UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

How many times do we meet people with twisted if not dangerous ways of looking at life and processing information? Some sue the government to stop directing neurotransmissions at their brain functioning. Others are convinced the FBI and CIA are tailing them, even when doing so would be a complete waste of the FBI's and CIA's time. Others are racist. I meet all such people and more merely through potential clients who contact me.

One aspect of picking a jury is to get a sense of which jurors will have twisted and dangerous ways of processing information. Some may seem totally normal at first blush, until they start talking, so every potential juror should be asked at least one open-ended question, to get them to talk. Some will talk the talk very well. One thing is certain: Well-done lawyer-run voir dire/jury selection is more effective in weeding out such people than judge-directed jury selection (unless the lawyer wants to risk keeping them on the jury, in an attempt for a mistrial).

It is remarkable how otherwise intelligent and clear-headed people will follow monstrous people and monstrous paths, from the followers of Hitler to the followers of Jim Jones to the followers of David Koresh, and the list goes on. Consequently, good questions for jury questionnaires, if questionnaires are permitted, or else voir dire -- and hopefully answered honestly -- will be inquiries about potential jurors' free-time activities, the books they read, the organizations to which they belong and pay money, and the people they admire and interact with. Potential jurors do not need to admire monstrous people to merit being stricken from the jury panel; for instance, plenty of Lyndon LaRouche supporters are swarming around (I think LaRouche is twisted, not monstrous).

The above-posted video -- an interview with a member of the fictitious Spinal Tap band, taken from National Geographic's YouTube page -- does a good job at satirizing and identifying the type of twisted logic and illogic that many people have.

If there is one thing that might get through to judges -- including at the various bar association shindigs and meetings where much backslapping takes place and too little effort to make the judging and lawyering system more just -- it is to keep promoting lawyer-run voir dire to them. Every time I have a jury trial before a judge whose custom is to ask the voir dire questions himself or herself, I ask for lawyer-directed voir dire. Even when that request is denied, the judge still might give me some leeway in asking follow-up questions to some jurors during voir dire. Jon Katz.

Bill of Rights (From public domain.)

When convicted felons are around guns and unlawful drugs, they risk exposure to substantial incarceration time. Lewis D. McCarson learned that when federal marshals came to his girlfriend's home with an arrest warrant for him. U.S. v. McCarson, 2008 U.S. App. LEXIS 11234 (D.C. Cir. May 27, 2008). Other than the arrest warrant, all went well for McCarson until he told the marshals that he wanted to wear his black pants, coat, and shoes on his way out the door. The marshals went to the bedroom for those articles of closing, and claim they then saw a bag of marijuana and a handgun in plain view and cocaine by the time they further opened the drawer to retrieve the handgun.

One lesson learned here: McCarson's apparel request to the marshals boomeranged back with the rank smell of feces. Because the marshals had an arrest warrant but no search warrant, one is left to wonder whether they would have bothered doing anything to find the gun and drugs had McCarson just agreed to leave the home in his underwear. Had this been Mr. McCarson's home, clearly a search beyond his lunge and grasp would have been impermissible where the police only had an arrest warrant but no search warrant. Chimel v. Cal., 395 U.S. 752 (1969).

Lesson two learned in U.S. v. McCarson: An arrest warrant allows the cops to enter a home other than the suspect's when the police have reason to believe that the suspect will be found there. Although contraband found pursuant to the execution of the arrest warrant may be inadmissible against the homeowner if the home is not the suspect's (but will the homeowner obtain such suppression if the contraband is in plain view near where the suspect is found, as opposed to being founds pursuant to a search in the area within the suspect's lunge and grasp?), that is the homeowner's right. Furthermore, if the Court finds the suspect has no standing to contest the search, that ends the suppression analysis.

Lesson three learned from this case: Prior convictions open a Pandora's box to enable courts to permit jurors to know about those convictions to counter potential defense arguments of ignorance of any crime when prior convictions show activity in consonance with the currently-charged crime.

As an aside, the appellate panel that decided Mr. McCarson's case heard my First Amendment appeal two business days after it heard Mr. McCarson's appeal on May 9. My appeal is still pending. Jon Katz.

