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CRIMINAL DEFENSE/ DWI /DUI DRUNK DRIVING DEFENSE LAWYER FOR FAIRFAX, NORTHERN VIRGINIA, MARYLAND, WASHINGTON, D.C. & BEYOND CONTACT JON KATZ, a highly-rated criminal defense attorney. Our above-displayed symbol underlines Jon's relentless focus on winning advocacy and total client service through mindful and skilled court preparation and battle. 301-495-7755, Silver Spring, Montgomery County, Maryland 20910 / Virginia meeting locations: 703-917-6626, Tysons Corner, Fairfax County, Virginia 22102.
Friday, March 30. 2012
By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com 
Image from National Institute of Standards & Technology. Virginia drunk driving convictions carry harsh results, including one year of no driving except for restricted purposes permitted by the court, mandatory ignition interlock coming your way regardless of the blood alcohol content, and expensive total payments for an attorney, fines and costs, and mandatory alcohol education. Sometimes a great negotiation result on a Virginia DWI charge is to achieve a wet reckless plea, in the form of converting the drunk driving charge to a reckless driving charge, completing alcohol education, and restricted/suspended driving for up to six months rather than the one year of restricted/suspended driving mandated for drunk driving cases. Earlier this month, I blogged about a wet reckless on a 0.15 BAC reading that was not offered until I had already begun presenting the testimony of our breathalyzer expert. Earlier this week, I went to court armed for battle on a blood draw reading of a 0.11 BAC. As advised, my client completed alcohol education before trial, and completed a live half-day driver safety class. Beyond that, long before trial I met the statutory deadline to obtain a court order to transfer part of the drawn blood to my designated independent laboratory to test the blood, which determined that the BAC was 0.10, which is lower than the result at Virginia's Department of Forensic Science.
Continue reading "Obtaining a Virginia reckless plea after a 0.11 blood reading, where such a result is uncommon. "
Friday, March 30. 2012
By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com
Image from National Institute of Standards & Technology. On March 2, 2012, I blogged that Virginia's House of Delegates passed a Senate-passed bill mandating the ignition interlock for all people convicted of drunk driving, whereas beforehand those with first-time DWI convictions for a blood alcohol content under 0.15 did not face such a statutorily mandated draconian requirement. Of course, in short order, Governor McDonnell signed the bill into law five days later, on March 7. July 1, 2012, is the effective date of Virginia's new ignition Interlock law, which is the regular effective date for new laws unless provided otherwise by legislation. For any client convicted of DWI starting July 1, I will argue that the ignition interlock provision is a substantive penalty that can only be applied to those arrested on and after July 1. U.S. Const. art. 1, § 9 ("No Bill of Attainder or ex post facto Law shall be passed.") However, at a Fairfax County bar continuing legal education program held yesterday, a Fairfax District Court judge indicated that the new Interlock provision will be treated as procedural, so will apply even to those arrested for DWI before July 1, 2012 but convicted after June 30.
Continue reading "Beware post-July 1 Virginia DWI trials. The ignition interlock looms ahead."
Thursday, March 29. 2012
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 State-sponsored legalized murder -- also known as capital punishment -- must be abolished. Thanks to the lawyers at Sidley Austin for obtaining a final trial court order on March 27 barring the importation of unapproved drugs used for lethal injection. Here is the court's memorandum opinion, and here is the case docket, in Donald Edward Beaty v. FDA, et al.., Civ. No. 11-289, (D.D.C., March 27, 2012) (Leon, J.). This was a successfully creative way to slow the death penalty machine. I anticipate an appeal by the government.
Wednesday, March 28. 2012
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 One day I had breakfast with a local top-notch veteran medical malpractice lawyer who seems to deeply care about his clients and the quality of his work. To this day, he has not found a way to save time by limiting his potential client meetings to those whose case he is willing to accept in this world where a lawyer can easily advance tens of thousands of dollars in expert witness fees for trial, wait years to recover the advanced expenses, or never recover them if the jury returns a defense verdict or if the defendant successfully appeals. With potential criminal defendants, I ordinarily will accept any client who will pay my fee for a trial or appeal that interests me and that I know I can handle well, and is not looking for a lawyer to help him or her snitch. For me to limit providing free time for potential clients -- as not every one of them I meet hires me -- I ordinarily bill for initial consultations, except for ordinarily not billing for drunk driving, drug, and weapons defendants. I ordinarily limit the initial consultation to thirty minutes, and inform potential clients that I will start my next meeting promptly, not running overtime for a visitor who has arrived late. I bill cancellation fees when visitors have not let me know in advance that they are running late or will not arrive at the appointed day and hour. This works out well for me, and enables me to primarily focus on serving my existing clients as I spend some time each day talking with potential clients. My colleague Jamison Koehler -- whom I bump into sometimes in court and with whom I have broken bread with along with local fellow lawyer Miriam Seddiq -- recently blogged about wanting to empty his office of a mother and criminal defendant who had met with him for an hour, only for the mother at the end to ask the question that had already been essentially answered: "Why should we hire you?" He is uncomfortable with this question, which leads to his blog article.
Continue reading ""I am scared sh*tless. How do I convince myself that you will be there for me working your ass off?" "
Tuesday, March 27. 2012
By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving attorney advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com
NOTE: Following is an article I recently submitted for the Maryland Criminal Defense Attorneys Association’s next newsletter. The article is verbatim except that I excised the name of the referenced forensic psychologist, who is now semi-retired, pending his okay, or not, to print his name online.
DEFENDING CHILD PORNOGRAPHY AND SOLICITATION OF SEX WITH CHILDREN.
By Jon Katz
“Why do you want to defend such a case?” asked one of the most amazing and effective trial consultants/psychological professionals, whom I visited for ideas on defending a man caught distributing multiple images of prepubescent children engaged in the most explicit of sexual activities. He seemed skeptical at my mentioning First Amendment rights and my willingness to defend anybody alleged with any crime in a criminal justice system so lopsided against criminal defendants. He perhaps would have been more understanding about my defending a mass murderer, or perhaps he was urging me on to assure I was in my own comfort zone for defending this man, so that I could shrink the discomfort felt by the judge, prosecutor and jury in the case.
As with all my cases that I discuss with this trial consultant, the talk ultimately included a focus on how I was feeling about this case, and how it was affecting me. He asked if I liked my client. I said I did, and he asked why. I said he does not cause me problems. “Is that what like is about?” asked the consultant. Of course not. I was so wrapped up at the time about what I was hoping to speak about –- including the heartless-seeming prosecutor (or was that instead the disgusted prosecutor?), the horrendous child pornography images, and the potential jurors in this case, that I had not switched gears enough to express why I liked my client. Absent this case, he was a decent person who was abused in childhood, and ended up stuck in the mentality of a child, but was a sexual being in an adult’s body with his wiring all messed up, still identifying sexually with children.
Of course the trial consultant pushed me to articulate why I liked my client, because no juror, judge or prosecutor was going to like him any more than I did.
What is easier? Looking at gruesome photos of corpses when defending those accused of murder or the most explicit of photos of sex between adults and prepubescent children as young as one year old? Which type of case is going to push jurors’ hot buttons more? Child pornography and solicitation of sex with minors victimizes among society’s most vulnerable and innocent members. That is a huge hurdle in dealing with jurors, judges and prosecutors.
Defending such cases, among other things, requires humanizing the clients who often will initially be perceived as monsters by judges, jurors and prosecutors; handling forensic evidence issues; obtaining pretrial release; and sometimes dealing with much harsher sentencing schemes at the federal level than the state level. This article focuses on humanizing the client and dealing with forensic issues.
HUMANIZING THE CLIENT
Repeatedly, I have turned to forensic psychologist D________, of Charlottesville, Virginia –- who established Virginia’s sex offender probation supervision program, which helps underline his lack of bias for the defense -- to evaluate my clients charged with child pornography and solicitation for sex with minors, to set up a treatment plan, to render a prognosis, and to testify at sentencing.
Dr. D’s____ first evaluation takes around three hours, probing into the defendant’s background and life experience, determining how well the person copes with daily life, and determining the primary and secondary age, gender, and racial group that sexually interests the defendant.
Those lawyers who have led relatively trauma-free lives may be surprised at how rampant is the physical, sexual, and psychological abuse that so many people suffer in society. As confirmed by Dr. D________, those who commit child pornography crimes and solicit minors for sex often suffered abuse as children, and are stunted with the mentality of children, but as sexual beings in adults’ bodies, still identifying sexually with children.
Those adults who solicit minors for sex often are playing out fantasies that they do not plan to consummate, but often get caught in police stings when they arrive to meet their “date” only to learn that the date is a cop.
Those who view and trade in child pornography might sometimes start with adult erotic images. However, as Dr. D______ says, sex is not a spectator sport, so many become bored with adult erotic images, and veer towards such risky images as child pornography.
With the case of my client who distributed prepubescent child pornography –- to an undercover cop –- I spoke also with an excellent criminal defense colleague who suggested such themes as “Those who live in glass houses should cast no stones,” where some indulge in too much chocolate and others in child pornography. Comparing the overeating of chocolate to distributing prepubescent child pornography is quite a leap. However, it does help humanize the client.
Of course, the more confident the lawyer is in his or her trial posture, the better s/he can negotiate the case. We settled this child pornography distribution case for one count of child pornography distribution, avoiding the risk of a multiple count conviction at trial. We drew the right judge, and accomplished close to a time-served sentence for this client who had barely a parking ticket in his criminal history.
A key question at sentencing is why the defendant did not isolate his urges to fantasy rather than action, and to what will stop him from repeating such behavior. Psychological treatment is an important component, from an empathetic rather than paternalistic counselor. However, pretrial incarceration makes treatment very expensive and eliminates group therapy, which often is recommended. It can be hard enough to find a quality empathetic psychological professional ready to provide such counseling outside the jail, and all the more difficult to find for counseling inside the jail.
ANALYZING AND DISSECTING THE FORENSIC EVIDENCE
Internet and computer technology often are involved in child pornography defense and defense of charges of soliciting sex with minors.
The defense ideally will have a war chest to pay for a top-notch computer forensics expert who will not let retching over the evidence color his or her ability to do an effective job; will not report to the police any unlawful images that the police may have missed; and will be willing to view child pornography evidence at his or her own lab –- rather than at the police location –- when the law or a court order permits taking the images offsite from the police office.
It is essential to pursue the foregoing inquiries in depth with computer forensic experts. Some computer forensics professionals who are great with other computer forensics work -– for instance with proving infidelity in divorce actions –- are not suited for the emotional toll that child pornography cases can take, or who just find such work too repugnant. However, when the almighty dollar is available to them, be careful about forensic experts who will require a long litany of questions before they admit to their discomfort.
My preferred computer forensics expert is David Greetham in Houston, Texas, who has an allied lab available in the Washington, D.C., area. His stomach is cast iron for such work, and he seems to delight in the importance of keeping the police forensics experts honest and to show where they have made mistakes. David is ready to testify and report on computer programs that enable others to hijack one’s computer from offsite, for instance with trojan horses, thus placing child pornography on the computers of innocent criminal defendants. He is able to talk about the ease of access that others have to the computer, thus raising reasonable doubt about knowledge, dominion and control over the images. He knows that when police turn a suspect’s computer on and off, they have compromised the hard drive for forensic analysis, and that a review of hash values helps determine whether police have in fact provided the defense with a precise duplicate of the seized hard drive.
Many computer users do not know that their every move online can be tracked through their unique Internet Protocol (“IP”) address that relates to their Internet account; their Internet service providers archive their online activity; and attempting to delete pornographic images does not automatically erase the evidence of the files’ having previously been on the computer and then deleted. Anonymity is a false expectation that countless Internet users are lulled into.
For trial purposes, and negotiation and sentencing purposes, it can be helpful to review the search phrases used on the computer, to determine the extent to which the suspect was interested in images beyond child pornography. Similarly, it can be helpful to determine the extent to which the alleged child pornography images are only thumbnails that have not been clicked to obtain enlargements, because mere thumbnails may support that the computer user did not intentionally place the images on the computer hard drive.
For negotiation and sentencing purposes, it can become important for the computer forensics expert to provide estimated percentages of non-pornographic versus pornographic images on the hard drive, and adult versus child pornographic images. This can help show that child pornography was but one type of image that interested the defendant.
Continue reading "Defending retch-inducing child pornography and child sex solicitation cases."
