UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

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

The Dalai Lama wisely said that "everyone is my teacher, starting with my enemy."

As much as I often have sharp differences with Supreme Court Justice Antonin Scalia's judging -- see here and here, offset here and here -- he apparently has much that is beneficial to teach with co-author Bryan Garner's Making Your Case: The Art of Persuading Judges. That is my initial impression with this ABA Journal article on the book. (Thanks to Scott Greenfield for bringing this ABA Journal link to my attention.)

Seeing that Justice Scalia is not known to go easy on lawyers -- no matter the plushness of their law firm's carpets nor whether they are the federal solicitor general or his deputy -- one of the book excerpts that interests me the most is about handling difficult judges:

"LEARN HOW TO HANDLE A DIFFICULT JUDGE.

"You will sometimes encounter a judge whose ques­tions are designed not to obtain enlightenment but to demonstrate to colleagues the weakness of your case. During your exchange with such a questioner, be sure to maintain eye contact. Don’t display your discom­fort by looking down at some imaginary text whence will come your redemption. Look the judge straight in the eye and continue responding in a professional, firm manner.

"It’s always a mistake to evade questions, but espe­cially so when the question comes from a difficult judge. That judge will persist, and you’ll end up spending even more time reasoning with someone who will not be persuaded. Confront the question squarely with your best answer, and try to move on.

"Sometimes such a questioner, after you have answered as best you can, will continue to press the same point, even though (indeed, because) you are unable to say anything more. You must devise a polite, nonalienating way to end this exchange, or it will consume much of your argument time. After a decent amount of time has been spent on the point, it would be appropriate to say, 'Your Honor, I cannot respond to your objection with anything other than what I have already said.'

"A similar problem is presented when a judge’s questions about one part of your presentation are so nu­merous that the time remaining for an important but yet-to-be-addressed portion is growing short. You must try, politely, to regain control of the subject matter. The court will not take it amiss if, after responding to one question, you continue quickly: 'With the court’s permission, I would like to turn now to … .'

"Whatever else you do when confronted by a hostile and unreasonable judge, don’t reply in kind. Don’t become hostile yourself; don’t display anger, annoyance or impatience. Keep telling yourself that you owe it to your client—because you do.

"Even so, lawyers are entitled to take great delight in the wonderful comeuppances to judicial boorishness that some of their more rash predecessors have devised. Our favorite was also a favorite of Justice Robert H. Jackson. A noted barrister, F.E. Smith, had argued at some length in an English court when the judge leaned over the bench and said: 'I have read your case, Mr. Smith, and I am no wiser than I was when I started.'

"To which the barrister replied: 'Possibly not, My Lord, but far better informed.' Smith, who later became a famous judge as the Earl of Birkenhead, could reportedly carry off such snappy rejoinders with impunity. We doubt that, but in any case we don’t recommend that you emulate him."

Exactly. The court presentation is about the lawyer's client, not the lawyer. If the lawyer can't stand the heat in the courtroom, plenty of other lawyering avenues exist that do not require court appearances. Jon Katz

 Image from Library of Congress's website.

Robust protection must be provided to free speech worldwide. That is a message I have been emphasizing and re-emphasizing for decades.

Bloggers represent one of the biggest perceived dissident threats to repressive governments -- and all government repress people's rights to one degree or another -- by changing the pre-Internet, pre-computer government censorship model that went beyond jailing dissidents to depriving disfavored publishers of newsprint, printing presses, photocopiers, and publishing licenses; jamming radio broadcasts; and monitoring and jamming dissidents' telephone calls. Even seizing a blogger's computer does not prevent the blogger from blogging at an Internet cafe or a friend's computer, because blogging software ordinarily resides on the Internet and not on one's computer.  

Thanks to the Committee to Protect Bloggers for keeping readers updated on government harassment, arrests and jailings of bloggers. Following are some recent instances of bloggers being repressed by government authorities; thanks to the Committee to Protect Bloggers for informing me about the following Tibet and Egypt stories:

- In the United States, criminal libel laws continue to be alive in several states. On May 1, 2006, I blogged about Thomas Mink who operates The Howling Pig. The Greeley, Colorado, police seized the computer he used to publish The Howling Pig newsletter, during a criminal libel investigation following a University of North Colorado professor's complaint to the police about his portrayal on the Howling Pig website. 

To this day, a violation of Colorado's criminal libel law is a felony punishable from twelve to eighteen months. Colorado Revised Statutes §§ 18-1.3-401 and 18-13-105. Colorado's criminal libel statute states: "(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel. (2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living. (3) Criminal libel is a class 6 felony." C.R.S. §18-13-105.

Mr. Mink filed a successful lawsuit to retrieve his computer, and the prosecutors opted not to pursue a prosecution. However, the federal Tenth Circuit prevented him from challenging Colorado's criminal libel statute itself, based on a conclusion that he lacked standing to seek prospective relief against the statute and that the matter was moot. Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007), cert. denied sub nom Knox v . Mink, 128 S. Ct. 1122 (2008).

The Colorado ACLU's webpage discusses the Howling Pig case up through the May 2007 filing of a petition for a rehearing by Mr. Mink. Although a Lexis and Shepard's search leads to the conclusion that the petition for a rehearing was denied, the Tenth Circuit's PACER online docketing system was down when I checked it yesterday.  

- Good news came from Saudi Arabia when leading Saudi blogger Fouad al-Farhan was released recently from being detained since last December 10 without formal criminal charges. I am not aware of any explanation from the Saudi government for releasing him. Early this year, Underdog blogged on Mr. al-Farhan's plight.

Congratulations to Mr. al-Farhan on his release. Hopefully the Saudi government will loosen its censorious grip on dissent, and hopefully Mr. al-Farhan will continue his blog without watering it down from fear of further government repression. More on this story is here.

- In Tibet, in a cynical April Fools Day 2008 move, authorities arrested blogger, television broadcaster, singer and intellectual Jamyang Kyi. Based in part on the absence of any Google news updates beyond April 18, it appears that she remains detained. Further links to this story are here and here. Thanks to the Committee to Protect Bloggers for reporting on this story.

- In Egypt, in early 2007,  Abdel Kareem Nabil Suleiman became the first Internet-based journalist to be imprisoned (having received a four-year sentence) for inciting hatred of Islam and insulting Egyptian President Hosni Mubarak. Thanks to the Committee to Protect Bloggers for its ongoing reporting on this story.

- Here are a few examples of repression of bloggers in Singapore, whose government has focused for decades on refining repression and whose repressive activities -- including overall censorship and clampdowns on political opposition -- are highlighted all the more by the government's welcoming Singapore's status as a major Asian hub for economic activity and air travel transfers:

-- Reporters Without Borders reported on November 24, 2006: "An activist with the Singapore Democratic Party (SDP), Yap Keng Ho, was sent to prison for ten days by a court on 23 November 2006 after he refused to pay a fine of 2,000 dollars for speaking publicly and posting film on his blog (http://uncleyap-news.blogspot.com/) of an illegal rally of his party. He was taken immediately to jail after refusing to pay the fine and said he would go on hunger strike to protest at his imprisonment and to expose the regime’s corruption."

-- In 2005, seventeen-year-old blogger Gan Huai Shi pled guilty to sedition in a Singapore court for posting anti-Muslim comments on his blog. An anonymous writer on the Singapore Angle blog wrote last year that Gan Huai Shi "was given [ ] probation of 24 months largely because his racist sentiments was perceived to have stemmed from unfortunate childhood experiences (his baby brother's death)."

-- In 2006, Singapore authorities dropped a prosecution against a blogger who posted a cartoon of Jesus as a zombie. He faced up to three years in prison had he been convicted. In any event, the authorities apparently forced the blogger to remove the image from his blog.

-- In 2005, a Singapore judge sentenced two bloggers to jail (one for a month and the other for a day) for posting racist comments about ethnic Malays. The Singapore government-controlled Straits Times's article on the case is here. Jon Katz.

ADDENDUM: A close friend once described public complacency as one of the greatest threats to civil liberties. Or course, less complacency should be expected even in the United States as American soldiers and countless others get slaughtered in Iraq, the price even of such essential food staples as rice increases dramatically, oil prices continue jumping, key financial markets teeter (including the American mortgage market), unemployment worsens, and the economy continues on a negative path.

With so many of the foregoing problems and more facing so many people, there might be an inclination to avoid knowing about problems that seem more removed. However, we all live on this world together, and must be concerned about each other. On the censorship front, in addition to the foregoing links, I recommend reading Index on Censorship. For general worldwide human rights updates, Amnesty International apparently continues to do some of the most rigorous reporting (see the U.S. Amnesty link here).

Recently, my wife, 2-year-old boy and I went to a local puppet theater production from part of the Jungle Book. The walking puppeteers and production were very good; fortunately I have not yet had to have a Barney moment with my boy, who does not yet know who that annoying person is in a purple dragon suit and, worse, his entourage.

My son was mesmerized by the stage action at the puppet theater, proclaiming "Wow!" from time to time, and walking a bit to and fro, not particularly obstructing anyone's view while doing so, because of the step-type seats we sat on. Around ten minutes into the performance, the manager comes in and says either to sit down or leave. It reminds me of the cartoon of the elves hammering together toys, where all but one elf hammers in a ra-ta-ta fashion, but the sole elf as happy as can be hammers in a ra-ta ra-ta fashion, until the other elves stare him down and he conforms to their ra-ta-ta fashion of hammering, and he is no longer a happy elf but an unhappy worker drone.

Instead of telling my boy to sit down, we left, and had a great time at the nearby park that includes a bridge overlooking all sorts of water mysteries, rock formations and plants. Then he rode his bike around the park.

My boy also loves YouTube films of fish and water mammals, including the one displayed above. I plan to show him this Rube Golberg-esque video that I just found, too.

If I ever lose touch with the wonder and fearlessness of the child within me, all I need is to spend some time with my son, who can spend over an hour going up and down elevators without getting tired.

As I have written before, part of being powerful as a trial lawyer is being fearless. Part of becoming fearless is keeping in touch with the wonder of the child within us. Next time someone tells you you're acting like a child, perhaps it should be taken as a compliment. Jon Katz.