UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

People rarely die. Even after their heart stops beating, something about them usually keeps influencing the living and future generations in some small or big way, whether or not that influence is a good one. Someone like Stephanie Tubbs Jones did not have the capacity to die, but she did leave the planet on August 19, of a ruptured brain aneurysm that happened the day before. Joe Biden suffered the same injury two decades ago, but recovered.

In late July 2005 on a plane returning to Maryland from depositions of federal employees in Cleveland, I met Stephanie Tubbs Jones sitting next to me. Before I knew she was a member of Congress -- I still carry strong presumptions against politicians, and, to boot, she previously prosecuted and judged -- I was impressed by how genuinely (as it appeared to me) and effectively she engaged so many of the passengers boarding the plane. They were her constituents. I do not know what pet political issue I raised with her -- possibly opposition to the criminal sentencing guidelines and mandatory minimum sentences, the general overall unfairness of the criminal justice system, marijuana legalization, or drug decriminalization -- but she was happy to have an engaging and meaningful conversation on the topic that I chose.

Stephanie was genuinely upbeat about life and people. She told me that when she would conduct wedding ceremonies, she would recite the Indian wedding prayer. This prayer means so much to me that I spoke it to my wife at our wedding. For that alone, I very much appreciate Stephanie.

Stephanie was only thirteen years older than I when she passed. I send my condolences and best karma to her survivors, including her son Mervyn Jones, II. Jon Katz.

An August 26, 2008, video of demonstrators in Denver, including the police blocking the exit of hundreds of people on a city block (near the last third of the video), including plenty of non-demonstrators who just happened to be present. Where was the mainstream media when this was happening?

In recent years, no matter who runs for the Tweedledum/Tweedledee Democratic/Republican tickets, the presidential nomination conventions, campaign stops, and inaugural coronations are surrounded by assaults on the First Amendment right to demonstrate. (If you disagree with the brothers Tweedledum/Tweedledee reference, are Obama and McCain more materially the same than they are different? Yes, I am voting for Obama to have a less oppressive and less militaristic government than McCain would bring and maintain, but Obama will heavily support business as usual with the military-industrial-government complex; the failed and oppressive drug war that runs roughshod on the Constitution; the legalized murder of the capital punishment system; the oppressiveness of the PATRIOT Act, and countless other government assaults on civil liberties and democracy. Does the two-party-dominated system sufficiently support a truly democratic and just society? I think not.)

Typically, and currently in Denver, convention demonstrators are kept blocks away from the convention site, nullifying the very purpose of their demonstrations. The same is sure to happen at the Republican convention. Also typically, presidential coronations, I mean inaugurations, lately have been examples of Soviet-style clampdowns on protestors and well-choreographed sanitized inaugural parades.

Certainly official clampdowns on and intimidation of demonstrators in the United States go far beyond presidential politics. As I have witnessed firsthand,  police have a repeated habit of taking repeated close-up photos and videos of demonstrators at large demonstrations against presidential policies in Washington, D.C.; the police purport merely to be gathering evidence, but I have trouble believing that their actions are not also calculated to intimidate. During the April 16, 2000, weekend anti-World Bank/IMF protests, when I spent an entire Saturday defending arrested demonstrators at their bond hearings in the District of Columbia Superior Court, on my way to the nearby federal courthouse, I challenged a couple of police officers on an eerily mainly deserted street whether there was any purpose for their being dressed all in black with boots other than to intimidate; they did not answer. On the Friday late afternoon after the September 11, 2001, massacres, I saw military vehicles rolling down K Street a few blocks from my law school (granted, probably not intended to intimidate demonstrators, but a reminder of how much the United States is not safe from martial law government and martial law tactics). In the early Nineties on one of the many protest weekends -- most weekends in Washington are booked with one or many demonstrations, running from tame flag-waving events to strong opposition to one or many government policies and actions -- I saw a fatigue-wearing soldier on the street corner in front of the Treasury Department. During the September 2007 anti-Gulf War II demonstration in Lafayette Park, I saw cops not only at the ready to use force if ordered to do so, but also roaming in the crowd of peaceful demonstrators on the road that for years always has been closed to traffic in front of the presidential palace.

