UNDERDOG - Criminal/DWI Attorney for Fairfax/Northern Virginia/Md. & beyond.

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

Police will try to make you feel very uncomfortable and even silly for not talking to them before you are arrested, if ever, probably including such lines as:

- "If you are doing nothing wrong, why wouldn't you explain that to us?"

- "If you were in my shoes, wouldn't your behavior lead you to investigate?"

- "I need to get to the bottom of this. Why are you obstructing my just doing my job?"

For some people, my exercises about replying with the mantras of "no", "I want an attorney", "I will not speak without an attorney" might not be enough to stay silent with the police, including when the police are double and triple-teaming the suspect, or are trying to divide and conquer the suspect with the help of his or her accompanying friends and family, where the suspect will feel uncomfortable not even answering such questions as "where are you headed/coming from" and "do you have any drugs or weapons?" A suspect might wonder why s/he should not say where s/he is going or coming from if that is not incriminating, but how does the suspect know it is not incriminating? What if the suspect mistakenly matches the description of someone who reportedly committed a serious crime in the vicinity where the suspect is coming from? Moreover, privacy is an important thing. Police are not entitled to know our business.

If we answer police that there are no drugs or weapons in the car, what do we do with the cop's follow-up question requesting a search to make sure of the absence of contraband. What if the "consent" search then turns up contraband that you had no reason to know -- or else to remember -- is there? Consider all the people who have been in your car over time. What if some marijuana or other contraband accidentally rolled out of their pockets and into the car? What about if someone borrowed your car and had a handgun, and left it in the trunk before going to the bank, and forgot to retrieve it. When a cop stops a car with multiple occupants, how many of them are going to toss their contraband as far from them as possible, even if the contraband then goes into your lap or elsewhere close to your vicinity, sometimes without your knowing it, especially if it is nighttime? Not only are you giving up your privacy when allowing the police to search you, your car, your home, or your other property, but you are risking trouble that you may not have known existed.

Perhaps a tube of imaginary Krazy Glue will do the trick to stay silent with the cops. Once you recognize that you are an actual or potential suspect in the presence of cops, open the imaginary Krazy Glue, and apply it liberally to your lips. Smack your lips shut, and breathe comfortably through your nose. Feel free to smile over your in and out breath.

The only thing that quickly undoes Krazy Glue is acetone, which is found in nail polish remover. Otherwise, your lips are going to stay sealed a long while.

If you get arrested and want to increase your chances of a reasonable bond, or release on your promise to return to court, you will need to release the Krazy Glue at the police station or jail to provide simple information about where you live and work (and for how long) and with whom. Beware police who mix together the foregoing basic booking questions with further investigatory questions of your alleged criminal activity. Once the cops start asking the non-booking questions, it is time to reapply the imaginary Krazy Glue to your lips.

Terrence Vaughan and McKinley Scott learned the hard way what happens when you do not seal your lips shut when a police suspect. Police stopped their speeding vehicle, driven by Vaughan. The stopping Virginia state trooper witnessed four cellphones in the center console (which the trooper suspected indicated drug activity, due to the presence of more than one phone per car occupant), a nervous Scott, conflicting explanations between the two about their travels, and Vaughan's self-contradictory versions of his travels. The Fourth Circuit found that the totality of the circumstances provided reasonable articulable suspicion of criminal activity to allow a brief detention of the two for a drug dog to arrive to sniff the car. U.S. v. Vaughan, __ F.3d _ (4th Cir., Nov. 29, 2012).

The drug dog arrived and alerted to the trunk, where police found over a pound and a half of cocaine. Vaughan entered a guilty plea to possession with intent to distribute cocaine -- receiving a ten year prison sentence -- conditioned on his preserving his right to challenge the stop, detention, search and seizure.

Had the car's two occupants just kept their mouths shut, Vaughan may have won his motion to suppress the detention to await the drug dog. Then again, had Vaughan and Scott not left in the open four cellphones and had Scott not been acting so nervous, Vaughan's suppression motion would have been all the stronger.

Krazy Glue is the word.

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

By statutory and regulatory law, medial marijuana is permitted in Washington, D.C., for the limited ailments of cancer, HIV/AIDS, glaucoma, and multiple scerosis.

In practice, no medical marijuana dispensaries are open yet in D.C. Here is hoping that this delay will be no longer.

On another note with medical marijuana, thus far health insurers are not paying for medical marijuana in medical marijuana states. This medicince can get expensive.

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

Holiday time means more police on the lookout for people to arrest to meet their arrest quotas perceived obligations to the public. Watch out for speed traps, sobriety checkpoints, police watching for easy targets leaving bars, and more.

