UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

Some of my greatest teachers have been within arms reach. The key is to know who are those teachers, to be open to new teachings, to have an idea of what teachings might be vital to receive and learn, and to welcome their teachings if they will share them.

A great teacher might be the proverbial Yoda: a seemingly obscure character, possibly eccentric (if not downright annoying as was Yoda when he rifled through Luke Skywalker's pack), not the vision at first of a polished human giant, and not seeking any fame nor fortune. Sometimes the best teachings for practicing law and life come from seeking out teachers and their teachings -- sometimes through deep seeking -- rather than waiting for them to come to us and rather than shelling out a fee to hear them speak at a seminar. Ultimately, of course, everyone is my teacher. 

One of my most essential teachers is Ram Dass. Certainly he already was wildly celebrated when I still was in my single digits. However, not until after finishing law school did I get much sense of him. At a local Vegetarian Society lunch, a very upbeat fellow vegetarian brought up Ram Dass and talked about how Ram Dass once departed from his guru's home base to take care of some business in the city, ate a vegetarian feast, felt some guilt over topping off his luxurious fill with a cookie, and returned to his guru (Neem Karoli Baba) who asked through some apparent sixth sense how Ram Dass enjoyed the cookie.

Twelve years later, in 2003, I finally bothered to read Ram Dass's Be Here Now in full, as a prelude to experiencing him at an appearance in Washington, D.C. The evening was electric, and when I finally met Ram Dass, ever so briefly, after patiently waiting in line after his talk, his spirit, inspiration, and teachings hit all the more home. Living many years with the aftermath of a severe stroke, he celebrates all the more the living of life without attachment to one's body. In Still Here, written subsequent to his stroke, Ram Dass even includes discussion of turning one's last breaths of life into a positive; Gandhi practiced the same, and the Dalai Lama writes of the same.

I lost touch with the man who brought Ram Dass front and center to me until seeing his business card on the bulletin board of the local vegan products store. Now he works in real estate. I called him, and found a man as upbeat and optimistic as ever, marrying capitalism with spirituality and compassion.

Not long after learning about Ram Dass, I met my now-vital mentor Jun Yasuda, who fasted at Lafayette Park -- just two blocks from my law firm at the time -- fasting on green tea for a month for peace during Gulf War I. She was at once soft-spoken and driven to spread the message and spirit of peace. Take your pick of my blog entries about the profound influence Jun-san continues having on me, and on helping me steer a more peaceful path as I battle in and out of court.

Because becoming a better lawyer calls first for becoming a better person, many of my vital trial teachers are not lawyers at all. When it comes to lawyer teachers, though, as I have said many times before, Steve Rench is my most valued trial law teacher, whose name is widely known among criminal defense lawyers, and who, through his own non-flamboyant, non-charismatic demeanor shows lawyers that a great trial lawyer can be taught, rather than just be born.

Most recently, just a few weeks ago during a trial lunch break in Washington, D.C., I went to investigate another client's case. As I walked past Chinatown, I saw a wise-looking bearded man wheeling some of his belongings in a cart that city dwellers use to carry their purchases from nearby groceries to their apartments. I at first stereotyped him as possibly homeless, carrying his belongings place to place rather than leaving them at home; how disenchanting that I still do so much stereotyping.

Then I saw his face and eyes, and the cart disappeared. I felt compelled to ask him what I do not believe I ever have asked a new person on the street: "Do you have some wisdom to share with me?" Apparently unsurprised at my question, he asked what I was looking for. I told him that I already try to lead a t'ai chi life combined with the peaceful influences of Nipponzan Myohoji Buddhism (while not being a Buddhist myself), but had a feeling that he had more than that to share with me.

The man told me he would invite me to a meeting of Science of Spirituality in Takoma Park, which borders on Washington, D.C., and the city where our law firm operates, and is a place where San Francisco hippies will feel about the most comfortable in the Washington area. I at first started putting my guard up, wondering if I would learn that he was speaking of a distasteful cult (of course, the Trial Lawyers College, which I attended, has key hallmarks of a cult). Then again, I had asked if he had any wisdom to share with me, and he had.

I never heard back from the man, and it might take some doing for me to find where I wrote his name; perhaps he misplaced my contact information, too. I have not looked into Science of Spirituality other than to browse its website, which includes promotion of vegetarianism and emphasis that leaving one's religious faith is unnecessary for joining the group (then, again, sometimes proselytizing promises are prevarications). Of course, one can learn much good from a person without subscribing to the person's cults or spiritual paths. One of my closest friends who also is a vital teacher is an example of that.  

In any event, the key is to find our essential teachers, including those who are still on earth, those who have already passed away and left their teachings in written or oral form or through their influence on others, and, most importantly, the teacher within each of ourselves.

Do you have any wisdom to share with me? Jon Katz.

Photo from website of U.S. District Court (W.D. Mi.).

Every criminal defense lawyer should attend the National Criminal Defense College's Trial Practice Institute, known in shorthand as Macon for the program's location. At least when I attended in 1994, competition for each Macon slot was very high among state-level public defender lawyers. The program sough diversity among private practitioners (from whom applications were much fewer than from public defenders), state-level public defenders, federal public defenders, twelve experience levels, and gender. For those not accepted into Macon the first time, I recommend to try, try again, and to attend NCDC's long weekend programs in the interim. Some NCDC applicants get admitted off the waitlist, and it helps for the waitlisted applicant to tell the NCDC if s/he can have the applicant's calendar cleared and a plane ticket in hand if a spot comes open

When I attended Macon, my first small-group instructor was Ernie Lewis, covering the initial client interview, where we had separate professional actors playing the roles of a rape defendant, two murder defendants, and a bank robbery defendant, Ernie had the gift of being at once gentle, caring, actively listening and communicating, and persistent for lawyers to "get it right".

At Macon, each attendee was assigned one of the foregoing four cases, and worked on the case for all stages of trial preparation. My client was a rape defendant who had a lot of trouble understanding why he was even locked up in jail awaiting trial. With me, he repeated several times his fears about the complainant getting him convicted. The other lawyer defending him at Macon was a woman, and numerous times he told her how pretty she was. I made the .mistake of focusing my client at the outset on preparing him for his upcoming bond hearing rather than listening and responding closely enough to and empathizing with his immedate fears about the complaining witness. I tried it a second time, and found that it would take lengthy and numerous conversations with him to build enough of his trust, where the seminar did not enable enough time to do that. Now back in private practice for nearly a dozen years, controlling my number of clients assists me better in giving clients the time needed to sufficiently and effectively hear and communicate with them, which is a topic that I repeatedly discuss.

Macon has a mix of highly charismatic, comical, riveting, and caring instructors, with all of them being highly skilled and experienced. Ernie Lewis's biggest gift that he shares with everyone is his caring and intuitive approach to teaching and sharing. He is the real McCoy; he does not try to act charismatic or hilarious, and is all the more powerful for being his real self.

Now, reports Arbitrary and Capricious -- who also had Ernie as an NCDC instructor -- Ernie is leaving his post this September 1 as Kentucky's chief public defender. Recently, Ernie said in a news release:

"'While I have been able to achieve my most significant goals, I remain deeply concerned by the problems that remain.' He said defender caseloads are grossly in excess of national standards, salaries increases are needed for new lawyers, a loan assistance program is needed for public defenders in order to retain them after their initial training period and the department needs a social worker for each office in order to find treatment alternatives for clients. He said next year’s budget will require the department to cut back on representation of thousands of cases for poor Kentuckians. 'I am profoundly disappointed with the failure of the 2008 General Assembly to fund a constitutionally adequate public defender system,' Lewis said. 'While we have made much progress over the last 12 years, Kentucky continues to fund its indigent defense system at the bottom of the nation.'"

Thanks, Ernie, for keeping the fire going in your belly, in a most t'ai chi way. Thank you for sharing that fire with me. Jon Katz.

Today, Underdog is two years old. We launched on 4/20/06.with this tribute to 420:

Since our 2006 launching, Underdog has blogged every weekday, except for holidays and a few vacation days (sometimes I blog a few articles in advance of vacation days, and pre-program the articles to upload each day I am away). My law partner, Jay Marks, gets in on the act sometimes, and I look forward to more postings from Jay. Our first anniversary blog entry is here.  

Why do I blog? Through blogging, I keep a valuable diary that helps keep my written and oral pen sharpened, my self-awareness deepened, and my bully pulpit strong. Also, it can be more important to touch one person in the audience in a valuable way than for thousands to receive the message in a much less profound way. My motivation for blogging goes far beyond having a web presence for our law firm, to a thirst to express critical and undiluted messages about justice, and to increase the number of people who will assert their rights with the police so as never to need our criminal defense services in the first place.. So many civil liberties need to be won and re-won worldwide. One of the most effective ways for a non-full-time writer or television/radio personality to get out the pro-civil liberties message is through blogging. 

Imagine, just two decades ago, before Gorbachev took over in the Soviet Union followed by the fall of the Berlin Wall, samizdat dissenting publications in the Soviet Union often got distributed by recipients (risking prosecution) retyping and distributing the publications, when printing presses and photocopiers were scarce, and strictly controlled by the iron-fisted government. Today, except in such places as North Korea, which even bans cellphones, dissenting writings can travel to a much wider audience with lightning speed over the Internet from nearly any country.

Consider the high price that such literary greats as Pramoedya Ananta Toer and Vaclav Havel paid for writing and distributing their writings under severely oppressive regimes. When I first visited Indonesia in 1988, the brutal government apparently only kept Pramoedya Ananta Toer -- probably the nation's most famous writer and its greatest potential engine to advance the national and still rather newborn Bahasa Indonesia language to unite a nation that never had been much united before independence -- out of prison (after being in and out of prisons many times before, under the Suharto and Sukarno regimes and by colonial occupiers before that) and away from government executioners and assassins in order to prevent a foreign aid and trade stoppage had Indonesia done otherwise. His books were banned in Indonesia at the time, although some booksellers clandestinely sold them under risk of imprisonment. Speaking on tour when I met him in 1999, Pramoedya was deeply emotional when he said that the Indonesian government's efforts to ban his books was like trying to cut off his life. By that time, and to this day, Pramoedya's writings were much more freely available in Indonesia than when I first visited.

Pramoedya went to great lengths to keep his written and oral voice going. For instance, he started his Buru tetralogy orally through a chain of his fellow Buru island prisoners, at the times he was denied pen and paper, only to complete the multi-level mosaic story in book form years later. Sometimes he was able to smuggle out notes "'written under adverse conditions".

Subsequent to the Prague Spring, before Gorbachev,  Vaclav Havel was repeatedly hounded and oppressed for his writings. Index on Censorship once ran an article on Havel showing him smiling and carrying a sack of beer ingredients weighing down his body -- but not his spirit -- at the brewery where he worked.

Pramoedya and Havel paid high prices to keep their writing voices heard. I pay a small price if any. Perhaps the only price I pay is to alienate potential clients and others both by my plain messages and often very direct words, but sometimes people come around towards some of my ways of thinking, even if years later, and even if my words only have a small influence on the turnabout. While I understand the benefit of speaking in a diplomatic manner to open listeners' ears, I do that enough in court, and tend to be more direct and unvarnished in our blog, but perhaps not as unvarnished as my brother lawyer Marc Randazza whose blog is among the small handful that I read almost daily.

Just as musicians benefit from playing before live audiences and from their feedback, I benefit from blogging before our Underdog audience and from receiving feedback online and on the street. Please keep your feedback coming. Jon Katz.

ADDENDUM I - HAPPY 420

Here's our first blog entry:

April 20, 2006

Supporting marijuana legalization on 4/20 and every day.

In celebration of the annual 4/20 marijuana legalization events, partner Jon Katz appeared on WOCM 98.1 FM (Ocean City, Maryland) to  promote the legalization of marijuana for medical, personal, and industrial use. The same evening, Jon spoke on the criminal defense of drug cases at the invitation of the University of Maryland chapter of the National Organization for the Reform of Marijuana Laws, after the screening of Busted. By Jon Katz.

ADDENDUM Ii - HAPPY BIRTHDAY, JUSTICE STEVENS

Today, Supreme Court Justice John Paul Stevens turns 88 years old. Justice Stevens is often, but certainly not always, one of the more reliable justices for giving some real offset to at least five of the justices who are more dangerous to civil liberties, those five being Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy. 

In addition to my April 17 review of the Supreme Court's Baze lethal injection case, here is a brief overview of some additional critical criminal appellate decisions from this week:

- In Burgess v. U.S., _ U.S. _ (April 16, 2008), writing for a unanimous court, Justice Ginsburg affirmatively answered the following question presented: "The question in this case is whether a state drug offense classified as a misdemeanor, but punishable by more than one year’s imprisonment, is a 'felony drug offense' as that term isused in §841(b)(1)(A)." 

- In Begay v. U.S. __ U.S. _ (April 16, 2008), the United States Supreme Court ruled that "New Mexico’s crime of “driving under the influence” falls outside the scope of the Armed Career Criminal Act’s clause (ii) 'violent felony' definition."

- In Maryland v. Baby, __ Md. _ (April 16, 2008), Maryland's highest court determined that "post-penetration withdrawal of consent negates initial consent for the purposes of sexual offense crimes and, when coupled with the other elements, may constitute the crime of rape. We also hold, however, that the trial court erred in failing to sufficiently address the jury’s questions on post-penetration withdrawal of consent, and such error was not harmless beyond a reasonable doubt." Jon Katz.

Although I am not fond of Barack Obama and am less fond of Hillary Clinton, I absolutely oppose John McCain. For starters, he will keep the Iraq war going and will disrespect civil liberties more than Obama or Clinton will do. For starters, McCain undoubtedly will tap into the bucket of Bush I and Bush II appointees, who in general are more hostile to civil liberties than those who served under Bill Clinton and Jimmy Carter. Additionally, McCain proudly proclaims he is a conservative, which says more against than for civil liberties.

Presidents leave a particularly long legacy on civil liberties through their federal judicial appointments, particularly by their appointments to the Supreme Court. All federal judges are installed for life, unless they are impeached or retire.

For the latest example of the severe damage done by presidential federal judicial appointees long after the president leaves office, take a look at yesterday's 7-2 Supreme Court vote in Baze v. Rees, __ U.S. _ (April 16, 2008) rejecting the lethal injection death penalty challenge that arose from the risks that the tri-part lethal injection cocktail is unconstitutionally cruel and unusual for the unseen excruciatingly lengthy pain that it can cause. Who voted in the minority? Only Bill Clinton-appointed Ruth Bader Ginsburg and Bush I-appointed David Souter. The remaining justices, who rejected this death penalty challenge, were all appointed by Republicans, except for Clinton-appointed Stephen Breyer, who tends to support giving substantial regulatory discretion (here, including choosing the method of execution) in the hands of the legislative and executive branches of the government.

Although the sky has not yet completely fallen on civil liberties after eight years of reactionary Regan followed by four years of Bush I, the intervening eight years of the Bill Clinton administration (whose judicial appointments were not sufficiently protective of civil liberties, either) will not be enough to prevent severe and accelerated federal judicial damage to the Constitution if McCain becomes president. McCain proudly pronounces his conservative bona fides, which will inevitably lead to his appointing more federal judges hostile to civil liberties than if Obama or Hillary Clinton make the appointments. Certainly, the Senate must approve federal judicial appointments, but even during the Reagan years, the Borking of the Bork nomination took so much energy by his opponents that the Reagan administration was able to regroup with its remaining federal judicial appointments; no Senate vote has kept any subsequent Supreme Court nominee off the bench.

Aside from the repeated vacancies at the federal District and Circuit Court level, the next president likely will appoint at least one Supreme Court justice, if not more. Justice John Paul Stevens will be eighty-eight next week and will be nearly ninety-three when the next president leaves office; it is very doubtful that Stevens will stay on the bench as long as that. Ford-appointed Stevens is often, but certainly not always, one of the more reliable justices for giving some real offset to at least five of the justices who are more dangerous to civil liberties, those five being Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy. .

In any event, even if Obama and Clinton are averting campaign focuses on civil liberties in order to try to be more "electable" against McCain, such downplaying only leaves a bad taste in my mouth and a continuing cynicism about most political candidates and elected officials. Jon Katz 

ADDENDUM The justices essentially treated this Baze case as being about the Constitutionality of current lethal injection methods, and not the Constitutionality of the death penalty itself. However, it appears that Justice Stevens is the only sitting justice who might be ready to rule the death penalty itself to be unconstitutional. For instance, in his concurring opinion, Justice Stveens proclaims:

"I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring)."

In her dissenting opinion in Baze, joined by Justice Souter, at the outset Justice Ginsburg demonstrates how seriously mistaken are the remaining justices who upheld Kentucky's lethal injection approach:

"Kentucky’s three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be “constitutionally unacceptable.” Ante, at 14. The constitutionality of Kentucky’s protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentucky’s system is constitutional, the plurality states, because “petitioners have not shown that the risk of an inadequate dose of the first drug is substantial.” Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentucky’s protocol lacks
basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and 2 BAZE v. REES GINSBURG, J., dissenting third drugs. I would vacate and remand with instructions to consider whether Kentucky’s omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

Further increasing the risk of excruciating pain from lethal injection is the widespread use of people insufficiently trained in medicine to carry out the lethal injections. Justice Alito's concurring opinion in Baze demonstrates the widespread rejection among medical associations of the involvement of medical professionals not only in carrying out lethal injections, but even in seeking to reduce the pain caused by lethal injection.

In any event, at least five justices, including the dissent, made clear that Baze's upholding of the Kentucky protocol does not prevent Constitutional challenges to other states' lethal injection protocols, even though Baze rejects the Constitutional challenge to Kentucky's lethal injection protocol.

On February 10, I wrote about the passing of Michael Maggio, who was one of the people who inspired me to a legal career focusing on social justice.

Above is a YouTube picture montage of Michael, created by his nephew. It provides some more of Michael's essence. Jon Katz

ADDENDUM: December 18, 2008 - Here is a tribute page to Michael.

Photo from website of U.S. District Court (W.D. Mi.).

Consenting adults should be able to engage in private sexual conduct without fear of prosecution, including when money exchanges hands for such activity, also known as prostitution. The United States Supreme Court has already recognized the broad hands-off approach the government must take with private consensual adult sexual activity.  Lawrence v. Texas, 539 U.S. 558 (2003), It is time for the government to back off from and legalize prostitution, not only because that is a logical follow-up to Lawrence , but also because the more the government interferes with prostitution, the more the government also will interfere with other activities that are popular with a more widespread part of the population than is prostitution.

Except for some enlightened counties in Nevada, prostitution remains criminalized in the United States. Thus we see the ongoing criminal investigation relating to Eliot Spitzer's paid sexual preferences, and the current Deborah Palfrey prosecution in Washington, D.C., federal court.

Ms. Palfrey's case is now being deliberated by the jury. Noteworthy are some of the sage comments by presiding Judge James Robertson during the trial, as reported by the Washington Post's Dana Millbank, including:

- After the prosecutor asked one of many immunized witness -- one of Ms. Palfrey's former employees -- whether she had sexual intercourse with clients, the prosecutor "pressed on with more humiliating questions until the judge cut him off. 'That's enough,' Robertson said. Minutes later, the dazed woman was helped out of the room."

- "'You want to make public the names of all the employees?' Robertson asked prosecutor Catherine Connelly. 'Is there no limit to the collateral damage?' Evidently not. [prosecutor] Connelly said the names had to be released. 'Unfortunately.'"

- "An IRS agent [on April 10] showed the jury photos of [Palfrey's] home -- a mop and cornflakes box in evidence -- and recited Palfrey's sewer bill, electricity payment, car maintenance and check to Office Deport. One juror's eyes closed, and her head dropped. Others yawned. 'I'm not sure why the jury needs to see any of this,' the judge pointed out. 'Waste of time.'"

This whole Palfrey trial is a waste of time, and a waste of justice, as are all prostitution prosecutions. Jon Katz.