Monday, June 30. 2008Heller's limited reach outside the home.
Image from the Government Printing Office's website.
As I walked to the District of Columbia Superior Court last Thursday, I felt a huge air of glee from a fellow criminal defense lawyer walking the opposite way. "Justice is coming at 10:00 a.m.," he exulted. Later that morning, in the courthouse, another colleague who defends many clients in handgun cases happily told me that the Supreme Court that morning had affirmed the United States Court of Appeals ruling invalidating the
As to Heller's effect beyond handgun possession in one's home, I posted my following view on a local criminal defense lawyer's listserv:
Several listserv members suggest that Heller invalidates D.C. Code § 22-4504 concerning possessing unregistered firearms and unregistered ammunition. I hope that would be the case. However, doesn't Heller only automatically invalidate prosecutions for possessing handguns in one's home, and give the most immediate ammunition to attack prosecutions for transporting handguns between the gun shop, the home, the repair shop, and the shooting range, when all such activities are for the purpose of having a safely and properly operated handgun in one's home?
After all, Heller’s majority opinion says ‘We affirm the judgment of the Court of Appeals’ after the court’s summation paragraph (three paragraphs from the end) proclaims:
"In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." D.C. v. Heller, _
Because the Supreme Court affirms the judgment of the Court of Appeals, here is what the Court of Appeals concluded: "For the foregoing reasons, the judgment of the district court is reversed and the case is remanded. Since there are no material questions of fact in dispute, the district court is ordered to grant summary judgment to Heller consistent with the prayer for relief contained in appellants' complaint." Parker v. District of Columbia, 478 F.3d 370, 401 (D.C. Cir. 2007), affirmed sub nom
What, then, did the original summary judgment motion seek? "Appellants, six residents of the District, challenge D.C. Code § 7-2502.02(a)(4), which generally bars the registration of handguns (with an exception for retired D.C. police officers); D.C. Code § 22-4504, which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C. Code § 7-2507.02, requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device."
Consequently, although Heller provides language to support providing Second Amendment rights beyond the home, I think the case only automatically invalidates prosecutions for possessing handguns in one's home, and gives the most immediate ammunition to attack prosecutions for transporting handguns between the gun shop, the home, the repair shop, and the shooting range, when all such activities are for the purpose of having a safely and properly operated handgun in one's home. Jon Katz. Monday, June 30. 2008It's my client. I can cry if I want.
Photo from website of U.S. District Court (W.D. Mi.).
Many trial lawyers do their best to keep a stiff upper lip, to keep their hearts off their sleeves, and certainly to avoid getting misty-eyed in court even if that requires asking for a short recess to come back with dry eyes.
Sure, crying in the courtroom can be risky for a lawyer. By the same token, I agree with Gerry Spence, who says: "Real persons cry...It is all right, indeed, it is imperative, that we be who we are in or out of court." Gerry Spence, Win Your Case at 161.
When a lawyer's tears are genuine -- certainly that can be the case when a death penalty opponent argues in closing to spare his or herr client from execution -- how can a judge order the lawyer not to cry, not to be real?
A prosecutor in Ohio has asked a court to ban defense lawyer tears in the courtroom of a death penalty trial. I certainly disagree with the request, for the above-stated reasons. Moreover, what is good for the goose is good for the gander; if defense lawyers are banned from crying in the courtroom, then the ban should also apply to prosecutors, their witnesses, and murder victims' family members during the sentencing phase of capital cases.
ADDENDUM I: Thanks to a fellow listserv member for posting the article on this matter.
ADDENDUM II: The title of this blog entry is inspired by the 1965 Animals song. Sunday, June 29. 2008More on defending drunk driving in Virginia.
Image from Virginia Forestry Dept's website.
In Virginia and Washington, D.C., the law says that drivers in those states impliedly consent to have their blood alcohol levels tested if the police have sufficient grounds for seeking such tests.
In that regard, here are important relevant Virginia statutory provisions and appellate opinions:
- In Virginia, "Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense." Va. Code § 18.2-268.2 (A).
- The certificate of analysis for the blood alcohol test is inadmissible if the technician's certification was expired at the time of the analysis. However, that does not automatically prevent an erroneous certificate of analysis admission to rise to the level of harmless error. Brooks v. Newport News,. 224 Va. 311, 315, 295 S.E.2d 801(1982).
- The burden is on the prosecution to prove a defendant was intoxicated while he was operating his truck, not for the defendant to show that Defendant became intoxicated after leaving his or her parked vehicle. Overbee v. Commonwealth, 227 Va. 238, 244, 315 S.E.2d 242 (1984),
- In Virginia, the certificate for breath analysis is inadmissible at trial if the test was performed over three hours from the defendant's previous driving experience. Overbee v. Commonwealth, Va. Code § 18.2-268.2 (A), 227 Va. 238, 243. Jon Katz. Friday, June 27. 2008Four cops and thirty-seven postures.
T'ai chi is about being as still as a mountain and powerful as a rushing river, and not about karate kicks.
Perhaps someone(s) who has had enough of my t'ai chi blogposts is playing a joke on me. Yesterday, June 26, I drove to National Airport in Virginia (I refuse to use the former president's name in the title; it was National Airport long before he took his throne at 1600 Pennsylvania Avenue and installed people who would have had ketchup fulfill one of the vegetable servings in the daily school lunch program. My mission: To pickup a Nipponzan Myohoji nun and another activist arriving from Japan to join the Longest Walkers. Ordinary this mission was not.
The arriving flight was delayed forty minutes, so I decided to do what I often do to kill time in airports (and sometimes while waiting for the subway to return me from court in D.C. to my office), which was to practice t'ai chi. It made all the more sense to do so, because I had not practiced it yet that day, and it is more important to practice for a few minutes every day, than to skip two days and practice a full hour on the third day. Each day of t'ai chi practice is akin to inserting at least one page into an annual book that totals three hundred sixty-five pages by the end of the year.
I found a sparsely traveled section of the arrival area, and did two rounds of the thirty-seven posture t'ai chi chuan yang style short form, as developed by t'ai chi megamaster Cheng Man Ch'ing, and as demonstrated flawlessly here by the Professor.
Perhaps partly because I have a long way to go before doing t'ai chi even one percent as well as Cheng Man Ch'ing, and perhaps just because t'ai chi is very new to many people, I get reactions running from amusement and people lampooning my moves with pages from Karate Kid, to intrigued people -- often children -- who sometimes are willing to try practicing along with me. One day practicing in the beautiful park across from our office, a Chinese woman applauded as I did the t'ai chi form, and then showed me the results of years of her own practice of what looked like something similar to t'ai chi or another form.
Perhaps one of the amused or stunned people contributed to the police coming up to me as follows. After practicing t'ai chi, I go to the men's room, and as I am starting my standing relief, a cop is near the entrance and says, "I want to talk with you when you're done." My initial reaction to myself is "F--kin' cop. Hassling me even as I am going about such private business." Outwardly and then inwardly, though, I return to t'ai chi harmoniousness and balance.
After washing my hands, and leaving the men's room, the cop is standing right outside the exit, and offers his name and his hand to shake. Who in their right mind offers to shake the hand of a stranger who's just left the men's room? Poppy on Seinfeld is but one member of a huge fraternity of men who do not put their hands under the sink before leaving the men's room. The Japanese custom of bowing over handshaking begins sounding highly preferable, unless one has a bad back. Curiously, the other two, and then three, cops watching the potential t'ai chi terrorist do not offer to shake my hand, whether for hygienic, strategic or good-cop/bad-cop purposes.
The following transpires:
Cop: My name is officer H___________________. You match the description of someone reported doing karate kicks. I just want to hear your side of the story. (Pause.) Please stand over here, so you don't block people's way.
JK: The criminal defense lawyer in me says not to answer. My other side says maybe to do so
Cop: It will be best for you to answer.
JK: Am I free to leave (as I fish my business card out of my pocket to try to get him off my back, which sometimes can backfire)?
Cop: No. You're being detained right now. Take your hands out of your pockets. You have a cellphone. (A non sequitur for fellow Zippy the Pinhead fans from a cop decidedly not wearing a muu-muu.)
Cop (continuing): Can I see some I.D.?
JK: No. (Fortunately, Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004), supports no requirement to show cops a photo identification if one is not stopped while driving.)
Cop: No? (Feigning surprise or in actual surprise.)
JK: Here (I hand him my business card that I already had fished out, but was not required to give. Giving a cop one's photo identification makes it easier for the cop to delay the person longer by running an open warrant check and not giving the identification back right away.)
Cop: What is your date of birth?
JK: April 1, 1963. (I give it to him. It is already on our Martindale-Hubbell listing linked to our website listed on our business card).
Cop No. 2 (playing the good cop role): Excuse me sir. Would you mind stepping over here? (Another choreography direction from the cops while I am not free to leave.) All we want to know is what you were doing if you are willing to tell us.
JK: (Do I stay silent, which I tell others to do when they are suspects, or do I wear the hybrid hat of a criminal defense lawyer who stands up to cops all the time for my clients, and someone wanting to be there when my visitors arrive at the gate (how often do cops try to divide and conquer like that?)? It's the Chinese martial art of t'ai chi. I hadn't gotten around to doing it yet today.
Cop No. 2: (Already nodding her head knowingly before I finish talking). I thought so.
JK: Am I free to leave? (One of the Busted video's most essential lines.)
Cop No. 2: Yes.
My visitors arrive four minutes later, before I even have a chance to fish out my welcome sign, a practice that is the stuff of so many comedy scenes.
Less than an hour later, I am in Lafayette Park across the street from the White House with my visitors, who want to chant the Odaimoku prayer for peace, and then include me for continued chanting clockwise around the president's palace. After that, I tell a veteran Lafayette Park peace demonstrator about the foregoing incident, and he seems to be looking at me like I have just fallen off the vegetable truck. I say: "You probably get hassled all the time by the Park Police like that." "All the time," he replies, regretting that this is the case.