On July 14, 2008, I wrote about the public indifference -- but likely complicity if not downright participation -- ordinarily shown by presidential candidates and other high-profile politicians towards First Amendment violations against demonstrators protesting those politicians. Do McCain and Obama approve of such clampdowns? Will they voice their opinion on this matter, whatever are their opinions? Will they speak out for greater protection of demonstrators at their conventions, campaign stops, inauguration, and beyond? I am not holding my breath, including because their very discussion of the issue acknowledges the severe problem, and, in their silence, perhaps they hope the issue will stay off most voters' radars. Do not let them do it. Jon Katz.

ADDENDUM: Thanks to a fellow listserv member for posting the above-displayed video. 

 Image from Library of Congress's website.

Here are some useful links that are destined for addition to my links page.  

- British Columbia's Supreme Court gives protections against drug laws to drug-addicted people. PHS Community Services Society v.
Attorney General of Canada, 2008 BCSC 661 (decided May 2008).

- An excellent sample Freedom of Information Act request letter, from the American Civil Liberties Union.

- The District of Columbia's Criminal Record Sealing Act of 2006. The D.C. Public Defender Service has a free information packet with sample motions for those wishing to file pro se, by calling or visiting PDS. For sealing in jurisdictions bordering D.C., Maryland's expungement application process is the simplest, generally requiring the completion of two triplicate one page forms. Virginia's sealing procedure requires filing an entirely new lawsuit for such relief. An attorney should be consulted before applying to seal or expunge criminal records, particularly by people who are not United States citizens and who need to have their criminal records reviewed periodically for such matters as security clearances. Jon Katz.

In the middle of the then-four week Trial Lawyers College in its second year, I asked myself: "I have come all the way to a ranch in Wyoming miles from the nearest paved road to learn that the essence to being a great trial lawyer is being my same real self in all situations, loving myself and others, not giving up my power to others, and crawling under the hide of those I am trying to persuade, represent, and battle? Could I not have just had that written in pamphlet or book form for me to read?" My doubts continued: "Why are we cross-examining nursery rhyme characters? If I am taking a month of my life here, can we not at least have good pre-printed fact patterns to work from?"

By comparison, I immediately was taken the previous summer by the two-week National Criminal Defense College in Georgia. The program was already years in the making and polishing, and it was an accomplishment even to be admitted among the high number of applicants. All fact patterns were well-done and assembled well in advance. Each day we would handle another phase of trial preparation and execution (including client interviews, jury selection, opening, direct exam, cross exam, jury instructions, and closing). At the end of the afternoon, one of the instructing lawyers often would dazzle us in doing a demonstration of what we had just practiced earlier in the day, with the most amazing performances having been demonstrated by SunWolf incorporating a discussion of reasonable doubt into voir dire, talking to the jury as if she were in the box right with them; Lisa Wayne, doing a first-person closing of a winning battered spouse murder case; and Joe Johnson cross examining an expert witness after reeling him into Joe's realm and having him in the palm of his hand to the point of having the expert ready to return a hearty handshake after Joe had substantially diminished his direct testimony. Near the top of those performances was John Delgado, who direct-examined his murder client leading him as smoothly as if he were cross-examining, while pointing his finger at the villains who pressured a false confession, and motioning to the angels with his hand palm-down. There also was cross-examination master Larry Pozner, who at once controls witnesses by adding one new fact at a time to each question if needed, but is still able to do so in a conversational story-telling way that makes witnesses prefer to cooperate with him rather than having him turn one simple question into ten, until the witness succumbs. Ed Mallett demonstrated by example how a true gentleman can effectively enter an objection while doing it politely (to overcome any perceived rudeness of having interrupted the opponent). Crème de la crème came from Andrea Lyon, who did the opening for the battered spouse defense, making it feel like I was in the very house at the very moment when the defendant's husband would abuse his wife for the very last time.

