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Friday, January 30. 2009
Whether or not one agrees with PETA's message -- and I agree with PETA's advocacy of vegetarianism and boycotting of circuses that use non-human animals (Cirque de Soleil apparently only uses human animals, for instance) -- the group has developed a knack for persuasive videos. Persuasion is essential in trial advocacy, which makes me take notice all the more. Here is PETA's racy video rejected for Super Bowl ad-time that gives a fresh perspective on vegetables and a reminder that cutting out meat and increasing exercise and overall health beats Viagra any day. Above is a catchy video that forces people to think twice and hopefully a million times before ever using a glue trap against mice or rats again. They are very social and feeling beings, and caring at that, according to this PETA video. They do not intentionally annoy people. Yet, they are specifically exempted from the Animal Welfare Act, 7 U.S.C. § 2131, et seq. More specifically, in the Animal Welfare Act: "The term 'animal' means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research, (2) horses not used for research purposes, and (3) other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber." 7 U.S.C. § 2132(g) (emphasis added). The foregoing definitional jumble seems to be the product of battle by opposing and competing lobbyists and advocates. Exempting mice and rats from the Animal Welfare Act, says PETA, exempts 95 percent of animals used in experimentation, which remains rampant. On this point, the American Psychological Association seems to elevate animal experimentation over animal compassion. Whether or not the anti-abortion movement has adopted Horton Hears a Who as a propaganda darling -- and I support choice while hoping that education, funding, widespread availability of birth control, and economic opportunities will reduce the annual abortion rate -- Dr. Seuss's Horton makes a critical point that I translate to "A being's a being, no matter how small," including mice, rats, squirrels, quails, sardines, hens, pigs, tuna, salmon, turkeys, cows, and the list goes on. Congratulations to PETA for finding such persuasive message delivery. Jon Katz.
Thursday, January 29. 2009
Image from Bureau of Engraving and Printing's website. Doesn't the United States government have better things to do than to be prosecuting gambling? Would the government be chasing after gambling operations if the prospect did not exist to obtain forfeiture of the alleged gambling operations' money and to obtain unpaid taxes? Greed clearly is not limited to the private sector, particularly when one includes greed for power in the mix. Moreover, government officials and cops gain more job security when they increase government revenue through seizing assets for forfeiture and obtaining fines from private citizens. Praised be a unanimous panel of the D.C. Circuit for at least holding that the government is ineligible to win a civil asset forfeiture challenge at the summary judgment stage on the mere claim that the asset owner is disentitled to the funds by having intentionally evaded the parallel criminal prosecution by remaining outside the United States. U.S. v. $6,976,934.65 Plus Interest, __ F.3d _ (D.C. Cir., Jan. 27, 2009). (What an intriguing case name, which will be referenced hereonin as U.S.v.$PI.) That is to say, the trial court must make its own careful factual finding about such evasion. U.S. v. $PI interprets 28 U.S.C. § 2466, which provides as follows: "§ 2466. Fugitive disentitlement. (a) A judicial officer may disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action or a claim in third party proceedings in any related criminal forfeiture action upon a finding that such person-- (1) after notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution-- (A) purposely leaves the jurisdiction of the United States; (B) declines to enter or reenter the United States to submit to its jurisdiction; or (C) otherwise evades the jurisdiction of the court in which a criminal case is pending against the person; and (2) is not confined or held in custody in any other jurisdiction for commission of criminal conduct in that jurisdiction. (b) Subsection (a) may be applied to a claim filed by a corporation if any majority shareholder, or individual filing the claim on behalf of the corporation is a person to whom subsection (a) applies. (Added April 25, 2000, P.L. 106-185, § 14(a), 114 Stat. 219; Oct. 26, 2001, P.L. 107-56, Title III, Subtitle A, § 322, 115 Stat. 315.) (As amended Jan. 5, 2006, P.L. 109-162, Title XI, Subtitle C, § 1171(c), 119 Stat. 3123; March 9, 2006, P.L. 109-177, Title IV, § 406(a)(1), 120 Stat. 244.) Here, the United States government, sought the forfeiture of nearly $7 million allegedly laundered from money "earned through an unlawful offshore Internet gambling enterprise." U.S. v. $PI. (And what type of detergent was used for the alleged laundering? Tide? Wisk? Seventh Generation?) The corporation that filed suit to recover the money was principally owned by former United States citizen William Scott, who the government alleged to have been evading prosecution in his related criminal case. The D.C. Circuit foreclosed summary judgment on the disentitlement statute, based on its following language in U.S. v. $PI: "But as Soulbury [the corporation whose assets were seized by the U.S. government] points out, the video [of William Scott, that is in evidence] also suggests that Scott did not wish to reenter the United States regardless of any pending criminal charges. Scott told the reporter interviewing him: 'I don’t mind not going back to the States. There are a few of us that are . . . that are under the same restrictions that would like to go back to the States. Myself, that’s fine.' the fifth estate: The Big Gamble, supra. The district court made no finding as to what, if anything, this comment reveals about Scott’s reasons for remaining outside the United States. But a court considering summary judgment must draw 'all reasonable evidentiary inferences' in favor of the nonmoving party. Toney v. Bergland, 645 F.2d 1063, 1066 (D.C. Cir. 1981). Under this standard, Scott’s statement is sufficient to raise a genuine issue of fact whether he declined to reenter the country in order to avoid criminal prosecution under the 1998 or 2005 charges." Congratulations to William Scott for this victory against summary judgment. Stay tuned to whether he ever gets brought to court for prosecution on his pending federal criminal charges. Jon Katz.
Wednesday, January 28. 2009
Terry v. Ohio wrongfully tramples on civil liberties. (Image from FBI's website). The United States is far from a truly free nation; nor are any other nations. Light a flame in a dried-out forest, and soon an uncontrollable inferno will rage beyond the control of the firesetter. Establish an overgrown criminal "justice" system that even outlaws marijuana, prostitution and gambling, and then try to rein it in. Just try, when over one million people rely on their livelihoods from receiving their pay from the criminal justice system, including judges, all other courthouse personnel, prosecutors, criminal defense lawyers, cops, and jailers; and when so many local economies rely on the local prisons for their tax base and for customers of local businesses. Adding to the lack of enough true freedom in the United States is the rest of the oppressive national security state comprised of the overgrown military, the CIA and all other intelligence agencies, and the FBI. Anybody who is all bright-eyed and bushy-tailed that all is honky dory with personal freedom in America needs a bucket of ice water dumped on him or her to wake up. When conservative Supreme Court chief justice Roberts wants to dispel any notion that Terry v. Ohio, 392 U.S. 1 (1968) (allowing police stops and frisks for nothing more than reasonable articulable suspicion (make that prevarications working backwards from unlawful searches, by too many cops)), will ever be weakened in our lifetime, who better to assign the task of writing the latest Terry -strengthening/Fourth Amendment-weakening opinion than Justice Ruth Bader Ginsburg, who is generally on the Court's comparatively liberal wing for Fourth Amendment issues, and who full well knows the ACLU vision of the Fourth Amendment from her tenure with that essential civil liberties organization? On January 26, 2009, writing for a unanimous Supreme Court, Justice Ginsburg confirmed the constitutionality for all passengers to be seized for as long as the driver of a car lawfully stopped for a moving violation (unless the driver is then arrested, in which case the passengers may leave if they are not going to be arrested), in order to protect officer safety. Arizona v. Johnson, __ U.S. _ (Jan. 26, 2009). Consequently, the first condition for a Terry stop and frisk is met by the lawful stop of a vehicle for a moving violation and the temporary seizure of the vehicle's occupants "pending inquiry into a vehicular violation." Johnson. Then, all the police need is reasonable, articulable suspicion that the suspect is armed and dangerous to pat the suspect for weapons. Johnson.Here, a police officer asked passenger Johnson to get out of a car stopped for a moving violation, to gather "intelligence" about the Crips gang, based on Johnson's saying he was from Eloy, Arizona, which the cop knew was "home to a Crips gang." Johnson accepts, at least for sake of argument, that the police officer had reasonable, articulable suspicion to patdown Johnson for weapons after he got out of the car, which the cop claimed was done for "safety". Johnson does the disservice of teaching a simple-to-understand but unjust rule (passengers in a car lawfully stopped for a moving violation are lawfully seized, and then may be patted down for weapons upon reasonable articulable police suspicion that they are armed and dangerous) that not only invites police abuse, but encourages it. Under Whren v. U.S., 517 U.S. 806 (1996), the police may stop a car under the pretext of a moving violation, even when the cop's motivation is to investigate the violation of drug laws or other criminal laws that have nothing to do with speeding and other moving violations. Unfortunately, Whren already encourages police prevarication about moving violations to justify car stops, and Johnson solidifies the grounds for such prevarication. And what if the police stop is motivated for driving while Black? Where will the stopped suspect get in challenging a driving while Black stop so long as the judge believes that the cop (and too few judges give careful enough examination to cops' credibility at suppression motions hearings) witnessed a moving violation? Let's face it, if a cop wants to find a lawful way to stop a car, s/he will find it or else instigate an unlawful stop that will pass muster in court (how many times have you experienced a cop tailgating you, trying to draw a foul by your speeding up to avoid being rearended?), unless the driver is one of the rare drivers who never accelerates even two miles over the speed limit, even when going down a steep hill? With the latter type of driver, the police can at least get a chance to approach and try to talk to the driver merely by following the driver until he or she arrives at his or her destination or runs out of gas. T'ai chi teaches me to be calm, but as I write today's blog entry, I am trying very hard not to get my blood boiling. Jon Katz.
Tuesday, January 27. 2009
T'ai chi works for trial battle and beyond, A fellow otherwise accomplished criminal defense lawyer recently took issue with the inclusion in a state criminal defense association newsletter of my recent article on applying t'ai chi principles to trial battle without seeing other articles dealing with the written law and non-t'ai chi trial technique in that issue. Granted, many years before I started studying and practicing t'ai chi in 1994, I was very skeptical of this internal martial art, which at first was exemplified to me by videos of people who looked of average fitness, at best, practicing t'ai chi very slowly together in the early morning hours, followed by Peter Wang's A Great Wall, which included a character who performed daily t'ai chi and expelled flatus as a climax, apparently as a way of expelling negative elements in the body. Fortunately my form of t'ai chi omits the flatus, which would not sit well for the indoor classes, but I digress. As made clear at the Trial Lawyers College, all the legal knowledge and technique in the world is worth little without simultaneously or preliminarily developing the trial lawyer as a person. Consequently, being a great trial lawyer is impossible without the three essential legs to the stool of knowledge, technique, and fighting strength. Fighting strength first and foremost comes from discovering who the trial lawyer really is, and developing that realness to its full potential, together with knowing how to fight, because criminal trial preparation, motions argument and presentation, and trials can get very bloody, figuratively. For me, nothing beats the relaxation, exercise, and fighting techniques of t'ai chi to be a better trial fighter. The related lessons from Sun Tzu's The Art of War are also very helpful. If experienced and accomplished criminal defense lawyers sincerely wish to see their peers rise as they rise, they should welcome, and not shun, those who explore and apply new ways to win. Let the trio flourish of legal knowledge, trial technique, and fighting strength. Jon Katz. ADDENDUM: Many of my writings about the interplay between t'ai chi and trial battle are here.