What lawful right did cop no. 1 have to tell me I was being detained? None. This was not a valid Terry stop -- Terry v. Ohio, 392 US 1 (1968) -- even though the Terry abortion of justice only requires reasonable suspicion to believe that criminal activity is afoot to briefly detain a suspect to ask questions (which questions need not be answered, aside from questions about identity, as addressed in Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004)). What crime might be afoot? Disorderly conduct (the catchall darling of cops, and a part of the unholy arrest triumvirate of disorderly conduct, assault on a police officer, and resisting arrest)? Hardly, and if my actions might have been reasonably suspected as disorderly, what is the difference whether it was my "forgiven" t'ai chi or possibly unforgiven karate kicks (by the way, t'ai chi only involves one circular kick, and three slow extended kicks, as shown by Cheng Man Ch'ing here)?
Was there reasonable suspicion concerning the Virginia abortion of a law of intoxicated in public, which cops seem to think gives them a freebee to search incident to arrest for such a charge? My last tipple was but a sip many moons ago.
Do the Airports Authority's regulations claim to permit cops to do Terry stops without satisfying Terry. I doubt it, but plan to check.
Why, then, was I stopped by a cop with three onlooking cops focused on me rather than on less petty suspected crime (perhaps this was my inadvertent gift towards my goal of decriminalizing drugs by taking the cops away from looking out for possible drug dealers)? Was it just to mollify the so-called civilian complainant? Was it an effort to take control of someone not conforming to the usual bored approach to wating in airports? Was it a result of post-September 11 hysteria? Were some of the four cops receiving on the job training? Did it arise from the cops' failure to distinguish between the increase of people's rights as they proceed from awaiting clearance by customs and immigration authorities to going through security for arrival at the airport departing gates to being in the arrival area, as I was? Is it mimicry by cops of District of Columbia mayor Adrian Fenty's unconstitutional criminal checkpoints? Is it because cops do not want to see anybody displaying the hallmarks of lethal force (I have not come anywhere near making my t'ai chi lethal) and martial arts other than themselves? Is it a bunch of cops with too much time on their hands? Is it a bunch of cops out of touch with the truism that the police are a necessary evil that present the real risk of pulling us further into a police state rather than closer in the arms of the many civil libertarian goals championed in the Constitution and Declaration of Independence? Will I continue practicing t'ai chi in airports, empty subway platforms, outside courts, in parks, and in my own backyard? Absolutely. Join me? Jon Katz. Thursday, June 26. 2008Winning, rather than TRYING to win.
The powerhouse of John Johnson and Gerry Spence (Aug. 1995, Thunderhead Ranch)
Gerry Spence hits it on the head when focusing on the need to win by winning, not by TRYING to win.
Thanks to some fellow listserv members for bringing this article to my attention. Jon Katz Wednesday, June 25. 2008Why the death penalty for whales, cows, chickens, and lobsters?Of Greenpeace, the hunted, and the hunters.
Previously, I avoided getting on a vegetarian soapbox. However, I modified that to blogging on the topic while minimizing saying anything to a dining companion who eats steak (even though I am deeply pained by the slaughter of the cow that is killed for the steak, and even when, like last night, the multiple steak eaters are otherwise compassionate fellow criminal defense lawyers), unless I am responding to taunting for being a vegetarian. I have become more vocal against slaughtering animals for food and clothing -- and against testing them for such unnecessary purposes as cosmetics safety (by the way, is it not more reliable to test a medicine or cosmetic on a human rather than a non-human mammal with a different chromosomal and overall biological setup, and is there any practical or moral justification to do any vivisection at all?) -- because, at its heart, I am deeply pained by the rampant mistreatment of animals that is so rampant that too many ordinarily compassionate people are numbed to the cruelty; I am fed up with the meat industry's meat-promoting happy face; and I am convinced that each person who stops eating meat will experience dramatically better health and will contribute to lower food prices and reduced health care costs and health insurance costs, and will contribute to an improved environment and a society where fewer humans will wreak violence against other humans and non-human animals.
The International Whaling Commission has been meeting in Chile, where apparently talk is the talk of the day, rather than much action, other than Chile's commendable declaration this week -- apparently a reaffirmation -- that the nation bans whale slaughter.
Why stop at protecting whales against slaughter? Do people focus so much against whaling in order to prevent the extinction of at-risk whale species? Or, do people also oppose whaling based on whales being so highly intelligent and loveable? If the latter holds true, why draw the line at whales? Intelligence is witnessed in many other mammals, too, including the dolphins that get caught up fatally in tuna-catching nets. Why draw the line at mammals, then? Do birds not display high intelligence, for instance in finding their way to a specific warm location in the winter, and back to a specific location in the summer? Why draw the line at birds? Do fish not share many of the same qualities as humans? They have hearts, livers, kidneys, brains, and gonads. Is it okay, then, to eat shellfish, which do not flap around in desperation when removed from the water? The typical way to cook lobsters and crabs is to burn them alive; what did they do to deserve that?
Many anti-vegetarians then ask: Why draw the line at land and sea animals? Why not just stop eating all plants and animals, thus leaving nothing else to eat? Few people are going to allow themselves to die for such a theory. Of course, I recognize that even if it is assumed that plants feel no pain nor awareness at being alive and being killed, insects are killed in the process of raising and harvesting plant food, and, as a vegetarian, I do not believe in eating insects, either. My best answer, then, is for food consumption to be focused on a harm reduction approach, so as to reduce the harm not only to the living things being killed for human food consumption, but also to reduce mistreatment of workers who ultimately bring food to the market, to reduce environmental degradation from food production (including fecal waste and methane/flatus pollution from livestock), to reduce the harm caused by pesticides and chemical fertilizers and genetic plant modification, and to reverse the elimination of animal habitats that result from making way for livestock and growing fields.
