UNDERDOG - JON KATZ, Criminal Defense in and beyond the Capital Beltway.

Washingtonian Magazine has renewed my Top Lawyers ranking in its December 2007 issue at page 145. When Washingtonian last published such a ranking, in 2004, I was included for the first time in that listing. 

Washingtonian calls the list "800 Top Lawyers" with the following description: "Here are Washington's best -- the top 1 percent -- in 26 legal specialities." Washingtonian further describes the list: "This is the fifth time that The Washingtonian has compiled a list of top lawyers. It is created primarily by peer recommendations. We asked, by telephone and e-mail, some 1,000 attorneys who (excluding themselves and members of their firms) the top practitioners in their fields are and whom they would hire to represent them in a range of areas."

Why should I even be speaking of this ranking? The magazine admits it is subjective. On the other hand, I like that a magazine as mainstream and widely-read as the Washingtonian gives exposure to such lawyers as myself who focus on doing good with the law, rather than on pleasing the mainstream.

Do I like the publicity that this ranking brings our firm? Certainly, just as I also like putting my AV-rating and media appearances on the back of my business card. The Washington, D.C., area, is an incredibly competitive market for providing legal services. Such free publicity helps us avoid spending much on marketing, and to focus our time on serving our clients and our revenue on quality support staff. Of course, I get a kick from media exposure, always tempering it with the knowledge that silence is sometimes the best substantive response to the media.  Jon Katz.

 Bill of Rights. (From the public domain.)

In such Virginia counties as Arlington and Fairfax, ringing cellphones are confiscated in the courtroom and returned only the next business day. In the federal courthouse in Alexandria, cellphones, blackberries, PDAs and the like are banned. In Robert Restaino's courtroom one day, however, he ordered dozens of people in his courtroom locked up as collective punishment for the ringing of an unknown person's cellphone.

Two weeks ago, New York's Commission on Judicial Conduct put its foot down, and voted to strip Mr. Restaino of his black robe. Let us count the ways in which Mr. Restaino urinated on the Constitution: He ordered a five-minute recess for courthouse personnel to search for the phone, during which time all courtroom visitors were unlawfully detained by having been barred from leaving. He interrogated courtroom visitors about the cellphone without telling them their right to remain silent, and which put him in the role of prosecutor, judge and jury (granted, a jury trial right may not have been available). He overruled the pleas of phone-ringer suspects to avoid lockup to enable a medical visit for possible surgery, and to be home for school for a young child. He locked up dozens of people over the cellphone incident without having probable cause to do so (and for what crime? Contempt of court?), and without sufficient grounds to set bail (apparently setting the same bail for everyone, rather than bail individually tailored to assure each person's return to court for a hearing on the matter) rather than permitting the suspects (over a dozen of whom could not afford the bail amount) to be permitted to promise to return to court. Ultimately -- but too late -- he reversed his position after learning that the news media was hot on this story.

The New York Commission on Judicial Conduct determined that "Throughout all the proceedings that morning, [Judge Restaino] did not raise his voice; he appeared calm and in control." Too bad he did not have the restraint, then, not to commit the blunder that he committed by detaining, interrogating, and locking up dozens of people obliged to be in his courtroom that day.

In sum, judges are humans, and, therefore, can make mistakes, and even blunders. Collectively, they should not be cloaked in anything more glowing than that. Jon Katz.

ADDENDUM: Articles on this scandal are here, here, here, and here.

 Bill of Rights. (From the public domain.)

A few years ago, an ACLU staffer told me that her son -- already a Republican -- surmised aloud that she probably would be pleased if he grew his hair long and wore an earring. She confirmed he was correct; he responded that this was the reason he did not do it.

I took to activism when my family members were not activists (and at least one counseled several times to "play the game," although I have never thought there was just one game, and have thought the notion strange of being expected to follow the rules of a game I had nothing to do with creating), aside from an uncle who talks passionately about justice and a brother whom I joined for two protests against Gulf War I ten years after I became active with Amnesty International. For me, making such decisions was about figuring out what was right, rather than reacting against or in favor of any family members.

When they deviate from their parents' political paths,. children seem to do so sometimes as a way to feel independent, sometimes for reasons divorced from the parents, and sometimes after having had a chance to observe, experience and dislike the parents' political path. Interestingly, the three children of famous peace activists Elizabeth McAlister and the late Phil Berrigan (a good friend and teacher) all admired their parents' activism very much, and joined in it to a substantial extent. The three children grew up not only to activist parents, but within the Jonah House non-violence resistance community in Baltimore, which I have enjoyed visiting several times.

Here is a video of Liz and Phil's eldest daugher, Frida, discussing the activism of her parents, and her own activism. Aside from their overall optimism -- tempered by their deep sorrow over the violence saturating the world -- one thing in particular that inspires me about Frida, her parents, and the Jonah House community members is their absence of fear about death, and about achieving financial security, let alone their disinterest in accumulating massive wealth. The Jonah House members are singleminded in the pursuit of peace.  Jon Katz.

Bill of Rights. (From the public domain.)

When one of my clients is charged with such offenses as sexual assault, child pornography distribution and soliciting a minor online for sexual activity, inevitably we end up discussing exposure to registering as a sex offender in the event of a conviction. People required to register as sex offenders do not only face being listed on sex offender registry websites, but -- depending on the state -- also face being banished from living in wide swaths of land that are within specified distances from schools, parks, and various other places where minors tend to be found. In one state -- Florida, I believe -- some registered sex offenders find that living under bridges sometimes is their only remaining alternative to satisfy the living distance requirements.

Georgia statutory law designates so many locations -- including school bus stops -- from which registered sex offenders may not live within one thousand feed, that registered sex offenders cannot find houses and apartments in which to live. Fortunately, the Georgia Supreme Court on November 21, 2007, struck down such overly broad residence restrictions, leaving the state's legislators to go back to the drawing board.

My quick review of the Georgia Supreme Court's opinion does not suggest that the court will prevent all distance limits on where registered sex offenders live, but that the court found the current statutory residency requirements so overbroad as to strike them down wholesale rather than narrowing the statute. However, the Georgia Supreme Court refused to invalidate the statutory provision that create distance limits concerning where registered sex offenders may work. Jon Katz.

ADDENDUM: Thanks to Corey Yung for blogging on this case.

A recent New York Times article reports that prosecutors in such states as New Jersey are paring down their reliance on civilian witnesses, to reduce obligations to protect witnesses in a climate where the police often are unable to protect witnesses' safety. Nevertheless, if the prosecutor knows that any witnesses have exculpatory information, the prosecutor must disclose the witnesses' identifying information under Brady v. Md., 373 U.S. 83 (1963). Jon Katz.

ADDENDUM: Thanks to Scott Greenfield for having posted on this article.

Too many people are unjustly caged in United States prisons. (Image from Bureau of Prisons' website).

On a visit today to the National Geographic's wildlife exhibit in Washington, D.C., I happened upon an information card about tonight's airing of Prison Nation on the National Geographic Channel at 8:00 p.m. Eastern time.

A National Geographic blogger listed some of the most outrageous facts about the American prison system, as follows:

"The U.S. has five percent of the world’s population, it has 25% of the world’s inmates. California operates the third largest penal system in the world, right after China and the United States. 80,000 inmates are kept in isolation nationwide. A rising suicide rate is linked to the increasing use of solitary confinement. Nearly 70 percent of inmate suicides are in isolation. 25% of all state prison beds are occupied by the mentally ill. Tops in Los Angeles county jail, followed by New York’s Rikers Island."

"700,000 inmates are released from prison each year - more than two-thirds of them end up back behind bars within three years. Assaults on inmates have risen 65% in the past decade."

I do not think we will achieve a fair and just criminal justice system -- including policing, prosecuting, judging, imprisoning, and releasing and supervising on probation and parole -- until people insist on and achieves a radical and positive overhaul of policing and police hiring, training, supervision, and discipline; and of the rest of the criminal justice system, including heavily decriminalizing drugs (and legalizing marijuana), eliminating mandatory minimum sentences, and eliminating criminal penalties for activities as minor as prostitution. That is my modest proposal. Jon Katz.