Long ago, I lost track of the "aw sh*t" look on the faces of visitors to my office when I hand them my top ten list on dealing with the police or my Just Say No advice of rights video on dealing with police, even though such advice has been on my website for over a dozen years. Once in awhile, a potential client tells me s/he refused a search or to talk to the police, and I am pleased that one more line of defense is available for this person.

Here are some tips to help keep police bored while on the job during the holidays and beyond:

KEEPING THE POLICE BORED - STAYING AWAY FROM THEIR RADAR AND HANDCUFFS

- Practice zero tolerance getting behind the wheel for at least several hour after taking your last sip of beer, wine or alcohol. Better yet, call a cab or limousine, get a hotel room, or use a designated driver. All are less expensive than hiring me if you get arrested.

- Police have a penchant for conducting dragnet arrests for everyone who is in the vicinity of illegal drugs, weapons, stolen property and other contraband. Consequently, think twice about getting into a car with questionable people, beware giving rides to strangers, and watch out if you are at a party or anywhere else where people are toking or snorting it up. Watch out also for those who throw their contraband as far as possible when the police approach; the contraband may fall at your feet.

- If you are with people creating the smoked marijuana stink, you are a target for being searched, and for being arrested for any marijuana and other contraband found nearby.

- Alcohol is a catalyst for many people to act their worst, whereas marijuana tends to reduce violent tendencies. There is little reasoning that can be done with an irrational drunk person at a bar or anywhere else. It is better to bow out of a potential arrest for a mutual affray than to risk getting your head bashed in or being arrested for breaking someone's nose in self defense. As to marijuana, unless you are in Colorado or Washington, or have the necessary medical marijuana documentation where it counts, I have no comforting words to give you about dealing with police when you have marijuana. 

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

The following blogpost is reprinted from my 2010 Thanksgiving entry. 

Many people's greeting for today's holiday is not merely "Happy Thanksgiving", but "Happy turkey day."

Would you be eating meat today if you were shown and told in advance since infancy what you were really eating and how the animals are slaughtered, including the blood, guts, and untold suffering? Is it anything but advertising euphemism that meatsellers cloak animal corpses in such code words as hot dogs, hamburgers, pork, beef, bologna, sausage, bacon, ham, meatballs, and meatloaf?

Soon after graduating college in 1985, I could no longer resolve all the toil I had spent advocating for human rights while chomping on burgers, chicken, and tuna fish. I responded modestly by cutting out all red meat, to distance myself further from my relatives in the so-called meat food chain. Three months later, I was at the Carnegie Deli, and ate a corned beef sandwich -- one of the most delicious meat items in the world for me of all time. I finished off the corpse in no time, with the most delicious rye bread, pickles, and fries on the side.

A year later, I finally swore off red meat for good. A year after that, I learned how disgustingly gelatin is made. Completely grossed out, I then cut off all land animals from my plate. Two months later, I went to the Baltimore aquarium, followed by a visit to Little Italy for dinner. I felt ill at the thought of ordering marinara and shrimp, after having spent time with so many amazing and feeling fish at the aquarium a mile away. I later learned that it is not only lobster, crabs and shrimp that face the most gruesome of boiled/steamed-alive fish deaths, as I watched a fish being scaled alive at a Chinese supermarket a few years later, to be told by its buyer that chicken also is more delicious by plucking the feathers when the chicken is alive. I have never eaten meat fish or fowl again.

In 2001 , I cut eggs and milk from my eating. Egg-producing chickens and milk-producing cows get slaughtered for meat after they stop producing; their relatives who are not raised to produce eggs and milk get slaughtered earlier. Too many food-raised land animals are treated horrifically during their terribly short lives, including the calves who are slaughtered as babies for prized veal, after struggling in tiny cages in the dark without their mothers, iron or milk, to obtain the tender pink flesh prized by chefs and restaurant food critics. How does that bad karma not get transferred to the meat that is eaten? 

Human executions are excruciatingly painful, despite litigation geared to reduce the pain. No similar efforts are made to minimize the physical and psychological suffering of animals, as they are led to slaughter first seeing and hearing their brother and sister animals slaughtered before their very eyes. Unlike humans executed in American death chambers, food animals are methodically beheaded, stabbed, and killed otherwise. See this gruesome video giving a brief meeting of your meat. More videos are here.