Protecting whales, then, is but an important start on the road to giving more protection to all land, air and water animals.
Justifiably, much has been said and written about the possibility of no painless method for executing humans, let alone the mental torture involved in awaiting an inevitable execution. Why stop there? Why think for a moment that a dinner of animals is not the product of suffering during the animal's short life, suffering while seeing and feeling and hearing fellow animals being slaughtered, and knowing that this will be the witnessing animal's fate in just a few moments, and suffering at the moment of slaughter?
I ask a favor to all meat eaters: Before you eat your next piece of meat, poultry or fish, please give a name to the animal from which this flesh came, whether it be Bob, Carole, Ted, Alice or anyone else. If you are eating a hamburger, sausage, or hot dog, it may be a good idea to give the meat several names, as hamburgers and sausages are a convenient way for the meat industry to gather up the scraps from the meatcutting machines. The more we give a name, face, heart, and soul to the humans and non-human animals upon whom we cause suffering, I am convinced we will reduce the suffering. Jon Katz.
ADDENDUM I: Back to whales, yesterday's Australian newspaper reports that "Japan says it is misunderstood, denies the 1000 whales it hunts each year for scientific purposes despite a 1986 moratorium are making it to the dinner table, and says it is also in favour of conservation." Either that is an untruth, or else the Japanese fish markets are obtaining whales for food some other way. As I wrote last January:
"In 1999, a wonderful family living several miles from central
"Not only were fish there. Several minutes into our tour of the huge building akin to an airplane hangar, I saw a multi-pound slab of whale corpse. My host confirmed it was what I thought it was, and I started feeling plenty more down than I already was around all the dead fish. Our host was at once concerned about my feelings and hoping to reassure me that all was okay, that this is a deep-rooted part of Japanese culture to eat slaughtered whales."
ADDENDUM II: Here are some of my past writings on vegetarianism and animal rights; Karma and your plate; How to reduce hunger and eating costs, and slash methane and fecal pollution?; Of Greenpeace, the hunted, and the hunters.
ADDENDUM III: Here are some links to Japanese government writings about whaling:
- "We believe it is not appropriate to lightly condemn the behaviors of others as bad, barbarous or primitive, or rather there should be an attitude of respect for the cultures and habits of different cultures."
- Whaling promoters have their own lobby, which is the World Council of Whalers.
- The Japanese embassy in New Zealand proclaims: "Much has been learnt about the whales [from Japan's whale research program], for instance, it has been found that they consume three to five times the amount of marine living resources than are caught for human consumption. The research also showed that contaminant levels in Antarctic minke whales are very low." What justifies killing whales to obtain such statistics?
ADDENDUM IV: Concerned about going hungry or unhealthy by trying vegetarianism and veganism? Now is the most convenient, healthful, and delicious time to eat vegetarian. It is hard to make the transition alone. Check out your nearby vegetarian society and PETA for an easier and more socially enjoyable way to reduce and eliminate meat consumption. Also, check out my vegetarian links. Wednesday, June 25. 2008Tuesday, June 24. 2008Seeing everyone as part of the same whole.
At first I was going to blog today about some recent key appellate decisions. One of the reasons I started this blog was to have extra motivation to read and index such opinions.
At the same time, this blog has motivated me to write about and to get closer to greater strength through total calmness, so that will be my detour for today's blog entry.
Although I have far to go in reaching total calmness, I keep getting closer to it day by day, kind of like a recovering ball of intensity for whom each day of calmness is an achievement. In many ways, I had to discover calmness. Calmness did not appear to be a priority commodity as I grew up, except when public school teachers told me and other students to stay seated, still, and quiet (and often bored). In grade school, I focused on having a quick mind when my ballfield prowess often left much to be desired (although I took quickly to lacrosse, and did alright in tennis and basketball when I focused on them). My peers often played the dozens in one way or another, which was made popular by George Carlin (I send him all good karma on his departure from the planet). Playing the dozens is not calmness.
Life progressed, and for years I did not feel I could let my guard down, when considering all the shysters, bigots, bullies and violent people that I was convinced surrounded me, without even needing to smoke marijuana for paranoia value.
Interspersed in all this was an increased interest by many people in calmness -- something that has been highly valued for centuries in much of Asia, but which perhaps got too forsaken in plenty other parts of the world as the industrial revolution and communications revolution shrunk the globe and made many people demand more and more ever more quickly, with many willing to fulfill such demands (enter FedEx, for instance).
The Beatles dabbled in calm during their time with the Maharishi Mahesh Yogi of transcendental meditation fame; John Lennon, though, eventually panned him as but a mere mortal, at best. George Harrison continued focusing on a spiritual journey. That journey need not be religious; as the Dalai Lama agrees, atheists, too, can reach calm.
Regardless of the Maharishi Mahesh Yogi's strengths and weaknesses, the transcendental meditation rage reached full bloom in the 1970's, which decade finished when I was sixteen. I learned meditation through Herbert Benson's Relaxation Response book; meditation is best done regularly than dabbled into, and I dabbled, until finding the moving meditation of t'ai chi.
Ironically, I met my best teacher for relaxation and peacefulness -- Jun Yasuda, whom I write more about here and in many other parts of this blog -- during a time of war in 1991, when countless people were suffering their heads being blown off and all other sorts of violence to them, their children, and others close to them, the levels of which continue today in Iraq, Afghanistan, and throughout the rest of the world.
One night in the middle of last week, I got a phone call from Jun-san, speaking with her for the first time in about a year. She is on the Longest Walk with Dennis Banks, and will arrive in the Washington, D.C., area around two Mondays from now. Jun-san remains calmness and peacefulness personified. I might have gone decades without meeting Jun-san, or never meeting her, which would have required me to work all the harder at reaching the levels of peace and calmness that I now feel.
Still a block to my achieving greater peace and calmness is my struggle to see and internalize everyone as part of the peaceful Buddha, without seeing some of them as carbuncles on the Buddha's backside. Maybe it would be easier to take this view if I were a Buddhist and grew up a Buddhist, neither of which apply to me, and figured out how to see all of us as interconnected without my seeing the carbuncles. Maybe it would be easier if I placed less value on joking about carbuncles and less fear about being bored when just being calm and peaceful rather than out and about in my thinking and experiencing.
Now, I try all the more to see and summon the Buddha nature in others. Because it sometimes can be a challenge to do that with the driver of an eighteen wheeler tailgating me and wildly flashing headlights when already I am in the righthand lane if the highway, I also turn to doing that with people who do not come across as immediate threats to my staying alive for one more day. Then, I move to the level of trying to do it with cops and prosecutors and opposing witnesses and judges when I feel disappointed in the lack of justice being dispensed by the judge. Critically, of course, I must do that with my jurors.
Of course, the trucker tailgating me and blasting the horn at me is not calm, either, and seeks peace in some way. Also seeking peace are the cop who plants evidence, the prosecutor who thinks nothing of letting a presumed innocent defendant rot in a jail cell for months until the trial goes forward, and a judge who renders a guilty verdict when reasonable doubt spills over the courtroom floors. Will these folks contribute more towards harmony if we bare our fangs at them, or if we offer them gestures of peace?
Consequently, I need to go to the center of the fire and share calm with the very people who seem to urinate the most in the eyes of justice and fairness, and to do it without my getting scorched or charred in that fire. Jon Katz. Monday, June 23. 2008Bogus electronic grand jury subpeonas; audio recordings of trials.
Photo from website of U.S. District Court (W.D. Mi.).
Here are two important items from the United States Courts website:
- The federal courts website reports instances of bogus grand jury subpoenas being sent to some people by e-mail. The federal courts do not deliver such subpoenas by e-mail, and the bogus e-mails may include harmful links. I do not know how old this information is, but it underlines the importance of being vigilant of the many e-mail frauds out there, and the many viruses that invade computers by opening e-mailed attachments from unreliable sources.
- Lawyers, judges, and witnesses have less anonymity in the courtroom than ever. Some courtrooms videotape trial proceedings. Audiotaped proceedings are ubiquitous (but not in such courts as the Virginia state-level district courts, which requires parties to hire their own court reporter to have a certified record of the district court proceedings). In some federal trial and bankruptcy courts, audiotaped proceedings can be obtained online from PACER (here is PACER's link).
We are now in a world where almost nothing we say or do outside of our home is private. Cameras are ubiquitous in retail establishments, at highway overpasses, at the national mall, and the privacy-loss list goes on. It all makes it sound quaint that I opted against being videotaped for my first-year law school moot court competition in 1987 merely because none of the parties had opted for videotaping in advance of the competition date. Now, it is always showtime when I leave my home, and lawyers do not have a privacy argument to stand on when in the courtroom; lawyers who do not want such scrutiny are free to negotiate contracts, arrange trusts and estates, draft laws, and do other non-litigation work. Jon Katz. Sunday, June 22. 2008Suit filed against D.C.'s unconstitutional crime checkpoints.
Bill of Rights (From public domain.)
This entry follows up on my June 5, 2008 blog entry about the District of Columbia's unconstitutional police crime checkpoints,
Thank you to the Partnership for Civil Justice for filing a class action injunction action this past Friday against the checkpoints. The Complaint for this injunction action is here. The memorandum of law supporting the injunction motion is here. The case is Caneisha Mills, et al. v. District of Columbia (D.D.C. Civ. No. ____).
Check out the work being done by the Partnership for Civil Justice, which describes itself as follows: "The Partnership for Civil Justice is a public interest legal organization based in Washington, DC that handles a broad range of complex constitutional rights litigation matters including First Amendment litigation, employment and public accommodation discrimination cases, economic justice issues and defense of targeted communities and political organizations and activists." I met PCJ's founding lawyers Mara Verheyden-Hilliard and Carl Messineo when preparing to defend April 16, 2000, IMF/World Bank protestors. Another lawyer who was at PCJ is Zachary Wolfe, who subsequently founded the Peoples Law Resource Center in Washington, D.C.
Thanks, also, to PCJ for having filed a lawsuit to invalidate the District of Columbia's unconstitutional political postering regulations, which lawsuit I blogged about here. ANSWER v. D.C. (D.D.C. Civ. No. 1:07-cv-01495-HHK). The lawsuit stems from fines issued against people postering for the September 15, 2007 antiwar demonstration, which I attended for the pre-demonstration activity. Jon Katz Friday, June 20. 2008The Supreme Ultimate
Many times I have written about t'ai chi's benefits to the practice of life and law. T'ai chi master Cheng Man Ch'ing called this martial art the Supreme Ultimate. Here are some relevant links:
- Cheng Man Ch'ing teaches a sensing hands class.
- T'ai chi's 37 postures on video.
- List of the 37 postures.
- Cheng Man Ch'ing discussing t'ai chi.
- Reading list.
- Cheng Man Ch'ing fencing.
- Acupuncture, acupressure, and redirecting the chi. Jon Katz. Thursday, June 19. 2008Visit our expanded and constantly updated legal links.
Computer hard drive. (Image from Pacific Northwest Laboratory's website).
Our legal links webpage is an eight-year work in progress. Our blog and blogroll are a two-year work in progress. I hope they are a benefit to you.
The latest update to our legal links page is an addition of a military criminal defense section and a Native American law section. They are both areas of law that interest me very much, and that seem to be under-studied. I am interested in military criminal defense generally because I am interested in just about all criminal defense, and also because the topic includes the treatment of prisoners of war and alleged enemy combatants, and the military death penalty system. For Native American law, my interests include learning more about the sovereign rights being exercised and fought for by Native Americans, the right to use peyote and all other drugs for sacramental purposes, and the Native American court systems -- particularly the criminal justice system.
I welcome all your suggestions for additions and other improvements to our links page and to the rest of our website and blog. Jon Katz. Wednesday, June 18. 2008Resist the Martha Stewart syndrome.
Photo from website of U.S. District Court (W.D. Mi.).
Martha Stewart went to prison not for violating any securities laws, but on a conviction for lying to federal investigators about insider securities trading. What would have happened if she had asserted her Fifth Amendment right to remain silent with investigators? A thing of beauty would have happened, because it rarely helps a person's criminal case to waive the Fifth (except for federal snitching, I mean debriefing, sessions, which should not be done without a qualified criminal defense lawyer and a written agreement governing the debriefing), and it even more rarely helps to waive the Fifth outside the presence of one's lawyer. Convicted sniper co-defendant Lee Boyd Malvo comes to mind, who clearly would have been counseled by his Maryland lawyers to stay mum with the cops, but who spilled the beans to the cops after arriving in Virginia and probably receiving the red carpet treatment to any restaurant food, soda pop, DVD, or stereo system that suited his fancy.
Even too many suspected lawyers overlook the necessity of worshipping at the altar of the Fifth Amendment. One of them is David Safavian, whose liberty went into a tailspin when -- as a General Services Administration official -- he accepted a partial Scotland golf outing junket from his good friend and subsequently convicted Jack Abramoff, and then allegedly fudged to investigators the share of expenses for which he paid. It seems he spoke to investigators without a lawyer, at least in the beginning. What is the worst thing that might have happened if Safavian had stayed silent? Maybe he would have lost his job; maybe not. Still, he should not have been wagging his tongue without the assistance of a competent criminal defense lawyer.
Congratulations to Mr. Safavian for getting all his counts reversed on June 17 in his federal prosecution alleging concealing material facts and "making false statements in violation of 18 U.S.C. § 1001(a)(1) and one count of obstructing justice in violation of 18 U.S.C. § 1505." U.S. v. Safavian, __ F.3d _ (D.C. Cir. June 17, 2008). The written opinion does a better job than I can about how he won the reversal. Congratulations, also, on getting the sentence stayed pending appeal.
Had Mr. Safavian only remained silent, that would have been bliss. Jon Katz. Tuesday, June 17. 2008Praised be Singaporean dissidents.
From Library of Congress's website.
Singapore is a fascinating place. Certainly, the government for decades has sought an overly-antiseptic and censoring city nation, while jailing dissidents, caning convicts, and executing people for possessing as little as 1.2 pounds of marijuana (with my having snapped a photo of some smiling customs officials under a banner near the Malaysian border proclaiming the death penalty for drug trafficking). Knowing all of that, still I spent a few days there after the bar exam in 1989, as an international air travel hub on my way to a much more colorful and fascinating time in Thailand, starting with an inexpensive Bangkok guesthouse located alongside corrugated rooftop homes near Kao San Road, and followed by a northern trek that included everyone pushing an overloaded converted pickup truck out of the mud numerous times on day one, followed by joining some singing moonshine-drinking revelers at the tailend of a wedding celebration in a tribal village.
I got a slight peak on the inside of Singaporean society while spending some time with a friend who had just relocated there and staying as a guest at the home of his brother -- who described himself as conservative -- and spending time with some of the family members going about their daily activities. Part of what makes Singapore so fascinating is its overlapping Chinese, Malay and Indian influences found in such a small geographic area. I write more about my visit to Singapore in the last several paragraphs here, including my surreal midnight arrival at a near-empty airport luggage carousel area with unsmiling machine-gun toting security offset by nobody asking about the contents of my baggage, and my possibly even more surreal experience meeting a fellow diner at a vegetarian Indian restaurant who thought he was paying me a high compliment by likening me to a young Richard Nixon with his new legal career ahead. My time in Singapore was all the more interesting by having gotten off the beaten path several times.
Fortunately, Singapore is not the monolithic lockstep place that many of its rulers have sought. Numerous Singaporean dissidents are willing to speak out, and to do so in a vibrant, fearless, calm, intelligent and apparently effective way, as detailed further below. As much as civil liberties remain under assault in the United States -- with it being essential constantly to refight and re-win previous civil liberties victories -- plenty of dissident actions that would get little if any suppression in the United States routinely get suppressed in Singapore.
Here are some recent examples of inspirational dissident activity in Singapore:
- On May 17, 2008, dissidents screened One Nation Under [Lee Kuan] Yee, without first submitting it to Singapore's ubiquitous censors. Kudos to those who produced the film, the dissidents who screened the film, and Singapore's Peninsular-Excelsior Hotel for allowing the film's screening (although I suspect the hotel did not recognize the implications of the screening or the screening itself).
- Here and here is a March 15, 2008, attempt to proceed with a rights march in Singapore.
- Gopalan Nair is a lawyer who grew up in Singapore, dissents openly from its government, and practices law in the United States, where he obtained citizenship. He has intentionally blogged himself into being brought into court on pending criminal libel charges relating to Lee Kuan Yew, who previously governed Singapore in authoritarian fashion, and still participates in the running of the government.
- A longtime Singaporean dissident is Francis Seow, who went into self-exile many years ago.
- The Singapore Democratic Party is active with numerous of the current protests.
If you visit Singapore, please let me know. I wonder how much else of the nation has changed after my last visit there nineteen years ago. Jon Katz. Monday, June 16. 2008Revolting images and double jeopardy issues swirl around Judge Kozinski's mistried obscenity case.
Photo from website of U.S. District Court (W.D. Mi.).
The Ira Isaacs obscenity prosecution is the latest federal case -- other than my own federal cases -- that I have reviewed on PACER. The information I found there provides factual information -- some linked below -- concerning Judge Alex Kozinski's recusal and mistrial orders from June 13, and about the prosecutors' allegations of the beyond-disgusting contents of the alleged obscenity involved in the prosecution.
In July 2007, a federal grand jury in Los Angeles rubber-stamped, I mean returned an indictment against Ira Isaacs for alleged importation of obscenity for sale or distribution, transportation of obscene material, and improper recordkeeping to show that all actors in sexually explicit videos were over eighteen years old at the time of production.
Trial commenced on June 9, 2008, with jury selection, which was completed on June 10, 1008. During the parties' opening statements on June 11, the media reported that presiding trial judge Alex Kozinski (also recently elevated to the chief judgeship of the U.S. Court of Appeals for the Ninth Circuit) had sexually explicit images at his alex.kozinski.com Internet site. Blogger Eugene Volokh -- a friend and former law clerk of Judge Kozinkski -- has an admittedly biased overview about those images here.
Judge Kozinski adjourned trial proceedings on June 11 to determine how he would handle his presiding over an obscenity trial when his own sexual image scandal broke out during opening statements. Two days later, on June 13, 2008 -- apparently sua sponte, although he said he would entertain any motions by the parties to remove him from the case (Judge Kozinski apparently was a good pick for the defense, for his reportedly strong stance on many First Amendment rights) -- Judge Kozinski issued an order stating: "In light of the public controversy surrounding my involvement in this case, I have concluded that there is a manifest necessity to declare a mistrial. I recuse myself from further participation in the case and will ask the chief judge of the district court to reassign it to another judge." On the same date, the Central District of California's chief judge issued an order stating: "A mistrial having been declared by the transferee judge, and the transferee judge having recused himself, it is ordered that in accordance with the usual transfer procedures of this Court, this case is returned to the calendar of Judge George H. King for all further proceedings."
The final docket entry as of the start of business on June 16, 2006 is an order from newly-assigned Judge George King, setting the trial for June 30, 2008.
On some lawyer listservs has been a discussion about why Judge Kozinski's recusal necessitated a mistrial, rather than having a new judge resume the trial midstream. One or more listserv commenters suggested that the governing procedural rules allow the replacement of the judge without a mistrial -- certainly, any new judge would be able to come up to speed with the trial proceedings by reading transcripts from the three days of trial proceedings -- and that avoiding a mistrial would have avoided the possibility of a dismissal on double jeopardy grounds. By now, the mistrial cannot be reversed. The jury presumably has been excused and thus released from any order not to read or listen to news about the case; then again, which potential new jury members will not have heard of this case that has by now received so much press?
In the Ninth Circuit, at least, "[j]eopardy attaches after the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 57 L. Ed. 2d 24, 98 S. Ct. 2156 (1978); United States v. Jaramillo, 745 F.2d 1245, 1247 (9th Cir. 1984), cert. denied, 471 U.S. 1066, (1985). After jeopardy attaches, the court's declaration of a mistrial - over the defendant's objection does not bar retrial where the mistrial was declared because of 'manifest necessity.' Thomas v. Municipal Court of Antelope Valley J.D., 878 F.2d 285, 287 (9th Cir. 1989) (citing Washington, 434 U.S. at 505)." U.S. v. Sammaripa, 55 F.3d 433, 434 (9th Cir. 1995).
