven next time I am nearby. Jon Katz.
Wednesday, July 25. 2007
Adam Levin at Southern Criminal Law e-mailed criminal defense lawyers "whose blawgs I frequently read" for tips on practicing criminal law for newer lawyers and for those transitioning to solo practice. Here are my replies in CAPS: Philosophy What practical advice do you have for maintaining boundaries in your life? A SELF-EMPLOYED LAWYER CAN CONTROL THE NUMBER OF CLIENTS S/HE HAS BY RESISTING THE TEMPTATION TO ACCEPT EVERY CLIENT, PARTICULARLY WHEN THE LAWYER’S PLATE IS OVERFLOWING. PUBLIC DEFENDER LAWYERS NEEDS TO BAND TOGETHER WITH COLLEAGUES WITH BACKBONES – AND WITH THE NLADA AND NACDL – TO KEEP CASELOADS SUFFICIENTLY LOW TO PROVIDE QUALITY DEFENSE. What are some must-read books for the burgeoning criminal defense attorney (non-fiction or fiction)? FOR SELF-EMPLOYED LAWYERS, JAY FOONBERG’S HOW TO START AND BUILD A LAW PRACTICE. FOR EVERYONE, RAM DASS’S BE HERE NOW. How about films? TWELVE ANGRY MEN. FOR DIVERSION, ANY FILMS BY TAKESHI KITANO OR JOHN WATERS. Do you perform volunteer, pro bono, or low bono work? Why or why not? YES. LAWYERS HAVE A DUTY TO CONTRIBUTE TO EQUAL ACCESS TO JUSTICE, PREFERABLY THROUGH PRO BONO WORK, BUT AT THE VERY LEAST THROUGH FINANCIAL CONTRIBUTIONS TO ORGANIZATIONS ASSISTING EQUAL ACCESS TO JUSTICE NOT JUST TO POOR PEOPLE BUT TO CAUSES THAT RELY ON DONATIONS FOR LEGAL REPRESENTATION. EVEN GOVERNMENT LAWYERS AND JUDGES -- IF OTHERWISE PREVENTED FROM PERFORMING OUTSIDE LEGAL WORK -- CAN DO PRO BONO WORK THROUGH SUCH ACTIVITIES AS PROVIDING LEGAL INFORMATION AND TIME TO NON-PROFIT ORGANIZATIONS, AND BY DISPELLING THE MYSTERIES OF THE LAW THROUGH PUBLIC SPEAKING AND THROUGH PUBLISHING IN THE MASS MEDIA. FROM A MORAL PERSPECTIVE, LAWYERS' PRO BONO DUTIES ARISE BECAUSE IT IS THE RIGHT THING TO DO. FROM A PRACTICAL PERSPECTIVE, THE PRO BONO DUTY ARISES BECAUSE LAWYERS ARE ECONOMICALLY PROTECTED AGAINST COMPETITION THROUGH ETHICAL RULES BARRING NON-LAWYERS FROM PRACTICING LAW; LAWYERS MUST SOMEHOW PAY FOR THIS PRIVILEGE, WHETHER OR NOT IT IS A JUSTIFIABLE PRIVILEGE. MOREOVER, FROM A BENEFICIAL PERSPECTIVE FOR LAWYERS, PRO BONO SERVICE IS AN OPPORTUNITY TO GAIN REWARDING PRACTICAL EXPERIENCE, CAN MAKE A DIFFERENCE FOR THE PRO BONO CLIENT AND FOR JUSTICE, AND CAN MAKE FOR A BETTER LAWYER. How important is it to be involved in local politics or the local bar? DON’T’ GET INVOLVED IN POLITICS UNLESS THE PURPOSE IS PURELY ALTRUISTIC. TOO MANY POLITICIANS AND POLITICALLY INVOLVED PEOPLE INFLICT TOO MUCH MISERY ALREADY, THAN FOR US TO HAVE PEOPLE GETTING INVOLVED IN POLITICS IN AN EFFORT TO GET CLIENTS. DON’T GET INVOLVED IN THE LOCAL BAR UNLESS YOU’LL STAND UP FOR JUSTICE, RATHER THAN FAWNING OVER JUDGES AND BAR LEADERS