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