Even if most people are unwilling to become vegetarian, world hunger and food prices will still dramatically fall if people drastically reduce their consumption of meat, fowl, milk. milk products and eggs. There has never been an easier, more healthful, or more delicious time to live vegetarian; even supermarket aisles have infinitely more vegetarian choices than just six years ago. Restaurants have more vegetarian options than ever before, including Burger King and Subway with their veggie burgers (which may not be vegan, though, but it is a start). See how you feel about your health, your annual physical exam, the environment (including reducing methane pollution from animal farm flatus), the animals around you, and world hunger after making such a change in your eating choices. You may never turn back.

For many years I kept my vegetarianism mostly to myself, figuring that everyone should be able to do their own thing. They may, including my own thing to speak up for the animals who cannot speak up for themselves.

Happy Thanksgiving? It will be much happier -- particularly for the turkeys -- when people switch from eating turkey to delicious Tofurkey. Jon Katz.

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

Sentencing is a difficult part of the reality of criminal defense. Plenty of my clients avoid a conviction, and thus a sentence, but plenty do get convicted and sentenced. Consequently, when defending my clients for criminal cases, I take the following three-pronged approach to preparation: prepare for trial and pretrial battle, for settlement negotiations, and for possible sentencing. To do otherwise disserves the client.

Advisory sentencing guidelines exist in all jurisdictions where I practice criminal defense. I say advisory, because the United States Supreme Court prohibits sentencing guidelines (versus mandatory minimum sentencing, which the appellate courts permit) from being mandatory. U.S. v. Booker, 543 U.S. 220 (2005). The upside to Booker is that the judge may sentence below the guidelines. The downside is that the judge may do the opposite, as well.

Even after Booker, though, various colleagues refer to certain judges as "guidelines judges," meaning that they most often sentence within the guidelines. Even for judges who do not read all Supreme Court criminal law opinions -- and I would hope that judges would read every new appellate opinion controlling their jurisdiction -- they must be aware of Booker, which spelled a tectonic shift in making sentencing guidelines advisory only.

Nevertheless, plenty of judges are so accustomed to treating sentencing guidelines as mandatory pre-Booker -- both as judges and as trial lawyers before that -- or have limited criminal law experience to begin with, that they may be very reluctant, uncofortable or both to deviate too often from the sentencing guidelines. They are not permitted, though, to act counter to Booker nor any other Supreme Court command.

In the foregoing context, last month the District of Columbia Circuit ordered a resentencing of Gregory Terrell, where his sentencing judge made it sound like he only deviates below the sentencing guidelines for compelling reasons, and had only gone below the guidelines twice before for compelling reasons. Terrell v. U.S., __ F.3d  _ (D.C. Cir., Oct. 19, 2012).  

Terrell found the trial judge to have been giving presumptive reasonableness to Terrell's guidelines sentence, which a sentencing judge is not permitted to do. Thus, Terrell ordered that the defendant be resentenced.

How does a lawyer convince a trial judge to treat sentencing guidelines as advisory only, and not as mandatory nor as presumptively reasonable? Slamming the controlling appellate caselaw on counsel table will not do the trick, nor will having a proverbial embolism in frustration do so either. Convincing judges -- and anybody else -- of anything requires a focus on inspiring the judge to bring out his or her best self, in part by recognizing that the judge, being human, is fallible, has prejudices, and is not superhuman. Even the most difficult judges can be swayed, not always immediately, and sometimes at a frustratingly glacial pace, but they can be swayed. Persuading others also starts by applying the magic mirror, and by cultivating and bringing out the best in oneself, including Gandhi's example where he was not ready to urge a child to stop overeating sugar before Gandhi himself stopped eating it. There is no "out there" for the mind. I have written more on persuading judges here, here and here.

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

In August 2010, the U.S. Congress passed enacted the Fair Sentencing Act ("FSA"), reducing the sentencing disparity for cocaine base/crack versus powder cocaine from 100-to-1 to 18-to-1, by increasing the quantity of crack needed to trigger the ten-year mandatory prison minimum.

Crack and powder cocaine are pharmacologically identical, and should not have a sentencing disparity. Moreover, when the disparity is further narrowed, this should be done by increasing the quantity of crack needed to trigger any mandatory minimum sentences, rather than cynically reducing the quantity of powder cocaine needed to trigger mandatory minimum sentencing.

Thomas Fields was convicted by a jury for "distributing 50 grams or more of crack and for possessing with intent to distribute another 50 grams or more." Fields v. U.S., _ F.3d _ (D.C. Cir., Nov. 9, 2012). Originally set for a 2009 sentencing, he obtained a few sentencing date continuances. 

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

"Overcover risk," admonished my last boss, prior to my becoming my own boss in 1998. Among other things, meet court deadlines well in advance, send a confirming letter to an opposing lawyer close in time to his or her agreeing to a critically beneficial point, and never rely on a judge to extend a deadline or court date to be better prepared. Prepare, prepare, prepare. I already knew all of this, but learned the very phrase "OVERCOVER RISK" from him.

