UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

The American Bar Association for years struck me as a curious organization. Early on, I pigeonholed the group as overly mainstream, at best, with presidents from big law firms with hiring standards that I could not meet for class grade rank and law review membership. (During law school, on the one hand I had an ideal of a public interest law career, but also was very interested in working at such huge Washington, D.C., law firms as Arnold & Porter, Covington & Burling, and Hogan & Hartson that have spirited pro bono programs, some great lawyers to learn from, and top salaries (which salaries come at the price of working long and efficient hours to bill enough to justify those high salaries eventually, and, I assume, at times to work on the side that oppresses people, which is a counterpoint to the firms' pro bono programs). If I had been hired by one of the foregoing law firms and received favorable performance evaluations, it would have been harder to take the leap to public defender work followed ultimately with my Underdog lawyering work as my own boss, so I owe thanks of sorts to such firms for keeping me out of their hiring radar).

Founded in 1878, for decades the American Bar Association excluded African-American lawyers. The National Lawyers Guild was founded in 1937 as an alternative to the ABA's segregationist membership policy and reality, with the ABA waiting until the 1940's to start admitting African-American members. By now, the ABA has a very active Individual Rights and Responsibilities section, and this very establishment organization, fortunately, does some very good things for justice.

With that backdrop, I am pleased to report that this week the ABA called for a nationwide moratorium on executions, saying that "[w]hile the ABA takes no position for or against the death penalty itself, since 1997 it has urged a moratorium in each jurisdiction that provides for capital punishment until the state conducts a thorough and exhaustive study to determine whether its system meets legal standards for fairness and due process." The ABA's Death Penalty Moratorium Implementation Project recently issued its key findings of flaws so serious in the death penalty system as to necessitate a moratorium. The key findings show serious flaws in all of the following areas: "(1) collection, preservation, and testing of DNA and other types of evidence; (2) law enforcement identifications and interrogations; (3) crime laboratories and medical examiner offices; (4) prosecutorial professionalism; (5) defense services; (6) the direct appeal process; (7) state post-conviction proceedings; (8) clemency; (9) jury instructions; (10) judicial independence; (11) the treatment of racial and ethnic minorities; and (12) mental retardation and mental illness.  While the requisite data often was not collected, maintained, or made available in a way that made analysis possible, general themes emerged in each of the topic areas.  Ultimately, serious problems were found in every state death penalty system."

Of course, the above-listed flaws in the death penalty system also are the serious flaws in the entire criminal justice system. Death is the ultimate punishment and the ultimate form of torture (a phrase spread by Amnesty International), which justifies starting with the capital punishment system in fixing the criminal justice system -- at least if it is necessary at all to focus on one part of the criminal justice system rather than taking on the whole system at the same time -- but efforts to fix the criminal justice system must ultimately apply to the entire system, and not exclusively to the death penalty machine.

In any event, thanks to the ABA for calling for a nationwide execution moratorium. This call will persuade many ears in the so-called national mainstream who will not be as easily persuaded by such less-mainstream-seeming groups as the American Civil Liberties Union, the National Coalition to Abolish the Death Penalty, and the National Lawyers Guild. Jon Katz.

ADDENDUM: Thanks to the National Coalition to Abolish the Death Penalty for having posted to its website the news of the ABA's call for an execution moratorium.

Image from public domain.

One of the enjoyable parts of my law practice is going on the road and getting a chance to meet people and to have experiences beyond my doorstep. Long drives to outlying courts and to inmates preparing for trial often are soothed by beautiful mountains for hiking and waterways ready for a canoe or kayak adventure, while leaving the roadway as a distant memory. Post-court time -- at least when the outcome is a good one -- gives me a chance to explore some interesting small towns and cities before heading back to the office and my other clients' cases. A stop for a banana once led to a conversation with two neighborhood men sitting out front, drawing my attention to the first double rainbow I ever have seen.

My travels also bring me in touch with head shops and head shop items, including a gas station selling pipes of the type favored for marijuana smoking.

Head shops tend to be fascinating places, with many beautiful sights for the eyes, including the design and craftspersonship of many pipes made of glass, wood, and metal. Some have themes. One shop, since closed (possibly after police pressure, which would have been unfortunate), celebrated marijuana legalization. Another, just a few blocks from the county courthouse, celebrates reggae culture, and, in addition to pipes, is filled with reggae and Rastafarian-themed t-shirts, books, magazines, music, buttons, posters, magazines giving the lowdown on upcoming music festivals and concerts, candles, incense, and the list goes on. Another shop has a Grateful Dead theme, including beautiful homemade tie-dyes, mainly focused on children and babies, thus passing on this great art form to the next generation.

Then there are the killjoys, those who are stuck in a Reefer Madness timewarp and information warp, passing, supporting, and trying to enfoce laws not only focused on suppressing marijuana (nobody can eliminate such an easily-grown and beneficial weed), but on criminalizing not just pipes and rolling papers (which can be used interchangeably to smoke tobacco) but, in some jurisdictions, even to make it criminal to possess ziplock baggies with the intent to package controlled drugs in them.

I salute the head shop owners who stand up to these killjoys and in favor of their customers by providing an atmosphere of joy, music, art, and culture in their shops as they simultaneously earn a living. I encourage like-minded people to support their local and non-local head shops by patronizing them often. Even non-smokers like myself have plenty of music, t-shirts, books and other interesting items available to buy. What a wonderful way to light a candle rather than cursing the darkness. Jon Katz.

ADDENDUM: Click here for my articles supporting the legalization of marijuana for medical and recreational use.

Praised be the Maryland Court of Appeals for prohibiting traffic stops premised on car window tinting unless the stopping police officer's observation is in the context of "what a properly tinted window, compliant with the 35% requirement, would look like. If the officer can credibly articulate that difference, a court could find reasonable articulable suspicion, but not otherwise." Maryland v. Arvel D. Williams, __ Md. _ (October 19, 2007).

In this Maryland v. Arvel D. Williams case, try as he might have while following the defendant, the arresting officer was unable to find any reason to stop the defendant's car other than for a suspected window tinting violation. The cop was making a pretextual stop -- intending on investigating for drugs and calling a drug sniffing dog to sniff the defendant's car during any processing of a ticket to be handed to the defendant -- and found no basis for alleging any violations of the law other than the positive result from the drug dog.

A four-to-three Maryland Court of Appeals majority determined that whether one applies the reasonable articulable suspicion standard (which two in the majority and all three in the dissent used) or probable cause standard (which two in the majority insist upon) for making a pretextual Whren stop, the stop and any subsequent search of the vehicle will be suppressed unless the police officer's observation is in the context of "what a properly tinted window, compliant with the 35% requirement, would look like. If the officer can credibly articulate that difference, a court could find reasonable articulable suspicion, but not otherwise." Maryland v. Arvel D. Williams. In a footnote, the majority continued:

"There are two other aspects not argued in this case but which may be relevant to stops for tinting violations. First, the issue here is only the validity of the pretextual stop, not the equipment repair order or the indictment for the CDS violations. As presented in both the Circuit Court and this Court, the validity of the stop depends on the application of Fourth Amendment jurisprudence, and, as to that, we have concluded that the proper standard is reasonable articulable suspicion. Appellee has not argued that some higher standard is required under Maryland law. We do note, however, that, to justify actually charging a person with a motor vehicle violation, Maryland law requires that the officer have probable cause to believe that the person has committed the violation. See Maryland Code, § 26-201(a) o f the Transp. Article.

"Second, as noted, COMAR 11.14.02.14 requires, for post-manufacture tinting, that a label, ½ x 1-½ inches, denoting, among other things, the percentage of light transmittable, be permanently attached to the window, between the glass and the tinting film or laminate. If an officer stops a car based solely on a conclusion, derived from his or her visual observations of the darkness of the window, that a tinted window is noncompliant with the 35% light transmission requirement, one easy preliminary step, before proceeding further, is to check the window to see if such a label is present, for if it is and (1) it shows that the window is compliant with the 35% requirement, and (2) there is no reason to suspect that the label is not genuine, any suspicion that arose from the visual observation would likely disappear . In that event, the officer would be obliged to apologize to the motorist and allow him or her to leave without further detention. On the other hand, if there is no label or the label appears not to be genuine, that alone may justify a citation under § 22-101 or § 23-105(a), a repair order, and some further
investigation."

