Tuesday, September 30. 2008We are closed today, for the Jewish New Year.
Today is the Jewish New Year/Rosh Hashanah 5769, which I celebrate every year. Therefore, our law firm will be closed today, and will reopen on October 1, 2008, to serve you.
L'shana tova/happy new year. Jon Katz. Monday, September 29. 2008Herman Lee Taylor, Jr.: Meet Kumar Barve and Davis Ruark. Photo from website of U.S. District Court (W.D. Mi.).
The nation's drunk driving laws became out of whack by the time the states succumbed many years ago to federal legislation requiring drunk driving convictions for driving with a blood alcohol level of 0.08 or higher, under the penalty of losing valuable federal state highway funding. For one thing, such a per se guilty rule makes a mockery of the criminal law by failing to recognize that plenty of people can drive just fine at that blood alcohol level, and that plenty of people will not even recognize that they are over such a limit, because it is too low. For another thing, breath tests for blood alcohol content -- which tend to be cops' preferred testing methods because they are quicker, cheaper and less cumbersome than drawing blood, at least at the front end for cops -- are fraught with error based on such problems as machinery problems, errors by the people administering the tests, and fluctuations in the mouth temperature of the testing subjects, which temperature is often not measured by the people administering the tests.
Moreover, the drunk driving laws -- at least in the jurisdictions where I practice law -- are draconian for those who assert what I consider to be their Constitutional right to refuse breath or blood tests. (See here, too.). Continuing the injustice of the nation's drunk driving prosecution regime, without breath or blood test results, prosecutors rely heavily on the junk science of field sobriety tests.
Enough is enough. Let us go beyond Howard Beale (who advises to shout out your window "I'm as mad as hell, and I'm not going to take this anymore") and insist directly to our federal and state legislators and executives that they overturn the 0,08 drunk driving per se rule, eliminate the draconian penalties for refusing breath and blood tests in suspected drunk and drugged driving cases, and strengthen evidentiary rules against unreliable breath test, blood test, and field sobriety testing evidence. Let us also insist directly to our prosecutors to stop supporting such a draconian drunk driving regime.
In the meantime, what is good for the goose is good for the gander. If otherwise law-abiding people are going to get unfairly dragnetted into the drunk driving laws, let government officials responsible for passing and administering such laws get a taste of their own unjust medicine. Without that, we may see no positive reform of such laws.
In that regard, last May 2008, Maryland Delegate Herman L. Taylor, Jr., was arrested for driving under the influence of alcohol, and goes to trial on October 24, 2008, in Montgomery County, Maryland, District Court. (Thanks to Nobody's Business for blogging on this case.) According to the Washington Post, the police report in the case claims Mr. Taylor was found sleeping in his car with the engine running, that the "officer smelled alcohol and noted that Taylor was confused and disoriented and that his eyes 'were very red and watery.'" The police report also claims that Mr. Taylor displayed poor performance with field sobriety testing, which he ultimately refused to continue (which is his right). The Washington Post also reports that the police report says that after Mr. Taylor agreed to take a breath test for alcohol, he provided an insufficient breath sample which the police deemed a refusal, when in reality numerous innocent factors can cause someone to provide an insufficient breath sample, including the fatigue that Mr. Taylor's lawyer claims he was experiencing.
Ironically, or fittingly, Mr. Taylor is getting a taste of his own medicine, having sponsored a bill in 2006 to require a scarlet letter license plate emblazoned with "DUI" for those with over two drunk driving convictions. To my knowledge, the bill did not become law.
Mr. Taylor's drunk driving prosecution follows on the heels of this year's drunk driving prosecution, guilty plea and probation before judgment of Wicomico County, Maryland, chief prosecutor Davis Ruark and last July's drunk driving guilty plea and probation before judgment of Maryland house majority leader Kumar P. Barve in Montgomery County. As I said about Davis Ruark's case, hopefully Mr. Taylor's and Mr. Barve's ordeals with the police and in the criminal court system will make them more empathetic to the plight of everyone else facing such ordeals. Jon Katz Sunday, September 28. 2008David Wasserman leaves the planet
Sadly, David Wasserman died last Thursday.
Nine years ago, I was further exploring how to get paying, versus only pro bono, clients for First Amendment defense both for criminal and civil cases. This goal fit squarely with my obsession over and passionate work on free speech issues with Amnesty International in college and law school, and my service on the board of the local American Civil Liberties Union a few years before. I recognized that adult entertainment and libel defense were the key avenues to such paying clients.
On the adult entertainment front, I joined and became very active with the Free Speech Coalition, soon thereafter attended a conference of the Association of Club Executives, and later the same year spoke in favor of robust First Amendment protection before a federally-created committee that should never have existed, concerning obscenity laws.
Through the foregoing activities, I met fellow First Amendment lawyer David Wasserman. David believed, as I believe, in helping others rise as we rise. Already a very accomplished First Amendment advocate, David sponsored my application for membership in the First Amendment Lawyers Association. One year after meeting me, David took the time to co-counsel with and teach me in drafting and filing an amicus brief whose contents were referenced extensively in the Maryland Court of Appeals' overturning of Howard County's adult zoning ordinance. Pack Shack v. Howard County, Maryland, 377 Md. 55, 832 A.2d 170 (2003).
In the same year that Howard County's adult zoning ordinance was overturned, David was arrested for growing marijuana at his home, when marijuana should be legalized in the first place. In 2004, with his law license suspended in relation to his marijuana conviction, David turned his attention to such pursuits as opening an adult video and lingerie store, and later running and owing an adult cabaret/strip club.