Monday, March 26. 2012
Sunday, March 25. 2012
By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving attorney advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com One way or another, I got added to the e-mail list of the National Coalition to Protect Civil Freedoms (NCPCF). The group's recent emailing includes this flyer claiming that jazz musician and former martial arts instructor Tarik Shah -- who entered a guilty plea and was sentenced in 2007 to fifteen years imprisonment on a terrorism-related prosecution -- was entrapped by federal agents and prosecuted on the basis of his offer to teach martial arts. With martial arts -- namely taijiquan -- and jazz music being an integral part of my life, the flyer particularly grabbed my attention. The flyer urges: "Write to Attorney General Eric Holder... Tell the Attorney General to review the case and to stop entrapping people." Here is a support page for Mr. Shah, whose flyer says he played bass at Bill Clinton's inauguration. Mr. Shah having entered a guilty plea and apparently not having filed for appellate nor post conviction relief, the courts are not going to intervene at this point, and I doubt such letters will sway Eric Holder. Whether or not Mr. Shah was entrapped, it is disturbing that law enforcement relies so heavily on making up conspiracies in an effort to then arrest and prosecute them, including going so far as to do that with Christopher Tappin, a British citizen who was recently extradited to the United States over a made-up deal arranged by United States federal agents for Mr. Tappin to assist with the sale of missile batteries to Iran. These investigations, pursuits and prosecutions often become tremendously expensive, including payment for multiple hours of work by federal agents, prosecutors, and court-appointed criminal defense lawyers.
Continue reading "The terrorism conviction of a martial arts instructor and jazz musician. "
Friday, March 23. 2012
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 In 2007, I blogged about Washington, D.C.'s post and forfeit maze. Post and forfeit generally is a procedure to end a criminal proceeding by paying a legal civil bribe, I mean dollar amount. The post and forfeit culture invites both abuse and benefits. When police arrest hundreds of demonstrators during a weekend, they at once have, often, deprived them of their First Amendment free expression rights and also raised the possibility of thousands of dollars in civil post and forfeiture revenue. That is the bad part of post and forfeit. Post and forfeit can be beneficial, though, when police make a legitimate arrest without thoughts of post and forfeit, and when the prosecutor offers post and forfeit where the risks are otherwise high of a criminal conviction. Thanks to the listserv member who posted about a current federal lawsuit against D.C.'s post and forfeit law. Curiously, the suit was filed by an assistant bar counsel who was arrested for disorderly conduct, and accepted the post and forfeit option.
Thursday, March 22. 2012
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 While my law practice focuses on criminal defense, I also do First Amendment defense, with gusto, including adult entertainment defense. One thing that gnaws at me is the backdoor efforts of so many local governments to shut down adult businesses by zoning them --even existing businesses -- into hinterlands that are more expensive to locate in -- and often with barely enough locations to accommodate all the adult businesses -- and that sometimes require zoning experts to assure that the businesses are not within a certain distance of other adult entertainment businesses, schools, parks, homes, and houses of worship, among other places. One of the goals, then, of businesses is to avoid being designated as adult in order to avoid being zoned into the hinterlands. Enter Walgreens, which has been selling a panoply of sex toys -- at least online -- which tends to be one of the criteria in determining whether a business is an adult entertainment business. If Walgreens is going to be permitted to continue to operate as a non-adult business, gone will be the opportunity of zoners to automatically designate a business as an adult business merely for selling sex toys. Congratulations to Walgreens for putting practicality of market demand over prudery. Thanks to a fellow listserv member for the link to Walgreens' sex toy page.
Tuesday, March 20. 2012
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 In late February 2012, Virginia federal trial judge James Turk overturned Michael Hash's murder conviction for prosectorial misconduct, among other things. In short order, Culpeper County, Virginia's chief prosecutor quit, effective the next day. Not having found the federal court opinion, I have uploaded it here.
Monday, March 19. 2012
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  Copyright Jon Katz. 
Copyright Jon Katz. 
Copyright Jon Katz. A long weekend in Los Angeles for a conference unrelated to marijuana brought medical marijuana to my attention without my even looking for it, as follows: - My hotel was across the street from physicians with a sign proclaiming Total Herbal Consultation (website), or THC, as the acronym was proclaimed on the doorway. - A visit to Venice Beach at 10:30 a.m. yesterday, Sunday -- when many beachfront retailers are still waiting to open -- found a hawker welcoming people inside for a medical marijuana evaluation. The place is called Venice Beach Physicians, whose website is http://medicalkushdoctor.com .
Continue reading "I have seen the medical marijuana future, and it is in California."
Friday, March 16. 2012
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 Preparation for United States Supreme Court oral arguments requires exhaustive preparedness. See how a lengthy moot court oral argument preparation helped make an important difference for Justice Marshall's presentation in Brown v. Board of Ed.
Thursday, March 15. 2012
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 In the United States, people are presumed to be permitted to demonstrate in public fora, including, but not limited to, parks, the side of streets, and, when a permit is obtained, marches. Demonstration permits generally cannot be a prerequisite for demonstrations absent a statute or regulations requiring permits, with their issuance eliminating unbridled discretion in the hands of the people reviewing the demonstration permit applications. Thomas . Chicago Park Dist., 534 U.S. 316 (2002). When I was still working at a corporate law firm in 1991, I learned the unpleasant way about permitting law, when my friend and I were threatened with arrest if we continued, permitless, to hold our antiwar signs outside the Capitol while the Senate debated whether to authorize George Bush I to go to war in Iraq. Then we went to obtain a permit, and got shunted over to a remote, barely-visible area near a parking lot. So Bush, I, got his way -- obtaining auhotrization to go to war in the Gulf, but we sere denied a reasonable permit. Regardless of one's position on the eternal abortion debate, on First Amendment grounds I congratulate the pro-life demonstrators who recently reached a $385,000 settlement after police denied their right to demonstrate on the roadside in Harford County, Maryland, without a permit, and then arrested and strip searched some of them. What did the police expect to find in conducting a strip search, which ordinarily includes a visible and/or digital check of one's anus (yuck! and completely invasive)? More picket signs? Here is more about the settlement. Here is more background, and some video footage from before the arrests.
Wednesday, March 14. 2012
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 Over five years ago, I wrote about Churchill's admonition to "Never give up. Never give in," as an ongoing powerfully peaceful battle call for criminal defense lawyers. Thanks to my brother criminal defense lawyer and fellow martial arts practitioner Chris Flohr for posting an article in 2003 (here at page 5), which I just found, addressing Bruce Lee's spin on Churchill's urging never to give up. Bruce Lee said: If you think you are beaten, you are.
If you think you dare not, you don't.
If you would like to win, but you think you can't
It almost certain you won't.
If you think you will lose, you are lost
For out of the world we find,
Success begins with a fellow's will-
It's all a state of the mind... See the rest here. Considering the source of these words, they hold true substance for me as I continue battling on the side of the angels when I prepare for and go to court for my criminal defense clients. ADDENDUM: After re-reading the foregoing poem, apparently called the "Victor", I recognized that it rhymes, and wondered why Bruce Lee was going to take time adding rhyming to his thoughts, during breaks from martial arts. The authorship may not be clear. This martial arts page, and many others, list the author as C. W. Longenecker, which seems to be a pen name inspired by a long neck beer bottle. This anonymous online posting says the poem was in Bruce Lee's office. Another anonymous writer says the poem hung at his Hong Kong home studio, and is seen in 1973's Bruce Lee: The Man and the Legend. The writer tried without success to pinpoint the poem's precise origins. The words mean just as much to me, though. Here are some more words of wisdom that hit home as I battle on:
Continue reading "Bruce Lee's take on "Never give up. Never give in.""
Tuesday, March 13. 2012
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  Image from public domain. Maryland's governor intends to veto any legislative measure allowing medical marijuana growers and dispensaries (and, I suppose, providing medical marijuana cards to those needing it for medicine), out of misplaced fear of federal prosecution exposure for state employees who implement such a program. I am not aware of any such prosecutions yet, and doubt such a prosecution would hold any water so long as the state is merely licensing medical marijuana growers, dispensaries, and users, rather than growing and dispensing from state-owned facilities. Marylanders: Please urge you legislators and Governor O'Malley to support legislation to allow the use of medical marijuana without prosecution.
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