Still on the high of the well-organized National Criminal Defense College, I continued trying to make sense of the Trial Lawyers College, which still was in its infancy. As I eventually came to realize, though, both programs have been essential for me. The NCDC focuses on skills, telling a persuasive and coherent story throughout the trial, and being completely committed to and courageous for our clients. The Trial Lawyers College assumes that participants already have the basic skills to try a case, recognizes that each person is only as good a trial lawyer as s/he is a person, and works on simultaneously developing each participant into a better person and trial lawyer. One participant who ended up taking very much to the Trial Lawyers College described it early on as the Mind F_ck, because few people are accustomed to being thrown into a group of four dozen strangers in the beautiful middle of nowhere being rewarded for baring our souls and warts, and being chastised for hiding and candy-coating them. Early on, participants were revealing painful pasts, and pasts and presents of being sexually molested repeatedly by a relative; struggling with low self confidence; coming from dysfunctional families and alcoholism; and the list goes on. It took some time for me to figure out why people would be willing to bare their souls so willingly. One soul-barer told me: "I was so f_cked up at the time, that I would have told my story to anybody." Another told me that his life was changed by doing a psychodrama session on day two in front of the rest of the group.

And there I was, waiting a very long time to reveal my warts and being careful whom I revealed them to. I did not much like the possibility of being miserable among a bunch of strangers thinking down on me if I revealed my true self. The opposite took hold, though. I recognized that my problems were pretty small compared to many others, that others would share their feces and pearls of experience with me if I shared mine with them, and that I had found a group of people with whom I could bond and enjoy eliminating the veneers and the cocktail party talk. The more we opened up to each other, the more we bonded, to the point that I can call just about any Trial Lawyers College attendee from any year and get right to a real conversation that skips the cocktail party small talk. When I returned from the Wyoming ranch, I all the more sought out kindred spirits who were not afraid of revealing their true selves versus their Madison Avenue public relations self, who were not afraid to take risks in life and to be true to themselves and their values, and who were not afraid to be real.

Did I really need to travel a thousand miles away to learn all this? Yes. The lessons learned there are easy to understand but take long, concerted, and often painful effort to internalize, realize and follow. By learning and applying these lessons full-time in the middle of nowhere among supportive people, I "got it" by the end of the four weeks, and still am getting it.

What is all this hype about being real? Consider this. Who will you trust more if you are a juror? A lawyer who comes into the courtroom wearing the fanciest suit and tie who is all polished with every spoken word and every choreographed  and pre-scripted step, or the lawyer who looks unremarkable but talks to the jury, witnesses and judge the same way s/he would talk to his or her best friends, without a bunch of notes intervening, and with a heart that cares not only about the lawyer's client, but also about everyone else in the courtroom, and who does not try to hide warts -- aside from needing to keep out damaging testimony through evidentiary and procedural rules -- but instead acknowledges them and persuasively puts them into perspective with the rest of the lawyer's case? Jon Katz

Image from NASA's website.

And now we interrupt the Beijing Olympics with this important public service human rights message:  

Life is not all fun and games for Chinese dissidents during the Olympics. For instance, within the last few days, blogger Zhou “Zola” Shuguang has been placed under town arrest.

As Reporters Without Borders reported on August 15, 2008: "Zola alerted his contacts via the microblogging service Twitter: '16:02 (Beijing time): They have forced me to get into their car. I want my family to be able to confirm what has happened today (...) I am all right, I am in their car and I have the impression that I am being kidnapped.' '17:31 (Beijing time): They have asked me to stay in Meitanba. If I go to Beijing, they will come and get me.' Aged 27, Zola keeps a blog in which he often writes about matters that have been hushed up by the authorities." More on this story also is at the Committee to Protect Bloggers' site.

Zhou Shuguang is having a cakewalk with the Chinese authorities, when compared to Beijing human rights activist and blogger Zeng Jinyan and her baby daughter, who, according to ABC online "have been missing since August 7th. Zeng has been under house arrest for months." More on this story is at the Committee to Protect Bloggers' site and in the Associated Press online.

That concludes this public service message. Will you now return to the Olympics as if all in China were the Disneyland that the Chinese government so desperately wishes to portray? Jon Katz