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Thursday, February 28. 2008
Bill of Rights. (From the public domain.) Thanks, Scott Greenfield, for posting this link to interviews of eight Supreme Court justices talking about appellate writing and advocacy. Regardless of one's personal opinion about a particular judge, justice or court system, when a lawyer chooses to enter the courtroom arena, the lawyer must know the judge. This link assistas on that path for Supreme Court advocacy. Jon Katz.
Thursday, February 28. 2008
Bill of Rights. (From the public domain.) One percent of adults are behind bars in the United States (see the 2008 Pew Charitable Trust report here and a related news article here). Imagine the financial, psychological, and social drain illustrated by such a statistic. As I have repeatedly said, 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. Certainly, if marijuana were legalized and other drugs heavily decriminalized, much less than one percent of the adult population would be behind bars in this country. One obstacle to achieving such needed drug law reform is the expected resistance from so many people who profit very handsomely from the nation's overgrown criminal justice system, including government contractors who build jails, prisons and courthouses; police prosecutors, judges, probation officers, and government-paid indigent defense counsel; and the many companies that operate privately- run jails. Meanwhile, talk about the level of hyper-control the United States government and state governments are able to exert by having one percent of the adult population locked up. So much for the land of the free and the home of the brave. Jon Katz.
Wednesday, February 27. 2008
Among my many influences from the Sixties are the Chicago Seven/Eight trial (the number of trial defendants went to seven after Bobby Seale was separated from the remaining defendants, but not before the trial judge ordered him bound and gagged); Ram Dass and his heavily influential Be Here Now; Bhagavan Das, who introduced Ram Dass to being here now; and Jack Kerouac, whose 1950's On the Road approach to life and writings heavily influenced the hippie movement. Now in movie theaters is the Chicago 10 film from writer-director Brett Morgen, which I look forward to watching. The number ten in the film's title comes from adding criminal defense lawyers William Kunstler and Leonard Weinglass to the original eight defendants. Posted above is the movie preview. If you see the film, I look forward to seeing your comments posted here. Jon Katz
Wednesday, February 27. 2008

Jon Katz(l) and the legendary McCoy Tyner (r) (Thanks to my brother Jeff Katz for digitally enhancing this photo from the underexposed cell camera original.) One thing I love about digital photography is that it reduces the need for using gelatin (ordinarily from slaughtered animals), which is common in the printing of photographs from film. Another thing I love about digital photography is the possibility of salvaging underexposed photos. Above, for instance, is my brother Jeff Katz's success in saving an underexposed cell camera picture of me and McCoy Tuner from February 24 (the extraordinary meeting is blogged here) through extrapolating digital information and making an artistic rendering. Of course, this whole topic brings me back to the argument that child pornography possession cannot be proven beyond a reasonable doubt without expert testimony for the prosecution that virtual images are not actually being presented. For an idea of how far virtual digital imagery has come, see this virtual image. Jon Katz
Tuesday, February 26. 2008
Photo from website of U.S. District Court (W.D. Mi.).
Wicomico County, Maryland, chief prosecutor Davis Ruark risks losing his eighteen-year post if convicted for his February 22 arrest for drunk driving and possessing a handgun while under the influence of alcohol.
Mr. Ruark hopes he will be forgiven for this incident. Last Saturday he admitted to drinking alcohol in Salisbury -- where Perdue chicken is headquartered -- after working late that Friday night, and then driving to Ocean City in a government-owned vehicle. Ironically, his car had been government-seized through forfeiture from its previous owner after an arrest, with governments nationwide, unfortunately, reaping all sorts of treasures through successfully obtaining court-ordered forfeitures of property allegedly connected to drug crimes and certain other crimes. The distance Ruark drove from the bar to Ocean City was around thirty miles. Were Ruark just any old anonymous person, his prosecution would be rather unremarkable. Even if his breathalyzer test result accurately reflects his blood alcohol level at the time of driving -- breath testing machines obviously can only test for the alcohol level at the time of the test, alcohol levels can increase as time passes (through ongoing absorption of alcohol into the bloodstream), and the tests are ripe for flawed results -- the 0.15 blood alcohol result is a commonly seen BAC level for drunk driving cases, and does not automatically translate into significantly impaired driving. Mr. Ruark also is being charged with the misdemeanor of wearing, carrying, or transporting a handgun while under the influence of alcohol, under Md. Pub. Safety Code § 5-314; he had a handgun carrying permit, apparently after having received death threats related to prosecutions, so cannot be prosecuted for mere possession of the handgun. As sometimes happens in Maryland, the court docket has not yet recorded his drunk driving case online, but has recorded his handgun case here, showing that Mr. Ruark is being defended by Ocean City lawyer Richard Parolski.
Unfortunately, even unremarkable prosecutions can have devastating effects on convicted people, starting with the risk of jail, proceeding with suspended driving privileges for drunk driving cases, and going further to collateral risks to one's immigration status (but not for a drunk driving conviction that does not involve a collision), any security clearance, and any employment by the military (even for run-of-the-mill drunk driving convictions, as Mr. Ruark knows full well, in explaining one of the reasons that his son with military aspirations succeeded in getting his drunk driving case dismissed last December in the same Worcester County where State's Attorney Ruark is now being prosecuted).
Too often when I try to persuade prosecutors to reach dispositions that avoid such devastating collateral consequences, I receive a rote or flip answer that my client only has himself or herself to blame for doing the act that exposed him or her to such collateral risks. Oh, yeah? What if my client is innocent (too many innocent people get convicted) and is facing such risks?
Wicomico County Executive Rick Pollitt said: "It's tragic if a whole career is thrown out the window for a very, very serious lapse in judgment." Similarly, all criminal defendants should be given the same consideration about the collateral consequences of convictions, by receiving more sensitivity about the situation from prosecutors and by changing the laws that put immigrants (and soldiers in the instance of certain petty crimes including unremarkable drunk driving offenses) at risk for a whole host of convictions.
This is also a time to re-think unjustly inflexible get-tough approaches to crime, including Mr. Ruark's own Project Exile program against handguns, where he himself now is being prosecuted for a handgun offense.
Davis Ruark's prosecution is not a time to gloat; it is a time to achieve more positive reform of the criminal justice system. Jon Katz
ADDENDUM: Thanks to the reader who corrected my previous mis-statement about where Mr. Ruark's son was prosecuted for drunk driving. The inaccuracy remained online for a few hours, and has been corrected.
Tuesday, February 26. 2008
When I joined the First Amendment Lawyers Association in 2001, one of the longtime members who stood out as a welcoming figure was Percy L. Julian, Jr. He came across as a skilled lawyer with no big ego. Sadly, Percy died this past Sunday, at 67. Fellow FALA member Jeff Scott Olson and close friend to Percy said: "He was a model for other lawyers in how to be a good lawyer and a kind heart at the same time," and "how to live a full, full life." Jeff further said of Percy: "He was a pioneer in the field of civil rights litigation ... He started out during the time of Martin Luther King Jr. and was one of the people who made the civil rights laws passed in the King era real tools for justice, especially for African-Americans." I feel honored to have known Percy, even though it was through a few brief conversations at the four FALA meetings that I have attended thus far, in addition to hearing him speak at one or more of those meetings. Thanks, Percy, for you. Jon Katz.
Monday, February 25. 2008
Bill of Rights. (From the public domain.) Thanks to a listserv member for announcing this week's seminar on "Practicing Human Rights Law in America," which runs February 25-28 at the George Washington University Law School (from where I graduated) in Washington, D.C. The agenda is here. The program starts at 4:30 p.m. each day. Today's two panels will cover the death penalty and "Helping Refugees and Victims of Human Trafficking." Included on the death penalty panel is Diane Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty. Diane has a special place in my heart; I first met her twenty years ago when she spoke at my law school on the death penalty along with Leigh Dingerson (then the NCADP executive director) when Diane was at the ACLU fighting the death penalty. Wednesday and Thursday each have three panel discussions, plus a film screening of Rape Is...on Wednesday and a concluding reception on Thursday. I did my best during law school to light a candle for justice while reading many distressing poorly-decided Constitutional opinions which often made me wonder whether anybody other than the late Justices Brennan and Marshall gave enough of a damn about giving true meaning and teeth to the Bill of Rights and the rest of the Constitution. In that regard, fellow student David Epstein and I started a law school Amnesty International chapter, and I ultimately turned my obsession over learning how deep and wide run human rights violations in the United States, into heavily positive energy which stays with me to this day. Subsequent to my law school graduation, the clinical program there added the International Human Rights Clinic. The clinic has been supporting extraditing former Peruvian leader Alberto Fujimori to Peru. One thing that made me feel more distant from Amnesty International was its repeated calls -- after I finished law school -- for bringing human rights violators to "justice". I pointed out my reservations on this to an Amnesty member involved with one of these calls to "justice", not only because I have not yet found any prosecutorial system that I sufficiently trust, but because it is ironic to seek to have a human rights violator "brought to justice" by the same justice system that spreads injustice. I have similar reservations about the law school human rights clinic's support for extraditing Fujimori. This particular Amnesty member did his best to justify this "bring to justice" approach, and I continue having my reservations. In any event, the immigration law clinic was among my favorite parts of law school, especially when I helped obtain political asylum for one of my clients (another asylum-seeking client was denied at his deportation hearing, when we were unable to overcome the high hurdle of his alleged shopping for a third country before arriving in the United States). It is great to see the human rights message being shouted loud and clear through this week's "Practicing Human Rights Law in America" program. Jon Katz.
Monday, February 25. 2008
The Bill of Rights.should apply no more nor more less to an arrested prosecutor than to anyone else. (Image from the public domain.) Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me - Publius Terence. So many prosecutors and cops so often sneer when I make arguments to them or to sentencing judges in the above vein. Now, the same argument is being presented by the longtime elected Wicomico County, Maryland, chief prosecutor after his arrest for drunk driving in neighboring Worcester County. Wicomico State's Attorney Davis Ruark said of his arrest from last Friday, which involved an alleged 015 blood alcohol content reading: "I am human ... We are all human and we are subject to make mistakes and when you make a mistake you learn from it and you don't do it again. And this will never happen again." While Mr. Ruark remains in office, I hope he practices as his above quote preaches, and urge all other prosecutors, police, and judges to do the same. Jon Katz ADDENDUM: Thanks to my law partner Jay Marks for sending me the listserv posting that carries the newslink on this story.
Monday, February 25. 2008
Bill of Rights. (From the public domain.) On February 7, 2008, Maryland's intermediate appellate court issued a lengthy opinion on the rules governing the admission into evidence of a witness's prior inconsistent statements for impeachment purposes. Though I have not yet read the full opinion, of particular note is that the appellate court determined that the trial judge applied the necessary balancing test for admitting such evidence, even though the record does not show the judge articulating any balancing considerations. Steven Jones v. Maryland, _ Md. App. _ (Feb. 7, 2008). I hope this case gets picked up by Maryland's highest court, the Court of Appeals. Jon Katz
Sunday, February 24. 2008
This 2005 video shows how McCoy Tyner plays as if he had a third hand, including at the 6:45 through 7:40 minute mark. My inextricably intertwined connection to jazz and criminal defense practice is explained here. My related deepening fascination with John Coltrane and his music are covered here. Coltrane is such a big influence on me that he has been on my cellphone ringtones for several months, with A Love Supreme having been on there for the last several weeks. With that backdrop, yesterday my wife, son and I stopped by a downtown D.C. hotel to check out its award-winning restaurant we want to visit soon. As my boy rode up and down the hotel's elevator and ran in and out of the building, a distinguished-looking man was standing outside talking to one of the staff. Later, my son and I passed him in the lobby, and I asked where he was visiting from. He said he is from New York and is a musician. He was beginning to look familiar, and I asked his name: "McCoy Tyner". To have that happen to me is like having a rock fan bump into Bono or Sting when no other fans are in sight. I was overcome with joy and emotion; this is no exaggeration. I have met several jazz greats -- usually in brief passing, aside from my two lengthy meetings in 1999 with Cecil Taylor (back at his hotel post-concert, along with our close mutual friend Trudy Morse and numerous others) and 2001 (more briefly, at Trudy's birthday celebration) -- but never have felt so overwhelmed in the presence of artistic genius. I suppose my reaction was a mix of McCoy being a true giant whose music nearly wore down my stereo turntable needle (from the days before digital music), his amazing work for several years with John Coltrane (they're both on my cellphone ringer with A Love Supreme), and my deeper-than-ever appreciation of jazz musicians of his ability and sharing. Since the late 1970s, I would frequently play McCoy's amazing music while studying from junior high school through college. I was almost convinced that he had a third hand, because I could not believe that a mere ten fingers could accomplish his keyboard range and coverage. I first saw him perform in 1978 at Carnegie Hall during the Newport Jazz Festival, but saw no glimpse of a third hand. In 1985, I saw McCoy perform again at the Village Vanguard, delivering another great performance, but still with no third hand visible. At first yesterday I did not recognize McCoy; he shaved the thin mustache that graces his homepage. He is the real McCoy, of course. When I shook his hand, I saw those long fingers that could play four octaves seemingly without moving his palms. He seemed to take my emotional reaction in elegant stride, and mentioned enjoying seeing me interact with my son, who was still running everywhere. He agreed to take two cell pictures; the first one was overexposed and the second underexposed. I resisted the urge to ask for his autograph, lest my tribute to the man be spoiled by a focus on his celebrity. I also refrained from asking to see his third hand, but the third hand is still on my mind. Jon Katz. ADDENDUM: Here are some more McCoy Tyner links to check out: - A review of his 2007 CD McCoy Tyner Quartet, which I bought the night I met McCoy, and which I recommend. - A biography and interview from the Jazz Resource Center. - McCoy's biography on his official website. - McCoy was in town to play at the Kennedy Center on February 24. - Here is "Latino Suite", which was recorded for sale in 1986. - Here is a YouTube-posted interview of McCoy, probably from 2007. - Here, McCoy talks of living and music being the same thing; about being one with his instrument; about music being a "journey of the soul into new, uncharted territory;" He sounds like a t'ai chi musician.
Saturday, February 23. 2008
This video retraces part of Robert Pirsig's route recounted in Zen and the Art of Motorcycle Maintenance, on the very R60 ridden by John Sutherland along with Pirsig. NOTE: As is sometimes more common on weekends than the rest of the week, today's blog entry is less law-related, which is the side of my life that helps enrich the law practice side of my life. I never finished reading Zen and the Art of Motorcycle Maintenance (apparently reproduced here verbatim), and now cannot find where I last left my copy. What struck me most about this book by Robert Persig was the way he opened my eyes about his on-the-road experiences in the way -- but not as powerfully -- that Jack Kerouac did with On the Road. Right up to the time I became my own boss in 1998, I often viewed life and the world in much more bleak and gray terms than the much more positive turn I took after shedding myself of bosses, thus removing plenty of obstacles to feeling in much more positive and harmonious control of the rest of my life. Instead of sugar-coating life, Pirsig and Kerouac transcend tremendous chunks of its turmoil, but still do not escape all of it. Of course, Jack's life continued to be problematic enough that he died of alcoholism in 1969, which was an era of the best and worst of times; I was only six years old. Subsequent to Pirsig's inspiring Zen and the Art motorcycle journey with his son and friends, his son was shot dead by a robber. Why Persig in his afterword to Zen and the Art felt a need to make mention that the robbers were black is beyond me and continues disturbing me. Was the comment made from racial insensitivity, from trying to make a social commentary on race relations or for some other reason? As to bigotry, Ann Douglas in 1999 wrote that Kerouac "revert[ed] to the ugly anti-Semitic prejudices of his parents." Douglas continued that Kerouac "never interviewed the musician David Amram or the writer Joyce Johnson, both Jewish, who have stated that they experienced no hint of anti-Semitism in their relationships with Kerouac. Ginsberg saw Kerouac's anti-Semitism at first hand, yet until his own death in 1997, he held to his earliest, excited realization about Kerouac: 'If I actually confessed the secret tenderness of my soul, he would understand nakedly who I was.' Kerouac seldom judged; by all accounts, deliberate malice was foreign to him. In middle age, bitterly disappointed and drunk, he spewed prejudices the way some people use profanity." Reading On the Road -- here is a blog entry on one of my own experiences on the road, and here is another about how the best road taken is an internal journey -- can almost make the reader forget that while Kerouac was on the road, much of American pop culture was inundated with bland talk and mannerisms of Ike that were heavily mirrored on television and in television audiences and in the rest of American pop culture, which period covered the time of Communist witchhunts and a virulent time of the Cold War. Clearly, Kerouac was passing I Like Ike-type billboards while on his travels, while On the Road presented an alternative take on reality and, as I understand, tremendously influenced the counterculture hippie era that took the Sixties by storm. Reading Zen and the Art made me consider learning to ride a motorcycle, and to try out the path of secondary road riding pursued by Pirsig. I went to a Harley store after leaving the Fairfax County courthouse, picked up a pamphlet for a motorcycle driving school at a community college that had motorcycles provided by local vendors, and went into inertia until I bought a new bicycle six years ago, and liked how riding a bicycle provides the exercise that a motorcycle does not, and gives me many miles of paths for biking, walking and running that are off limits to motorized vehicles. If I take up motorcycle riding, it will be crossing over a line of physical risk-taking that I had previously drawn at whitewater rafting. which I have done both with and without a guide sitting in the same raft, and in which I once took a dive into the water at a particularly aggressive rapid. Then again, I do not know how much more dangerous motorcycling can be than the evening in 1985 that I walked from Greenwich Village at 2:00 a.m. back to my shoebox apartment near Gramercy Park, figuring that if a mugger came my way, I would just hail a taxi; when I snapped out of it, I realized that taxidrivers probably would avoid the risk. For now, motorcycling remains for me in the category of bungee jumping and parachuting; I have done none of them, except for riding on the back of a motorcycle for a few blocks at the age of seven, which was tremendously enjoyable. Those motorcycle riders with whom I have checked have told me of the skill needed to avoid wiping out not only from colliding with cars, but from negotiating around dangerous bumps that would be rather harmless to car drivers. Just this past week, a motorcycle-riding police officer escorting Hillary Clinton's campaign was killed after losing control of his bike; I would surmise he had plenty of riding experience, compared to my inexperience. At this point, the only reason I can think of for not learning to ride a motorcycle -- aside from setting aside the time to do so -- is to not cause the attendant risk to my family. I still have the desire, and if my two-year-old son gets the desire after he obtains his driver's license, that may open up a new opportunity. Jon Katz. ADDENDUM: Here is the description attached to the YouTube video shown above and uploaded by tfinlan: "A ride I took to the Black Hills retracing the route taken by Robert Persig and his son. The R60 was owned by John Sutherland who rode with Persig during the writing of Zen and the Art of Motorcycle maintenance. Elderly gentleman showing photos to my friend is John. My friend continued on to California and I headed home to Toronto from the Hills. Just didn't have the time to keep going."
Saturday, February 23. 2008

Computer hard drive. (Image from Pacific Northwest Laboratory's website). On February 15, 2008, a federal trial judge in San Francisco ordered that wikileaks.org be closed. Although wikileaks.org no longer functions -- after its sitehost apparently carried out the judge's order to close down the site -- wikileaks.cx (.cx is the Christmas Island domain) appears to be a mirror of wikileaks.org, operating with full force. After the injunction was ordered, Wikileaks vowed to defy the judge's injunction order. This permanent injunction order against Wikileaks (the case docket is here) apparently came about just nineteen days after a lawsuit was filed against Wikileaks. That sounds like too short a time period to give the defendants a fair chance to receive and review the lawsuit (the injunction motion is here), to hire counsel, and to be heard. Hopefully Wikileaks will obtain an attorney to try to overturn this court order that was issued when the defendants were unrepresented. ADDENDUM: Thanks to Windypundit for correctly pointing out that Wikileaks.org was made inactive not by a sitehost, but by its domain registrar Dynadot. As of March 1, 2008, the site is running again. Jon Katz.
Thursday, February 21. 2008
The only silver lining I know of about this police station beating is that the assaulting police officer was terminated. Thanks to Jonathan Turley for covering this story. Jon Katz.
Wednesday, February 20. 2008
Bill of Rights. (From the public domain.) The United States military learned much from the negative Vietnam War news coverage, to make more effective efforts at making people think subsequent wars are more like detached Space Invaders games than the bloody scenes of carnage they really are. Where will the U.S. government stop at trying to whitewash news coverage of its wars in Iraq and Afghanistan? (In her 2004 book Exception to the Rulers, Amy Goodman covers such whitewashing, and the complicity of too many journalists and news organizations in the whitewashing.) The Committee to Protect Journalists reports that the U.S. military has held CTV journalist Jawed Ahmad (also known as Jojo Yazemi) in detention in Afghanistan since October 2007, without charge or trial. The Washington Post reports: "Maj. Chris Belcher, a U.S. military spokesman, confirmed Tuesday that Ahmad is being held but said that he could not discuss details of the case." The Committee to Protect Journalists said on February 18: "Ahmad had only worked in journalism for one year, according to New York Times correspondent Carlotta Gall, who knows both him and [his brother] Siddique from her reporting trips to Kandahar. 'All of the local press corps have numbers of the Taliban and interview them regularly,' she told CPJ. 'Jawed had nothing more than the others in the way of contacts with the Taliban,' she said. Gall said Ahmad had also worked before that as a translator for the U.S. military and later for a security company in Kandahar. 'I have known him for some years from my many reporting trips to Kandahar. Jawed is well known among the local Kandahar press corps, as is Siddique, who worked sometimes as a driver for journalists staying at the Continental Guesthouse in Kandahar,' Gall said in a message to CPJ." On the South Asian Journalists Association's webpage, Anup Kaphle asserts that Mr. Ahmad's situation is not the first time that the United States military has held journalists without charge; I assume he is referring to the current wars in Iraq and Afghanistan; I have e-mailed him this morning asking for details of this assertion, having been unable to find such information on the website of the Committee to Protect Journalists. It is bad enough that the U.S. government intentionally detains and renditions terror suspects abroad to try to avoid having to provide the Constitutional protections that would be required within United States borders. When the United States detains journalists -- who collectively present about the only non-government-controlled window on the wars in Iraq and Afghanistan -- the U.S. government best immediately give an honest explanation for the detention and for any lack of criminal charges, without repeatedly claiming that security will be compromised to reveal such information. Jawed Ahmad's continued detention by the U.S. military without formal charges -- or even any public claim that he is an enemy combatant -- flies in the face of any claims that the Iraq and Afghanistan wars are about securing people's freedom and chills quality and independent coverage of those wars. Jon Katz. ADDENDUM: Thanks to South Asian Journalists Association member Anup Kaphle for responding with the following links in reply to my request for details about other journalists detained by the American military: - The February 21, 2008, New York Times reports: "At least two other journalists are known to be in American detention: Bilal Hussein, an Iraqi staff photographer for The Associated Press, has been held in Iraq since April 2006. Sami al-Hajj, a cameraman for Al Jazeera, has been detained since 2001, mostly at Guantánamo Bay, Cuba." - The Committee to Protect Journalists reports that the United States military has detained dozens of journalists in Iraq, including eight for at least several weeks or more without formal charges against them. - Al-Jazeera reporter Sami al-Haj is detained in Guantanamo, Cuba, having been detained in various countries since 2001. - For extra measure, here is Democracy Now's coverage of former Guantanamo prison chaplain James Yee, who ultimately was thrown into solitary confinement for several weeks.
Wednesday, February 20. 2008
Photo from website of U.S. District Court (W.D. Mi.).
In driving-related prosecutions, an initial critical question is whether the driving was on a roadway that even applies to the criminal statute involved. The analysis starts with the text of the applicable criminal statute (e.g., driving while suspended statutes on this issue may be more beneficial -- or not -- to defendants than drunk driving statutes) and proceeds to court interpretations of the statute. Even for an offense as relatively minor as suspended driving, this issue is important beyond any risk of a suspended driving conviction, to include the risk of more criminal charges following if, for instance, the police then conduct an inventory search of the car (suspended drivers are not permitted to drive their cars away from the police) and find a stash of drugs. For instance, under Virginia law, no suspended driving crime is committed to drive on federal government facility roadway having signs barring entry. U.S. v. Smith, 395 F.3d 516 (4th Cir. 2005) (interpreting Virginia's suspended driving law). However, the opposite outcome occurs where "signs simply alert drivers that they must register at the gate and produce identification. If they are not on the restricted list, then they will be allowed to continue to travel." United States v. Spencer, 422 F. Supp. 2d 589, 592 (E.D. Va. 2005) (distinguishing the foregoing U.S. v. Smith decision). In Maryland, suspended driving only takes place on roadways "used by the public." On February 20, 2008, Maryland's highest court reversed intermediate court precedents by deciding that driving while suspended "does not require the unrestricted right of the public to the use of the highway or private property in order to render the highway or private property subject to the requirements" of the suspended driving statute. U.S. v. Ambrose, __ Md. _ (Feb. 20, 2008) (decided on a question certified from a federal court). The Court determined the need for a factual inquiry "regarding the nature and extent of the use of the thoroughfare, roadway or property by the public. Whether the public's access to or use of the thoroughfare or roadway is restricted in any way by the owner is of no consideration to this inquiry." Id. Consequently, were the foregoing U.S. v. Smith case decided using Maryland law, signs barring entry would not have been enough, by themselves, to prevent a suspended driving conviction. Jon Katz.
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