ON THE BASIS OF THEIR TITLES (OR ABILITY TO REFER YOU CLIENTS) RATHER THAN ON THE BASIS OF THEIR QUALITIES, ABILITIES AND ACTIONS. If you won 10 million dollars, how would your practice change? I WOULD FEEL AN OBLIGATION TO SHARE A SUBSTANTIAL AMOUNT OF THAT MONEY WITH PEOPLE IN NEED. THE MONEY I KEPT WOULD HELP ME SELECT CLIENTS BASED MORE ON WHICH CLIENTS AND CASES I WANTED AND ON THEIR NEED, RATHER THAN ON THE CLIENTS’ ABILITY TO PAY. Clients Is it necessary to like your clients? NO. HOWEVER, I LIKE THE VAST MAJORITY OF THEM. Maintaining client confidentiality is obviously important. What advice do you have for maintaining it? MY LAW PARTNER AND I HAVE NO PROBLEM WITH THAT OURSELVES. FOR SUPPORT STAFF, WE’RE CAREFUL IN THE HIRING PROCESS TO SELECT STAFF WHO WILL TREAT CLIENT CONFIDENTIALITY AS IF WE WERE THE DREADED CIA. Is it ever appropriate to sugar-coat a situation for a client? NO. HELP THE CLIENT TO HAVE A REALISTIC VIEW OF THE CASE, AND TO HAVE OPTIMISM TO PURSUE THE BATTLE FOR VICTORY. Do you always return calls within a set period? I MAKE SURE TO GET CLIENTS’ CALLS RETURNED PROMPTLY, AND FOR MY STAFF TO LET CLIENTS KNOW OF ANY DELAY IN CALLING BACK (E.G., VACATION, OR A LENGTHY TRIAL). I HAVE NO OBLIGATION TO CALL BACK A COLD-CALLING SALESPERSON. What advice do you have for dealing with difficult clients? A DIFFICULT CLIENT SITUATION IS A TWO-WAY STREET. SOMETIMES PROBLEMS CAN BE SOLVED BY LISTENING CLOSELY AND DEEPLY TO THE CLIENT, BY HANGING OUT SOCIALLY WITH THE CLIENT WITHOUT DISCUSSING THE CASE OR THE LAW, AND BY SHARING SOME BELLY LAUGHS. SOMETIMES AN INTERMEDIARY IS NEEDED. SOMETIMES, A PSYCHODRAMATIST, STORYTELLER, OR OTHER PROBLEM SOLVER IS NEEDED FOR INTERVENTION. HOWEVER, WHEN NOTHING WILL FIX THE PROBLEM, SOMETIMES LOSSES NEED TO BE CUT, EVEN IF THAT MEANS GIVING UP MUCH OR ALL OF THE ATTORNEY’S FEE. What is your thought process before deciding whether a particular client will testify at trial? PREPARE THE CLIENT TO TESTIFY. ONLY AFTER THE PROSECUTOR RESTS WILL THERE BE A CLEARER PICTURE WHETHER TO TESTIFY. FURTHERMORE, THE CLIENT WILL BE MORE INCLINED TO ACCEPT YOUR ADVICE TO TESTIFY OR NOT TO TESTIFY IF YOU PREPARE THE CLIENT’S TESTIMONY. THEN, THE DECISION WHETHER TO TESTIFY WILL BE BASED MORE ON THE CLIENT’S HAVING A REALISTIC SENSE OF THE POTENTIAL QUALITY OF HIS TESTIMONY THAN OUT OF A CONCERN THAT THE LAWYER MERELY DID NOT WANT TO PUT IN THE TIME TO PREPARE TESTIMONY. In your mind, what are appropriate reasons to turn away a potential client? ASIDE FROM IRRECONCILEABLE CONFLICTS OF INTEREST, WATCH OUT WHEN A POTENTIAL CLIENT IS LOOKING TO REPLACE HIS OR HER LAWYER, AND MAKES COMPLAINTS ABOUT PREDECESSOR COUNSEL THAT ARE LIKELY TO DOG YOU IF YOU TAKE ON THE CLIENT.
Do you subscribe to a "client centered" approach to your work? If so, what does that entail? I SEEK POWERFUL HARMONY IN EVERY ASPECT OF MY LIFE AND WORK. FORTUNATELY, ACHIEVING HARMONY FOR MY CLIENT ORDINARILY CARRIES WITH IT MY OWN HARMONY.
Investigation What is the most over-looked tool of investigation? CLOSE AND DEEP LISTENING, AND WORKING WITH INVESTIGATORS WHO DO THE SAME (AND WHO HAVE GOOD RELEVANT EXPERIENCE, GOOD HEARTS, AND GOOD HEADS ON THEIR SHOULDERS). If you live in a jurisdiction that uses optional reciprocal discovery, do you recommend its use? NOT APPLICABLE WHERE I PRACTICE. Do you have any tips for using your investigator effectively? INTEGRATE THE INVESTIGATOR INTO THE WHOLE CASE PREPARATION. OTHERWISE, THE INVESTIGATOR IS BEING INSTRUCTED TO FETCH SOMETHING WITHOUT KNOWING THE PURPOSE FOR THE FETCHING, AND WITHOUT BEING ABLE TO ADD INDEPENDENT VALUE TO THE CASE PREPARATION. Trial What do you do before trial to calm your nerves (assuming you still get nervous)? T’AI CHI. Is the old advice about starting with your closing statement and working backwards still good advice for preparing a case for trial (it's what they were selling at my law school)? ONE NEEDS TO WORK BACKWARDS FROM THE ANTICIPATED JURY INSTRUCTIONS IF THE CASE IS TO GO TO A JURY, AND WITH THE APPLICABLE LAW IF THE CASE IS TO BE A BENCH TRIAL. IN THIS WAY, THE CRIMINAL DEFENSE LAWYER STARTS WITH THE ROADMAP TO PREPARING ALL PARTS OF THE TRIAL. AS THE TRIAL LAWYER DEVELOPS THE CASE, IT BECOMES IMPORTANT TO WORK BACKWARDS FROM THE CLOSING ARGUMENT, AS WELL. THE CLOSING ARGUMENT WILL RELATE THE DEFENDANT'S CASE THROUGH A PERSUASIVE STORY THAT WILL BE TOLD THROUGHOUT TRIAL, FROM VOIR DIRE TO OPENING TO DIRECT AND CROSS TO CLOSING ARGUMENT. THIS IS NOT TRIAL ADVOCACY CLASS; THIS IS YOUR OPPORTUNITY TO PERSUADE. Other than trying cases, where should an aspiring criminal defense attorney look to improve his or her trial skills? T’AI CHI. LAUGHTER AND COMEDY. Any quick tips for Direct Examination? THE WHOLE TRIAL IS JURY-FOCUSED (AND JUDGE-FOCUSED, FOR BENCH TRIALS). TELL A PERSUASIVE, COHERENT, AND MEMORABLE STORY AT EVERY STAGE OF THE CASE. HUMANIZE THE WITNESS AND HELP THE JURY RELATE TO THE WITNESS. Any tips for Cross Examination? TELL THE PERSUASIVE STORY THROUGH CROSS EXAM, TOO, TO THE POINT THAT THE CROSS EXAMINER IN MANY WAYS IS TESTIFYING HIMSELF, AND NOT GETTING TOO CONCERNED WHEN THE EXPECTED ANSWER IS NOT OBTAINED. OFFER THE WITNESS THE CHOICE BETWEEN ANSWERING EACH QUESTION DIRECTLY, OR ELSE GOING THROUGH THE PAIN OF ENDURING INFINITELY MORE SUBQUESTIONS TO GET TO THE EXAMINER’S GOAL. A SOFT CROSS EXAMINATION CAN BE MORE POWERFUL THAN A HARD CROSS EXAMINATION, JUST AS T’AI CHI’S POWER IS DERIVED FROM USING THE OPPONENT’S ENERGY AS MUCH AS POSSIBLE.
How important is it to get your client into a nice set of clothes? THE CLIENT’S CLOTHES SHOULD BE COMFORTABLE AND PRESENTABLE, TO THE POINT THAT THE JURY DOESN’T NOTICE THE CLOTHES EITHER WAY. What pointers do you have regarding appropriate attorney attire in the courtroom? BE YOURSELF, BUT STILL DRESS SO THAT THE JURY DOESN’T NOTICE YOUR CLOTHES ONE WAY OR THE OTHER. BE WELL-GROOMED. MUCH MORE IMPORTANT THAN ATTIRE IS PERSUASION. ONE OF THE GREATEST CRIMINAL DEFENSE LAWYERS IS TONY SERRA, WHO WEARS SECOND-HAND SUITS, AND REPAIRS THEM WITH STAPLES. WE NEED TO FOCUS ON CULTIVATING AND IMPROVING OURSELVES MUCH MORE THAN ON FOCUSING ON GROOMING. Jon Katz.
Tuesday, July 24. 2007
Many times on the way to or from court, I find ideal kayaking places. (Image from National Park Service website.) On July 23, I rose before sunrise to arrive on time for a drug possession trial at a courthouse nearly three hours away. As I had anticipated, the drive was peaceful and beautiful, as I went deeper and deeper towards and into Maryland's westernmost county. All that was missing was a kayak or canoe on the roof -- or a whitewater raft -- and a tent and sleeping bag in my trunk. However, I had to arrive home by evening to be back with my family. I called the prosecutor a few days ago, and left a voice mail suggesting the dismissal of my client's case, with compelling reasons. I heard nothing back. Soon after arriving at court on July 23, the prosecutor told me he had considered the circumstances of my client's case, and decided he would dismiss the prosecution. I replied that I was satisfied with the dismissal, but that I had stayed up the previous evening finishing trial preparation, which would not have been necessary had I known in advance of the trial. The prosecutor already knew that my client was coming from several states away, necessitating a roundtrip of over eight hundred miles. I can only think of four possible reasons why the prosecutor did not tell me before the court date of his decision to dismiss. Possibly he had not decided to dismiss until the trial date. Possibly he had a witness or evidentiary problem that did not come to his attention until the trial date. Possibly he was too busy to let me know in advance of the dismissal decision. Possibly he wanted to assure that my client would drive the eight hundred miles roundtrip as a cost of getting a dismissal; however, the law does not require a defendant's presence merely to dismiss a case. I did not bother asking the reason, in part because I wanted the dismissal entered before having any such discussion. The prosecutor accepted my request to have my case be one of the first called that morning. Before getting back in my car, I spent a few minutes with my client walking and talking around this downtown where I had never walked before. The air and nature seem very clean from there through at least the next hundred miles. The walk and ride were very peaceful. Several years ago, my ability to enjoy beautiful nature areas sometimes got dampered by my knowledge and obsession that the area's judges and prosecutors were more unfairly harsh than those in counties where I usually appeared (and such unfairness and harshness often visits the nearby counties, too). To live that way is to live a stymied life rather than a real life, and overlooks that all people are temporary visitors to wherever they live or travel. Fortunately, I finally moved beyond that, assisted by my deeper and growing connection with nature, including new experiences kayaking and canoeing the waterways, and hiking and biking new paths. My client also enjoyed the nature on the way to and back from court, although he preferred not traveling so many hundreds of miles had it not been necessary to do so. Jon Katz.
Monday, July 23. 2007
Photo from website of U.S. District Court (W.D. Mi.). Football is a violent sport. So are boxing, hockey, and lacrosse, which is one of my favorites to play and watch. Dogfighting is a violent and reprehensible sport. Eating meat, fowl, and fish is drenched in blood and violence. (Did I ever tell you about the time I saw a food market employee slicing off a flapping fish's scales while it remained alive? The salivating customer said that fish are more delicious when scaled alive, and chicken are more delicious when plucked alive; then there are cooked-alive lobster and crabs.) Moreover, slaughterhouses are focused on efficient slaughtering far beyond any concern about animal suffering during their short lives and bloody deaths. Also, imported meat, fowl, and fish are not necessarily governed by the same "humane" treatment and slaughter laws as those found in the United States. (For this blog entry, I depart from my usual practice of not getting on a soapbox to promote vegetarianism, in that it looks hard for the public to indict Michael Vick without indicting America's animal-slaughtering and meat-eating system.) Perhaps a part of me should welcome all the brouhaha over Michael Vick's indictment over alleged dogfighting and brutal dog executions, in that maybe it will make people recognize that not only Michael Vick's alleged crimes are brutal, but that our society is overdrenched in brutality, from police brutality to child abuse to rampant physical assault to slaughterhouses, and the list goes on. However, I do not welcome the rush to judgment against Michael Vick that leads the People for the Ethical Treatment of Animals and numerous others to call for Mr. Vick's suspension while he remains presumed innocent unless and until proven guilty beyond a reasonable doubt by a unanimous jury. Mr. Vick's federal indictment was filed on July 17, 2007, and alleges violations of laws against animal fighting and animal cruelty. As mandated by the Fifth Amendment of the United States Constitution, Mr. Vick's federal prosecution in the Richmond federal trial court is proceeding on an indictment returned by a grand jury. However, the federal courts have done little to prevent grand jury indictments from being little more than sham rubber stamps of indictments typed by prosecutors who present witnesses and evidence to grand jurors in secret proceedings without the presence of any judge nor the presence of any lawyers other than prosecutors. Armed with such Star Chamber indictments, federal prosecutors repeatedly parade before reporters at government-organized news conferences (often complete with photo opportunities of law enforcement employees and numerous prosecutors), with the prosecutors and reporters rarely informing the public that such indictments are shams that are worth little more than toilet paper (and at least toilet paper sometimes is squeezably soft). These are your very highly tax-paid federal prosecutors at work, as part of a government that is supposed to be run by the governed, when too often the reverse is happening. Kudos to ESPN.com's Mike Sando for taking on this sham federal grand jury system by the jugular, by his telling sports fans and the rest of the public not to rush to judgment, in his July 20 opinion piece. Thanks, also, to Sports Law Blog for drawing attention to Mr. Sando's viewpoint. ESPN's Sando called me about Mr. Vick's grand jury last Thursday, July 19. Clearly, he did not select me for any sports-following prowess, although I have some wonderful memories from live games of the Lakers with Wilt Chamberlain, and the Knicks and Yankees at home. He quoted me as follows: "The prosecutor can get an automobile indicted," Maryland-based defense attorney Jonathan L. Katz said. "The prosecutor puts in the witnesses that he wants and then at the end he says, 'Look, here's an indictment, please agree to it. It just requires the grand jury members to find there is probable cause to believe that a crime occurred. Well, probable cause is not much more than a hunch." "Look, I'm a vegetarian for ethical purposes... I don't want anyone misusing dogs. It's just that we should let the jury trial take its course and then make judgments when the jury is all done." This whole rushing to judgment mentality of people seeking Vick's suspension helps to prejudice my jurors in criminal trials. As one of my most trusted criminal defense teachers underlined to me, when jurors first see the defendant, they are asking "What did s/he do?" and not "What is s/he accused of doing, and can the prosecutor prove the alleged crime beyond a reasonable doubt?" Although I agree with many of the animal rights views of the People for the Ethical Treatment of Animals -- and previously successfully defended its activists' First Amendment right to protest the circus in Baltimore -- an ongoing wedge between me and plenty of others in the animal rights movement continues with the efforts of many in the movement to criminalize more animal cruelty offenses and to enforce those laws more strongly, when I repeatedly have cried out against overcriminalization when we have such an unjust criminal justice system and when civil non-criminal remedies remain as an alternative. In Mr. Vick's instance, PETA urges people to insist on Mr. Vick's suspension, saying "tell the NFL that someone who allows this kind of neglect and abuse to occur doesn't belong in its organization." Particularly with the ink having barely dried on the federal prosecutor-penned indictment (which I have uploaded here, from the federal court's online docketing system), the public has insufficient information this early on to know what Mr. Vick did or did not do with dogfighting. The indictment speaks of horrific executions -- by hanging, shooting, drowning, and electrocuting -- of dogs deemed not up to snuff for prizefighting, as well as other alleged crimes related to dogfighting. However, the indictment tends to lump Mr. Vick in with some or all of his co-defendants, not making sufficiently clear the extent to which Mr. Vick allegedly pulled the trigger for any dog executions or even knew about the executions, versus just lumping him in with his co-defendants on the theory that a person is responsible for the foreseeable actions of co-conspirators. Senator John Kerry -- a lawyer and former prosecutor who, of all people, should understand how unreliable are federal indictments -- nevertheless wrote to NFL Commissioner Roger Goodell that "In light of the seriousness of the charges, I believe that Mr. Vick should be suspended from the League, effective immediately." West Virginia Senator Robert Byrd, another law school graduate who should be expected to understand that indictments are practically meaningless as information tools, nevertheless took to the Senate floor two days after the indictment's issuance to proclaim that: "I am confident that the hottest places in hell are reserved for the souls of sick and brutal people who hold God's creatures in such brutal and cruel contempt." For any reason Michael Vick has indeed committed any of the crimes alleged against him, he still is entitled to all rights guaranteed to criminal defendants, a fair bond, and a spirited defense. That is my watchword; please join me. Jon Katz.