Here, one argument for "manifest necessity" might be that a new judge would need time to get up to speed with the trial, and that such delay in doing so would consequently necessitate starting anew rather than having a group of antsy jurors waiting for Godot.
No matter which jury Mr. Isaacs gets, he will have a likely monumental battle for the prosecuted material not to be found obscene. His own lawyer, Roger Diamond, said in opening that the prosecuted films are "pretty revolting." As much as I oppose Mr. Isaacs' prosecution and all obscenity prosecutions on First Amendment grounds, my stomach contents still threatened to violently erupt as I read the prosecutor's proffered description of the films. (WARNING: The prosecutor's description of the films -- found near the end of this document -- is beyond disgusting to include the deeply upsetting,) There is no reason to expect that Mr. Isaacs' jurors will react more mildly than I, particularly after they see the actual films, unless the prosecutor's description of the material is an exaggeration.
For those interested, I have uploaded the following key court filings in this Isaacs prosecution: The indictment; case docket; defendant's motion to dismiss; defendant's motion to require translation of the films to English; joint pretrial memorandum containing the parties' motions and legal memoranda; the prosecutor's trial memorandum; defendant's proposed jury voir dire; prosecutor's proposed jury questionnaire (WARNING: The prosecutor's description of the films -- found near the end of the prosecutor's proposed jury questionnaire -- is beyond disgusting to include the deeply upsetting); prosecutor's proposed jury voir dire; defendant's proposed jury instructions disputed by the prosecutor; the prosecution's exhibit list; joint verdict sheet; and Judge Kozinski's recusal order.
As much as I am revolted by the descriptions of the films being prosecuted in Mr. Isaacs case, on First Amendment grounds I wish him victory in his case. Jon Katz.
ADDENDUM: A fellow blogger suggested I give my view of whether Judge Kozinski's decision to declare a mistrial was truly manifest necessity or personal choice/convenience.
The Ninth Circuit caselaw on manifest necessity in the context of mistrials and double jeopardy rights -- see, e.g., U.S. v. Sammaripa, 55 F.3d 433, 434 (9th Cir. 1995). -- speaks about the timeline when the necessity manifested itself, and that manifest necessity will not overcome dismissal for a double jeopardy violation if a mistrial could have been declared before jeopardy attached. Here, any necessity arguably manifested itself before Judge Kozinski got assigned to the trial, as discussed below.
Eugene Volokh does a good job putting Judge Kozinski's alleged involvement with sexually explicit images into perspective. (Also, some people have already been discussing Judge Kozinski's possible copyright infringement exposure for the uploading of some MP3's to his Internet site.) Being an appellate judge, it probably is more understandable why Judge Kozinski decided to recuse himself and to return to appellate work. Were he a full-time trial judge, it would have been harder for the judge to determine which cases to recuse himself from and which not to recuse himself from.
As the defendant's lawyer, armed with the information I currently have, I probably would not have wanted his recusal, and certainly would have filed an objection to the mistrial, to preserve double jeopardy arguments.
As much as I dislike self-censorship, I suggest that a mess of the current magnitude should have been reasonably foreseeable by Judge Kozinski over his uploading sexually explicit images to the Internet. Of all trials to take as a supplement to his appellate judging, it is surprising that Judge Kozinski would have taken this one. Once he accepted this case, had he stayed in the case after the current scandal over his uploaded sexual images, the jury might have needed to be sequestered in a hotel to be shielded from the heavy case publicity. I assume that the jury was not told of the possible need for such sequestration, and that sequestration could have disrupted focused and fair (fair to whom, though?) jury proceedings significantly. I do not take issue with the judge's recusal; I do question his decision to accept the case in the first place rather than to stick with appellate judging.
Because the mistrial could have been avoided had Judge Kozinski stayed out of the trial courtroom in the first place, arguably he declared manifest necessity too late. |
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Friday, July 3 2009 As we approach our first anniversary. Wednesday, July 1 2009 Virginia Super Lawyers adds me to its list. Wednesday, July 1 2009 Fourth Circuit denies en banc review in the Whorley obscenity case. Monday, June 29 2009 More on strength through non-attachment and non-resistance. Sunday, June 28 2009 Supreme Court tells judges to follow its rulings. Friday, June 26 2009 Of sealing, expunging, and shielding. Thursday, June 25 2009 Internet connection problems lead to fewer Underdog postings. Thursday, June 25 2009 Non-attachment: An essential practice. Monday, June 22 2009 New drug conspiracy opinion from Fourth Circuit. Wednesday, June 17 2009 Add your comments.Please comment if a posting sparks your interest or gets your goat. To comment, cookies must be activated, and Internet Explorer is ideal. We will err on the side of not deleting comments that are relevant even if they might offend. CategoriesBlogrollLimited to relevant, updated blogs. Criminal DefenseAbolish the Death Penalty Prosecutors/Cops/Narcs - Know the OppositionMore LawAbolitionist: Animal Rights Beyond the law420 Magazine Beyond blogs Twitter link: @jonkatz5.
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