UNDERDOG - Criminal Lawyer for Fairfax, Virginia/Maryland/Beltway. DWI/DUI.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

Recently, I updated our webpage containing directions to our office. Our directions page now adds to the information on getting to our main Silver Spring, Maryland, office, by also providing links to directions and pictures for our offsite meeting locations in Tysons Corner, Fairfax County, Virginia; Arlington, Virginia near the courthouse; and downtown Washington, D.C., a few blocks from the White House. All but our Tysons locations are a short walk from the subway. Our Tysons meeting location is right near the intersection of the Capital Beltway and the Dulles Toll Road.

Meetings with me can be arranged with my staff, consisting of our two-year full-time legal assistant Lina, and part-time legal assistant Rose. Both are bachelors degree graduates of the University of Maryland's main College Park campus. Thanks deeply to them both.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

Sadly, another piece of anti-civil liberties legislation has gone below my radar before a favorable vote on it, even though my attention is not being diverted by the Oscars nor the Republican primary horserace.

Please urge your senators and President Obama to vote against H.R. 347, which is the Federal Restricted Buildings and Grounds Improvement Act of 2011, passed yesterday by an overwhelming House majority. If it becomes law, the bill will chill and trample on legitimate First Amendment-protected activity meant to voice opinions and seek redress of grievances.

At first blush, the bill seems only to limit protest activity in and near government buildings. However, the bill's definitional sections makes clear that it also covers "grounds where the President or other person protected by the Secret Service is or will be temporarily visiting" and "a building or grounds so restricted in conjunction with an event designated as a special event of national significance."

Below is the text of the bill as passed by the House. Thanks to my fellow listserv member who alerted me to this bad bill.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

The D.C. Attorney General’s Office now posts several NHTSA student field sobriety testing training manuals online, from various years from 1995-2007, to expedite answering discovery requests. 

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

BBC interviewed me today 1:30pm EDT at its Washington, D.C., television studio, for TV Channel 1's South East Today, about Briton Christopher Tappin's extradition and armaments prosecution, now that he is scheduled to be taken soon to the United States by extradition order.

BBC Radio Kent interviews me tonight 11:30pm EDT about the same case, available at http://bbc.co.uk/kent.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

Miranda v. Arizona, 384 U.S. 436 (1966), must be kept sacrosanct, so that law enforcement will properly advise suspects in custody of their right to remain silent, and honor that right, so that the Fifth Amendment has real meaning in assuring that one not be required to be a witness against himself. Miranda must not be allowed to become a farce.

Good luck, though, seeing any expansion of Miranda, nor any defendant-friendly clarifications of its reach. For instance, yesterday, the Supreme Court ruled 6-3 (with the three -- penned by Justice Ginsburg and joined by Justices Breyer and Sotmayor -- joining in a partial concurrence and partial dissent) that no Miranda warnings are required to a prison inmate brought to a prison interrogaton room without his request, to be interrogated by police about allegations or pre-incarceration crime, where the inmate was told he was not required to stay in the interrogation room. Howes v. Fields, __ U.S. _ (Feb. 21, 2012).

Where, I ask, was the inmate going to go to leave these interrogating cops? Pizza Hut? How quickly would he have been permitted to leave the interrogation room? He found that out when he finally declined to talk further, and waited around a good time to be returned to his cell; inmates at all but the most minimum of security prisons are not permitted to roam the halls unescorted. 

 By Jon Katz, a criminal defense lawyer fighting for the best defense in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for felonies, misdemeanors, and DWI/ DUI/ Drunk Driving trials.

For me, martial arts practice -- specifically taijiquan -- is essential to my criminal defense and trial law practice. Mindfulness practice is essential to my martial arts and trial practice. With that, here is more of what I have learned about lawyers and judges involved in mindfulness and martial arts practice: 

MINDFULNESS

- T'ai chi instructor Doug Noll is a "lawyer turned peacemaker".

- University of Florida law professor Leonard Riskin directs the Initiative on Mindfulness in Law & Dispute Resolution.