In late 2007 -- while embroiled in conflict with the local government and his landlord over keeping his cabaret operating -- David was shot in the chest as he returned home with the night's cabaret receipts. Last month, David filed a federal lawsuit against the local government, which describes the shooting as follows: David Wasserman "was robbed and then shot in the chest at point-blank range as he returned home late at night on or about December 9, 2007. He was hospitalized for some time and then convalesced at home for a short time after that. The robber asked for deposits for the club and when Plaintiff’s president said he would cooperate if the robber didn’t hurt him, the robber told him it didn’t matter because he was going to kill him. The robber immediately shot Plaintiff’s president; the bullet grazed his heart, aorta and esophagus and exited his body through his liver."
As Adult Video News online recounts, David said the bullet "'grazed my heart, it grazed my aorta, it grazed my liver and it grazed my esophagus, and it came out and didn't do any damage at all.'" David said that the shooter "'stepped out of the shadows, put a 9mm to my chest, pulled the trigger and said, "I'm gonna kill you." I continued to struggle with him, and he asked where the deposits were, so I knew it was not just a robbery; it was a set-up from the club. I told him the deposits were in the trunk and let me bend over and press the button so he can get in, and he did, and as soon as he walked around to the trunk, I laid on the horn and having just had a gunshot fired and the horn honking, I'm sure he got worried about the noise and stuff, and he took off running without the deposits.'" (As an aside, in recounting the incident, David mentioned the race of his killer; doing so served no purpose, and I disagree with his having done so.) Last April, David talked with Adult Video News online about a then-recent police raid on his club.
Pictured here, David practiced shaolin kung fu. Whether or not this helped him the night he was shot, that was quick thinking to find a way to divert the shooter's attention and to blast his car's horn to get the shooter to run away.
Ironically, after saving his own life last December, last Thursday, David took his own life. As the Orlando Sentinel tells it, David was battling depression for a long time, and previously told of having attempted to kill himself. Adult Video News online provides further details on David's passing.
My brother lawyer Marc Randazza knew David, and gives his own take on David's life and passing here, including Marc's ultimately avoiding David in the interest of associating with happy and fortunate people. As explained below, the thought of avoiding David would not have crossed my mind, particularly when considering how much David helped me. Just as a lawyer needs not be sucked into his or her clients' deep problems, a person does not need to be sucked into a colleague's problems even when lending a helping hand when one is needed.
It goes without saying that I will miss David. The sad story of the ending of his life is a critical reminder to reach out to those around us who are depressed or in other psychological distress, when the help is wanted. Many sister and brother criminal defense lawyers, among many others, struggle with depression. Some people may be reluctant to reach out in order later to avoid feeling like a failure if the person still commits suicide. However, there is no reason to feel like a failure if the reaching out is to lend an empathetic ear and tongue.
Thanks, David, for you. Jon Katz. Friday, September 26. 2008Flatulent defendant; albatross of domestic military patrols
Bill of Rights (From public domain.)
Today I argued a felony criminal appeal before the Fourth Circuit in Richmond, Virginia where I stayed overnight, so today's blog entry is brief, but very important.
As George Carlin said on his Occupation: Fool album from the early 1970's, "farts are fun". That is to say, when they are your own farts. Ever since becoming a father two and one-half years ago, the words fart, poop and booger flow freely from my tongue. It is one of the many pleasures of having children.
In any event, a West Virginia cop purportedly refused to let a drunk driving suspect use the bathroom, which apparently led to the the expulsion of methane/flatus. The cop claims the suspect fanned the flatulent fumes towards the cop, and claims that to be assault. Curiously, of course, one apparently would have to be very talented to successfully re-direct flatus odor by merely using one's hand to do the fanning. Kudos to the Kanawha County prosecutor's office for deciding to pass on the gas-passing assault charge, although the drunk driving charge remains. Thanks to Jonathan Turley for reporting on this (where does he find all these bizarre stories?).
Meanwhile, I would almost prefer to suffer through the above-described suspect's flatus for a few seconds than to have the albatross of domestic Army patrols, compliments of lame duck George Bush, II. (Thanks to a fellow listserv member for posting on this.) Would McCain or Obama do any differently? Jon Katz. Thursday, September 25. 2008Do you order from my client's restaurant menu, too?
- "I don't care what the contract says, it's my money that paid for your work and I am going to know from you what's going on in the case." - "He's my family. Blood is thicker than water, and I'm going to be involved in your discussions with my brother." - "My son has the mentality of a grade schooler. I know what is best for him."
What criminal defense lawyer can avoid clients' overbearing family members? Sure, I can refuse the potential client's case at the outset -- and have -- if someone else is paying for my services and if that someone else seems like s/he will blatantly disregard my standard contractual provision that says the non-client paying party has no rights under the retainer agreement and case any more than if s/he had paid anonymously. What happens, though, if such handwriting only appears on the wall in the very middle of the case? What happens if the client will not stand up to the overbearing relative or friend?
I love my work. However, if asked what most annoys me about my work, it often is overbearing friends and family members of my clients. Certainly, criminal clients and their close ones often are worried about their cases, and clients sometimes feel more comfortable including them in discussions (good luck explaining how such discussions can lose attorney-client privilege protection when third parties are present). However, so long as the lawyer is doing a good job, what justifies perverting concern into being outright overbearing and abrasive?
How to handle such problems? One approach is to use "I" statements, rather than "you" statements, for instance:
- "Mr. ________; I will be delighted to defend you were it not my concern for your brother who's paying your bills. I need to be effective for your case, and your brother is already laying unnecessary obstacles in the way to effectively defending you" v. "You spineless wimp. Why can't you stand up to your family. Maybe if you had stood up to the cops the night of your arrest and remained silent, you would not have this criminal case against you in the first place?"
- "I need my evening family weekend time to be refreshed to do battle for the client" v. "You are are so selfish. What nerve you have to call my cellphone repeatedly late Saturday night, insisting that I should not wait until Monday to set the prosecutor straight through reciting the Magna Carta verbatim?"
- I understand your frustration that I am holding private conversations with your brother on this, his court date. I am sure we will have some additional breaks where you will also be involved" v. "You WILL get out of my way now, and you WILL exercise at least a sliver of self control."
- "You have the right to vent. The question is, though, whom to vent to, how politely to vent, and how long and intensively to vent. I already agree with points A, C, and D about your child's case, so might we move forward?" v. "You want to vent? Go find a psychologist to do that, while I do the real lifting in your relative's case."
- "In all seriousness, [client's parent], I am not sure I am willing to take your son's new case. Just last month your spouse was monologuing on and on and on about nothing, to me, about this case" v. "How do you put up with such a selfish f--k of a spouse? He seems to have a mouth but no ears." Response from the parent to my "I" statement: "My spouse is ADHD; that's why he talks on and on."
- "I am not so sure I want to take your son's new case." Parent: "Why?" JK: "You repeatedly drone on and on when you call me, without even asking if I have been interrupted" [Note: I take the case and the parent is no obstacle, after the parent explains that such droning is ingrained in him since elementary school] v. "The nerve of you to come back to me after all your abuse I deflected from you on the last case."
I can count on one hand the number of potential clients I have refused to sign up due to ominous handwriting on the wall of irreconcileable differences with client's family members plus a client who does not seem likely to put his foot down. Some honest "I" statements and reasonable reassurances about the lawyer's time to talk with the family member and to prepare the case defense, sometimes can make the whole problem go away. Also, some inward- and soul- searching and reflection can help the lawyer learn how much of such exasperation is internally-rooted rather than externally exacerbated.
What do you do in such situations? Jon Katz Wednesday, September 24. 2008D.C. Jail is on lockdown status.
(Image from Bureau of Prisons' website).
The District of Columbia jail is one of the most unpleasant of the over twenty or so jails and prisons I have visited. My experience would be a picnic compared to what the inmates must endure.
Thanks to a fellow listerv member for getting the word out that the jail is on lockdown until 6 October, and that all legal visits need to be made through the staff entrance. Jon Katz. Tuesday, September 23. 2008Unreasonable suspicion.
Bill of Rights (From public domain.)
What made me become so skeptical of cops? Certainly, plenty of socializers tried to keep me and my school classmates enamored of cops from the earliest age. I played with cop and fireman toys. I watched Dragnet, Adam-12, Hawaii Five-O, Baretta, Columbo, Police Woman, Kojak, and plenty of other entertaining police shows that shined a favorable light on cops. When, at age five, I passed by a man being led away in handcuffs near the bank, a man nearby counseled me that "crime does not pay." Cops spoke to students for assemblies, and convicts only came to the Scared Straight presentation telling us crime does not pay (but apparently this was an effort to get parole release). Fortunately, I missed the D.A.R.E. program.
Then, I saw Al Pacino in 1973's Serpico, which was based on a true-life New York cop who got shot by his own when he refused to join them in police corruption: being paid off by drug dealers and skimming off the top from seized cash. It all made sense: Cops are mere humans and not superhumans. The buttons proclaiming that my town's "Fairfield Cops are Tops" were propaganda pieces that should instead have proclaimed "Preserve and Protect the Bill of Rights."
Too many jurors, prosecutors, judges, and members of the public at large unfairly cloak cops in shrouds of honesty that they do not deserve. They are mere humans, and most humans lie, and lie again. Certainly, as one cop told me when I complained to the nearby Whole Foods grocery store about why this store had armed cops when the stores in ritzier neighborhoods do not, he would risk taking a bullet meant for me even if I kept my healthfully skeptical view of cops and all people. But that does not make him any more honest than if he would not take that bullet.
Again and again, judges issue search and arrest warrants; and refuse to suppress stops, searches, seizures, and interviews of defendants, without carefully enough considering whether the cops are telling the truth and whether their information is sufficiently reliable or sketchy. Praised be lawyers Andrew Ferguson of the District of Columbia Public Defender Service and Damien Bernache of the Nassau/Suffolk Law Services Committee for their recent article in the American University Law Review entitled: "The 'High-Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis." The title speaks for itself. Thanks to the American University Law Review for publishing an article with this level of pro-Fourth Amendment teeth. Jon Katz Monday, September 22. 2008Defending online copyright infringement.
Computer hard drive. (Image from Pacific Northwest Laboratory's website).
On May 23, 2008, I blogged about bucking the trend of 94% of federal criminal prosecutions resulting in guilty pleas, by proceeding to a jury trial in Alexandria, Virginia, federal court for alleged criminal copyright infringement. Wired's blog -- parroting the assertion of the Recording Industry Association of America's news release -- describes my trial as the first federal trial for online criminal copyright infringement that primarily involved music; that does not mean that others have not entered guilty pleas for such accusations, because they have.
On September 19, 2008, I went to sentencing with my client for this online copyright infringement case. Fortunately, the judge varied substantially below the sentencing guidelines, saying that they are excessive for my client's case, after having addressed such factors as the sentences of co-conspirators that were much lower than my client's sentencing guidelines (of course, those who plead guilty get the opportunity for a lower offense score due to acceptance of responsibility) and the below-guidelines sentence of a federal criminal defendant in another conspiracy case who was sentenced earlier this month for the same type of conspiracy as well as choate online copyright infringement.
Although the sentencing judge did not agree with me, I vigorously contested the sentencing guidelines, including my assertion that the guidelines should look at the loss to the alleged victims, and not at retail price multiplied by the number of times the item was downloaded. I argued that even though the guidelines comments for copyright infringement say to use retail value, I said that they are but comments, and do not jibe with the theft guidelines to which the reader is further referenced for infringement exceeding $5,000, which theft guidelines discuss loss, not the value of the infringed items. On that topic, here is a relevant excerpt from my sentencing memorandum:
The seminal treatise on Copyright law acknowledges the difficulty in precisely calculating industry loss from infringement of copyrighted material:
“’Most such efforts [at gauging the extent of piracy] are either anecdotal or uncritically dependent on data provided by trade associations and other interested parties, since those engaged in pirating intellectual property have not been considerate enough to compile statistics for academic researchers.’ [Quoting from W. Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization 6 (1995).] But a problem in methodology attaches here: to the extent that the pertinent figures rely on an assumption that current infringers would pay list price rather than cease using the pirated product, then they represent the very high end among a spectrum of possibilities. Particularly where high-priced software packages are at stake, the actual receipts of the proprietors – even in the unlikely event that piracy could be wholly obliterated –- might turn out to be far lower than those industry projections.”
Melville Nimmer & David Nimmer, Nimmer on Copyright, § 15.01[A][1] at 15-3.
Furthermore, a recent scholarly and in-depth professorial study that includes an analysis of relevant raw data, helps blunt the notion that industry loss can be gauged by such an oversimplistic approach as assigning a retail value to each allegedly infringed item multiplied by each download:
“The Internet provides a natural crucible to assess the implications of reduced protection because it drastically lowers the cost of copying information. In this paper, we analyze whether file sharing has reduced the legal sales of music. While this question is receiving considerable attention in academia, industry, and Congress, we are the first to study the phenomenon employing data on actual downloads of music files. We match an extensive sample of downloads to U.S. sales data for a large number of albums. To establish causality, we instrument for downloads using data on international school holidays. Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period.
F. Oberholzer-Gee and K. Strumpf, “The Effect of File Sharing on Record Sales – An Empirical Analysis,” Journal of Political Economy, 2007, vol. 115, no. 1 (this article is available in full at http://digital.music.cornell.edu/files/political_economy_filesharing.pdf (last visited September 17, 2008) (emphasis added).
If you are defending online copyright infringement cases, please let me know. Jon KatzMonday, September 22. 2008Welcoming your comments / Why fear someone who once wore diapers?
Image from Library of Congress's website.
Some blogs get more comments then other blogs. The Volokh Conspiracy, TalkLeft, WSJ, and Res Ipsa get constant dialogue among commenters throughout the day. My criminal defense lawyer brothers Scott Greenfield in particular, Gideon and Mark Bennett get their fair share of comments both quantity- and quality-wise, too; they post many blog entries that entice comments, and they participate with their commenters. Underdog often makes up in comment quality over comment quantity. I notice that the number of quality comments on my blog tends to increase when I address items of more widespread interest, which makes sense.
Of course, I keep blogging on such topics that get fewer comments as recent criminal law court opinions, the deaths of those important to me, and the intersection of music and art with my practice of law, because a raison d'être of my blog is to share a place where I organize and think through my thoughts, ready to be retrieved at any time, including when I realize I need access to a court opinion and a synopsis thereof that I have posted to my blog, and only have access to my Blackberry to obtain it. This is imperfectly akin to my t'ai chi teacher Len Kennedy, who yesterday told his t'ai chi class how he has kept over a hundred breast-pocket sized notepads to record his learning and experiences with t'ai chi. He does not keep such ideas in notepads and paperscraps to obtain blogpost comments -- he has no blog at all -- but because it helps his personal growth.
I blog to interact with my readers, so I encourage you to keep your blog comments coming, and to know that, conservatively (from reviewing my daily website statistical software), I receive at least three hundred to four hundred daily visits to Underdog's front page, even more visits to all pages at my katzjustice domain, and repeated volume visits for months and beyond to some particularly popular blogposts, so your comments are getting attention well beyond my eyes.
My current blog software does not enable me to register commenters, so I have the insufficient choice between permitting all comments without moderation and moderating them. Here is why I moderate comments. Since I started moderating seven months ago, I have only kept out two comments. One was a mere link with an address looking like an MLK-related site, but instead going straight to a very graphic video of two people having sex. (I advocate permitting people to upload such material to the Internet, but I have no obligation to keep such links on my blog, particularly when they purport to be about Martin Luther King, Jr.) The other comment was merely and inanely addressing some retail website that had nothing to do with my blog nor any of my blog entries.
Rarely does more than one business day pass for your comments to be approved on Underdog, with the exception of this past Wednesday through Saturday, when I had overlooked updating my blog software to use my new email address (jon[at]katzjustice[dot]com) to notify me of new comments, now that I have retired my old email address of jon[at]markskatz[dot]com, which was being redirected to the new one, but which also was the source of the huge amount of spam that I blissfully no longer receive. To reduce spam, do not enable email and webpage hyperlinks to your email address.
Some people tell me they are unsuccessful in posting comments. Our comment software only works by commenters' accepting cookies, and possibly only by using Internet Explorer.
Judges, I am sure some of you or your law clerks or other assistants are reading this blog, if for no other reason other than to know whether commenters or I are badmouthing you, and hopefully for the purpose of becoming better people and better judges, just as I hope everyone reading this blog will find ideas on Underdog for becoming better people.
Therefore, I encourage everyone to keep commenting, and encourage judges to send me some anonymous comments, and non-anonymous comments if you want your identities known. To keep fully anonymous, you can insert a completely fictitious email address where you are prompted to do enter such an address into the comments page. I will then have no way to know who you are, let alone to reveal who you are.
Before closing, here are links to some of my more favorite recent comments:
- Glenn Graham on "You're not wanted in these parts." Thanks, also, to Jeffrey Raymond, for adding a comment inviting people to an "exhibit about the early life and career of Justice Marshall, which is being unveiled at 5:30 p.m. Friday, Sept. 19, at the Thurgood Marshall Law Library at the University of Maryland School of Law, 500 W. Baltimore St. in Baltimore." I regret that my above-detailed technical glitch caused me to miss Jeffrey's comment until after last Friday's unveiling, which included Justice Marshall's widow Cecilia as a presenter.
- William Garland, taking a zero tolerance view on "criminal conduct" by both law enforcers and demonstrators, as opposed to my view that cops repeatedly target suspected demonstrators near presidential conventions and beyond for unconstitutionally pre-emptive and censorious content-based search warrants and arrests, intimidation tactics, excessive force (including pepper spray), oppressive and overly lengthy pre-trial detention, dragnet sweeps that often include innocent bystanders, violation of journalistic freedom, and enforcement of unconstitutionally overbroad and oppressive demonstration-rein zones. While that is my reply to William's comment, I welcome all comments, and encourage hearing from those who disagree with me.
- Ron Sylvester's link to his website's discussion on the Busted video, about which I blogpost from time to time.
- Remy Orozco's addressing his roller coaster experience in integrating his recent time at the Trial Lawyers College into his life.
- Saving the best recent comment for last -- and exemplifying the benefits of my blogging and receiving comments -- is Susan Cartier Liebel's comment on "Practicing non-anger": "This is very poetic and even more revealing when playing with a toddler. When you take a moment to realize everyone you represent or interact with was once as innocent as a 2 year old it certainly gives you pause." One month after Susan posted her excellent comment, Gerry Spence wrote how Josh Karton -- acting and trial teacher extraordinaire -- had followed through with Susan's idea, apparently with neither Susan nor Josh's realizing what either one was up to:
"At [the Trial Lawyers College], Karton sought to remind the participants that judges are but humans, that they were lawyers as we, and, yes, before then they were once but little children. He called upon a ex-marine, a former sergeant in the View Nam war to play the part of judge. He dressed this judge up in a pair of little panties and put a teddy bear in his arms. Then Karton called upon another participant to present his argument to the judge. There was spontaneous laughter from the audience. How silly, the judge, how ridiculous. That we should be intimidated by such a man, was unthinkable. But how was it that a tough Marine, by a few exterior accouterments of the child, was transformed in our vision from the fearsome jurist to the ridiculous child?"
That, then, is my final thought here. Why fear anyone who at one time wore diapers? Why, indeed? Jon Katz. Sunday, September 21. 2008Being a t'ai chi bear in an otherwise stressful court.
Nobody can fully and sufficiently describe what it feels like and what the best responses are to being a lawyer being berated by a judge while the lawyer's client is standing right next to the lawyer, and when plenty of other eyes and ears -- and the court reporter's record -- are focused on the action. Even the greatest trial lawyers are not immune from such treatment, although they can be better at preventing (at least where preventing it will not harm the client), deflecting, and diffusing the berating in the first place. Being humans, all judges probably have berated in open court at one, more, many, or too many points, sometimes for good reasons, sometimes for bad ones, and often in between. Essential ingredients for a lawyer to know how to handle such treatment is life experience, constant practice in the heat of battle, and constant self improvement.
A lawyer must remain strong throughout court proceedings. This does not mean hiding his or her fears, warts, and awkwardness (although it is good to focus on reducing all three), but does mean keeping and returning to center as much as possible. One lawyer -- now a judge -- who did not seem to be one to unnecessarily get a judge's goat, spoke at an informal gathering on dealing with difficult judges, and spoke of the benefit of enshrouding oneself in Gandhi peacefulness when being berated by a judge, in that doing so can eliminate the problem and doing otherwise can help escalate the situation.
How, then, to reach the peacefulness of Gandhi when judges, prosecutors, opposing witnesses, and sometimes even court staffers are readying to sling bows and arrows at the lawyer from every direction? I have found no better answer than the practice of t'ai chi twenty-four hours a day, sixty minutes per hour, and sixty seconds per minute.
One day fourteen years ago, I was feeling the rush of the National Criminal Defense College's Trial Practice Institute, and looking to take forward leaps in the quality of service I deliver my clients, towards a return to private practice, and in my personal life. I knew that a local trial lawyer who seemed to have accomplished much in those areas was also a t'ai chi practitioner, Victor Crawford.
Victor Crawford was ready to show me the path to t'ai chi study once I called him for guidance three years after I first met him in 1991 and learned about his years of practicing the martial art. By the time I called him seeking direction to learning t'ai chi, Vic already was facing the challenge of cancer from smoking, which would claim his life only around one and a half years later. I visited Vic around a year after starting my t'ai chi study, and told him I was unsure how much time to devote to going to t'ai chi classes when I also wished to continue my more aggressive long distance running regimen. He urged me forward with t'ai chi, suggested dieting as an alternative to running for weight loss, and talked about the amazing energy and other benefits that come from practicing t'ai chi, which I started recognizing more and more firsthand as my t'ai chi continued into today. Vic spoke of understanding his body better than did his doctors. I needed a fellow criminal defense lawyer to encourage me to continue with t'ai chi, and it also helped that one of my two main teachers is a lawyer, Len Kennedy. When my other t'ai chi teacher -- Ellen Kennedy, who equally teams with her husband Len -- told me that Vic's cancer was spreading further through his body, she told me that if I visited him in the hospital and performed t'ai chi in his presence, it could be beneficial; I was too uncertain how I would be received, not having known Vic very well, when if this were today, I would have visited. Was Vic fearless about his then-approaching death? I do not know for sure, but imagine that t'ai chi helped him along the route of fearlessness.
Was it mere coincidence that one of the teachers Vic told me about was a fellow lawyer, Len Kennedy, whom I have written about many times, including here, here, and here? Such role models as Vic and Len have been particularly beneficial for my incorporating t'ai chi into my life as a lawyer, because they both have focused heavily on t'ai chi while maintaining grueling lawyer schedules. For several years, Len has been Sprint's General Counsel and Secretary, which continues his general counsel role with Nextel before Sprint took it over, preceded by several years with a large Washington, D.C., law firm after time with the Federal Communications Commission. In the midst of such demanding lawyer work, Len repeatedly has included time each week for many years first to study and now also to teach t'ai chi students at Glen Echo Park just a few miles north of Washington, D.C. What true t'ai chi devotion this demonstrates.
Although I try to keep Saturdays as non-working family days, Saturdays are when t'ai chi practitioners -- some with decades of practice -- join at Glen Echo Park at 7:00 a.m. for about an hour of practice. Len has said that when practicing the t'ai chi form together, one cannot reach tao without moving in unison. After a few years away from the Saturday morning practice group, I returned last week and yesterday, and feel more on track to getting greater benefits from t'ai chi by practicing it more correctly and beneficially. As we were concluding yesterday's practice, I saw Len Kennedy for the first time in several years, walking towards the nearby dance hall, where t'ai chi classes are taught, with bags of t'ai chi shoes to distribute. I had caught him after he had taken a year off from teaching.
Even though Len's morning class was the first session of the beginner's class, I had little doubt that even in this class I would obtain further inspiration from Len, so I asked and obtained permission to join this one session. Unlike one of my law professors who annually seemed largely to mimic himself on each topic he addressed -- to the point where he would even insert the same jokes -- Len is very much in the moment, in constant self discovery, and in constant sharing of those self discoveries. Here are some things I learned and re-learned from Len and from myself yesterday:
- A t'ai chi practitioner can practice t'ai chi even when in one of "those meetings" (including being in the heat of court battle), the kind of interactions that can otherwise be taxing, boring, annoying, stressful and angering. The first step is to refuse to be sucked into such nonsense even if walking away is not a real option. Some verbal t'ai chi -- which must be honest -- can include: "I understand. This is a very unfortunate situation;" "We really need to get to the bottom of this;" and "I understand what you are going through."
- Internally, during one of "those meetings," the t'ai chi practitioner is doing t'ai chi, through relaxing and sinking into one's chair or into the ground if standing; by relaxing actively through being fully aware of what is happening around the t'ai chi practitioner; by emptying the mind and body of stress and wasted energy in order to deal with the matter at hand; by keeping the body upright and soft; by focusing breathing and strength in the tan tien (which is in a part of the abdomen, and which is the center for one's chi); by keeping the wrists and fingers softly unbent; by keeping the body's weight separated like yin and yang; and by keeping the waist as the commander of all bodily mevements. By doing this, even the most unexpected, seemingly dangerous, and apparently difficult situations can be converted into the simplicity of the five principles of t'ai chi that must be practiced simultaneously, those being: (1) keep the body upright and (2) relax and sink the body into the ground, thus connecting the heavens to the body to the ground below, in other words, keeping the self and body harmoniously connected to everything else that is present and happening in one's immediate and more distant surroundings; (3) keeping the wrists and fingers softly unbent, to prevent tension and to maximize the flow of powerful energy; (4) always turning the body from the waist and never twisting the body; and (5) separating the weight of one's body as in yin and yang. Continue reading "Being a t'ai chi bear in an otherwise stressful court. "Friday, September 19. 2008Thursday, September 18. 2008Would a Virginia bar kick out Virtus if pastie-less?
Virginia's state seal has a bared breast.
Virginia's above-displayed seal shows a half bare-breasted Virtus. under current Virginia law, if Virtus walked into a Virginia bar, she would either be required to cover up with pasties or something more modest, or to leave.
A Virginia law that took effect this year provides for the suspension or revocation of a liquor license where one finds "entertainment of an obscene nature, entertainment commonly called stripteasing, topless entertaining, or entertainment that has employees who are not clad both above and below the waist or (ii) [ ] employees who solicit the sale of alcoholic beverages. The provisions of clause (i) shall not apply to persons operating theaters, concert halls, art centers, museums, or similar establishments that are devoted primarily to the arts or theatrical performances, when the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value." Va. Code § 4.1-226 (emphasis added).
What was I saying? Perhaps Virtus can avoid being forced into pasties due to her story's serious political value. Va. Code § 4.1-226(2). Did you hear that, Virginia exotic cabaret owners? Why not try overcoming this general breast ban by starting onstage dressed as Virtus, and then disrobe, to dramatize the very real and human side of Virtus? Reserve your www.eyeoftheVirtus.com domain today.
Unfortunately, a 1991 Fourth Circuit case does not buy the argument that women should be able to bare their breasts as much as men are permitted in public. United States v. Biocic, 928 F.2d 112 (4th Cir. 1991). Fortunately, the concurring judge in Biocic indicated that he only signed onto the opinion because he felt bound by precedent here. Id. at 118.
For a few months this year, numerous Virginia liquor-licensed establishments stopped requiring pasties after a federal court ruling finding Virginia's anti-nutidy statute to be unconstiuttionally vague, in violation of the First Amendment. Norfolk 302, LLC v. Vassar, 524 F. Supp. 2d 728 (E.D. Va. Nov. 21, 2007). However, as if without better things to do, Virginia's legislature passed a new law a few months later (Va. Code § 4.1-226) that better specifies what is meant by topless dancing, so as to intimidate establishment owners to require that pasties be worn. Jon Katz
ADDENDUM: Thanks to my brother lawyer Marc Randazza, for giving exposure to Virtus's bared breast. . Wednesday, September 17. 2008First Amendment slays spam conviction.
Computer hard drive. (Image from Pacific Northwest Laboratory's website).
Thanks to the lawyer(s) who last Friday won a First Amendment-based reversal of a spam conviction in Jaynes v. Com., _ Va. _ (Sept. 12, 2008), http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf.
The Jaynes victory reverses the February 2008 Virginia Supreme Court 4-3 opinion against Jaynes. As last Friday’s opinion explains at footnote 2: “The prior opinion rendered February 29, 2008, reported at 275 Va. 341, 657 S.E.2d 478 (2008), was withdrawn by the Court after a petition for rehearing 28, 2008 and May 19, 2008.”
Having blogged about the February 29, 2008, Jaynes opinion here and here, I went back to my bloglink to that February 2008 opinion, only to find that the link now goes to last Friday’s opinion. Certainly, it is important that the public have access to all Virginia Supreme Court opinions, and if the court is going to erase some of them from the Internet, I guess I will need to save them all on my own hard drive from now on. (UPDATE: Thanks to my irrepressible brother lawyer Marc Randazza for having had the foresight to save the February 2008 opinion, and for having directed me to the opinion's link on his blogsite.)
Everything ended up looking brighter for Mr. Jaynes once the Virginia Supreme Court decided to reconsider its February 2008 affirmance of his conviction, by finally agreeing to give him standing to raise First Amendment arguments, which the court at first refused to do, as described here. A unanimous Virginia Supreme Court ruled in Mr. Jaynes's favor last Friday.
Now turning to the removal of the Virginia Supreme Court's February 2008 Jaynes opinion from its website: On May 19, 2008, the Virginia Supreme Court granted Jaynes a rehearing, to include coverage of First Amendment issues. 2008 Va. LEXIS 88. Now, where does one find the state Supreme Court's superseded February 2008 Jaynes opinion? Not on Lexis, whose website says:
"The Opinion Previously Reported at this Citation has been Removed from the Lexis Service at the Request of the Court, June 12, 2008." 2008 Va. LEXIS 42 (parallel cite for 275 Va. 341; 657 S.E.2d 478). Hopefully the Virginia Supreme Court will put the February Jaynes opinion back on its website, with an explanatory note that it has been superseded by the September 12, 2008, opinion.
Congratulations again to Mr. Jaynes and his legal team. Jon Katz
Tuesday, September 16. 2008"You're not wanted in these parts."
Bill of Rights (From public domain.)
The late Supreme Court Justice Thurgood Marshall knew the ugliness of racism in Maryland right through his bones. In one televised interview, Justice Marshall recounted one day as a youth, when he was in a section of Baltimore where he could not find a bathroom other than those designated for white people only. Unable to find a bathroom where he would not get arrested for answering the call of nature, he decided to use the bathroom at home far away, but by that time, the urine was running down his leg. The ugliness of segregation did not stop there. As only a for instance, Justice Marshall wanted to enroll in the University of Maryland law school, but he knew the school did not admit African Americans, so he enrolled in Howard University law school. I understand that he declined an invitation to attend the opening ceremony decades later of the Thurgood Marshall library at the University of Maryland, thus helping to avoid whitewashing the school's shameful racist, segregationist past.
Even after Justice Marshall won the Brown v. Board of Education school desegregation case in the United States Supreme Court, blatant segregation continued in Maryland. In fact, Robert M. Bell -- the Chief Judge of Maryland's highest court -- was arrested in 1960 and convicted for trespass in a Baltimore restaurant desegregation sit-in. The United States Supreme Court left it up to the Maryland courts to decide whether the intervening change in Maryland's sit-in/trespassing laws would dictate a different result. Unfortunately, the Maryland Court of Appeals said no. Bell v. Maryland, 236 Md. 356 (1964).
This past Sunday, I saw a Montgomery County, Maryland, police officer take a man down face first onto the pavement when the large police officer apparently was not satisfied with the apparent stiffness of the much older and smaller man's body when the officer tried to complete his search of the man after arresting him for trespassing, for allegedly violating a written stay away order from the Seven Eleven store where he seemed to be unobtrusive enough outside the store when I entered before the cop arrived. I watched the whole ordeal for quite some time. The arrested man looked disoriented and seemed to be looking in my direction for help. What useful help could I have given other than to offer my services pro bono? I wondered whether the court commissioner would impose a bond oh him, and whether he had money to pay a bond. The sole consolation there as far as the court system is concerned is that at least this county's public defender's office provides legal representation at bond hearings, but the inmates appear only on closed circuit television, and the public defender lawyers ordinarily do not have an opportunity to meet with them before such initial bond hearings.
Today, cops are not permitted to enforce segregation. However, when a store hands a customer an order not to return, who knows whether the stay away notice is based on racial reasons? In this instance, I have no reason to believe that this arrested man was being banished from the Seven-Eleven or arrested for racial reasons. I have no reason to know either way whether the man was banished for good reasons, either (e.g., for trying to shoplift before) or bad ones. His arrest on the one hand seemed very removed from the shameful days when Thurgood Marshall could not find a bathroom open to him (though this man was born when segregation was very alive and well in Maryland), and when Robert Bell had his trespass/sit-in conviction upheld by Maryland's highest court. However, how rampant is unspoken segregation still with us today in the United States, from the many overwhelmingly lily-white country clubs, to the apartment leasing agents who tell an African American couple that no apartments are available but then rent to the white couple that arrives five minutes later, to the taxi driver who passes an African American woman clearly waving for the cab and then picks up two white women two blocks later (and who urges me to hush when I insist that he tell his passengers to vamoose and that he pickup the woman he snubbed)? The list goes on and on. What will you do to erase that list? Jon Katz
ADDENDUM: When the United States Supreme Court reviewed Robert Bell's above-discussed trespassing conviction, dissenting justice Hugo Black -- who belonged to the Ku Klux Klan when a lawyer in Alabama -- included the following footnoted excerpt (n.2) of the restaurant owner's testimony painting himself as a buck-passing anti-segregationist victim of economics: "'I set at the table with him and two other people and reasoned and talked to him why my policy was not yet one of integration and told him that I had two hundred employees and half of them were colored. I thought as much of them as I did the white employees. I invited them back in my kitchen if they'd like to go back and talk to them. I wanted to prove to them it wasn't my policy, my personal prejudice, we were not, that I had valuable colored employees and I thought just as much of them. I tried to reason with these leaders, told them that as long as my customers were deciding who they wanted to eat with, I'm at the mercy of my customers. I'm trying to do what they want. If they fail to come in, these people are not paying my expenses, and my bills. They didn't want to go back and talk to my colored employees because every one of them are in sympathy with me and that is we're in sympathy with what their objectives are, with what they are trying to abolish . . . '" Bell v. Maryland, 378 U.S. 226 n.2 (1964). Monday, September 15. 2008Yin-yang and the scales.
At the Trial Lawyers College, the inevitable day comes when everyone is handed a paintbrush, and is told to tell an important personal story through painting, without regard to technical artistry. As it turned out, when I did the painting exercise, some of the most meaningful paintings at first looked as rudimentary as those done by elementary schoolers while the final piece of one of the more talented brushmasters told more of an a la carte menu than an integrated and deep story.
When I launched my previous law firm's website in 1999, I chose the Statute of Liberty as the website's symbol, which embraced justice in general, and logically covered my criminal defense work and Jay Marks's immigration work. Now with my new law firm, I unveil my new logo of the scales of justice within the yin-yang, which is a symbol used -- among other things -- to represent the Chinese martial art of t'ai chi, which I have been practicing for fourteen years, as well as representing one of the five principles of t'ai chi (separating one's weight in yin-yang balance). T'ai chi very much defines my approach to trial battle, convinced that t'ai chi principles are essential for the powerful road to litigation victory and to keeping powerfully harmonized no matter what bows, arrows, urine, vomit, and feces I must deflect and neutralize from opponents and others.
The scales of justice shown within the yin-yang symbol also involve the principles of balance and harmony that are part of the yin-yang. If the yin-yang is seen as rooted in the East and the scales of justice as rooted in the West, bringing them together arguably completes the yin of the East to the yang of the West, thus creating a global yin-yang.
Thanks to my friends and family members who gave me feedback on the various law firm logos I was considering, and thanks immensely to the marketing professional who worked with a graphic artist to turn my idea into reality. I would thank them by name, but my marketing consultant chose web anonymity, at this point.
I welcome your feedback on my new logo, good, bad, in between, and indifferent. Jon Katz |
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JON KATZ IS AV-RATED /WASHINGTONIAN TOP 800 LAWYERS-LISTED/SUPER LAWYERS-LISTED/AVVO.COM 10.0-RATED. Since 1991, criminal defense/ drug/ drunk driving lawyer Jon Katz has fought for victory for criminal defendants and drunk driving/ driving while intoxicated/ DUI/ DWI defendants in felony prosecutions, misdemeanors, and criminal traffic cases. He defends clients in all Maryland, Washington, D.C., and Virginia state and federal courts, including Montgomery County (Rockville and Silver Spring), Fairfax County, Northern Virginia, Arlington County, Alexandria City, Prince George's County (Upper Marlboro, Hyattsville, Greenbelt & Andrews Air Force Base), Howard County (Ellicott City), Frederick County, Anne Arundel County (Annapolis, Glen Burnie & Ft. Meade), Prince William County (Manassas), Loudoun County (Leesburg), Charles County (La Plata), Baltimore City, Baltimore County (Towson, Catonsville & Essex), Washington County (Hagerstown), and the Eastern Shore (including Ocean City).  QuicksearchGoogle the Site
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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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