Sunday, July 22. 2007
The peace symbol went far beyond hippies. Gerald Holtom designed the symbol in 1958, and the Campaign for Nuclear Disarmament adopted the symbol for its logo. Hippielawyer is Alan Graf, a fellow National Lawyers Guild member who lives at The Farm cooperative community in western Tennessee. Check out Hippielawyer's weekly online broadcasts called Third Planet Report , presenting news, interviews, commentary, and homespun music. The latest Third Planet Report, from July 17, covers post-Katrina New Orleans, including the story of a man who lied to the police that some crack dealing was going on at the hospital, feeling that is the only thing that would motivate police to go there to give help to the people stranded there in the aftermath of Hurricane Katrina. Jon Katz.
Friday, July 20. 2007
Photo from website of U.S. District Court (W.D. Mi.). Two days ago, the New Orleans Times-Picayune called to interview me about the recent disclosure by alleged D.C. Madam Deborah Jean Palfrey -- who I think is gravely mistaken to be talking publicly about her case, let alone in such depth -- that she expects to have Louisiana Senator David Vitter testify at her trial. The resulting article and my quote are here. I have written many times that prostitution should not be criminalized, particularly when the police and prosecutors have plenty to do with more serious crime, and particularly when police and prosecutors need to spend more time evaluating their cases so that they do not prosecute the wrong people. I have also argued to legalize marijuana and to heavily decriminalize other drugs, not only for civil liberties reasons, but also to eliminate an overgrown and overly unjust criminal justice system that runs rampant on the right against unreasonable search and seizure, the right to obtain a just bond, the right to receive a fair santence, and the list goes on. As revealed by the online filings in Ms. Palfrey's federal case in the District of Columbia (available through the PACER website), her assets have been frozen pending efforts to forfeit her property as alleged gains from alleged prostitution crimes. Perhaps frustration over her frozen assets influences her decision to speak out so publicly about her pending case. Jon Katz. ADDENDUM 1: Yesterday, ESPN.com interviewed me about the prosecution in Richmond, Virginia, federal court for alleged dogfighting crimes against Atlanta Falcons star Michael Vick. I anticipate that the story will include quotes from me about the grand jury process in the case. I will post a link to the story after it is uploaded. ADDENDUM 2: The ESPN interview referenced in Addendum 2 above culminated in this opinion piece that includes quotes from me.
Friday, July 20. 2007
Eraserhead. When I arrived at college, I walked to my basement room in a large house converted to a dorm, and found that my two roommates had already staked out their corners of the room. One roommate, PA, I took to immediately; he was from near Pittsburgh, and seemed very likeable, intelligent, and caring. The other roommate, LI, gave me cause for pause. He was from western Long Island, displayed no stereotypes of Western Long Islanders (which is not a bad characteristic in him), and chose the farthest corner from me, facing the door. By the second day of orientation, he had painted "his wall" black, ultimately explaining that the black wall helped him feel less confined. LI put a Kate Bush and Eraserhead poster on his black wall. He started getting on my nerves. One day he pondered aloud whether it would be too conformist to return his lunch tray to the cleaning area, determined it would be, and left it there, for the students on work study ultimately to clean up after him. Another day, when my friend called, out of the blue he asked if he was a homosexual. Another day, after stringing dorm doors together with toilet paper (later explaining it was his reaction to the disconnection he felt existing among many people in the dorm), he chewed out the woman who daily cleaned the dorm, for having the audacity to clean up the toilet paper. LI could not simply be marginalized; he was different, apparently brilliant, and quite a few people took a liking to him. Even I liked some things about LI, one of which was that he was musically inclined. One night, just spontaneously, I whipped out my trumpet, LI whipped out his banjo, and PA whipped out his accordion, and we started jamming in the TV room, and the other residents enjoyed the good music and positive energy. Things unravelled after that. Ultimately, I just wanted out of that overcrowded dormroom, the black wall, LI, and the dorm itself. As I started my visits to the campus housing office to find out about vacancies in other double rooms (freshmen didn't qualify for single rooms), I was in the cafeteria one day with two friends, and LI sat down with us. I felt he was taunting me by interrupting my respite from him. I did not say a word to him, and he did the same with me as we ate. During the semester that LI, PA and I shared the dormroom -- LI suspended college the following semester, I moved to another dorm, and I entirely lost track of LI after bumping into him on the street a few weeks after I left the original dorm -- I read A Confederacy of Dunces. Confederacy is about Ignatius Reilly, a brilliant but obnoxious hero who sucks jelly out of donuts and returns them to the box for others to eat, takes a filing job only to throw out papers to be filed, takes a hot dog stand job only to eat up the profits, and takes a library job only to spend an entire day gluing just one pocket for return cards into one book. He proclaims that he was born in the wrong century, and that medieval times would have suited him better. Confederacy's author became so tormented that he killed himself, apparently because he could not find a publisher for the book, with his mother finally finding a publisher, and with the book earning a Pulitzer prize. LI also liked the age before electricity, and belonged to the campus Society for Creative Anachronism, sometimes donning period clothing. In many ways, LI was my Ignatius Reilly, a brilliant yet obnoxious hemmorhoid in my life. Reading Confederacy , I always could close the pages on Ignatius. I could not do the same with LI. On the flip side, I was LI"s hypocritical hemorrhoid. Around him, I had trouble summoning the humor -- often bent and pushing the envelope -- that I so often enjoy. I was to him a killjoy and a stick in the mud. I could not even tolerate that he had taped the front page of Communist Pravda to the room's front entrance when he was studying and soaking up Russian, while also honing his impeccable French, studying German, and studying English. Language filled his entire semester. Something was very off with me. While being all intolerant of LI, his black wall, and the Pravda front page, I was working actively with Amnesty International, which is all about tolerance. I believed strongly in the ACLU's First Amendment agenda, but was being intolerant of a black wall. Not long after we parted ways, I recognized more fully than ever what a fool I had been not to have just had a one-to-one rap session about what we liked and didn't like about each other, and to seek harmony, and to keep the black wall and Pravda out of it. I did not seek him out to tell him this. I just wanted to put it all behind me. But it still dogs me. LI had a poster for David Lynch's masterpiece and pre-Twin Peaks Eraserhead., displayed above on YouTube. I finally watched it thirteen years after its release. I wondered why I had not just talked to LI about the film, or talked to him more at all. I Googled LI a few years ago, but only found his father, who was a state legislator. I asked by e-mail of LI"s well being and whereabouts, but received no reply. Maybe I will try again. Tying this all into my law practice, for me to understand why I face so many narrow-minded and intolerant judges, jurors, and prosecutors, I don't need to look much farther than myself and my intolerance and narrow-mindedness with LI and others. For me to help motivate others to shed their narrow-mindedness, I must recognize and shed my own. Jon Katz.
Thursday, July 19. 2007
Lynn Stewart on organizing news conferences, and more. Talking to the media about one's criminal client without a sufficient goal and plan that are solely client-focused is like running through a lion's den at lunchtime. I have written about this here. Kudos to radical lawyer Lynne Stewart for talking about speaking to the media to a criminal defense client's advantage, with a vengeance. No matter one's view on whether Ms. Stewart should have been prosecuted, convicted, and subsequently disbarred, her above-posted video is a battery charger for me for defending clients with a vengeance, well beyond any media front. Jon Katz.
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