Curious about this case is that the majority and dissenting opinions each have a retired judge on board. Will a majority be mustered to uphold the current majority's conclusion when and if the issue is revisited by the Court of Appeals judges with only the full-time Court of Appeals judges participating?

Also interesting about this case is that the trial judge below ordered the suppression of the drugs found subsequent to the stop for the alleged tinting violation, which is a nice change of pace from the cases where defendants wait over a year to get appellate relief where the trial court erroneously denies a suppression motion.

Finally, this case should put trial judges on notice that a big gap exists between reasonable suspicion for stopping cars and people on the one hand, and accepting a police officer's views hook, line and sinker on this other hand. This Maryland v. Arvel D. Williams case provides further support for requiring suppression motion hearing judges to permit extensive inquiry by defense lawyers into cops' credibility and motivations not only for stopping a car, but also for detaining a driver long enough for a drug dog to arrive and start sniffing, for believing that the stopped car or its license tags are stolen, and for believing that probable cause existed for searching on the basis of a marijuana odor in the car (what if the odor is faint or if the odor is allegedly of unburnt marijuana?) Jon Katz.

A huge problem I have faced with my decades of civil liberties activism are the often attendant feelings of upset, anger, and disbelief at the extent to which people step on other's basic liberties, often in the guise of well-meaning politicians, judges, prosecutors, cops, and government bureaucrats, as well as from such other power structures as the rest of the government-military-industrial complex. That is what I get for not having pursued the path of blissful ignorance.

On the immigration front, in law school, I finally learned how deeply the spirit of McCarthyism survived his Senate censure to this day. Repeatedly, the United States government bans and substantially impedes even brief visits by non-citizens to the United States (even for lecture circuit purposes) on the basis of ideology and speech. Those banned include Nelson Mandela (listed as an "undesirable alien" until 2003, requiring special permission to enter the United States); Gabriel Garcia Marquez (who had to apply for special permission for each entry to the United States, through 1996, due to his leftist leanings and friendship with Fidel Castro); and John Lennon (who was subjected to an attempted ban in the early 1970's, when the United States government mightily tried to deport him due to his pro-peace stance). When comparing the dates of these exclusionary efforts to the presidents in office, we see that such Democratic administrations as Clinton's allowed such bannings; once again, as in the First Amendment squelching arena (and bannings of such visitors amounts to censorshiop of their voices, too), neither major political party has a monopoly on such repressive activity. More on this sad state of affairs is here at the American Civil Liberties Union's website.

Such banning of brief visitors for their views and voices amounts to government censorship that often goes below the public's radar. As we gear up for the 2008 Presidential, House and Senate elections, please include considerations of what those candidates will do about the rights of non-United States citizens to visit the United States, and the rights of United States citizens to meet and hear visitors with views different from the presidential administration or the majority of Congress members. Jon Katz.

On October 22, 2007, a mistrial was declared in the federal terrorism prosecution against the Holy Land Foundation and five of its former leaders. About this mistrial, American Civil Liberties Union National Security Project staff attorney Hina Shamsi wrote:

"HLF was the nation's largest Muslim charity before the government shut it down and accused it of providing "material support" to a foreign terrorist organization. The group had made donations to local "zakat" committees that provide humanitarian aid in the West Bank and Gaza Strip. (Zakat is a form of tithing and one of the obligatory five pillars of Islam.) Although the government claimed the committees were controlled by Hamas, the committees were not designated terrorist organizations and the U.S. government did not allege that HLF intended to support terrorism or that its funds were actually used for that purpose. (Full disclosure: the ACLU represents two of the HLF defense lawyers in our lawsuit challenging the National Security Agency's warrantless surveillance program.)"

We must remain ever-vigilant to speak out against governmental abuses of individual liberties. Jon Katz.

Image from Bureau of Prisons' website.

Oak Hill is a District of Columbia jail for males, located in Laurel, Maryland. Recently nine Oak Hill inmates were sent on a survival program, apparently to help them better adjust to society. Fine and dandy if the result is to release them from incarceration at the end of successfully completing the survival program, but quite another thing if the inmates are returned to incarceration, which they were. Jon Katz.

Deaf Law blog, which last posted over five months ago, has two important posts about police mistreatment of deaf people. In one instance, police in Modesto, California, fired upon a deaf motorist who did not hear -- and, therefore, did not follow -- police commands to get out of his car. The police did not stop to think he might be deaf; they did try addressing him in Spanish, which clearly was of no help.

In another instance, Deaf Law blog reports on a confidential litigation settlement by a man who filed a complaint alleging unlawful arrest and detention arising from a warrantless search, and a violation of the Americans With Disabilities Act not only for the police failure to provide a sign language interpreter, but also for the ongoing handcuffing of the arrested man, which deprived him of his main means of communication. More information on this case is here.

I hope Deaf Law blog resumes its blogging activities. Jon Katz.

Image from the Government Printing Office's website.

This follows up on my October 19 blog entry about my then-upcoming panel interview for that evening about the pros and cons of gun control, including my discovering only after the interview about the program's links to Press TV, which is at least partially funded by the Iranian government.

This televised panel discussion and debate provided me an opportunity to hear the views of others dealing with this topic all the time, and to get my own views out to the public, not only about my insistence that we not be disingenuous to the Second Amendment nor to any other parts of the Constitution, but also to let viewers know that innocent people often get dragnetted into gun arrests (the same thing happens with drug arrests); that many people live in states that permit carrying a handgun in one's car, only to be arrested (sometimes on charges of speeding or other moving violations) in another state that does not permit such activity, without knowing that in advance; and that the mandatory minimum sentences for possessing a handgun in relation to a drug felony (even if the drug felony is possession with intent to distribute a few ounces of marijuana, which I strongly believe should be legalized) are unjust.

On the four-person panel were two firm gun control advocates, a gun ownership/use advocate whose gun rights views are at times firmer than those of the executive director of the National Rifle Association, and myself, who says that the Second Amendment needs to be amended before the federal, state and local governments are permitted to limit firearm possession close to the current level of limitations. The two gun control advocates consisted of a gentleman whose son was murdered with a handgun in the District of Columbia, and a fellow local National Lawyers Guild member who has been supporting Brady bill types of legislation.

Asked for my thoughts about American society's rampant violence, I responded that the answer goes well beyond the widespread availability of handguns. For one thing, when deprived of firearms, people wishing to commit violence have such alternative options as knives and explosives made from material that is easily obtained (e.g., Molotov cocktails). I said that violence often happens because of societal desensitization about violence and feelings of disconnect in society. I got nods of agreement from the pro-gun control panelists when I said that America's constant warmongering helps desensitize people about violence. I also pointed out that Oklahoma City bomber Timothy McVeigh served in the military during the first Iraq war in 1991. The gun rights panelist insisted the current Gulf War was justified for having removed a "sadistic dictator."

Further discussing the causes of violence in America, I pointed out the frontier mentality that still overly pervades American society, with too many people having an attitude of "Hooray for me. To hell with you." I said that everyone needs to reach out to everyone else, starting with the people living right next door to us. I also got nods of agreement from the pro-gun control panelists when I pointed out that desensitization about violence also arises from too many police officers being too trigger happy with their tasers and guns.

At the conclusion of the taping, I went over to the man whose son was murdered, and told him I was sorry that his son had been killed. He thanked me and gave me a hug, rather than shunning me for my views.

From the time I was invited to this interview, I started trying to make sense of what the Arab Television Network is all about, this being the television station that conducted the interview. It appears that the station is too new to have any useful Google coverage. The station is based in Denmark, and its website has limited information.

One of the station's employees expects the interview will soon be uploaded to PressTV.com (and possibly portions on YouTube) under the section for the "American Dream" program that handled the interview. Press TV's website says: "PRESS TV is the first international Iran-based news network to broadcast in English on a round-the-clock schedule. Our Tehran-based headquarters is staffed by media professionals from around the world. PRESS TV has an extensive network of bureaus located in the world’s most strategic places." The International Herald Tribune reports that the station launched just over three months ago. Other reports confirm that Press TV is at least partially-funded by the Iranian government. An article on IndyMedia.org quotes Amir Afra -- who produces and hosts Press TV's "Fine Print" program -- as saying: "We're state-funded, not state-governed... We are like so many non-governmental organizations that receive state funds. We have our own editorial board."

A host of "American Dream" (different from the host when I appeared) is Mark Levine, who claims he is not being censored on the show, and who confirms the show's affiliation with Press TV.

Consequently, I wonder why the woman who invited me to the panel interview characterized it as an interview by Arab Television Network rather than an interview for a show running on Press TV. In any event, an interviewee always runs the risk that an unfamiliar interviewing news organization will have an agenda opposite that of the interviewee.

Would I still have appeared on this program had I known its connections with Press TV? I probably would have wanted to dig into what Press TV is all about before making a final decision. Even now I do not have enough information about the extent to which the station is as independent as it claims from the Iranian government. Jon Katz.

ADDENDUM: On December 13, I accepted an invitation to return to the same "American Dream" program, this time about the December 6, 2007, mall shootings in Nebraska. The person inviting me, from ATV, told me that she always tells interviewees that the program broadcasts on Press TV. Therefore, if I mis-heard about Press TV when invited for the above-described October 19 "American Dream" appearance, I apologize about my original comments about that in the above blog entry. Whether or not I misheard, now I know the nature of Press TV, and told the person inviting me on the show for December 13 that I accepted the invitation so long as I will not be censored, which she said I will not. If it were only so easy to know something is so just because someone says it is so.

On September 30, I blogged about the October 13 whirlwind weekend of local appearances and performances by Bill Griffith, Andrew White and Ben Lo.

Happily, I got to the Small Press Expo, where the shadow of Zippy creator Bill Griffith loomed large. Unfortunately, I missed attending another annual t'ai chi learning session with superstar teacher and practitioner Ben Lo, and missed hearing Andrew White perform jazz live.

My main motivation for visiting the Small Press Expo -- which focuses on underground and alternative comics -- was to catch a glimpse of Bill Griffith. I got much more than I bargained for, having been second in line to meet with him immediately upon arriving in the exhibition hall.

Bill Griffith is a class act. He very much likes and appreciates his fans. While keeping one eye on Bill and the other on my son -- who started walking back towards the sign-in area -- I thanked him for his sharing his amazing creativity with the world. I often forego seeking autographs, but was interested in having both the karma and artistry of Bill's. I e-mailed him the next day seeking his permission to upload his autograph, which he gave. I have e-mailed Bill before, also receiving specific replies that clearly were from him. Imagine such an accomplished creator who stays in such frequent contact with his fans; in fact, his webpage says an effort is made to answer within twenty-four hours.

I also got a chance to hear most of Bill's slide show presentation later the same afternoon, which included Bill's initial efforts to become a "serious artist" and later efforts to make some easy money by offering his cartooning talents to Screw magazine. Bill talked about the origins of Zippy from one or more actual circus sideshow characters from many generations ago, at least one of which had "pinhead" in his name. Bill's mother was a science fiction writer, and his dad a stiff career military person; he thinks his personality displays some of both.

Returning to the exhibition upstairs, I had to take the escalator and pass by a very formal wedding party, with the professional photographer snapping away while trying to crop out the very informally-dressed (to say the least) comics expo attendees passing by. It is rather strange if the convention hotel did not think to tell the wedding party that they might want to consider the crowd next door.

At nearly every exhibition table was the actual creator of the material being promoted. Without exception, the many creators I met were very accessible to me and the other attendees, and seemed very happy to have a chance to interact with the alternative comic-reading public. High quality comics and accessories abounded. In addition to my meeting with Bill Griffith, I particularly enjoyed speaking with Ted Rall, whose work previously was carried in the Washington, D.C. City Paper.

The Small Press Expo took place at the Marriott hotel about ten miles up the street from Georgetown in Washington, D.C. The West Coast probably has a parallel and larger annual shindig in San Francisco; meanwhile, I am very happy to have such an annual event just a few miles from where I live.

I understand that proceeds from the event partially benefit the very worthy Comic Book Legal Defense Fund, which apparently has been at the forefront of defending the First Amendment rights of alternative comics. It is sad that such censorship exists in the first place.  Jon Katz.