UNDERDOG - JON KATZ, Criminal Defense in and beyond the Capital Beltway.

Before now, nothing impressed me about Senator Jim Webb other than that he was less worse than George Allen of macaca-gate infamy.

On March 26, 2009, Webb introduced the National Criminal Justice Act of 2009. It is good that more people than criminal defense lawyers and ACLU types are publicly proclaiming how much of a failure is the nation's criminal justice system. I am at a computer right now that will not display the pdf links to the National Criminal Justice Act and Webb's article on the topic in Parade, which ordinarily is not the pillar of high journalism, but there is an exception to most rules. Here are two links about Webb's initiative:

- A webpage on the Act with links to the Act, Webb's Parade article, news coverage and more.

- Ryan Grim posts at Huffington, including his following view: "Obama's selection of Joe Biden to be vice president removes from the Senate one of the most vocal advocates of a hard-line crime and drug policy. Biden authored many of the laws that have led to the current prison situation."

The recipe I continue urging to fix the broken criminal justice system includes shrinking it substantially through such approaches as legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentences, eliminating the death penalty, and eliminating per se criminal blood alcohol level contents for drunk driving cases.  

In what way is our payment of taxes for the salaries of uncaring and unjust prosecutors any different from Kevin Bacon's imploring "Please sir, may I have another [whack on the butt]" in Animal House?

Too often, prosecutors refuse to hear from my witnesses to help them assess whether to prosecute a case, or whether to move closer to narrowing the settlement negotiations gap. Some prosecutors relent when I remind them that their obligation is to seek the truth and justice, rather than seeking a conviction and stiff sentence. Some do not.

Today, a prosecutor cut me off in my ten-word sentence to offer community service to inactivate a theft case, in response to his guilty plea offer. He insisted this would be a trial or a guilty plea. I suggested to him that he hear my counteroffer for his client to consider it. He responded that doing so would be unnecessary because of who his client is (does he really understand his client, and fully comprehend who his client is?) I asked him if he wanted to be known as a prosecutor who does not listen to counteroffers in settlement negotiations, but he replied that I should remove myself from the prosecutor's table.

Some prosecutors speak loudly enough in such situations for the defendant to hear, despite the rule of professional conduct prohibiting lawyers from communicating about the case with opposing parties represented by lawyers, unless the lawyer consents otherwise. I at least give the prosecutor credit for not speaking loudly enough for my client to hear.

Sometimes criminal defendants get intimidated by prosecutors' plea offers, which criminal defense lawyers are bound by the lawyers' ethics rules to convey to their clients. This underlines how important it is to build a relationship of trust, confidence, and complete preparation between the lawyer and client well in advance and throughout the defense.

We went to trial in this case. We won. As many of my colleagues have responded to me when I have complained about prosecutors' negotiating actions: "Some cases just need to be tried."

Steve Martin's flawless famous napkin trick.

My law practice keeps me away from the outdoors too often, except when I drive to and from courthouses, jails, and incident scenes.

On this glorious day, my three-year-old boy and I visited Potomac Overlook Park for the first time. The park is just four miles from Washington, D.C., but I just recently learned of its location, tucked away from the major thoroughfares. We walked down a sometimes muddy trail, which included some single trunks growing into two six-plus story trees. Then we got to one stream crossing after the other, with rocks jagged and far enough apart to threaten slips when carrying nothing, but I was carrying my boy across. Ultimately, both my feet got wet after a one-way of four stream crossings, but aside from hearing the cars on the nearby parkway, it was like being a hundred miles from the nearest city or 7-11, with clean air, birds galore, streaming water, and trails going up and down.

As we nearly finished the trail, we saw a purple butterfly, or was it a moth, seeing that it was as small as a moth. It was the first time I had seen such a thing. Then, as we neared the parking lot, we saw a tree with a human set of eyes, nose and mouth, followed twenty feet later by another tree with the same, plus a moustache.

The enchantment of crossing the stream without slipping any further, experiencing the purple butterfly, and seeing the human faces on the treesides underlined that my law practice challenges my ability to keep me in touch with the powerful sense of wonder with life that has followed me since childhood. I love music, but the courtroom has none. I love laughing like a hyena, but the august courtroom rules say not to. Could I get away with performing magic in the courtroom, or would that backfire on my client's cause?

Starting in grade school, I was fascinated with performing magic, and experiencing great magicians, including Doug Henning. After years of hibernation, I reawakened my bag of tricks to do some sponge ball magic at my son's recent birthday party, where, of my own imagination, I blew booger balls out of my nose, ate them for the gross-out effect that children love, and made them reappear from the other nostril, and the sophomoric antics continued to the children's delight. I made a red ball transform into a black ball, a ball transform into a square, and a ball transform into a much larger ball. Then, for the grand finale, I did the famous napkin trick first performed several decades ago on television by Steve Martin, followed by tearing and restoring a napkin.

Enter Kent Wong, a lawyer in Alberta, Canada, who works as a real estate lawyer by day, conjures by night, and even diverts his clients with magic. Apparently with no magic shop nor other magic club in the neighborhood, Kent makes his 1500-square-foot magic storage space available for local magicians to meet.

I have not tried performing magic in the courtroom while the judge is on the bench, but find that doing some close-up magic for clients as we wait in the hallway can loosen them up. From the darkside, Philadelphia personal injury defense lawyer Steven Leventhal routinely performs magic during opening and closing in trials, including producing a bizarrely patchwork-attached dollar bill, and a dollar bill transformed to $100 and back to one dollar, to illustrate the smoke and mirrors that he claims the opponent is trying to blow the jury's way. He has bent at least one opponent out of shape to the point that he received a motion to prevent him from performing magic before the jury. The case apparently settled before the motion was decided.

A fellow Washington area trial lawyer Ken Trombly has a cool routine where he presents his business card as blank on both sides and then slowly passes his hand over the card to make the printing appear. He also has a penchant for buying vintage magic posters. The Law and Magic blog talks about more lawyers who practice magic as part of their law practice or on the side.

Magic can be an icebreaker for an otherwise tough audience, particularly when adding comedy to the mix, although I have not found the right situation for performing magic to a judge or jury. The Washington, D.C., area, apparently has only one magic shop from here to Baltimore, that being Barry's Magic Shop in Rockville, Maryland. Barry and his staff are great for suggesting and demonstrating magic items to get anybody conjuring right away.

The one magic trick I still seek is a time machine to reverse my countless clients' gaffes in waiving their right to remain silent with the police.

Image from National Institute of Standards & Technology.

In all jurisdictions where I practice law, guidelines call for checking for an empty mouth for at least twenty minutes before administering breath tests for blood alcohol levels, because doing otherwise risks getting an inaccurate result from an already inaccurate procedure.

Enter Brenna Guy, who was arrested for suspicion of violating Indiana's drinking and driving laws and asked to take a breathalyzer test. She agreed to take the test, which was administered without the police asking her first to remove her easily removable tongue stud, even though Indiana law has the following rule requiring no mouth foreign substances for at least twenty minutes before taking the breathalyzer test:

^"The following is the approved method to conduct a B.A.C. Datamaster with keyboard test for alcohol intoxication: (1) The person to be tested must have had nothing to eat or drink, must not  [*838]  have put any foreign substance in his or her mouth or respiratory tract, and must not smoke within twenty (20) minutes prior to the time a breath sample is taken." Guy v. Indiana, 805 N.E.2d 835, 837-38 (Ind. Ct. App. 2004).

Praised be Indiana's Court of Appeals three-judge panel, which ruled 2-1 that the breath test results should have been barred from evidence. The court reasoned that the tongue stud was an easily removable foreign substance that remained in Guy's mouth right through the time of the breath test. The court left for another day what to do with such items as non-removable mercury tooth fillings, crowns, caps, and any other foreign substances that might interfere with the accuracy of the breath test. Guy v. Indiana, 805 N.E.2d 835.

The bottom line is that breathalyzers spew inaccurate information all the time. Blood tests are more accurate if properly administered and analyzed, but are more expensive in terms of administering them and in terms of having the people who drew the blood and examined the blood come to court as witnesses. Foreign substances can make breath tests even more inaccurate. It is important for criminal defense lawyers to know about every foreign substance that was in the defendant's mouth, right down to tongue rings, mercury fillings, and tooth caps. Jon Katz  

ADDENDUM: Thanks to a fellow listserv member for posting on the foregoing Guy case.

ADDENDUM II: Thanks to Diane for her comment below. Shepard's did not show the Indiana Supreme Court's reversal of the foregoing Court of Appeals decision, perhaps because the Supreme Court opinion says "[w]e affirm the trial court's denial of the motion to suppress," without saying that the intermediate appellate opinion is being reversed. Here is the Shepard's result, in pertinent part:

Guy v. State, 805 N.E.2d 835, 2004 Ind. App. LEXIS 568 (Ind. Ct. App. 2004)

SHEPARD'S SUMMARY

HIDE

Unrestricted Shepard's Summary Subsequent appellate history contains possible negative analysis. Citing References: Cautionary Analyses: Distinguished (1) Other Sources: Statutes (1) LexisNexis Headnotes: HN3 (1), HN5 (3) Show full text of headnotes

PRIOR HISTORY ( 0 citing references ) Hide Prior History

			(CITATION YOU ENTERED):
			Guy v. State, 805 N.E.2d 835, 2004 Ind. App. LEXIS 568 (Ind. Ct. App. 2004)

SUBSEQUENT APPELLATE HISTORY ( 2 citing references ) Hide Subsequent Appellate History

Select for Delivery

	1.		Transfer granted by:
			Guy v. State, 822 N.E.2d 969, 2004 Ind. LEXIS 644 (Ind. 2004)

	2.		Subsequent appeal at:
			Guy v. State, 823 N.E.2d 274, 2005 Ind. LEXIS 169 (Ind. 2005)

War breeds atrocities. We saw it with Abu Ghraib, My Lai, mini-My Lais (see here, too), and the list continues pathetically and endlessly. Consequently, great care must be taken by the government in deciding when and how to wage armed war and war in the criminal justice system, and in minimizing the risks and occurrences of atrocities.

Why on earth would we allow the risk of violent atrocities and atrocities against the Constitution in the drug war, particularly when it comes to marijuana, which drug would give us a much better society if all liquor drinkers consumed marijuana, instead? Last July, this senseless war on marijuana led to Prince George's, Maryland, police killing (murdering?) two dogs of Berwyn Heights's mayor when executing a marijuana search warrant that found no evidence of any crimes.  

Flash forward to March 11, 2009, when police shot unarmed Derek Copp in the chest -- ripping through his lung and liver --  when executing a marijuana search warrant to find but apparently a few tablespoons of the weed. Thus far, it appears the police are not revealing any details other than to admit that a sheriff's deputy shot him, and that Mr. Copp did not create any confrontation. Derek's father says Derek -- who fortunately survived -- reported that he heard knocking at the door, did not know it was the police, used his arm to shield the lights in his eyes (see here, too) from what turned out to be from the police, and was shot.

As is his right under the Fifth Amendment, the sheriff's deputy who shot Derek Copp was refusing to talk with police investigators about the incident, as of ten days ago. I do not quibble with the cop's asserting his Constitutional rights; I advise the same to my own clients. Clearly, though, police abuse must stop now, and marijuana must be legalized. Your voice is needed to make it happen. Jon Katz  

ADDENDUM: Thanks to Students for Sensible Drug Policy for alerting me to this story (accepting donations here for the SSDP, with the first $500 going to Derek). Thanks to the following people for covering this story:

- M-Live (by the group publishing such periodicals as the Ann Arbor News) compiles all articles on this matter here.

- The Drug War Chronicle has an in-depth article from last week.

- The Raw Story and Radley Balko covered the story.  

As liars go, Lucy van Pelt was a pro. How else did she repeatedly convince Charlie Brown to try to kick a football that she always pulled away a split second before his foot touched the ball?

Being human, prosecutors, judges, criminal defense lawyers, and everyone else have the capacity to go back on their word, whether or not they do so intentionally, and whether or not they never intended to fulfill their part of the bargain in the first place. I, myself, recently had a client politely remind me that the fee I quoted him to take his case to the next highest court was higher than the fee I quoted in his contract; this was an innocent mistake, with my having forgotten that I had even quoted a fee before that date. I can relate to such honest mistakes, but honest mistakes are not always behind deviations from agreements.

The longer a criminal case lasts in trial court, the greater the chance is that prosecutors will be switched along the way. Anytime a prosecutor does something contrary to a previous agreement, it may just be because the prosecutor is not up to speed on the case, or it may be something more sinister.

Enter James Benjamin Puckett. He was indicted for armed bank robbery, and ultimately reached a deal with the prosecution to plead guilty and to spill the beans to the government on his participation in criminal activities. In exchange, the government agreed to recommend a three-level reduction in his offense level and to request a sentence at the lowest end of the resulting now-advisory federal sentencing guidelines range. During a three-year sentencing delay related to health problems, Puckett got nabbed for another felony, and confessed his guilt to his probation officer.

At sentencing, on the basis of Puckett's post-plea criminal activity, the prosecutor objected to the three-level reduction in his offense level. The judge agreed with the prosecution, and sentenced Puckett at the bottom of the higher sentencing guidelines range that resulted from the elimination of the three-level reduction in the offense level. As a result, Puckett was sentenced to 262 months (nearly 22 years) in prison, instead of the 188 months (nearl7 16 years) that he would have received had the prosecutor stuck to the original deal, and had the judge accepted the recommendation. Puckett's trial lawyer did not object to this six-year sentencing difference between the plea agreement and what resulted at sentencing.

Today, in a 7-2 decision, the Supreme Court upheld Puckett's conviction and sentence. Here is the essence of the majority's opinion: "Such a breach [by the prosecution] is undoubtedly a violation of the defendant’s rights, see Santobello v. New York, 404 U. S. 257, 262 (1971), but the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) [of the Rules of Criminal Procedure] as clearly sets forth the consequences for that forfeiture as it does for all others." Puckett v. U.S., _ U.S. _ (March 24, 2009).

All nine Supreme Court justices agreed that plain error review applied to Puckett's appeal. With plain error review: "First, there must be an error or defect—some sort of '[d]eviation from a legal rule'—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. [U.S. v. Olano, 507 U.S. 725 at 732-33 (1993)]. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. See id., at 734. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it 'affected the outcome of the district court proceedings.' Ibid. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error '"‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’"' Id., at 736 (quoting United States v. Atkinson, 297 U. S. 157, 160 (1936)). Meeting all four prongs is difficult, 'as it should be.' United States v. Dominguez Benitez, 542 U. S. 74, 83, n. 9 (2004)." Puckett v. U.S., _ U.S. _ (March 24, 2009).

Both the Puckett majority and dissent agreed that the first and second of the four-prong plain error review test were met. The majority found that the third prong was not met. Dissenting Justice Souter, joined by Justice Stevens, made a strong point that the third prong was met in Puckett's conviction itself that arose from Puckett's pleading guilty in reliance on the plea agreement.

How dare the prosecution benefit from such a windfall after re-enacting Lucy van Pelt's withdrawing the ball from Charlie Brown, with the only difference being that the prosecution probably had no sinister intent at the time of entering the plea agreement? Now, the prosecution can sit contentedly, letting Mr. Puckett twist in the wind as he waits to file and resolve a habeas corpus petition alleging ineffective assistance of counsel for his trial lawyer's failure to object timely in the trial court to what the Supreme Court acknowledged was the prosecution's clear breach of the sentencing agreement. The law does not automatically guarantee court-appointed counsel for federal habeas corpus petitions, but at least one can hope that Mr. Puckett will have a high chance of obtaining habeas relief. However, seeing that the sentencing guidelines are advisory only, will the sentencing judge reduce the sentence even if Puckett obtains habeas relief in the form of a resentencing with the prosecution sticking to the original plea agreement?

Puckett makes clear the Supreme Court majority's aversion to permitting plain error relief in all but the most unusual circumstances. Until that changes, I hope that all criminal defense lawyers will leave a hockey puck on their trial tables to remind themselves of the name Puckett and the very unforgiving Supreme Court plain error caselaw. Jon Katz

 Bill of Rights. (From the public domain.)

On the one hand, I think peeping camera laws have gone too far to to the point of chilling legitimate photography and other legitimate activities that have no lascivious intent and no intention of capturing intimate images. On the other hand, plenty of people are indeed walking around who try to surreptitiously photograph and videotape up women's skirts and down their blouses (among other parts of their anatomy), to watch those videotapes, or both. Just because I defend such cases does not mean I do not get the creeps over such peeping photography.

Of course, interest in peeping photography probably does not spring up overnight, and I surmise that the root of such behavior at the obsessive levels sometimes or often is in the perpetrator's difficulty cultivating healthy, mutually consensual sexual relationships, and in relating to others in general. When I defend such cases, it can be beneficial to bring a psychological professional on board to assist in seeking the most favorable sentence in the event of a conviction, to include finding out why the defendant engages in such behavior, and how the behavior can be modified.

Will anti-peeping photography laws curb such behavior? Whether or not that will happen, Virginia's intermediate appellate court today held that Virginia's anti-peeping photography law applies to upskirt videos and photographs taken in such places as retail stores. Wilson v. Virginia, __ Va. App. _, _ S.E. 2d _ (March 24, 2009). The penalty for violating this law is a misdemeanor jailable up to one year, but, if the photographed person is under eighteen, then the penalty is a Class 6 felony jailable up to five years. Jon Katz

Often I feel an ill-placed center of gravity sought or accepted by too many judges. Of course judges bear the brunt of overloaded dockets and postponed cases by at best feeling like a grocery store cashier with never-ending lines of customers mixed in with inconsiderate and unaware people cutting in the line to ask where to find the store-brand wax beans. However, the center of gravity –- too often topped by a black hole –- too often set or accepted by too many judges is to move the case along, too often at the expense of getting enough of the evidence, law and case to the judge and jury, and thus sacrificing justice.  

The trial lawyer’s challenge is to get the center of gravity and balance to the side of justice, even if that means using some centrifugal force at first to overcome the misplaced center of gravity.  

Old habits die hard. How many times have you heard people get even to the level of mockery and hostility when pronouncing “this has never been done here before” or “that is a fanciful new idea”? The inventors of the wheel probably received such flack. Praised be the wheel inventors for pursuing forward. 

Beyond the robes of judges, the suits of lawyers, the uniforms and badges of police, the armor of witnesses, and the inconvenience to jurors are people who not long ago emerged from the wombs of their mothers, having left a place of comfort, warmth and harmony to an outside world of cold air, confusion, helplessness, and diapers. These are not people to be feared; nobody is. These are not people to disdain; they are more like us than they are not. These people -– and all people -– are people worthy of our efforts to know and understand with a compassionate spirit and heart, first and foremost because we are all humans on this small planet, second of all because this is the only way we move beyond a culture of conflict and inhumanity towards one of greeter harmony, and third, for trial lawyers, because this is the best way for us to be effective persuaders for our clients, on top of the need for us to know, find, keep and improve the essential skills of oral and written argument.  

A trial lawyer’s necessary challenge is to find a way to risk financial profit levels and time that would otherwise be used at leisure in order to fully absorb the lawyer into each client’s cause. How else can the trial lawyer discover the story and persuasion in each client’s case? How else can the trial lawyer earn the client’s trust and get the client to fully open up to the client’s self and the lawyer? How else can the trial lawyer open up to himself or herself in order also to connect with the client, the opposing lawyer, the judge, the jury, and opposing witnesses?  

As confirmed recently through exercises with some very effective and persuasive colleagues, a lawyer comes closer to trial victory through the interrelated approaches of scene setting, connecting fully with our clients, and psychodrama (see http://www.katzjustice.com/justiceblog/archives/104-Why-does-psychodrama-work.html ).  

Here is one scenario –- from the civil side, but certainly useful for the criminal defense side -– that is ripe for scene setting.  A plaintiff was unceremoniously dumped from his job, and various factors point out unlawful discrimination. The plaintiff’s lawyer can get closer to victory by getting into the moment (and away from all the legalese and lifeless prose of the hundreds if not thousands of pages of case evidence) and practicing fully being in the role of the client, including literally walking on the stage or floor to set the scene where the client was fired, to even include setting up chairs and other physical items to set the stage. 

By setting the scene in such a way, the lawyer, client, judge, and jury are better able to be transported to the land of a moving picture being worth a thousand words, to the land of being in the moment, and to the land of the lawyer and client speaking in a just-folks way rather than in the stiff and stilted manner too often favored by too many lawyers. By setting the scene (and certainly by visiting the scene, if that is possible), there are fewer obstacles to the lawyer and client being on the same page in talking about what really happened, including on the deepest levels.  

In this employment discrimination scenario, it is not even too detailed to consider whether any particularly expensive pieces of artwork or furnishings are present, to counter the employer’s potential claim that this was merely a layoff resulting from hard economic times for the company. Second, and infinitely more important, is to know about the photos and other mementos kept in the office by the client. Such photos might define the central meaning of the client’s life, the reason he arrived to work on time each day no matter the weather nor his health, the reason he worked hard throughout the day no matter how mind-dulling much of the work may have been, and part of his feelings of worth vis-à-vis all members of his family.  

Through these family pictures on the client’s workdesk might emerge the persuasive story of the case, both as to the client’s inspiration to achieve consistently high performance (if that is the case), and to the devastation the client experienced by this critical element of the client’s sense of self being yanked unceremoniously and unfeelingly from the client as if he was as expendable as the desk on which he worked.  

How to set such a scene in the courroom to burn the image in the jury’s mind, rather than having the jury sort through words, words, and more words? Although the judge may not have heard of doing so before, it can be worthwhile to give persuasive reasons to the judge for setting the visual stage right before the jury’s eyes, at minimum by having the client get down from the jury box to walk the jury through the workplace, to the client’s office, and to his desk with the family photos. At maximum, it might help the plaintiff even further in arguing his case perhaps even to get a desk into the courtroom –- or at least a folding bridge table to act as a desk –- and to get pylons or similar materials in there to accentuate how small and modest was the plaintiff’s office or work cubicle while the client paid his dues to the employer. 

Curiously, the federal Freedom of Information Act ("FOIA") was not spawned by Watergate, but instead was passed in 1966, eight years before Nixon left the White House for good. Then again, I loved to hate Richard Nixon for surreptitiously taping conversations, but then learned that Lyndon Johnson showed Nixon how to use the already tape-rigged White House recording system.

HOLDER'S FOIA MEMO IS A CRITICAL ABOUT-FACE FROM JOHN ASHCROFT'S FOIA DIRECTIVE.

Thanks to fellow listserv member Derek Brett and the FOIA blog for covering U.S. Attorney General Eric Holder's March 19, 2009, FOIA memo, which directs federal agencies to act with a presumption that requested information be disclosed.

The day after being sworn in, President Obama issued a memorandum providing that: "All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.  The presumption of disclosure should be applied to all decisions involving FOIA." He directed "the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register."

On March 19, 2009, Attorney General issued a memorandum to federal agency heads, saying, in part:"[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law. With regard to litigation pending on the date of the issuance of this memorandum, this guidance should be taken into account and applied if practicable when, in the judgment of the Department of Justice lawyers handling the matter and the relevant agency defendants, there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information."

Holder's memo is a welcome about face from the state of affairs announced in John Ashcroft's October 12, 2001, FOIA memo issued weeks after the September 11 tragedy. Holder's memo "hereby rescind[s] the Attorney General's FOIA Memorandum of October 12, 2001, which stated that the Department of Justice would defend decisions to withhold records 'unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.'"

D.D.C. TREATS ONLINE-ONLY NEWSLETTER AS A MEMBER OF THE MEDIA UNDER THE FOIA.

Thanks to the FOIA blog for reporting on this week's D.C. federal trial court decision treating an online-only newsletter as a “representative of the news media" entitled to a waiver for search and copying fees under the FOIA. Federal Cure v. Lappin, __ F.Supp. 2d _ (D.D.C., March 18, 2009).

The First Amendment and the FOIA took effect before anybody knew about an Internet. How far will courts go in granting one-person blogging shows to receive the benefits of press protection under the First Amendment, news media representative benefits under the FOIA, and access to courts to challenge denial of press passes to government news conferences and other government events open to the news media?