- Lawyer Stephanie West Allen advocates "Mov[ing]From Being a Mindless Lawyer To a Mindful Lawyer."

MARTIAL ARTS

Lawyers:

- Two years ago, I blogged about three lawyers involved in the intersection between the law and martial arts.  

- Lawyers Victor Crawford and Leonard Kennedy inspired me on the taijiquan path.

- Pennsylvania prosecutor Peter Hobart writes on "Self Defense Law and the Martial Artist."

- Recently, the Ultimate Fighting Championship filed a lawsuit over New York's ban on live mixed martial arts fights, claiming that the ban violates its free speech rights by the law's allegedly having been passed due to the sport's violent message.

- Lawyer and mixed martial arts enthusiast Justin Klein runs the Fight Lawyer blog.

- A year ago, lawyer Stephanie West Allen blogged about Elizabeth Bailey, a practicing Pennsylvania lawyer, continuing with t'ai chi and yoga at ninety.

- Miami lawyer John W. Salmon "is a frequent lecturer on 'Appropriate Dispute Resolution', often incorporating martial arts and mediation techniques into his presentations."

- Charles J. Bélanger calls himself the Shaolin Lawyer, and teaches Chinese martial arts.

- New Mexico lawyer Robert Tangora "runs his own tai chi and Taoist healing arts school."

- Lawyer Niall Yamane apparently veered from the practice of law to open his own mixed martial arts school in Alabama.

- Bruce Ballai is a lawyer and is the "founder and senior instructor for the Omaha T'ai Chi Association."

- Virginia lawyer and meditation teacher Erin Williams "holds black belts in T’ai Chi and Kung Fu", although I never heard before of any belts in t'ai chi.

- Ohio lawyer Bryan Nace practices t'ai chi and bagua, and is an assistant instructor at the Center for Body-Mind Harmony.

- Maryland-area acupuncturist/nurse/past lawyer Sherrie Trede Black practices t'ai chi and qi gong.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

To those calling my office today:

Our office is open today on Presidents Day, but without my staff, who have a day off on this federal holiday.

I have meeting times available this afternoon and all other days the rest of this week around my court schedule. The best place to reach me today is my main phone number at 301-495-7755, extension 224. Messages to my voicebox go straight to my pager, and emails to jon[at]katzjustice[dot]com go to my smartphone. I look forward to assisting you.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

If given a choice between having my client's drunk driving case prosecuted in Virginia or Maryland, ordinarily I would choose Maryland. In the Maryland counties where I practice most often, including Montgomery, Prince George's, and Howard, ordinarily, absent such unusual circumstances as a bad accident or an unusually high blood alcohol content result on the breathalyzer machine, my clients who are convicted of a first-time offense receive a probation before judgment, which avoids points off one's license, and enables to the PBJ recipient to say s/he has not been convicted for the case, because a PBJ is not a conviction.

In Virginia, however, any first-time driving while intoxicated conviction mandates a one-year suspension of one's Virginia driver's license, and a one-year suspension of an out-of-state licensee's Virginia driving privileges, with eligibility to seek limited restricted driving privileges; and completion of alcohol education. Findings of having a blood alcohol content over 0.15 or a second DWI conviction within ten years brings mandatory minimum jail time, and longer waiting periods to start restricted driving privileges. PBJ's are not received for DWI's in Virginia. That is not the situation in Maryland

In Virginia, a conviction for unreasonable refusal to provide a breath or blood test after a DWI probable cause brings one year of suspended driving without restricted privileges, and longer for subsequent convictions. That is not the situation in Maryland

In Virginia, restricted driving is only permitted with the ignition interlock for subsequent convictions within ten years, and for convictions for DWI's with a least a 0.15 BAC. That is not the situation in Maryland, either.  

On balance, my Virginia DWI clients more than my Maryland DWI clients feel higher stakes to plead not guilty when charged with subsequent DWI's, BAC's of at least 0.15, and with refusal along wtih the DWI, and when prosecutors offer to strike the alleged BAC, strike the subsequent offender charge, and/or strike the charge of refusal. I advise my Virginia clients risking mandatory minimum jail time or loss of license for refusal to balance the following: chances of winning at trial in District Court and through any de novo trial on appeal; the range or most likely penalties of convicted at trial; and future problems from a conviction.

Recently, a Virginia client took a risk of going to trial, and the risk paid off in an acquittal, as follows.

The police officer stopped my client for allegedly drifting into the adjoining lane. The officer had my client do field sobriety tests, and testified to my client's putting his foot down fourteen times on the one-leg stand, and repeatedly missing heel-to-toe throughout the walk and turn test, as well as taking two steps too many on the walk-and-turn test. The officer testified to a strong odor of alcohol in the car, but my client had a passenger who had been drinking, and the officer never checked the odor of alcohol on my client separately from his passenger.

During my cross examination, the arresting officer admitted he wrote in his criminal complaint that my client put his foot down five times during the one-leg-stand test. On redirect, the only explanation he could provide for the huge gap between putting my client's foot down 14 and 5 times was imprecise paperwork. That insufficient answer was key to my arguing that the officer clearly was relying at trial on his paperwork, based on the number of times he needed to refer back to it during his testimony. Therefore, his paperwork -- which was fraught with imprecision, at least at to his report on the one-leg stand -- had become the officer's erroneous gospel.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com  

Whether or not the characterization is fair or not, sometimes the following concept helps my clients overcome irritation over unfair-seeming prosecutors: A public defender colleague once observed that prosecutors are not born; they are hatched at the age of twenty-five, with a law degree in one hand, and no real world experience to sufficiently understand a criminal defendant’s plight

A good prosecutor seeks justice for all, as s/he defines it, not to try to cow defendants with unnecessarily nasty and intimidating words and tone of voice during a hearing at which my client is merely listening and observing; not by intentionally or unintentionally -- and impermissibly -- communicating to my client by loudly talking to me in the hallway so me client can hear; and certainly not by prevaricating.

What of judges who unnecessarily scare and demean represented and unrepresented defendants, and who unnecessarily talk down to and humiliate their lawyers, thus risking a wedge between the client and attorney?

A prosecutor acting like an a**hole might find it a waste of time doing that to someone who knows how to be an a**hole himself or herself right back at the prosecutor. Numerous times I have laughed at prosecutors and cops who try the a**hole route –- or the route of treating me as if I had just fallen off the vegetable truck -- by informing or reminding them that they can save such unsavory behavior for lawyers on whom it will have an impact at all.

A judge who talks down to a lawyer will likely think twice about doing so when s/he sees the lawyer putting a stop to that merely by the lawyer's honesty integrity, ability and preparation, and it will not hurt for the judge to see the astonished and disapproving faces on the remaining lawyers in the courtroom, to the judge’s unjust actions.

How does a lawyer prepare a client for nasty prosecutors and demeaning judges, whom fortunately are generally outnumbered by judges and prosecutor who do not act that way? I sometimes prepare my clients for that by reminding them that their only friend in the courthouse is me, themselves, and any family members or friend who have joined them. Invariably, they find that the experience is nowhere near as bad with such prosecutors and judges as I warned them might happen. It is akin to putting a donut weight on a baseball bat, to make the bat feel lighter after removing the donut. Sometimes I tell them the story of the man, the tigers, and the wild strawberry, and the power of summoning the child within. http://katzjustice.com/underdog/permalink/FightingForTheBestDefenses..html .

In taijiquan, and as a necessity in all aspects of life, the nasty prosecutor and the demeaning and heartless-seeming judge might be seen as we would see a vicious dog. We do not get angry at the vicious dog, and should not do so with vicious humans. We only get angry and upset with humans because we expect that they have a greater capacity for doing good and for compassion than does a vicious dog. That may be true, but we get nowhere to attach to such expectations of humans, even though we can try to inspire them on that path.

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com 

The following blog entry is adapted from my February 14, 2010, blog entry.

A few years ago, my blog addressed Valentine's Day in terms of the strange juxtaposition of Valentine's Day and the Eleventh Circuit's 2007 upholding of a ban on selling sexual devices, and the Fifth Circuit's 2008 overturning of Texas's ban on selling such devices. Today's blog entry looks more inward, on the connection between Valentine's Day (beyond the heavy commercialization of the holiday) and being more persuasive and personally powerful. 

When I arrived at the Trial Lawyers College in 1995, the power of love was a big theme, as it is in various religious traditions. As if the love theme had not been enough for me to adjust to, hugging became rampant there early on. Before that, I already understood the power of romantic love, and understood how critical it is to care and fight for social justice, but it took some getting used to seeing all the hugging and "I love yous” at the college. By now, I recognize how very many people yearn to hug and be hugged  -- in no romantic way at all -- in this day and age where such behavior with fellow employees or subordinates can lead to a sexual harassment complaint.

I feel much brotherly and sisterly love for most of my clients. Love your client, I have urged here before. For those with whom I cannot reach that level, I tend to feel that caring, compassion, and empathy are powerful enough to help a lawyer be powerfully persuasive with jurors, judges, opposing lawyers, opposing witnesses, the lawyer's own clients, and the lawyer's own witnesses. For instance, if I defend a man whom I am convinced has committed the murder he is accused of committing, it is easier for me to feel compassion and caring for him than love for him.

What about if I believed my client was as heartless and potentially as violent as Hitler? I asked my mentor Jun Yasuda what she would do had she lived in the 1940's and bumped into Hitler, since I knew her response would not have mirrored my response of shooting him dead first -- to eliminate the brutal violence he was causing -- and asking questions later. Whether or not I agreed, Jun-san explained that everyone has several personalities including good parts of their personalities; she mentioned Hitler's having been a painter. Jun-san would have asked Hitler why he was so angry. She said she might have started by offering him a massage, looking at it as soothing the soul of a savage beast, I suppose. 

I grew up too distrustful of other people, thinking too many people were only out for themselves, and did not give a damn about how many heads they stepped on and crushed to get ahead. I was obsessed about bigotry. When I was studying karate in college, I became obsessed with a fellow student's telling me she had returned to karate study after a man across a Greyhound bus aisle menacingly showed her a knife. I was obsessed over human rights violators, judges who seemed to urinate on the Constitution, police who abused their power, politicians who played lip service to the Bill of Rights while shredding it, and even over Muzak and other perversions and dumbing down of art. Through all those obsessions, I thought outwardly too much, rather than in my own growth and personal health.

Then, in rapid succession, in 1991 I met Jun Yasuda -- who is big on bowing rather than hugging -- and six months later left the corporate law firm where I had worked for three years to join the Maryland Public Defender's Office. It was easy from the get-go for me to be caring, compassionate, and empathetic to my public defender clients. I was convinced I was on the side of the angels in the criminal justice system, with it being all the more satisfying helping indigent people post-Gideon. However, it has taken me much more effort to shed my preconceived notions about police, many prosecutors, many judges, and many others in the criminal justice system. Yet, when I shed these preconceived notions, invariably, most of these folks are more open to me and my arguments, making me more powerfully persuasive for my clients.

Once we have compassion, caring and empathy for those in the criminal justice system, the next step is to be open, comfortable, and trusting with them to the extent possible, in part because the magic mirror makes people unlikely to treat me with trust, comfort and openness to the extent I do not do the same with them. Such an approach may not come anywhere near second nature when it is not clear whether the jurors or judge give a damn about justice or the truth.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com  

Two weeks ago, the D.C. Circuit Court affirmed the trial court's grounds for finding Abdul-Rahman Abdo Abulghaith Suleiman to have been part of the Taliban, in order to justify Guantanamo detention. Suleiman v. Obama, et al., __ F.3d _ (D.C. Cir., Jan. 27, 2012).

In affirming the trial curt, Suleiman stated: