UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

Bill of Rights. (From the public domain.)

Why do we have criminal laws? To provide power, prestige and money to police, prosecutors, judges, criminal defense lawyers, government contractors, and everyone else earning dollars off of the criminal justice system? To enable the rulers to maintain power, fear and coercion over the ruled, rather than making ours a government run by the consent of the governed? To make people run to the police or to swear out a criminal warrant anytime someone looks cross-eyed at them? To maintain the only society we have known since birth, rather than taking the risk of a better society? To avoid telling friends, family members and acquaintances "No, it is premature and unnecessary to call the police at this moment; we have a chance of defusing, diluting, and solving the conflict ourselves at this time, or just avoiding or leaving it"?

As my friend and mentor Jun Yasuda says: ""Why is there a prison here? Five hundred years ago there was none. There were only Native Americans living in peace. They had reverence for each other. Now we fear each other. I am here to help people stop fearing each other, and to trust. We need to change the way we think. Putting people in cages is not a solution." As I say, let's not fatten the criminal code. So long as the government continues to deviate from focusing on fairly and effectively prosecuting rape, robbery, and murder -- by instead adding too much focus on prosecuting gambling, prostitution, drug crimes, and a whole host of other less serious crimes -- I will continue to have less confidence in the criminal justice system than if it were otherwise.

As is perhaps a part of my unofficial job description in life, I created a mini-firestorm (from two responders, in this instance) recently when I provided some practical suggestions to a listserv member seeking some procedural pointers in a peeping tom civil litigation case, where the cause of action was rather irrelevant to the original inquiry and the guts of my response. I premised my listserv reply as follows: "An irony about my answering your message is that in such a case, I’d probably only be willing to represent the alleged peeping tom, in part as a visceral reaction to the criminalizing of such behavior -  http://markskatz.com/MarylandArrestLawyers.htm"

Such a comment from me as mild as this -- mild for me at least -- met with the following undiluted reply from a listserv member who has already taken the mainstream path of high-level local bar association officer positions, with my responses in CAPS, and with his final reply in italics:  

Court of Appeals Judge Lynne A. Battaglia dissents, saying to suppress the evidence when found pursuant to a warrant lacking a substantial basis for finding probable cause. (Image from Maryland State Archives website.)

If I had a choice of fora in presenting a criminal appeal, I would generally expect my best shot to be in the Maryland Court of Appeals, rather than in the other appellate courts where I am licensed to appear (the District of Columbia, Virginia, and the District of Columbia; the Fourth and District of Columbia federal circuits; and the United States Supreme Court). For instance, I was stunned into ecstasy when the Court of Appeals handed me a victory finding that Maryland's double jeopardy common law precludes a conviction if a trial judge dismisses a criminal prosecution by relying on facts outside the four corners of the criminal charging document.

However, sometimes people give with one hand and take away with the other, which is what the Maryland Court of Appeals did on August 24, in Patterson v. Maryland, __ Md. _ (Aug. 24, 2007). In Patterson , Maryland's Court of Appeals agreed that the defendant was prosecuted using evidence seized pursuant to a search warrant that lacked a substantial basis for finding probable cause. Nevertheless -- and sadly and strangely -- a 5-2 court majority decided that:

"Although we hold that the affidavit, in the present case, lacked a substantial basis to support the issuing judge’s conclusion that probable cause existed; nonetheless, we hold that the affidavit was substantial enough to warrant application of the good faith exception. Officer Haak’s affidavit was not 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable'. [U.S. v. ] Leon, 468 U.S. [897] at 923, 104 S.Ct. at 3421, 82 L.Ed. at 699 [1984]. Therefore, the evidence obtained as a result of the search of Patterson’s temporary residence was properly admitted."

Praised be dissenting Judge Lynn Battaglia (a former Maryland United States Attorney, certainly without criminal defense bias), joined by Judge Joseph Murphy, for setting this wrongly-decided case straight:

"Simply because 'probable cause is a fluid concept,' Gates, 462 U.S. at 232, 103 S. Ct. at 2329, 76 L. Ed. 2d at 544, does not mean that police officers '"‘may [not] properly be charged with knowledge[] that [a] search was unconstitutional under the Fourth Amendment,'"‘ under appropriate circumstances. Leon, 468 U.S. at 919, 104 S. Ct. at 3419, 82 L. Ed. 2d at 696, quoting United States v. Peltier, 422 U.S. 531, 542, 95 S. Ct. 2313, 2320, 45 L. Ed. 2d 374, 384 (1975). To hold that under the circumstances presented, the police acted in good faith in presenting their warrant application would call into question whether it is even possible for a reviewing court to find an absence of good faith. As then Judge Bell pointed out in his dissenting opinion in Minor, 'a reasonably well-trained police officer would not submit an affidavit to a magistrate for a probable cause determination that the officer knows, or should know, does not establish probable cause,' 334 Md. at 727, 641 A.2d at 223 (Bell, J., dissenting), because that hypothetical officer is chargeable with knowledge of what the Fourth Amendment prohibits, subject to its subsequent interpretation in Gates and Leon. Id. at 724-26, 641 A.2d at 222-23. I would hold that, in the case sub judice, Officer Haak knew or should have known that Patterson almost certainly possessed neither the weapon nor the accessories referenced in the warrant application and therefore, the good faith exception does not apply. I respectfully dissent."

In any event, Judge Battaglia's dissent and Judge Clayton Greene, Jr.'s majority opinion in this Patterson case are particularly important reads for providing a good overview of the state of the federal and Maryland caselaw applying to stale warrants, the implications of allowing a search so long as it is conducted by the police in good faith, and the exceptions to permitting a search for such good faith. In discussing the good faith doctrine Patterson stated:

"The Leon Court outlined four situations in which an officer’s reliance on a search warrant would not be reasonable and the good faith exception would not apply:  '(1) the magistrate was mislead by information in an affidavit that the officer knew was false or would have known was false except for the officer’s
reckless regard for the truth;  (2) the magistrate wholly abandoned his detached and neutral judicial role;  (3) the warrant was based on an affidavit that was so lacking in probable cause as to render official belief in its existence entirely unreasonable;  and (4) the warrant was so facially deficient, by failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonable presume it to be valid.' Leon , 468 U.S. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699. As the Supreme Court noted, 'searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.' Leon , 468 U.S. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698."

Unfortunately, if Mr. Patterson seeks and obtains certiorari review in the United States Supreme Court, he is likely not only to have his conviction affirmed, but to have a new Supreme Court opinion that shreds the Fourth Amendment all the more. Jon Katz.  

Bill of Rights. (From the public domain.)

This month, a two-judge majority of the Fourth Circuit decided that an expert witness may testify in criminal court about the machine-generated results of raw data about drugs in a defendant's blood, without necessitating the presence of the technician who operated the machine. The case is Dwonne A. Washington v. U.S., _ U.S. _ (August 22, 2007). The majority said that such raw data is generated by a machine rather than by a human, and that information from a machine does not constitute hearsay that would implicate the Sixth Amendment's Confrontation Clause, and, therefore, does not require any Crawford analysis.  See Crawford v. Washington, 541 U.S. 36 (2004) (which bars testimonial evidence from slipping through the hearsay rule).

To the contrary!, says Judge Michael in his wise dissent. Judge Michael cites federal Circuit after federal Circuit standing in stark contrast to the Fourth Circuit majority in Washington . Judge Michael explains his dissent, in pertinent part:

"In only one circumstance is a computer-generated assertion not considered the statement of a person: when the assertion is produced without any human assistance or input. In United States v. Hamilton, 413 F.3d 1138 (10th Cir. 2005), one of two federal cases relied on by the majority, the Tenth Circuit concluded that the computer-generated header information that accompanied a pornographic image on the internet was not a hearsay statement. 'Of primary importance to this ruling,' however, '[wa]s the uncontroverted fact that the header information was automatically generated by the computer . . . without the assistance or input of a person.' Id. at 1142 (emphasis added). Similarly, in United States v. Khorozian, 333 F.3d 498 (3d Cir. 2003), the other federal case cited by the majority, the Third Circuit determined that the transmission information on a faxed document was not a hearsay statement because it was automatically generated by the fax machine. But see United States v. Salgado, 250 F.3d 438 (6th Cir. 2001) (stating that telephone numbers recorded and stored by computer were hearsay statements that were admissible under the business records exception); United States v. Linn, 880 F.2d 209 (9th Cir. 1989) (same).

"Unlike the header information on a web page or fax, computerized laboratory equipment cannot detect, measure, and record toxin levels in blood samples without the assistance or input of a trained laboratory technician. The toxicology tests on Washington’s blood in this case were conducted by technicians at the Armed Forces Institute of Pathology. These technicians undergo extensive training before they are certified to perform the tests. A technician conducting a blood toxicology test must follow a 'step-by-step procedure.' J.A. 48. He must, among other things, calibrate the testing instrument; withdraw the appropriate portion of blood from the larger sample; insert, without contamination, the smaller test sample into the instrument; initiate the test; and monitor the instrument while the test is in progress. Finally, as the record in this case reveals, the technician reviews and annotates the results and signs the report. In light of the significant role that the technician plays in conducting the test and generating accurate results, the results cannot be attributed solely to the machine. As a result, the toxicology test results must be considered statements of the laboratory technicians for both evidentiary and Confrontation Clause purposes.1[ Footnote] 1The government does not contend that the test results are not statements. At trial it conceded that the results are hearsay statements, but argued that they are admissible under the business records exception. See Fed. R. Evid. 803(6).

"The test results are testimonial statements, notwithstanding the majority’s argument to the contrary. The Supreme Court in Crawford, rather than specifically defining 'testimonial,' provided examples that constitute the 'core class of "testimonial" statements.' 541 U.S. at 51. Among these are 'pretrial statements that declarants would reasonably expect to be used prosecutorially.' Id. The Court further clarified the meaning of 'testimonial' in Davis v. Washington, 126 S. Ct. 2266 (2006), stating that courts should also consider the 'primary purpose' of the statement. A statement is not testimonial, for example, if its 'primary purpose . . . is to enable police assistance to meet an ongoing emergency.' Id. at 2273. A statement is testimonial, on the other hand, 'when the circumstances objectively indicate . . . that the primary purpose of the [statement] is to establish or prove past events potentially relevant to later criminal prosecution.'" Id. at 2273-74."

I hope the defendant in this Washington case will seek and obtain en banc review, and that Judge Michaels' reasoning in his dissent will carry the day. Jon Katz.

Bill of Rights. (From the public domain.)

I advise my clients to go to trial when the likely outcome of an innocent plea seems no worse than the outcome from a guilty plea, after giving them an assessment of their chances with an innocent plea versus a guilty plea. Sometimes this approach results in an acquittal, whether unexpected or not. Sometimes it leads prosecutors to soften their negotiating position with me. Sometimes it leads to a prosecutorial dismissal when the prosecutor does not have the necessary witnesses nor evidence available on the trial date. Sometimes it leads the judge to postpone the trial if the day's trial calendar is too booked, only for the prosecutor's necessary witnesses not to appear the next time, which might result in a dismissal of the prosecution. Sometimes clients feel little choice than to plead innocent, when a guilty finding risks a probation violation, deportation, loss of security clearance, and risks to educational and career prospects.

Recently, I was speaking with a colleague whom I previously assumed was an admirable and effective fighter for his clients. Our talk turned to a court where he appears often, but I do not. He focused on the importance of gaining credibility with judges (and prosecutors, too, I presume) by encouraging clients to plead guilty when they do not seem to have much of a chance to win. He thinks this gets judges to listen closer at bench trials when his clients do plead innocent, and to more acquittals at those bench trials.

I told this lawyer I was disturbed by such an approach, unless at least he was telling clients that he wished to trade off that clients' rights so that they all might benefit somehow as a group. I told him that I do not go frequently enough to the court he discussed, for it to help my general universe of clients to advise them to plead guilty merely to gain such "credibility". In fact, one of the benefits of my having a law practice that takes me around the Washington, DC, Beltway and beyond is that I often get a fresher start with judges and prosecutors by them often seeing me on occasion rather than more frequently than that.

I would like to think that a lawyer builds credibility by showing s/he fights zealously and effectively for each client, always tells the truth, knows the applicable law and how to try a case effectively without wasting time on matters of no beneficial consequence, and does not bare nor use fangs when not needed. It is the prosecutor's burden to prove a defendant guilty beyond a reasonable doubt, and not the criminal defense lawyer's burden to do so.

What are your thoughts and experiences on this topic? Jon Katz.

Bill of Rights. (From the public domain.)

Attorney General Alberto Gonzales resigned this past Friday, but the official announcement was delayed until later today, Monday. Talk about too little too late.

Gonzales's resignation presents an opportunity for Bush to be persuaded to appoint a replacement who will act more independently from the president than did Gonzales (who did not appear to act very independently at all), will be more forthcoming to the public, and will do more to protect true justice. My complaints about Mr. Gonzales are many.

Whom would you recommend for the job, both your ideal candidate, and a candidate that might realistically be accepted by Bush? Don't just tell me; please tell Bush.

U.S. News & World Report (thanks TalkLeft for the link) said on August 24: "The buzz among top Bushies is that beleaguered Attorney General Alberto Gonzales finally plans to depart and will be replaced by Homeland Security Secretary Michael Chertoff." I hope the field of candidates extends beyond Chertoff, and to better people than someone like former Attorney General Richard "Thornburgh Memo" Thornburgh. Even though Chertoff has been exposed to enlightened views of the Constitution, having been a law clerk to the late Supreme Court Justice William Brennan, for two and one-half years he has been drenched in homeland security work, which would not appear to be about hugging the Constitution other than to try to squeeze the breath out of it. It might be better to have a devil we have known as attorney general (were that Thornburgh), rather than a devil from the Homeland Security Department's helm.

Until Bush names a Gonzales replacement, whose nomination will need Senate confirmation, it appears that the acting attorney general will be Acting Deputy Attorney General Craig S. Morford. 

Thanks to my brother First Amendment Lawyers Association member Marc Randazza for sending a listserv message on this news item. Here is Marc's strongly-worded blog entry on the Gonzales news.

Among the legions of blogs covering this news item are: TalkLeft (here and here), and Michelle Malkin's rightwing blog (I vehemently disagree with Malkin's views, but here she expresses what plenty of far rightwingers probably are thinking about Gonzales and his potential replacement). Jon Katz.