Monday, January 26. 2009
Bill of Rights. (From the public domain.) A few days ago, a Ramsey County, MN, trial judge dismissed a prosecution for insufficient evidence against protestors who demonstrated during the 2008 Republican National Convention. The defendants were charged with obstructing the legal process, disorderly conduct, unlawful assembly and blocking traffic. The LaCrosse, Minnesota Tribune reports that St. Paul City Attorney John Choi asserted that "by wearing masks and working together, the protesters presented some evidentiary problems for prosecutors." Representing the defendants, lawyer Jordan Kushner -- whom I know well from the 1994 National Criminal Defense College Trial Practice Institute -- said the case "'showcased how police had no basis for the vast majority of arrests made during the RNC.'” Online information on this case is thin. If you have further information, please send it my way, or else please post it as a comment to today's blog entry. Jon Katz. ADDENDUM: On September 1, 2008, I blogged about the Ramsey County, MN, sheriff's raids on alleged anarchists. On September 4, 2008, Democracy Now aired this lengthy report on "some of the nearly 300 people detained over the past few days [who] include medics, legal observers, journalists and anyone considered to be a protester."
Sunday, January 25. 2009
The Chinese script for the character "mu," which means nothing. See more on mu. life and death here. (The copyright was relinquished by this animated symbol's creator. The symbol also is available here.) On death, Woody Allen asked: "I keep wondering if there is an afterlife, and if there is, will they be able to break a twenty?" My own death seemed somewhat abstract to me until, at nineteen years old, a close relative was diagnosed with cancer. In addition to dealing with that transition, I started dwelling more on my own finite life. Today, I'd probably laugh if I overheard myself at nineteen obsessing so much on my own mortality; for one of many things, I had many more years ahead of me at nineteen than I do now at forty-five. A frequent question I have had is what motivates hard workers to work so hard if life is finite. Some might answer that they do not see life as finite, whether because they believe in an afterlife or because they view life as extending beyond just one person to embrace other sentient beings other than themselves. The answers to this question are many. As to how I deal with my own mortality, I try my best to follow Ram Dass's simple message to Be Here Now, which, like so many key ingredients to a successful life is simple to understand but often elusive to achieve, particularly when being here now seems also to call for some provisions for tomorrow, if even that is just to assure for enough fuel to get to the next destination. I have also drawn comfort from lessons about facing the very moment of death from Ram Dass and the Dalai Lama, who talk about putting ourselves in the most positive mindset as we approach our final breath. Similarly, Gandhi said on the morning of his assassination: "If someone fires bullets at me and I die without a groan and with God's name on my lips, then you should tell the world that here was a real Mahatma..." As to how to make the best out of my finite life, I am very much influenced by the scene in Walk the Line where the record producer who finds Cash's early samples too uninspiring, implores Cash to perform the song he would sing at death's door with this being his last chance to get out his message and feeling. Similarly, I am struck by a YouTube video I saw (which is not handy to me at the moment) where people comforting an apparently terminally ill patient encourage him to take the next breath as if it were his last. Once again, it is about making the most of now, or Being Here Now. Part of making the best of today's life is not to be terrified of the inevitable mortal end. To that end, Thich Nhat Hanh said in Chanting and Recitation from Plum Village (page 188): "Birth and death are only doors through which we pass/Sacred thresholds on our journey/
Birth and death are a game of hide and seek." Does the finiteness of each person's life justify not getting out of bed in the morning and living a life of nihilism? No. Each of us is here for a purpose, and must give back to others and try to leave the earth in no worse shape -- and hopefully better shape -- for future generations. I was inspired to write about all this not out of a desire to proselytize for any religion but from being reminded of the very incredible lives and world contributions that so many giants have made, including the greatest jazz musicians many of whom died rather young. They include John Coltrane, who died at forty from a liver ailment and Charlie Parker, who died at thirty-five from bleeding peptic ulcers, lobar pneumonia or both. Imagine if John Coltrane and Charlie Parker had lived longer in good health. Dizzy Gillespie is an example of a powerhouse at a young age who rose by further quantum leaps to near-impossible heights right into his seventh decade. How does all of this tie in with my life as a trial lawyer? Trial lawyering presents many stressful situations that require harmonizing the situation powerfully for the client's benefit. Once I can face down death and find joy in life at every turn, much of the rest should be easy, including the hard work on the road to victory at trial and any other challenge. In that regard, t'ai chi master Cheng Man Ching spoke of overcoming our fears in terms of imagining that we are practicing t'ai chi (or are engaged in trial battle, for that matter) while balanced atop a narrow pointed cliff. To not eliminate one's fears while atop the cliff is to guarantee certain death. Eliminating fear also calls for keeping and tempering the fearlessness of a child filled with wonder, and living in the moment, as wonderfully detailed in the following story of the man and the two tigers: A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and -- with his life hanging in the balance -- thinks of how delicious the strawberry tastes. That wild strawberry follows me everywhere. Jon Katz.
Sunday, January 25. 2009
Thomas: "I don’t like unnecessary suffering." In August 1986, I came to George Washington Law School after a year working at a Wall Street bank, where I learned that I would need to seek much more deeply and widely if I were going find fellow Amnesty International and ACLU enthusiasts in the belly of the capitalist beast. Five years before my arrival at law school, William Thomas (apparently also named William Thomas Hellenback at one point) had already been a longtime peace demonstrator across from the White House, five blocks from my law school. I would bump into Thomas, as his friends called him, from time to time, sometimes on the way to my first law firm two blocks east of the White House, sometimes elsewhere in Washington, and sometimes at gatherings of social justice and peace activists. Less than five years after my arrival in Washington, D.C., Gulf War I started. I felt tremendous imbalance working at a corporate law firm where I heard nothing said about the war other than support for the war or yellow ribbons. I took to spending a few minutes for lunchtimes at Lafayette Park across the White House each week, to connect with those constantly protesting and drumming for peace. Thomas was among those drummers, and it appears that the White House's occupants could hear the drums, no matter how thick their protective windows. I last saw Thomas in downtown D.C. last November. Two days ago, I learned that he died on January 23. By his very presence for twenty-seven years demonstrating daily for peace across the White House, Thomas, along with fellow decades-long protestor Concepcion Picciotto, etched the critical message of peace in the minds of millions of visitors to the White House, conservatively. Thanks, Thomas, for spreading that message, and for you. Jon Katz ADDENDUM: Although it was not planned this way, I have posted three articles related to death in the last seven days. In any event, on January 24, with my son, I went to visit Lafayette Park to pay my respects to Thomas and to his fellow peace protestor Concepcion Picciotto. Thomas's widow is Ellen Thomas. Some of the bleachers and reviewing stands still remained standing in front of the White House from the inaugural parade, which means that Concepcion has been without a prime demonstration spot for many days. I found her at a spot north of the bleachers and on the western half of the park. Here are some links about Thomas's life and passing: - March 20, 2009 (12:00 noon) will be Thomas's memorial service date, at Lafayette Park. More information on the memorial and Thomas's passing is here. - Click here for more on Thomas's passing. - U.S. v. William Thomas and Ellen Thomas, 864 F.2d 188 (D.C. Cir. 1988) (Kenneth Starr, J.) (upholding prosecution of William Thomas and Ellen Thomas for violating park regulations against unauthorized sleeping in the national parks).
Friday, January 23. 2009
Bill of Rights. (From the public domain.) Criminal jury trial are fast-paced events that risk all sorts of appealable errors. While it is nice to have good appellate issues to argue in the event of a conviction, it is nicer to prevent the errors in the first place. For whatever reason, it seems too many judges have a penchant to disclose indictments to juries, even when those indictments include damning allegations that might not even be proven at trial, or might ultimately be dropped by the prosecution before the jury begins deliberations. Chauncey L. Coleman's judge revealed to his potential jurors that one of the counts was for being a felon in possession of a handgun, even though the parties already had stipulated to his having had an applicable felony at the time of the alleged crime. Praised be the D.C. Circuit for finding such a judicial disclosure to be reversible error, even though the defense did not object when it was disclosed. U.S. v. Coleman, __ F.3d _ (D.C. Cir., Jan. 16, 2009). En banc review may be all the less in the cards here when considering that one of the three unanimous judges on the Coleman appellate panel was Douglas Ginsburg, whom Ronald Reagan found to have been conservative enough to be fit for an ultimately-aborted Supreme Court nomination. Jon Katz
Thursday, January 22. 2009
Bill of Rights. (From the public domain.) In jurisdictions where the judge instructs the jury on the law before closing trial arguments are made, it is tempting for lawyers to focus on putting the finishing touches to their closing arguments while the judge instructs the jury. However, as demonstrated by Wheeler v. U.S., 930 A.2d 232 (D.C. 2007), it is critical to listen to and timely object to the judge's jury instructions like an eagle hawk. Otherwise, a faulty jury instruction will not be preserved for appeal, and the defendant will suffer. Cesar Sarausad II was blessed with a team of tenacious trial and appellate lawyer challenging, among other things, a faulty jury instruction concerning criminal accomplice liability. Waddington v. Sarausad, __ U.S. _ (Jan. 21, 2009). The Washington State trial and appellate courts rejected his argument that the accomplice liability jury instruction in this murder case was unconstitutionally unambiguous. Sarausad's lawyers then took his case to the federal courts with a habeas corpus petition. He struck gold with the federal trial court, which ordered habeas corpus relief for ambiguous jury instruction on accomplice liability. He struck gold again before the Ninth Circuit on the same issue. Unfortunately, the Supreme Court granted certiorari review and reversed, saying that the instruction was not ambiguous enough to receive habeas corpus relief, even though the jury had to ask three times about the instruction. This gist of the Sarausad majority opinion appears to be found in footnote 7: "On federal habeas review, this Court’s inquiry is limited to whether the state court violated clearly established federal law when it held that the jury applied the correct standard, in light of the answers given to its questions. See 28 U.S.C. §2254(d)(1). On that issue, the state court was not objectively unreasonable; the jury’s questions were answered in a manner previously approved by this Court, and they consistently referred the jury to the correct standard for accomplice liability in Washington." . Praised be Justice David Souter for dissenting, and Justices John Paul Stevens and Ruth Bader Ginsburg for joining his dissent. First, the dissent insists that Washington's accomplice statute is so ambiguous -- as underlined by Washington appellate courts' efforts to divine the statute's meaning -- that the jury instruction on accomplice is not saved merely because it parrots back an ambiguous statute. Second, Justice Souter says the majority is unrealistic (or did he find this the closest he was willing to come to alleging judicial whitewashing?) in finding that even if the jury instruction was inadequate, that the jurors still applied the "correct view of the state law." In any event, Sarausad does not preclude success with habeas corpus actions that attack jury instructions. Instead, Sarausad emphasizes the importance of demonstrating and persuading how the record is devoid of reliable evidence that the jury applied the correct view of the law when faulty jury instructions have in fact been issued by the trial judge, and to show how the jury instruction is constitutionally faulty in the first place. Jon Katz
Wednesday, January 21. 2009
Bill of Rights. (From the public domain.) Even I felt some giddiness hearing Obama start his inaugural address yesterday. The nightmare of Bush and Cheney was behind us, and hopefully Obama would not repeat any of that nightmare; hope springs eternal. A day after celebrating Martin Luther King, Jr.'s birthday, we got a big birthday gift of realizing King's dream more than ever. For at least four years, we will see no judicial nominations at the horrific levels of Justice Scalia, Justice Thomas, Justice Alito, and Chief Justice Roberts (whose nomination Obama voted against). Whether more by intention or omission, while fighting for critical aspects of social justice, Obama will perpetuate substantial injuries in other areas of social justice, including criminal defendants' rights. I have heard Obama say nothing to show that he will help make the criminal justice system more just. His appointment of Eric Holder as attorney general puts in place an establishment past prosecutor and judge who was Bill Clinton's number two at the Justice Department; that does not suggest any change between the Obama and Clinton administrations on criminal justice issues. From a realpolitik perspective, civil libertarians and social justice activists may not get better White House occupants than Obama and Clinton for at least a good while. At least Clinton's administration appointed so many ACLU and Amnesty International types that this made it easier for social justice activists to be truly heard and understood by his administration; I wait to see if Obama will do the same. From the local ACLU affiliate board on which I sat when Clinton took office, four then-current and recent board members were appointed, as the head of the Justice Department's Environmental division (Lois Schiffer), Education Department general counsel (Judith Winston), post-Mapplethorpegate general counsel to the National Endowment for the Arts (Karen Christensen), and FCC Director of the Office of Legislative and Intergovernmental Affairs (Judith L. Harris, who is married to Norman J. Ornstein of the American Enterprise Institute). From Amnesty International, Clinton brought John Shattuck to be deputy secretary of state for human rights. To the Supreme Court, Clinton nominated Ruth Bader Ginsburg, a co-founder of the ACLU's Women's Rights Project in 1972. (As an aside, the ACLU's webpage recounts: "One of only nine women at Harvard Law School in 1956, Ginsburg and her female classmates were asked by the dean why they were occupying seats that would otherwise be filled by men." Let that dean eat his words topped with bird droppings.) Not long after Jimmy Carter took office -- and people can debate whether this helped further undo Carter's image along with the scandals surrounding his brother Billy and others around him more than helping social justice -- marijuana legalization activists even got what then probably was their closest shot with the White House to getting marijuana closer to legalization. Based on Patrick Anderson's writings in High in America, on the one hand, Keith Stroup (whom I know and like very much) of the National Organization for the Reform of Marijuana laws was able to put together a party in late 1977 attended by Carter's top drug advisor Peter Bourne and other influential government people. However, those prospects became less bright after news leaked of Bourne's having snorted cocaine at the party. It can be interesting to challenge politicians and political candidates on legalizing marijuana, heavily decriminalizing all other drugs, and eliminating mandatory minimum sentencing. In the early nineties, a fellow civil libertarian once decried the police state in Washington, D.C. to one of the more social justice-minded city council members, who suggested a ride-on with the police to see why the council member had more watered-down views than this civil libertarian's complaint. One 1990 weekend afternoon, former D.C. police chief Maurice T. Turner stood at a streetcorner in Cleveland Park, asking for my vote. I told him of my issues with the criminal justice system, and he responded: "You do the crime, you do the time." But what about innocents, those violating laws that should not be on the books (marijuana, for instance) or should be heavily decriminalized (all other drugs, for instance) in the first place, and all others who are harassed, searched and arrested; police actions that focus harassment, stops and searches on racial minorities and disenfranchised people; and race-based and socio-economic-based decisions by police, prosecutors, jurors, judges, jailers, parole officials, and probation agents on whom to arrest, what crimes to charge, what bonds and pre-release conditions to impose, what verdict to render, what sentences to seek (including the death penalty), what sentence to impose, how to handle alleged probation and parole violations, who to parole and when, which prisons to make available, and what conditions to impose at the prison? I told former chief Turner that he would not get my vote if his best response was the overly-simplistic and flawed "If you do the crime, you do the time." Not long after meeting Maurice Turner, I attended a meet and greet at a National Lawyers Guild member's (or member type's) home, with then U.S. Congressmember and now-Senator Bernie Sanders -- Burlington, Vermont's previous socialist mayor -- still wondering whether I would ever meet a politician for whom I would want to campaign or donate. I am still wondering. Bernie's answer to my question about marijuana legalization makes me wonder whether Obama is of a similar bent. Sanders first told me that the marijuana legalization issue was not important enough to focus attention on when such weightier issues as health care, the economy and education demand attention. I would not let go of my question, so I asked: "Mr. Sanders, if marijuana legalization comes up for a vote on the House floor tomorrow, how will you vote?" I give him credit for answering honestly, but not for his answer, which was that considering that there are people selling marijuana to children, he will not support its legalization. (Well, Bernie, I suppose you want to return to alcohol prohibition, too, then?). In any event, does Obama feel that many of my darling criminal justice issues are too much of a luxury (they are not) to focus on while he works to fix the economy, close Guantanamo and withdraw from Iraq? As I have said again and again, governments and taxpayers will be in a much smaller financial pickle and tax-revenue pickle by shrinking the criminal justice system through legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum sentencing; and abolishing the death penalty. I do give Obama's crew credit for at least letting people air their grievances on the transition team's webpages (and notice how quickly the White House website transitioned to Obama's presidency yesterday, which webpage I hope will continue to let people air their grievances to that page's visitors), including: - Posting the concerns about racism in the criminal justice and prison system, from the National Association of Blacks in Criminal Justice. - Posting the concerns of the UCFW against workplace immigration enforcement raids. - Having a citizens briefing book allowing people to air their opinions and grievances and to invite voting in agreement or disagreement with those postings, including this posting favoring marijuana legalization. In sum, as you applaud Obama's arrival and Bush's departure, it is essential to keep as vigilant and active as ever for social justice. Jon Katz
Tuesday, January 20. 2009
Demonstrators for Guantanamo's immediate closure, near the Nipponzan Myohoji temple in D.C. welcome Obama's approaching southbound motorcade on January 19. (Photo courtesy of Nancy Mancias, one of the members of the Hundred Days campaign to close Guantanamo now.) Tomorrow will be the sixth presidential inauguration since I landed in Washington, D.C., for law school in 1986. I stayed away from Bush I and II's inaugurations, vehemently opposed to both. I worked through Clinton's two inaugurations rather than attending, non-plussed that much by the man, except for being happy for seeing Bush I gone. I do not hold open the likelihood that Obama will deliver better performance than Bill Clinton, at least not for criminal defendants. I foresee him perpetuating the draconian federal prosecutorial system that puts so many unjustly behind bars for too long, where the criminal justice system would be more fair, more accurate and much less expensive if marijuana were legalized, all other drugs were heavily decriminalized, and if mandatory minimum sentences were eliminated. With yesterday's overlap of the birthday of my hero Martin Luther King, Jr., with today's inauguration that fortunately brings the nation closer to being a color-blind society, I decided personally to check out some of the long weekend's activities. Here is an overview: - The weekend started in bizarre fashion, when I spotted Newt Gingrich on Saturday afternoon at the Tysons II shopping mall in McLean Virginia, at first fading into the woodwork in a sportsteam jacket. I decided not to say anything to him, figuring that he is not in a position to harm anyone any longer. - On Saturday night, I attended an inauguration party that to my pleasure had more the hallmarks of a tightly-packed, music-too-loud, alcohol and soft drinks overwhelming snacks party reminiscent of many held by students at my college, except that most people were wearing evening or business clothes. This was at a group house in Washington, D.C., and I was invited by a great civil libertarian whose daily job is in that arena, and who sympathized with my approach that I was coming for the people there -- including fellow civil liberties activists -- rather than for Obama. The party got so crowded and loud that I returned home after an hour. - On Sunday afternoon, my wife, son and I took the subway to the Farragut West stop, to experience the Inaugural concert at the Lincoln Memorial, which is where Martin Luther King, Jr., delivered his "I Have a Dream" speech in 1963. We made the decision at the spur of the moment, so arrived too late to be permitted into the fenced-in area. On our way from the subway station, we saw not only cops keeping roads closed to vehicles, but soldiers in fatigues standing next to military vehicles. I was not about to tell my son that I was leaving so as to avoid the discomfort of this martial presentation, although I appreciate that no firearms other than handguns were displayed. As we got to Constitution Avenue near 18th Street, N.W., we heard U2 playing "In the Name of Love". It was a rush to hear U2 again and at this time. At the conclusion of the event, Obama spoke. As much as I do not hold open hope that Obama will do any better than Bill Clinton when it comes to criminal defendants, during his speech, I felt an energy in the crowd about the end of a dark era during Bush II's time in the White House, and the beginning of possibilities to reverse the devastated economy, switch courses in Iraq and Guantanamo (but Obama has stated a dedication to reinforce fighting power in Afghanistan), and smash racism by tremendous leaps. Here is a photo near the Washington Monument near the end of the concert. We let the huge exiting crowds for the subway die down by walking to a nearby hotel for a snack, where the highlight was seeing Don King, happily obliging those enjoying his presence and asking for photos with him. - On Monday, I drove to the D.C. Superior Court for a client's bond hearing. The police had several streets closed east of Fifth Street, N.W., north of the courthouse, and south of Chinatown. Nothing else seemed unusual about the area other than extra police presence and signs for cars to vamoose by 3:00 p.m. from street parking, plus several soldiers in fatigues around one mile up the street in front of a major AIDS/HIV campaign. - At lunchtime, I drove to the D.C. temple of the peace-promoting Nipponzan Myohoji Buddhists, a few miles up the street from the White House. In addition to the local nun, two nuns and two monks were in town from Massachusetts and upstate New York to pray for peace during the inauguration. In the early morning today, they will walk and drum for peace to the swearing-in site/Capitol building several miles away. The Nipponzan Myohoji nuns and monks inspire me to stay on a peaceful path while remaining aggressive in fighting for justice. When I arrived, a motorcycle cop was nearby, waiting for Obama's return to D.C. from visiting the nearby Walter Reed military hospital, Obama had the opportunity to see the temple's huge prayer for peace, on gravestone material, both on the way to and back from Walter Reed. On Obama's way back, several protesters who have been liquid-fasting for nine days demanding Guantanamo's immediate closure were already waiting for Obama with demonstration signs. - On Monday evening, I followed the Nipponzan Myohoji folks to the packed "Rebirthing King, Rebirthing America" program at the All Souls Unitarian church down the street. presented by the Olive Branch Interfaith Peace Partnership. Check out the list of inspiring speakers here. McCain supporters probably would not have been comfortable in the room. The mood was not one of swallowing Obama's actions hook, line and sinker, but to see the possibilities of motivating him to do the right thing, to a point. Among those in the audience, once again, were the demonstrators demanding Guantanamo's immediate closure. The fight for social justice must continue.
Monday, January 19. 2009
The Chinese script for the character "mu," which means nothing. A friend who is getting on in years recently said that death is unacceptable. Here is my excerpted reply: Here are some things I have written about death over the years, for whatever it is worth to you, and in case it will help give you more harmony about the mortality of you and everyone else:
- Woody Allen on death: "I keep wondering if there is an afterlife, and if there is, will they be able to break a twenty?" - "It's an unnerving thought that we may be the living universe's supreme achievement and its worst nightmare simultaneously." Bill Bryson, A Short History of Nearly Everything.
- "Tomorrow is not real. It is an illusion. The only reality is now." From Zen in Martial Arts. - "If someone fires bullets at me and I die without a groan and with God's name on my lips, then you should tell the world that here was a real Mahatma..." Gandhi on the morning of his assassination. - "He Ram, He Ram" - Ghandi's last words, praying to the deity. - Certainly life continues when others die, so in that respect death may be an artificial boundary. I have recognized all the more how my fear of death is so closely connected with my being self-centered, my over-attachment to my body, and my lack of enough internal peace and balance.
- "Death is our greatest challenge as well as our greatest spiritual opportunity. By cultivating mindfulness, we can prepare ourselves for this final passage by allowing nature, rather than Ego, to guide us."—Ram Dass, Still Here (2001). - Zoketsu Norman Fischer said: "In Buddhist funeral services we always say, in true reality there is no coming no going no increase no decrease no birth and no death. This is a deep expression of our gratitude for existence as it is, our knowing that life in order to be life is always full of death, and death, in order to be death, is always full of life." - From Fred Lehman: "I remember sitting one morning several years ago with Professor Cheng [Man Ch’ing] and several students in the Asian Library at Columbia University. The Club of Rome Report had just been released by MIT, and one of the students had bought in a clipping from the New York Times outlining the hopelessness of solving the compounded problems posed by overpopulation, food shortage, energy resource depletion, atmospheric pollution, radioactive waste, etc. The student was quite upset, and asked professor Cheng what he thought of the situation, and how we could get out of it. The Taiji master turned the question around and asked the questioner what his ideas were. The student gave his answer, and sat expectantly, awaiting correction from the Sage. Instead, Professor Cheng turned to another student at the table, and asked, 'What do you think about what he said?' This continued until each student had commented on the others ideas, and it was clear that the subject had been exhausted. There was really no way to solve the problem. Professor Cheng went back to reading his book. "After a pause, the first student, more upset than ever, asked again for some word from the teacher. Professor Cheng leaned forward, and put his book down next to the cup of hot tea which had just been refilled for him. 'What will happen to the world? I don’t know. Look at this vapor; it comes from the tea, it goes into the air, and right about here' – he pointed in the air – 'you don’t see it anymore. Where does it go?' He sat quietly for a moment while we pondered the empty space left after the world had destroyed itself. 'Don’t worry about it,' he said, 'Nothing gets lost.'" _____________________________ I found a scene from Wim Wenders's Tokyo-ga that visits late film director Yasujiro Ozu's gravesite. Instead of saying Ozu's name, his headstone has the symbol "mu" (see this photo of his headstone, too), which I understand can be defined -- perhaps very imperfectly defined -- as "nothing". What did Ozu mean by having his headstone say "mu"? The senses of cinema webpage says: "Whilst in China during his war service, Ozu asked a Chinese monk to paint the character 'mu' for him (an abstract concept loosely meaning 'void' or 'nothingness'). Ozu died painfully on his sixtieth birthday in 1963 of cancer and his tombstone in the temple of Engaku in Kita-Kamakura bears the inscription 'mu' from the monk's painting that he had kept all his life." ___________________________________________________ - Contemplation on No-Coming and No-Going
By Thich Nhat Hanh
This body is not me
I am not limited by this body.
I am life without boundaries
I have never been born,
And I have never died.
Look at the ocean and the sky filled with stars,
Manifestations from my wondrous mind.
Since before time, I have been free
Birth and death are only doors through which we pass
Sacred thresholds on our journey
Birth and death are a game of hide and seek
So laugh with me,
Hold my hand,
Let us say goodbye
Say goodbye to meet again soon.
We meet today
We will meet again tomorrow
We meet at the source every moment.
We meet each other in all forms of life.Thich Nhat Hanh, Chanting and Recitation from Plum Village. Page 188.
Monday, January 19. 2009
Martin Luther King, Jr., presented his immortal "I Have a Dream" speech when I was just four months old. When he was shot dead on April 4, 1968, I was only five years old, and he was only thirty-nine. I have been very positively influenced by the nonviolent path in fighting for social justice from Gandhi and Martin Luther King, How did they take up and stay on the nonviolent path? For both, their deeply-held religious beliefs helped them on that path. For Gandhi -- writes Radhika Rao --he was also influenced by the non-violence of his mother and of Tolstoy, and the civil disobedience message of Rousseau. Martin Luther King, Jr., was heavily influenced by Gandhi's non-violent path, starting with Mordecai Johnson's discussion of Gandhi at King's college. Ironically, hanging in King's office was a picture of Gandhi; both were assassinated. On non-violence, King said: "The ultimate weakness of violence is that it is a descending spiral,
begetting the very thing it seeks to destroy.
Instead of diminishing evil, it multiplies it.
Through violence you may murder the liar,
but you cannot murder the lie, nor establish the truth.
Through violence you murder the hater,
but you do not murder hate.
In fact, violence merely increases hate....
Returning violence for violence multiplies violence,
adding deeper darkness to a night already devoid of stars.
Darkness cannot drive out darkness; only light can do that.
Hate cannot drive out hate; only love can do that." In overcoming violence, we have a very long way to go. Happy birthday, Martin Luther King, Jr., and thanks again and again. Jon Katz.
Sunday, January 18. 2009
Lao Tzu, the purported author of the Tao te ching. Taoism is closely connected with t'ai chi principles. (Image from the public domain). Today's blog entry contains further ideas and links concerning t'ai chi, which heavily influences the way I practice law and life: - Yesterday morning was the first time I joined the weekly Saturday morning outdoor t'ai chi practice at the nearby Cabin John Park in Maryland; I previously would sometimes join the practices in Glen Echo Park and in McLean, Virginia, but they do not involve t'ai chi push hands/boxing. T'ai chi fighting is a form of Chinese boxing, which is different than Muhammed Ali's sport, in that t'ai chi is an internal martial art focused on reaching strength through keeping the mind, body and spirit as soft as water and wind, but as powerful as a tidal wave and tornado. The small t'ai chi gathering on this frigid day morning at Cabin John Park was amazing, because two excellent teachers from t'ai chi master Cheng Man Ch'ing's lineage showed and practiced push hands with me, which I had barely been taught before, and which I last practiced over six years ago after less than a handful of times. One of the participants talked of doing push hands by focusing on the principles and movements of the 37-posture t'ai chi form, and by imagining a sphere around myself. This practitioner also taught that as long as I maintain a sphere against my opponent, I can successfully defend myself. However, it also is essential for me to keep physical contact at all times between my arms or hands and the opponent's body; that is how I can deeply sense the opponent's next move and how I can minimize damage from the opponent's attack. Therefore, the sphere is not a complete physical buffer from the opponent, but gives me control over a conflict even when part of the opponent's body is inside my sphere. Success in t'ai chi push hands involves listening with all senses to anticipate the opponent's moves; yielding to the opponent's attack without backing away, by rooting one's chi into the ground, bending low enough to be in a sitting posture, and turning from the waist; staying relaxed, sinking the weight into the leg that is best to be weighted at that moment, turning the waist sometimes as slowly as dripping water to give the opponent nothing to push, keeping the hand(s) on the opponent as the opponent tries to push, finding the opponent off balance or the opponent's center of gravity for pushing the opponent, and never standing upwards from bending down in that raising the body helps the opponent push the fighter. My first opponent showed me the consequences of my physically backing off from being pushed by continuing to stick to me and push me; the idea is not to resist the push with force, but to relax and sink into the ground as part of the defense. The entire experience was wonderful, and I look forward to returning to this Saturday morning session many times. Certainly, the above lessons can be applied for success with all conflict, both in one's personal life, in the practice of law, and in court. - Here is a brief biographical essay of late t'ai chi master Professor Cheng Man Ch'ing, who taught my t'ai chi teachers' teacher, by his late disciple and interpreter Tam Gibbs. Here is a timeline of the Professor's life. - Here is an on-again/off-again blog from the Cheng Man Ch'ing biography project. - Here is an interesting, dormant Chang Man Ch'ing blog. - Here is a link to teachers from Cheng Man Ch'ing's lineage. - Here are links to Cheng Man Ch'ing's own students. - Cheng Man Ch'ing's student Ken Van Sickle has some fascinating things to say about the Professor and himself. - Here is a link to a Washington, D.C., student of Cheng Man Ch'ing's senior student Ben Lo. - Cheng Man Ch'ing was already accomplished in Chinese medicine before starting his t'ai chi studies with the great Yang Cheng-fu. He believed in the benefits of t'ai chi for preventing the need for a physician's intervention in the first place. Here is an interesting link to the Jung Tao school of classical Chinese medicine in North Carolina. - Taoism is closely connected to t'ai chi. The Native American Taoist blog is written Roger Gilbert, whose Native American name is Thunderhands(Waki ya nape). Recently, Thunderhands wrote: "Without thought, without dependence on what you know, show me your truth right now! Too late! You were cut three times before you saw one pass of the blade. Stop thinking! The sword is slicing through the air. If you look at the keen blade glistening, you are dead. The Zen way is to take no thought for what action to take nor to meditate over the danger. Movement is then natural fluid. Whoosh! You are gone beyond danger. -Vernon Kitabu Turner / Roshi." I generally agree with Thunderhands, as long as the mind is involved in all this; I speak of mindfulness, rather than overthinking. Jon Katz.
Friday, January 16. 2009
Bill of Rights. (From the public domain.) One day when I appeared in the U.S. District Court in D.C. before a judge who also is on the FISA trial-level court, I was dying to ask the judge about that thirty-year-old court, but knew that at best my questions would receive no answers, whether or not with a glare. This week, we got a further glimpse of the workings of the secret U.S. Foreign Intelligence court system, through the release of a redacted August 22, 2008, opinion from the U.S. Foreign Intelligence Surveillance Court of Review, which acts as an appellate court over the trial level U.S. Foreign Intelligence Surveillance Court. This appellate case is so full of redactions that even its case title is redacted: In Re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act. In Re Directives confirms a foreign intelligence exception to the Fourth Amendment, and permits the Bush II administration's rogue and rampant use of warrantless domestic governmental infiltration into emails and other communications believed to include participants from outside the United States. On the one hand, it is better that the opinion was made public than kept secret. On the other hand, why did it take just one week shy of five months to release the opinion? The Cold War national security police state mentality remains all too alive in the United States. Jon Katz. ADDENDUM: Related to today's blog entry, check out Secrecy News, EPIC's FISA page, and FAS's FISA overview,
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