ADDENDUM: Thanks to a fellow listserv member for posting on Mr. McCarson's case.

Bill of Rights (From public domain.)

Last December 2007's Gall and Kimbrough opinions from the U.S. Supreme Court raise questions about whether it any longer is legitimate for sentencing courts to consider acquitted conduct in setting a sentence.

In an unpublished opinion from March 21, 2008, the Fourth Circuit reversed a sentencing that refused to consider acquitted conduct, and held that the standard at sentencing is whether a crime can be proven by a preponderance of the evidence, even if the conduct was acquitted under the beyond a reasonable doubt standard. U.S. v. Ibanga, Crim. No. 06-4738 (4th Cir. March 21, 2008).

Thanks to bloggers Dan Berman and Scott Greenfield for discussing the Supreme Court's denial of cert. on the foregoing issue here and here. Until the Supremes review this issue on cert., it is necessary to know how one's circuit has or will handle this issue post-Gall and Kimbrough. Jon Katz.

No stems, no seeds that you don't need,

Acapulco Gold is -- pfffffffffffffffff -- bad-ass weeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeed. - Cheech & Chong (listen here).

My introduction to the pro-marijuana culture was heavily influenced by Cheech & Chong, who at once indulged (at least Chong, and I assume Cheech) in marijuana and lampooned those who did the same. This was 1971, and I was eight years old.

Somehow, I did not take to pot. I first smelled it on someone a few years older, recoiled at its reek, and recoiled even more at the age of thirteen when some people nearby me at an outdoor concert were smoking it openly and notoriously (those were the days). Not long after that, the Jimmy Carter administration, as I understand it, promoted the spraying of paraquat on marijuana in Mexico, which then spelled health hazards to smoking it with paraquat, and I did not want the health hazard.

Part of me wanted to know more about this weed that permeated all levels of American society and culture. Ultimately, when offered some by a friend, I tried it, and did so on a few more occasions. Each time, I had been drinking some beer, too. I had trouble figuring out if I was feeling anything different than if I had just been drinking beer. Maybe I was not inhaling enough. Maybe it was low quality stuff. Maybe it was not for me.

Nevertheless, marijuana is my favorite illegal drug, which I now vicariously enjoy through my marijuana smoking clients. As I have said many times, I insist that it be legalized, and I believe that we will have a much better society if those who drink a lot of liquor switched to marijuana.

It has been over two decades since I last smoked marijuana. Since then, fascinating botanical developments have taken hold whereby excellent quality marijuana can be grown throughout the United States without needing to be imported any longer.

I hear repeated talk about marijuana's potency being much higher now than in the past, with this emphasis often coming from the anti-marijuana crowd. How true is that? If today's marijuana is stronger than 1980's marijuana, is it no different than getting the same high from one bowl today that needed more bowls twenty years ago?

Yesterday, I was asked about this marijuana potency matter by a Washington Post reporter, whom I am certain found numerous interesting soundbites to choose among. The writer told is preparing an article for this Saturday or Sunday about recent marijuana busts at two Montgomery County, Maryland, high schools, where one of the busts yielded at least two pounds of alleged marijuana. He asked me for my reaction to those who claim that some or many parents are too lax about their children's marijuana use, that this may have something to do with the parents' previous marijuana use, and that today's marijuana is more potent than yesteryear's. I replied:

- To say that a former marijuana smoker will be too lenient on his or her children's marijuana smoking is as farfetched as saying the same about a beer drinker dealing with his or her child's beer drinking.

- If today's marijuana is stronger than yesterday's, all that means is that it takes less marijuana to get the same high.

- Marijuana must be legalized now, as well as prostitution and gambling, and decriminalization of all other drugs. Without doing so, we will always have an overgrown criminal justice system that involves too much injustice, and too many unjust and incompetent judges, prosecutors, police, jailers, and probation agents.

- The overgrown criminal justice system is too expensive, and is costing me and other taxpayers money we should not need to spend. Many in the criminal justice system will be reluctant to shrink the criminal justice system, lest thy be out of jobs.

- Marijuana must be legalized to protect the Fourth Amendment. Today, cops will testify and testilie all the time that they searched a person or car based on the smell of marijuana (even going to the canard of claiming they smelled unburnt marijuana; burnt marijuana reeks, but unburnt marijuana is much more subtle, and cannot be smelled in small quantities from even a few feet away, and it is often a similar situation with larger quantities of marijuana).

- Marijuana needs to be legalized as medicine. It is a natural, effective proven alternative to many pharmaceuticals peddled by the drug companies.

- The Food and Drug administration's current drug approval process presents too expensive a hurdle for getting marijuana approved. Harvard emeritus medical professor Lester Grinspoon -- who started studying marijuana in the 1960's expecting to prove marijuana's harm but then finding the opposite to dominate -- estimates that at least $200 million is needed for studies to get a drug approved by the FDA. Absent Bill Gates or George Soros coming to the plate to fund such a study, nobody is going to pay for such a study. Marijuana is unpatented, so pharmaceutical companies will have no interest in paying for getting FDA approval of marijuana. 

- With the FDA approval process too expensive for marijuana, Dr. Grinspoon points to persuasive anecdotal evidence of marijuana's strong benefits and low risks as medicine.  

Returning to the marijuana potency issue, I ask marijuana smokers to weigh in on the extent to which I am correct that stronger marijuana mainly means that one can smoke less of it to get the same high as one could get from the less potent strains of marijuana. Jon Katz.

Bill of Rights (From public domain.)

NOTE: The following blog entry was written before the awful May 19 Supreme Court decision in U.S. v. Williams (May 19, 2008).

This blog entry follows up on my previous discussions of child pornography defense here and here.  

With the current state of First Amendment caselaw relating to child pornography, it is not immediately clear that Ronald Jay McFadden will get his recent child pornography conviction overturned. Mr. McFadden was convicted for child pornography possession despite his defense attorney's claim against a conviction on the basis that the conviction arose from Mr. McFadden's juxtaposition of sexually explicit adult images alongside images of children -- including nude images, apparently -- which images his attorney claims were copied from such legitimate sources as medical publications. He faces up to life in prison based on his prior criminal convictions. Because preventing psychological and physical harm to children has been a part of the Supreme Court's justification for limiting First Amendment protection for child pornography, New York v. Ferber, 458 U.S. 747 (1982), one is left to wonder whether the appellate courts will overturn Mr. McFadden's conviction when considering the psychological harm that can be caused to the children depicted in his photographic juxtapositions.

If Mr. McFadden's conviction is permitted to stand, this will point out a problem in the courts' carving out a First Amendment exception in permitting child pornography prosecutions in the first place for the possession and distribution of such images, as opposed to convictions for procuring, photographing and videotaping children for child pornography. Through child pornography images provided in discovery by prosecutors in some of my clients' cases, I have seen child pornography images that leave me wondering about the depths to which some humans will sink. However, I do not see how courts can stay true to the text of the First Amendment by permitting convictions for possession and distribution of child pornography -- as opposed to procuring, photographing and videotaping children for child pornography -- without first having the Constitution amended. Each time appellate courts narrow a plain reading of the First Amendment, such narrowing becomes fodder to narrow even some of the most cherished avenues of expression, including peaceful demonstrations at presidential conventions. If recent history is any guide, we can expect to see police and local governments requiring demonstrators to stand far away from the Democratic and Republican presidential conventions -- thus preventing their message from getting to their target audience of convention attendees -- and we might not see courts doing much to rectify the situation.

Thanks to Kathleen Bergin at First Amendment Law Prof Blog for writing about this McFadden child pornography prosecution, which is reported in this news article. Jon Katz

Where did I get on this calmness kick that I discuss in my May 16 blog entry? It predates my t'ai chi practice to reach to the late 1970's, when meditation was already highly popular in the United States. I learned meditation through Herbert Benson's Relaxation Response book. Calmness did not come overnight, but a calmer approach took hold.

In 1991, I met my friend and teacher Jun Yasuda, as she fasted for thirty days on green tea, drumming for peace in Iraq. Bush I subsequently selected a date to end the war, which was the same date that Jun-san had had pre-selected to end her fast. Although I took this coincidence as a coincidence, when I mentioned it to Jun-san, she gave me a knowing smile.

I learned by the time I started practicing t'ai chi in 1994 that a peaceful life is a powerful life, as I detail here. Jun Yasuda truly is peacefulness personified. 

Shown in the above YouTube video -- thanks to the video's creator, Tom Kearns -- is Jun-san's peace pagoda and temple off the beaten path of Grafton, New York, where I visited for a crossroads  two-day visit in 1996 (experience more of her essence in this photo montage). It was a crossroads visit, because It gave me the first chance to be with Jun-san for more than just a few minutes, and during this time I asked many questions about how she reached the peaceful path, and learned Jun-san's Buddhist philosophy of death -- which is that death is only an artificial concept, as death is an essential part of life -- which helped me substantially progress from an utter fear of death to being more calm about its inevitability. 

In April 2005, I joined Jun Yasuda and other peace walkers camped out on the floor of a church social hall as a prelude to driving the next early morning from Charlottesville, Virginia, to Falls Church, Virginia, for a multi-mile leg of the seven-week International Peace Walk to Stop the Bombs. During the two-hours that I drove a few peace walkers to Falls Church, I had a long conversation with Jun-san, including my many questions about her near absolutist or absolutist approach to peace. For instance, I asked Jun-san what she would have done if she lived in the 1940's and bumped into Hitler, since I knew her response would not have mirrored my response of shooting him dead first and asking questions later. Whether or not I agreed, Jun-san explained that everyone has several personalities including good parts of their personalities; she mentioned Hitler's having been a painter. Jun-san would have asked Hitler why he was so angry. She said she might have started by offering him a massage, looking at it as soothing the soul of a savage beast, I suppose. 

On our walk, which covered many miles that I had only driven before, we stopped at the Iwo Jima memorial across from my old apartment building in Arlington, Virginia, the Vietnam Veterans Memorial, and Lafayette Park across the White House, where I first met Jun-san. At each place, if I recall correctly, Jun-san lit incense sticks, apparently to sanctify the activity, and led everyone in a respectful repetitious drumming prayer of the Odaimoku -- Na Mu Myo Ho Ren Ge Kyo, which graces my license plate in acronym form. Jun-san treats everyone with the same respect.

It took me a long time to pick up on the benefit of all the miles of peace walking Jun-san does each year. At first, I thought Jun-san might be more effective if she obtained a public relations team to promote her for speeches, web appearances and book publications in the successful manner of the Dalai Lama. I believe the Dalai Lama's approach to spreading his message of internal and external peace is very beneficial. Jun-san's approach is to spread her message without much technology, by walking hundreds of miles annually, chanting and drumming the odaimoku nearly every step of the way.

When Jun-san was doing a days-long dry fast, with just one drink at the midpoint, in 2000 for Mumia Abu Jamal on or near his prison grounds , an interviewer asked her on day five of her fast, in her very cold tent, how she expected to influence many people by doing her action so far from the nearest city and often with few people seeing her other than the prison workers. Jun-san responded: "Numbers don't matter. What matters is your commitment to peace. Gandhi was just one person, and he did very simple things. He walked to the ocean [in protest of a British monopoly on salt]. He fasted. He was one person. But he was very conscientious. We should be too. Think of one person fasting outside the White House. That act has spiritual power. More, maybe, than big numbers." This is a very powerful message.

Jun-san and the other members of her Nipponzan Myohoji order collaborate with other groups -- involving other religions and interests -- with the goal of peace. In 1977, Jun-san joined the American Indian Movement's Longest Walk, which is described as follows at http://www.dharmawalk.org/fujii.htm : 

In 1977, the Order put this [outreach to other groups] into practice by joining the Longest Walk for Native American survival. [Nichidatsu] Fujii [founder of Nipponzan My0hoji] found the basis for a deep relationship with the Indian people. As he told Dennis Banks, "The daily life of your people is supported by religious faith . . . a way life identical to that of Buddhism."

Banks had encountered the drums many years before. As a member of the armed forces in 1956, Banks was on guard as the Order joined farmers and students to halt construction of an air base near Tokyo, "The Japanese police beat many of the Buddhist disciples." he later recalled. "As I watched in horror I could not realize the strength of their prayers and the weakness of our weapons. Twenty-two years later, we met again at D-Q University [in California]. Only then did I realize the strength of [Fujii's] spirituality and I knew that his prayers would outlast the weapons of war."

Fujii's work with Native Americans continued to grow through numerous walks and actions. A Buddhist temple was established at D-Q, a Native American controlled school where Banks served as chancellor. When he left the state, a Nipponzan Myohoji nun, Jun Yasuda, traveled with him. Banks pointed to the Order as an example of what religious respect could mean. The Sangha, he explained, had not come to convert him to Buddhism, or to tell Indians how to do things, but to offer their support in times of danger. They had stayed constant through their own prayers and practices.

The cross-country Longest Walk was a highly empowering event for Native Americans, and is well-detailed in Dennis Banks's autobiography Ojibwa Warrior. (A new Longest Walk to Washington, D.C., is now in progress; information on the walk and on how to provide financial and other support is here.) Such long distance walking is among the things the Longest Walkers had in common with the Nipponzan Myohoji folks.

The next time I see Jun-san, I will ask her if she feels she is adding peacefulness to every bit of land she walks on while chanting the Odaimoku. I expect her answer will be yes. Jon Katz. 

A big dichotomy can exist between the devotion to being calm, and actually being calm. Although I do not know if it is true, a well-known peace proponent whom I respect very much claims that Gandhi, the very would-be pillar of calmness, was a tyrant to his wife. (Did he do so in a calm tone of voice, if there is such a possibility?)

One day at a Trial Lawyers College reunion ten years ago, one of the attendees told me: "Jon, it took awhile for me to identify with you. You are a vegetarian, and I hunt. By now, I admire you as a sea of calm." I responded: "You have much still to know about me. It is easy for me to be calm while here on vacation in the beautiful Wyoming mountains, with not an opponent in sight."

Yet calm I must be, and calm we must all be. Many times I have obsessed over whether calmness is a sign of weakness or of being an automaton humanoid. Then I think of my friend and mentor Jun Yasuda, who is calmness personified even when being physically attacked when peacefully demonstrating for peace (her response will be "Why are you angry?" rather than escalating the violence) and even when the government throws roadblocks in her path (including telling her how to set up the plumbing in her temple, merely because it is open to the public).

The late Vic Crawford was about the only person who could have convinced me to start practicing t'ai chi when I did. He did so merely by letting me know in passing that he practiced it, answering any questions I had about t'ai chi, and just being. Vic was a brash, hard-fighting trial lawyer who incorporated t'ai chi into his life without making any effort to proselytize for it. Three years after I first met Vic, I asked his advice for learning t'ai chi. Vic sent me some brochures about classes given by Ellen and Len Kennedy, (who became my teachers) and some other local instructors (lawyers Vic and Len inspired me to start and stay on the t'ai chi path now for over thirteen years). He attached a note foreseeing amazing doors that were about to be opened through learning t'ai chi; what an understatement. 

Recently, I revisited the critical question I often revisit: How to apply calmness to an employee even in the most trying situation (for instance, if a new staff member mistakenly tells a caller we don't handle felony cases (which we do, of course) and the caller hires the lawyer across the street for his marijuana grow defense). First, in responding to such trying situations, it is important to remember some of our own worst messups, whether based on inattention, stress, depression, disinterest, inability, or anything else. Then, for me, it is critical to stay in, or return to, full t'ai chi mode, where tension always weakens and calmness always strengthens. Next, in addressing the problem with my employee, it is critical to approach the matter as my t'ai chi teachers do in showing me how to improve, which my teachers call "corrections", which is a positive and patient approach geared towards improving absent of any lecturing, berating or tension. My t'ai chi teacher does not tell me "for the thousandth time, stop holding your arm so high when in the wardoff posture," but instead comes over and either points calmly to my wardoff arm or gently moves it to the better position (or, if it is master Ben Lo, he might playfully throw one off balance by pushing the lower back of a practitioner who does not sink into his or her steps; as Ben says "No pain, no gain/No burn, no earn.").  

Of course, different than the employer who can suffer harm to clients and finances when an employee makes a big error, the t'ai chi teacher suffers no loss other than training time to have a student who makes multiple errors. The great t'ai chi teacher recognizes, of course, that every student of every subject has his or her own pace for learning, and that sometimes the slowest learner becomes the most skilled practitioner. In any event, there is no sufficient alternative to the foregoing approach for addressing employees when they make mistakes, or even when they intentionally neglect their obligations. What good comes out of any other approach? For instance, motivation by fear ultimately weakens the employee, the employer, and the entire organization; fear weakens rather than strengthens.

T'ai chi megamaster Cheng Man Ching -- who taught the teacher of my t'ai chi teachers -- exhorted t'ai chi practitioners to be ready to invest in loss on the way to victory. Certainly, approaching serious adversity with employees and others with total calmness may prolong loss in the short run (for instance, some employees may think their mistake could not have been all that bad if the employer responded calmly), but in the long run, this is the most powerful and beneficial approach. In reality, no other alternative exists to the calm t'ai chi approach, and no exceptions exist to this approach. Even for people who are committed to such an approach, overnight change in unlikely. Of course, t'ai chi involves striving for constant improvement, rather than expecting that it will come at the snap of the fingers.

The fighting part of t'ai chi is to be used with our opponents, not with our employees, co-workers, friends, and allies. Even when t'ai chi battle is necessary with opponents, calmness is critical at all stages, no matter how fierce or potentially lethal the battle. The goal of t'ai chi battle is to harmonize a problem; for me, in doing t'ai chi battle, if any damage is going to come to the opponent, I want to cause no more damage to the opponent than necessary to get to harmony.

Theoretically, it should be less stressful to deal with problems from employees than problems from opponents. However, we know that we generally can escape from our opponents by just walking away, whereas employees are within yards of our desks. Calmness remains the only answer.

As to opponents, disarming them often requires putting our own arms aside, too, at least at first. For instance, recently I went up against a prosecutor who refused to budge to reach a drunk driving plea deal that would not involve his recommendation of executed jail time. I figured no harm would be done, and possibly a benefit, if we took a detour to something else to discuss of mutual interest, so we talked about our criminal law practices, which was interesting for us both, as much as I still see prosecuting as mainly a darkside practice. Then I came back to our plea negotiations, and with a few new developments that took place, we reached a no-executed jail deal.

Before starting practicing criminal defense seventeen years ago, I would have thought such an amiable discussion between opposing lawyers distasteful. However, I know that we are all interconnected as human beings; when we treat our opponents as full human beings -- even through gestures as small as engaging in mutually interesting discussions about such pastimes as long distance biking -- rather than as evil personified, we help motivate and empower them to be the best human beings they can be, or at least to approach that. Everyone wants to be treated with respect and dignity, rather than to be expected to urinate in the eye of justice and good. When we recognize that everyone has within them the seeds of goodness and evil, then it is easier to hold out hope that even our most vicious and heartless-seeming opponents can experience a turnaround.

For my purposes, t'ai chi is an essential ingredient for putting the foregoing goals into practice. Mediator Tammy Lenski's Conflict Zen blog provides excellent ideas for reaching such goals for those who do and do not practice t'ai chi. What do you do to reach calmness in a state of stress or conflict? Jon Katz.

Imagine Geoffrey Holder, with his commanding voice, arguing before Judge Douglas Ginsburg.

I have lived in two celebrity towns: Manhattan and Washington, D.C. In Manhattan, I'd pass Lou Jacobi as he dropped off dry cleaning, Geoffrey Holder (see him in the YouTube video above) on a cold weekend afternoon in Greenwich Village, and Madeline Kahn in the audience waiting to see Linda Hunt and Wallly Shawn onstage.

In Washington, D.C., the celebrities more often are political figures. A few months before he resigned, I saw Nixon enter the same hotel where Reagan was shot seven years later. Not long after he purportedly overdosed in the eye of the Iran-Contra storm, I saw Robert MacFarlane, Jr., from the opposite direction on 20th St., NW; with a nod, he broke my surprised look focused on how he symbolized a presidency I strongly opposed, while recognizing the common human denominator that his overdose represented. Near the same time, two blocks from my law school, I saw Robert Bork taking up almost the entire front of a small car in which he was driven, shortly before his doomed Supreme Court nomination got under way; stunned to see the man I wanted bounced out of the Senate confirmation room, I surprised myself to ask "How are you?," which received a high-pitched "Fine, fine." Three days before Gulf War II started, I saw Carl Bernstein taking a stroll at the national Mall. He seemed happy to be recognized; I wanted to show him my thanks by leaving things at my gaze.

Soon after the Senate bounced Bork, Reagan nominated a forty-one-year-old Douglas Ginsburg to the Supreme Court. His nomination fizzled within days after his admission that he had smoked marijuana while a law school professor. Since then, Judge Ginsburg has remained a judge on the United States Court of Appeals for the District of Columbia. I appeared before him, Judge Kavanaugh, and Judge Brown two days ago, arguing to strike down the Defense Department's First Amendment-violative regulations prohibiting military base newspapers from carrying my client's ads challenging the Bush II administration's military policies. When I learned Judge Ginsburg would be on my panel, I was intrigued that this man who had fifteen minutes of national fame over his Supreme Court nomination would be presiding. When he sat in the center seat at the bench, I took a double take, wondering if it perhaps it was a different Judge Ginsburg; over twenty years has intervened.

Judge Ginsburg does not come across as a stoner; he comes across as a conformist who would be prized by Reagan as a judicial appointee were it not for his marijuana smoking background. Of course, when Judge Ginsburg was a Harvard law professor from 1975 to 1983, often it was more non-conformist to refuse to join others for a toke than to do otherwise; able to count on one hand the times I have toked, I know how much easier it would have been for me to have joined in more often. 

Now we have a presidential candidate, Obama, whose autobiography admits to having snorted blow/cocaine in his much younger years, apparently feeling lost in the ocean without a lifesaver. Had Judge Ginsburg been a Democratic appointee, his marijuana past may have seemed just quaint.

The marijuana legalization movement has its share of Republicans, often libertarian-leaning, including the late William F. Buckley and the late Milton Friedman. The late Nixon appointee and conservative William Rehnquist may have found natural back pain relief and avoided his earlier dependency on the overly potent Placidyl had he used medicinal marijuana instead.

As is common, I was allotted only ten minutes to argue before this appellate court panel. This expensive courtroom in the courthouse's new wing was as august as they come, with reading prohibited even for lawyers waiting their turn to argue. Had I passed Judge Ginsburg in the hall, I would have bit my tongue to ask my burning question: "What led you to smoke marijuana? To treat orthopedic pain? To enjoy an alternative to a cocktail? To enjoy the communal experience of sharing the herb?" It is a better question to ask someone who will not be deciding my client's case.

Ironically perhaps, marijuana was a theme of my appeal before Judge Ginsburg and the rest of this panel, through my argument about the soundness of federal trial judge Paul Friedman's 2004 ruling in ACLU v. Mineta, 319 F.Supp.2d 69 (D.D.C. 2004), that the D.C. area Metropolitan Area Transit Authority unconstitutionally prohibited pro-marijuana advertisements in subway stations, where WMATA's decision was based on federal legislation prohibiting such advertisements in transit systems.

As I have said many times, if all alcohol drinkers enjoyed marijuana instead, the world would be a much more peaceful and mellow place. Amsterdam anyone? Jon Katz

Supreme Court spiral staircase.

On May 12, 2008, the United States Supreme Court affirmed a conviction where the defendant's lawyer agreed to magistrate judge-run jury selection, even though the defendant was not asked directly on the record whether he so consented. Gonzalez v. U.S., __ U.S. _ (May 12, 2008). 

This case is worth reading both for the majority opinion and for Justice Thomas's dissent, in which he insists that defendants -- not their lawyers -- personally have the opportunity to say aye or nay on the record about having a magistrate judge conduct jury selection. As much as I did not want Justice Thomas to join the Supreme Court and still feel the same way, I thank him for his dissent in Gonzalez . Jon Katz.