Repeatedly, I face opposing counsel who dance on the opposite edge of overcovering risk, including failing to secure a critical expert witness before trial for no reason other than an overworked opponent, failing to show for a hearing scheduled by the lawyer on a motion to narrow my lawsuit, filing a second motion to extend the briefing deadline on the very day the brief is due, and failing to subpoena critical witnesses. A stitch in time saves nine, as well as lost sleep.

Even the most prosecutorially-oriented judges are going to draw the line on how unprepared they will let a prosecutor get, particularly when the defense shows that s/he is fully prepared, which offers the judge a chance to move the docket along, rather than to keep the court's work clogged by yet another trial date continuance.

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

This week, I will be working full days -- including for meetings -- Monday through Wednesday, November 19-21, and will be off this Thursday (Thanksgiving) and Friday. I will be back in the working saddle the following Monday.

This blog is not only about criminal defense and the law, but about social justice.

War always brings injustice.

Less than four years after Israel went to war in Gaza, heavy bombing from each side of the border is now ongoing. Civilians are being killed on both sides, not just soldiers and other military people.

I am not a full pacifist, and never have been, as much as I remain heavily influenced by the non-violent teachings of Gandhi, Martin Luther King, Jr., Jun Yasuda, and Plowshares peace activists. I believe in Israel's right to exist within secure borders. I also believe in Israel's obligation to protect everyone's human rights, and to exercise its military power with restraint.

When Israel unilaterally withdrew from Gaza in 2005, the Israeli government clearly knew that its withdrawal would lead to even more violence and military buildup within Gaza.

Rocket attacks have been ongoing over the years from Gaza into Israel. Responsive strikes have been ongoing from Israel into Gaza. What, then, motivated Israel at this point in time not only to make retaliatory strikes but to assassinate Hamas's Ahmed Jabari, whom Ha'aretz's editor-in-chief Aluf Benn (whether reliably or not) characterizes as Israel's subcontractor to minimize violence from the Gaza into Israel by forces beyond Hamas? Benn finds Israel's upcoming election to be a likely contributor to such timing.

Gaza is densely populated. Even if Israel is doing its best only to harm those who are fighters in Gaza, too many of those killed and wounded in Gaza are civilians. Beyond that, there is no excuse to target media and propaganda facilities -- including to risk harm to those civilians located at such facilities -- which attacks make me wonder how much Israel is committed against censorship within its own borders.

The situation is likely too complex for either side to be painted in black and white. That does not detract from the necessity to implement an immediate ceasefire, which is easier said than done.

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

How many officers disregard race in deciding whether to stop or arrest a suspect? No more than one phone booth's worth, with room for comfort left over?

When police consider race in deciding whether to stop or arrest a suspect, they do not admit it, unless they are comparing the broadcast description of a wanted crime suspect to the person stopped by police.

In 2000, in the majestic United States Supreme Court building -- whose immediate surroundings are entirely shielded from the more rundown cityscape as close as ten blocks away -- all nine justices allowed police to take into consideration the running away from police in determining whether reasonable articulable suspicion of crime exists to permit a temporary Terry stop.  Illinois v. Wardlow, 528 U.S. 119 (2000). The four-justice Wardlaw dissent found no reasonable articulable suspicion to stop Wardlaw, mainly because:  "In my judgment, Illinois has failed to discharge that burden. I am not persuaded that the mere fact that someone standing on a sidewalk looked in the direction of a passing car before starting to run is sufficient to justify a forcible stop and frisk." Wardlaw, 528 U.S. at 140 (Stevens, J., concurring and dissenting in part).

Praised be dissenting-in-part Justice Stevens for pointing out well-founded innocent reasons to run from the police:

Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer's sudden presence.FN7 For such a person, *133 unprovoked flight is neither “aberrant” nor “abnormal.” FN8 Moreover, these concerns and **681 fears are known to the police officers themselves,FN9 and are validated by law enforcement investigations into their own practices.FN10 Accordingly, the *134 evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient. FN11 **682 In *135 any event, just as we do not require “scientific certainty” for our commonsense conclusion that unprovoked flight can sometimes indicate suspicious motives, see ante, at 676, neither do we require scientific certainty to conclude that unprovoked flight can occur for other, innocent reasons.

Wardlow, 528 U.S. at 132.

Flash forward to today, a dozen years later. District of Columbia police troll (I mean patrol) an allegedly high-crime area, within ten miles of my law office: