Satellite meeting location: ARLINGTON, VIRGINIA 2111 Wilson, Blvd., Suite 700, 22201.
Jon Katz on RTV (June 25, 2014) on requiring warrants to search cellphones.
Jon defends in the state and federal courts in Fairfax, Northern Virginia, and beyond, including courts in Fairfax City, Arlington, Falls Church, Alexandria, Prince William and Loudoun County. Criminal defense is about defending people and upholding civil liberties. Se habla español. On parle français.
Just Say Know. See Jon Katz's additional YouTube videos.
Challenging Obama’s spying-gate. (Fox News, June 8, 2013).
National Association of Criminal Defense Lawyers member since 1991.
Marijuana's legalization is critical for advancing everyone's civil liberties. Defending marijuana clients since 1991, Jon fights pot prosecutions running from simple possession to marijuana trafficking to growing dozens of plants. On several occasions, he has pursued misdemeanor dispositions in marijuana cultivation prosecutions, sometimes with the assistance of a marijuana cultivation expert and medical marijuana expert. Here is how Jon became obsessed over marijuana legalization by 1990.
The persuasive power of letting the story tell itself.
Sunday, April 26 2015
SCOTUS confirms that traffic stops must be concluded in a reasonable timeframe, and may not be prolonged without an independent lawful basis to do so.
Saturday, April 25 2015
Those meant for trial work will feel invigorated rather than exhausted by the battle.
Thursday, April 23 2015
The Underdog blog turns 9 today. Happy 420.
Monday, April 20 2015
On creating the space, flow, and enjoyment for people to succeed.
Sunday, April 19 2015
Lego in the shadow of John Coltrane
Thursday, April 16 2015
More on engaging and being relaxed, open, fearless, and non-judgmental, whether an extrovert or introvert.
Wednesday, April 15 2015
Prosecuting wrongful killings by cops will not reduce police misconduct as much as overhauling the entire criminal justice system.
Tuesday, April 14 2015
Random thoughts through April 12, 2015.
Sunday, April 12 2015
Tsarnaev will either spend the rest of his life in prison or go to death row.
Wednesday, April 8 2015
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NOTE: CASE RESULTS DISCUSSED IN THIS BLOG DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY OUR LAW FIRM. Va. R. Prof. Cond. 7.1(b).
Friday, July 18. 2014
Beware saying "gotcha" if ... Posted by Jon Katz in Criminal Defense at 00:00
By Jon Katz, a criminal defense and DWI defense lawyer advocating in Fairfax County/Northern Virginia and beyond for the best possible results in drug, sex, DWI, felony and misdemeanor cases. http://katzjustice.com
If a prosecutor tries to introduce more evidence at trial after I have moved for judgment of acquittal after the prosecution has rested, I am ready to argue that it is too late for the prosecution to offer more evidence after resting, after I move unsuccessfully for a judgment of acquittal, and after I decline to offer any evidence myself. I can make this argument on due process grounds, on grounds of lack of good cause to reopen evidence, on ground that it is unfair surprise for the prosecution to try to introduce new evidence after the defense announces that it is presenting no evidence, and on any other grounds to convince the trial court to exercise its sound discretion to prohibit reopening the prosecution's evidence. However, I am unable to say that the caselaw supports an argument that double jeopardy protections are violated for the prosecution to do so. Matter of E.R.E., 523 A.2d 998 (D.C. 1987), cert. denied, 485 U.S. 937(1988) (thanks to a colleague for discussing E.R.E. on a listserv); Hargraves v. Va., 219 Va. 604, 248 S.E.2d 814 (1978); Dyson v. Md., 328 Md. 490, 615 A.2d 1182 (1992).
Dyson reviews numerous other courts that have decided this matter, saying "The majority of courts considering this issue have concluded, however, that the interest of justice requires that the trial judge be given some discretion to permit receipt of additional evidence after jury deliberations have begun, but that this discretion is significantly limited and should be exercised with great caution." Dyson, 615 A.2d at 1187. Moreover:
When reopening a case is permitted, it must be done in a way that does not unduly prejudice the rights of any party. State v. Thomas, supra, 374 S.E.2d at 722; Jones v. State, 15 Ark.App. 283, 692 S.W.2d 775, 777 (1985). Thus, “ample opportunity [must be afforded the opposing party] for cross-examination or rebuttal.” Perkins v. State, supra, 178 So.2d at 696.
Dyson, 615 A.2d at 1189.
Monday, July 14. 2014
Convincing prosecution witnesses to ... Posted by Jon Katz in Criminal Defense at 00:00
By Jon Katz, a criminal defense and DWI defense lawyer advocating in Fairfax County/Northern Virginia and beyond for the best possible results in drug, sex, DWI, felony and misdemeanor cases. http://katzjustice.com
Criminal complainants can be valuable sources of information to a criminal defense lawyer both for preparing the defense and for seeking to settle the case. Watch out, though, for the risks that criminal complainants will clam up, whether out of fear or uncertainty, out of a wish to please prosecutors' offices' so-called witness coordinators, and even out of their response to hearing a prosecutor or police officer say between the lines (and I even have heard a cop say so directly, until he reversed gears after I called him on it) that they hope the witness will not speak with the criminal defense lawyer.
For an initially recalcitrant criminal complainant to loosen up on that recalcitrance, the criminal defense lawyers can try such approaches as:
- Presenting complete sincerity (which always is essential);
- Underlining that the lawyer's client and the client's allegedly criminal actions are not synonymous with the lawyer;
- Seeing if an opportunity to tell something about the witness's life story will ease up his recalcitrance. For instance, one way possibly to ease a calm witness's recalcitrance might be for the criminal defense lawyer to say to the complainant: "I am riveted by your calm demeanor." See whether that draws out the person's story (e.g., "My grandmother was as calm as gently flowing waters. That always stayed wtih me").
Another approach is to inform the complainant of a possible third way to resolving the case, not an approach that looks for a winner on one side or another, but an approach that looks to give the parties satisfaction through mediation or another restorative justice method. If a mediation system already is in place for the courthouse where the case is being prosecuted, that is good. If not, private mediation can be explored until the particular court jurisdiction institutes mediation for criminal cases.
With mediation, I am not talking about having the defendant relinquish his or her power to the mediator, nor about relinquishing his or her Fifth Amendment right to remain silent, to his or her own detriment. I am talking about an opportunity to try to get closer to yes.
Ex inmate Fleet Maull talks about going beyond the restorative justice approach to a transformative justice approach. "Transformative Justice wants to look deeper into the behavior and ask 'How did it arise?' Transformative Justice asks the questions: 'Whats happening in their background?' or 'What kind of pain and suffering are they acting out of?'"
Of course, I want my client's interests not to be compromised in a restorative justice approach nor any other approach to their case. However, often times my client's interests overlap with numerous interests of the complainant, including to have an opportunity to reach closure in the case, rather than merely having the prosecutor proceed full guns ahead in seeking the most punitive result.
When a criminal complainant and prosecutor see the criminal defense lawyer as someone who can and will facilitate mediation or a restorative justice approach, the criminal defendant may well be closer to a more favorable case resolution for the defendant.
Thursday, July 10. 2014
Law enforcement is off-kilter for ... Posted by Jon Katz in Criminal Defense at 00:00
By Jon Katz, a criminal defense and DWI defense lawyer advocating in Fairfax County/Northern Virginia and beyond for the best possible results in drug, sex, DWI, felony and misdemeanor cases. http://katzjustice.com
UPDATE (Late July 10, 2014): Manassas City, Virginia, police, have done the right thing by deciding to let expire the magstrate-issued search warrant ordering the inducing and photographing of a 17-year-old man's erection.
ORIGINAL BLOG ENTRY (JULY 10, 2014):
Yesterday morning, July 9, a colleague asked whether I had read about efforts by law enforcement authorities to obtain a warrant to induce and photograph an erection in a seventeen year old man, to assist their investigation into his having allegedly sexted such an image to his girlfriend, apparently through mutually consensual sexting. My first reaction is my remaining reaction, that this is whacked out, takes child pornography prosecution beyond the farfetched edges, excessively victimizes the defendant, and fails to place reasonable limits on invading one's sexuality. The whole matter hits all the more geographically close to home, because the case is in Prince Wiliam County, Virginia, just one county away from me, and in a courthouse where I had just appeared for a hearing earlier that morning of July 9.
It is intrusive enough for police and prosecutors to obtain and execute a search warrant to examine one's genitals. It is beyond the pale to obtain a warrant to force such a sexual response as an erection. Before the days of erections through injection and Viagra, forcing an erection would have been an exercise in psychological and sexual intrusion all the more severe than already exists in this cse. Absent the availability of erection by injection, would the police have been permitted to have forced the suspect to obtain an erection through masturbation or viewing pornography or, worse, with a sexual surrogate against the suspect's will? How would one even expect to get aroused when in a room with police or medical gawkers/onlookers?
Before Viagra became all the rage, many men self-injected to obtain erections, apparently often with such troubling side effects as extremely and very uncomfortaby long-lasting erections. How can it be fully safe to inject anything into one's genitals? What physician or other health professional would deign to participate in such an invasion of one's privacy? Did the police and prosecution in this case ever think that their efforts to force an erection would not receive global ridicule? Let those ridicule floodgates stay open until law enforcement stops its efforts to obtain a forced erection.
Here are some additional thoughts:
- Particularly with injectible erections only having come to commonuse around two decades ago, I am not surprised that I have not found any court cases addressing the Constitutionality of a search warrant mandating an erection.
- The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures, and the issuance of search warrants without probable cause. This forced erection effort is an unreasonable search. Moreover, it goes beyond a search by requiring a human sexual response. Forcing an erection constitutes a deprivation of one's liberty without due process, under the Fifth and Fourteenth Amendments to the United States Constitution. Also, requiring an erection violates the suspect's Constitutional right to privacy, just as banning adult's access to contraception violates their privacy. Griswold v. Connecticut, 381 U.S. 479.
- Forcing an erection messes excessively with one's mental and sexual health. What if the defendant also has religious objections to a forced erection?
- Is the juvenile defendant's lawyer Jessica H. Foster defending her client court-appointed? If so, do not expect that her likely paltry court-appointed fee cap is going to be lifted much, if at all, to challenge forcing an erection on her client.
- Search warrants in Virginia typically are issued by court magistrates, who are not even required to be lawyers. It is time for Virginia to place search warrant authority solely in the hands of judges.
- A forced erection may not take place without meeting the U.S. Supreme Court's analysis in declining forcing surgery to remove a bullet in a crime suspect that allegedly was fired by his victim:
The operation sought will intrude substantially on respondent's protected interests. The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be “reasonable.” In addition, the intrusion on respondent's privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it. We believe that in these circumstances the Commonwealth has failed to demonstrate that it would be “reasonable” under the terms of the Fourth Amendment to search for evidence of this crime by means of the contemplated surgery.
Winston v. Lee, 470 U.S. 753 (1965).
- Some of the Fourth Amendment cases that I found involving searchs of men's genital areas follow:
-- The Fourth Circuit vacated a felony drug conviction that was based on drugs obtained by a police officer's using a knife to cut a bag of drugs that was attached to the defendant's penis:
"Manifestly, in the present case, there were several alternatives available to the officers for removing the baggie from Edwards' penis, which neither would have compromised the officers' safety nor the safety of Edwards. These alternatives included untying the baggie, removing it by hand, tearing the baggie, requesting that blunt scissors be brought to the scene to remove the baggie, or removing the baggie by other non-dangerous means in any private, well-lit area. Thus, we conclude that, in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards' underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury."
U.S. v. Edwards, 666 F.3d 877 (4th Cir. 2011).
-- In 2009, a federal trial court allowed the prosecutor to obtain photographs of a drug defendant's penis, where the defense claimed he was circumsised, and therefore unable to hide contraband in his non-existent foreskin. Harrell v. Hense, 2009 WL 409875 (unreported) (C.D. Ca. Feb. 18, 2009).
-- Authorities were permitted to obtain a scraping of a rape suspect's penis, to try to match menstrual blood. Brent v. White, 398 F.2d 503 (5th Cir. 1968).
To voice your dissent against any forced erection in this case, feel free to contact the chief electd prosecutor, who is Commonwealth's Attorney Paul Ebert, Esquire, 9311 Lee Ave., Second Floor, Manassas, Va. 20110, 703-792-6141.
Friday, June 13. 2014
A search is invalid where the ... Posted by Jon Katz in Criminal Defense at 00:00
A search is invalid where the suspect squeals after cop claims non-existent probable cause to search.
When a person lights a fire in a dry-wood forest, s/he will not be able to stop the firestorm that follows, burning down multiple trees, spreading far and wide, polluting the air and waterways, and killing and maiming animals and destroying their habitats. Government is a necessary evil, something that too many people see as being as much the natural order of things as mountains, hurricanes and tidalwaves. Government is not the natural order of things. It is a big beast that must be constantly watched and reined in.
Police are a particularly dangerous phenomenon. How many of them even stop to think that they, too, are a necessary evil, here to serve society and not the other way around?
Police have the power to take a person's otherwise wonderful day, and to turn it into dung, sometimes catching people who have indeed committed crimes in our overcriminalized criminal justice system, but too often victimizing plenty of others who are profiled by police for investigation who are doing nothing wrong, or who have done nothing worse than speeding a little over the speed limit, only to find police pressuring them about whether they have been drinking or toking or have contraband in the car, and threatening to have drug sniffing dogs tear apart their car if they do not fess up to any drugs in the car. Dung beetles may revel in dung, but not humans.
Living in society themselves, judges recognize that their rulings to rein in police too much (as defined by judges) can result in more rampant criminal activity, but that giving police too much license replaces a land of liberty with a land of police fiat and even tyranny. I get exasperated with plenty of appellate court opinions addressing police authority, and revel when the appellate courts get it right.
The U.S. Court of Appeals for the Fourth Circuit -- hardly a bastion of liberalism for criminal defendants -- got it right on June 12 when reversing a gun conviction, stating that the search yielding a gun in a locked glove compartment was invalid where the suspect-defendant squealed about the gun's presence in his car only after the cop claimed to have had non-existent probable cause to search the vehicle anyway. U.S. v. Safir, _ F.3d _ (4h Cir., June 12, 2014). Only after the police officer made such a false assertion of search authority, and intent, to search Safir's car (based on seeing what looked like an alcohol flask in plain view), did Safir admit that a handgun "might" be inside the car. The trial judge ruled that said admission was sufficient to allow the search of Safir's car. The three-judge Fourth Circuit panel wisely ruled that the admission could not be used as a basis to find such probable cause, because it was elicited by the officer's false claim of authority to search the car anyway.
Why did Mr. Safir have to wait to go to the Fourth Circuit to obtain relief in this matter? Why could the trial judge not have ruled correctly on this issue? Why did the Obama administration's prosecutors push this unlawful search and, thus, improper prosecution? Will Obama speak up here? Why did the police conduct this unlawful search?
Our society is overcriminalized. The more overcriminalized society becomes, the more we will continue seeing such abuses by police, prosecutors and judges. We must shrink the criminal justice system now, to assure a system that is not monitoring and hassling us in so many aspects of our lives, and that is of higher quality, which quality cannot be assured when we have such an overgrown criminal justice system. Repeatedly I say that we will have a much more reliable, cost-efficient, manageable and high-quality criminal justice system once we legalize marijuana, decriminalize all other drugs, legalize prostitution and gambling, eliminate mandatory minimum sentencing and the death penalty, and eliminate blood alcohol content per se rules in DWI cases.
In any event, today I savor the Fourth Circuit's Fourth Amendment ruling in Safir.
Friday, June 6. 2014
Beware turning your back on ... Posted by Jon Katz in Criminal Defense at 00:00
How much compassion should I show for someone directing a meat cleaver at the throat of me or my client?
Even with my over two decades of experience defending over three thousand criminal defendants, I still witness new ways that some opposing prosecutors and witnesses try to push my reaction buttons and, with some (with prosecutors, a certainly small minority), even stoop to new lows.
I write plenty about having compassion for opponents -- no matter how actually or seemingly vicious -- and knowing that there is no out there for the mind. However, at the end of the day, when an opponent is about to pick up a proverbial meat cleaver or spear to use against me or my client -- or, worse, already has the meat cleaver or spear in hand, ready to throw at me or my client -- that underlines why being unflappably battle ready and executing well-made battle plans and battle defense must never be undercut by compassion nor by devotion to a non-dualistic approach. When I am compassionate to others at the expense of myself and my clients, I disserve me and my clients, and am not being sufficiently compassionate to me and my clients. For my own strength and benefit for my clients, I must always be compassionate, but must not turn compassion on its head so as to weaken me.
With that, following are some ideas that I add to my many blog entries on dealing with prosecutors and opposing witnesses:
- In all battle, have no anger. Maintain tolerance and a clear viewpoint.
- Remember this great fly meditation. I am at my best when I deflate, neutralize and reverse irritations and assaults that come my way.
- Focus on acting rather than reacting. When a fist comes my way, my job is to neutralize, deflect, or deflate it, not to get bent out of shape.
- Don't be paranoid about opponents, nor let them lull you into
- Do not assume an opponent will be honest, honorable, nor
- Beware opponents who are like mercury or, worse, venomous
- An opponent's raising his voice at me might just be wind, until the opponent knowingly does that in front of my client, which can amount to unethical communication by one lawyer to a represented opposing party about the case.
- Determine when and how to address an opposing lawyer's transgressions. Recently, a prosecutor too loudly complained to me, with my client in the courtroom and the judge off the bench, that he was "pissed off" that I was asking not earlier for discovery from his breath technician -- who did not want to do so without the prosecutor's involvement -- even though I had just then seen the breath technician there. Rather than my acting in anger, I told the prosecutor that such behavior did not bode well for my relationship with him, and the breath technician -- witnessing all this -- then let me read all his notes without necessitating the prosecutor's involvement. I saw the prosecutor the next day, and said: "Let's smoke the peace pipe, Joe." He answered: "I have no problem with you." I replied: "Why do you need to raise your voice at me when my client is present?" He looked at me. I then proclaimed: "You're a pip, Joe." As he processed that, I added "And so am I." That broke the tension. He smiled and said: "At least you admit it." Knowing this particular prosecutor, that may have solved matters, at least for awhile.
- A prosecutor or cop do not act nastily for no reason. It can arise from going through tough times, having had a bad experiene with another lawyer, having prejudices, being sore at the criminal defense lawyer for something the lawyer did or supposedly did, or for a whole host of reasons. Be ready to talk it out with the prosecutor if that might diffuse the situation to the benefit of the criminal defense lawyer or his or her client.
- Those who don't want the vagaries of the
- Uncivil opponents and everyone else deserves compassion, but
- An opponent who tries using a flameflower on me bears the risk of getting burnt as I move to stop, douse, or even reverse the direction of the flames. Those who play with fire risk too much.
- If I get a splinter in my foot, I will inflict pain on myself if necessary to remove the splinter with a needle. An opponent sending potential harm (to me or my client) my way needs to be handled with just as much resolute firmness. Of course, at all times I talk figuratively when addressing violence in litigation.
- Don't get any angrier at a human opponent than at a tidal
- Compassion is not balanced against staying strong. I can at
- Do not expect an opponent to cut you slack, to keep your words
- See the friends off the playing field going for the jugular on the battleground. It's okay to be friendly with some opponents, to a point.
- Having compassion for others -- just like forgiving them -- is a matter of strengthening ourselves and not letting them set our emotional agenda. Doing otherwise weakens us.
- You can put opponents at ease -- and sometimes off guard --
- Always refraining from calling others a**hole and other angry
- Never be angry. Never act out of anger. External circumstances should never adversely affect our happiness and sense of well being.
- When you talk to an opponent, speak as if being recorded,
- In this day and age of little kept secret, watch out saying
- Do not assume an opponent will not stoop below any particular
- If a nasty opponent claims s/he has no need for compassion
- See yourself as powerful enough to direct and change the course of events, and as too powerful to be toppled.
-The magic mirror always is at work.
Thursday, June 5. 2014
Getting an appellate victory after a ... Posted by Jon Katz in Criminal Defense at 00:00
Behind the orderly-looking appearance of courtrooms are repeated instances of no-holds-barred trial battle, and holding cells attached to each courtroom or down the hll. The fights can get expensive in terms of time, attorney fees, frustration and sweat expended. Criminal defense is battle and often war. Battlefields are not elegant, genteel places, nor are courthouses and the work required before going to court.
Michael Gardner learned that the hard way, having been convicted of aggravated sexual battery and object sexual penetration. Gardner v. Virginia, _ Va. __ (June 5, 2014).
At trial, the judge refused Gardner's lawyer's efforts to present testimony of Gardner's reputation in the community for good behavior with children. Virginia's intermediate appellate court rebuffed Gardner's challenge on the trial judge's ruling against admitting such reputation evidence at trial.
Finally, Gardner got vindicated today in Virginia's Supreme Court, reversing Gardner's conviction due to the trial court's barring such reputation evidence at trial. In finding such character evidence admissible at trial, the state Supreme Court said:
A criminal defendant may prove his good reputation for a particular character trait by presenting “[n]egative evidence of good character.” Zirkle, 189 Va. at 871, 55 S.E.2d at 29. “Negative evidence of good character is based on the theory that a person has a good reputation if that reputation has not been questioned.” Jackson v. Commonwealth, 266 Va. 423, 439, 587 S.E.2d 532, 544 (2003). “A witness may testify that he or she has never heard that the accused has the reputation of possessing a certain trait.” Chiles v. Commonwealth, 12 Va. App. 698, 700, 406 S.E.2d 413, 415 (1991). We conclude that Gardner’s proffer was sufficient to demonstrate the substance of the evidence of Gardner’s character that would have been provided, if the circuit court had not erroneously sustained an objection to Gardner’s inquiry concerning his character, and it would have been favorable to Gardner.
Of course, appellate courts frequently find error by the trial court, but still give no relief, claiming the error to have been harmless. Appellate court findings of the existence of harmless error in a criminal defendant's appeal can often be dangerous crystal ball gazing using a poor quality crystal ball, with a defendant's liberty on the line. Gardner determined the error was harmless:
Considering the evidence presented at trial and the fact that the jury could not reach a unanimous verdict on one count of aggravated sexual battery, we cannot say with fair assurance that the circuit court’s exclusion of Ombrembt’s and Allan’s character testimony did not “substantially sway” the jury’s determination of Gardner’s guilt. See Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (“[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand.”) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)). Thus, we cannot say that the circuit court’s sustaining of the Commonwealth’s objection resulting in the exclusion of Gardner’s character evidence was harmless error. See Barlow, 224 Va. at 342, 297 S.E.2d at 647 (holding that the exclusion of defendant’s character evidence of nonviolence was not harmless error, despite defendant’s opportunity to present evidence of his reputation for being “honest and hard-working…")
Trial judging is a very challenging job, even for the most devoted and capable judges, and even the best judges can make glaringly erroneous rulings on the law. It is a huge shame that Gardner's trial judge did not allow his character witness testimony in the first place.
Wednesday, June 4. 2014
Should a judge who assaults a lawyer ... Posted by Jon Katz in Criminal Defense at 00:00
Why do some judges act more civil to some lawyers and litigants than to others, and act downright hostile to others? The short answer is that it is a combination about what is going on with the judge, the lawyer, the litigant, and outside circumstances. In and out of court, it is important that I be compassionate to all, but never to kowtow. Judges do not worry about asserting control over lawyers who kowtow, but might feel contempt over the kowtowing. When judges sense a challenge to their authority, some or many may overreact by using hammering and even machine-gunning words -- often dismissive -- and tones of voice to lawyers and litigants, to communicate to the rest of the people in the courtroom to watch out.
If only judges would draw inspiration from a trial judge like Henry Kennedy and my late high school English teacher Charles Abraham, who commanded so much respect through respecting others and liking and doing their best in their positions, that raising their voice or using barbed words was unnecessary.
A judge's approach to a lawyer may also involve prejudice (don't expect to have a sexism-free and racism-free judiciary when the rest of society is so heavily sexist and racist), prior experience with the lawyer, reputation of the lawyer (whether well earned or not), and even irritation over the lawyer's First Amendment-protected activities outside the courtroom (although it would be a shame for judges to take offense at my blog postings encouraging good judging but calling out bad judging, and addressing persuading even the most challenging judges).
Praised be the inventors of videotape for helping me once again show that I am not being farfetched in saying that too many judges are too abusive in the courtroom. On June 2, 2014, Brevard County, Florida, judge John Murphy went ballistic with his words, and apparently fists as well, on public defender lawyer Andrew Weinstock, when Weinstock refused to waive his client's speedy trial rights. See the video and article.
Granted, defense lawyer Weinstock could have diffused -- but did not diffuse -- the situation with calmer words and tone of voice without sacrificing the strength of his arguments. Weinstock also quickly accepted the judge's invitation to step outside to settle scores, when Weinstock was wisest to stay in the courtroom with the video camera as his recording friend. It appears that what led to the videotaped blowup may have been preceded with friction between Weinstock and/or his colleagues and the judge the same day or on an earlier occasion.
The audio from the videotape indicates that the judge slugged Weinstock off camera. The news reports I have read say security broke up the incident, without Weinstock throwing any blows. Weinstock's boss says Judge Murphy has a good reputation, but how can his reputation ever recover here?
Judges face plenty of challenges with difficult litigants. However, they must always remain civil. They can let courtroom security personnel take care of any physical actions on difficult litigants. Weinstock did nothing to merit anyone's laying hands on him.
If Judge Murphy is not removed from the bench, the bench's dignity and authority will be besmirched.
Judge Murphy's assault on Weinstock may be an extreme example of a judge misbehaving in court, but is far from the only example of a judge being uncivil to lawyers and litigants.
Thursday, May 29. 2014
America has a long way to go from ... Posted by Jon Katz in Criminal Defense at 00:00
America still has a long way to go from the days of Jim Crow. Here is the Equal Justice Initiative's essentially stark timeline from the seventeenth century to today on racial injustice in America and the colonies that preceded the United States, and the fight to prevent and reverse such injustice.
EJI is headed by tireless lawyer Bryan Stevenson, who has been fighting for decades for justice for criminal defendants.
Tuesday, May 27. 2014
Ideas on the path to victory. Posted by Jon Katz in Criminal Defense at 00:00
The trial litigation battlefield is often far from the elegant setting of a Supreme Court oral argument. Here are a few thoughts that I add on the road to trial court victory:
- When you are at zero you are not an impediment to the people you're trying to persuade or to get help from.
- Once you live at zero, without blockages and barriers, people can see you as pure light to gravitate towards and to benefit from your energy.
- Do not unnecessarily repel the person you are trying to persuade.
- Clearing the fog, the crud, and the blockages, and getting to zero, inspires us and others in every direction, with every thought, and with every move. Crud, fog and blockages clog up our thinking,
- Would you stay in a hotel reeking of mold & mildew, if a sparklingly clean and just as good hotel were across the street at the same price? When you kvetch and brood all day over your personal travails, who will
- Many of my clients feel blockage from the disharmony of their prosecution. They do not want further blockages from any mind crud from me. We see through fog close to our hand but not 3 car lengths ahead, because of the layering of fog. My clients do not need extra fog layers from me nor from anywhere; they need clarity and unclogging.
- It is better to have a default of seeing life as without resistance to your path, thus dwarfing actual resistance in your mind and your efforts.
- Part of persuasion is disintegrating borders and boundaries in the mind and beyond.
- Watch this great meditation video on transforming appearances of flies into impressions of flower petals.
- "A controlled mind will remain calm and happy no matter what the conditions." Geshe_Kelsang .
- Dr. F. Emelia Sam: "Your Thoughts Create Your World: Patrol Your Mind."
-Alan Watts: "All life is a magnificent illusion, a playing of energy..."
- Optimism does not necessitate superficiality, nor doing anything with Shirley Temple other than changing the channel when she appears.
- A dark take on life may have catapulted Van Gogh's popularity. At the same time, Matisse transcended his arthritis with paper cutouts.
- You can find bliss w/o ignorance. You can think and investigate critically w/o clouding up your day.
- If you nervously chew your lip when before an audience, will your chewed-up lip be noticed more than your words?
- Why are humans the only species who see scarcity and struggle in life? Remove the perceived barriers and barricades.
- When you are wound up like a tight little stressed ball, people will recoil from you, to avoid harm from a violent recoil.
- Which salesperson attracts you more? One uncluttered with his or her own issues, and totally focused on your words and wishes, or one who feels desperately that making this sale will make the difference
- You can help those feeling in dire straits without absorbing their straits.
- When you see life as being without borders, people will be drawn to you because they want to see a life without borders.
- People are drawn to those who transcend resistance, as in a freely flowing river, and a high-flying kite as free as the wind.
Friday, May 23. 2014
Police are on high alert during ... Posted by Jon Katz in Criminal Defense at 00:00
NOTE: Police are on high alert during holiday weekends with extra humanpower on the streets. This Memorial Day/unofficial start-of-summer will be beautiful and filled with merriment., and the police will be on the lookout for arrests to make. You can have fun this weekend without ending up needing the services of me and my criminal defense colleagues.
The following blog entry is a reprint from Thanksgiving week 2012.
Holiday time means more police on the
lookout for people to arrest to meet their
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 or to do field sobriety tests or to blow into the handheld breath testing machine (the post-arrest breath test is an entirely different matter with possible refusal sanctions), 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 many 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, snorting, pill-popping, or injecting. 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 -- and often even unsmoked -- 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 or disproportionate assault 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 state, or have the necessary medical marijuana documentation where it counts, I have few comforting words to give you about dealing with police when you have marijuana.
- Alcohol can breed irrational action and criminal action, including sexual assault. Drink moderately, and beware the harmful actions of drunk people.
- Speaking of sexual assault, not only does "no" mean "no", but the question where I practice law is whether the alleged victim consented to sexual activity even if s/he did not say no. If a potential sexual partner has had too much to drink (defining that line is not so easy), s/he might be found by a jury not to have consented.
- Also speaking of sexual assault, casual sexual activity brings such risks as (1) statutory rape (where I practice, there is no defense to having sex with an underage person, even if s/he presents the most genuine looking of fake ID's), and (2) cries of rape by the sex partner who feels treated like trash after a one-night stand.
- Unfortunately, no matter how cautious you are about keeping a low profile with the police, you may be targeted for racial profiling, geographic profiling (like when I drove a black car with D.C. license plates (a so-called source drug city) out of state), or stoner profiling. It is wrong and must stop.
WHAT IF THE POLICE STOP OR DETAIN YOU?
- Silence is golden with the police. Even if your arresting officer was your wrestling team buddy in high school, the lines are drawn when the cop suspects you, and the cop is going to choose his or her job security and sense of law enforcement obligations over helping you get out of a jam.
- Don't think for a moment that your pre-Miranda words cannot be held against you in a court of law. Police know that Miranda v. Arizona, 384 U.S. 436 (1966) does not apply before your liberty is restrained beyond a short moving violation stop nor for basic booking questions at the police station or jail.
- Beware the jurisdictions where pre-arrest silence can be used against you at trial. In such jurisdictions, it may seem a Hobson's choice between talking and not talking to the police. Silence remains essential.
- Your post-Miranda silence cannot be held against you. The police just do not tell you that, because they do not have to.
HOW TO GET RELEASED PENDING TRIAL
- If stopped by the police, it is ideal to contact a qualified lawyer right away, although plenty of them are not so easy to reach after hours (but some, like I, get paged when called). The police may not accommodate such a request right away. However, by asking for a lawyer and saying you will only talk with your lawyer present, you have taken an important step toward preserving and protecting your rights.
- Many suspects have a tendency to try to talk their way with police out of an arrest, to try to avoid having to pay for a lawyer, in order to avoid having their loved ones or employers freak out worrying themselves sick about where the suspect is, and to avoid a conviction. Doing so is like struggling in quicksand, often likely to make you sink more quickly towards doom.
- The police are obligated to bring arrestees before a judicial officer within a reasonable amount of time to set prerelease and bond conditions, or to set a date forthwith for a pretrial release hearing. Do your best to get a qualified lawyer at this and every other critical stage of your case.
Rather than trying to give you the heebie jeebies with the foregoing blog entry, when the above tips are followed, fewer people need my services in the first place and more court victories follow.
Monday, May 12. 2014
NYPD will stop seizing condoms of ... Posted by Jon Katz in Criminal Defense at 00:00
Repeatedly I say that we will have a much more reliable, cost-efficient, manageable and high-quality criminal justice system once we legalize marijuana, decriminalize all other drugs, legalize prostitution and gambling, eliminate mandatory minimum sentencing and the death penalty, and eliminate blood alcohol content per se rules in DWI cases.
Thanks to the public health advocates who apparently worked long and hard to finally successfully convince the New York City police department to stop seizing condoms of alleged prostitutes for simple prostitution arrests and prosecutions. Brooklyn's chief prosecutor stopped using condom evidence in such cases in spring 2013.
Reacting to such random condom seizures from alleged prostitutes, one sex worker resorted to using plastic bags for safe sex instead, which hardly is safe sex.
In Europe and so many other parts of the world, prostitution is legal without having the sky fall. I acknowledge the abuses that can visit sex workers -- and the abuses that workers worldwide in many settings risk and suffer --but whether to engage in sex work should be the choice of sex workers, and not lawmakers nor police.
Thursday, May 1. 2014
How not to get Linda Tripped. Also, ... Posted by Jon Katz in Criminal Defense at 00:00
Here are two gems for legal research:
1. Can We Tape? A journalist’s guide to taping phone calls and in-person conversationsin the 50 states and D.C. This manual is by the Reporters Committee for Freedom of the Press, and includes references and cites to statutes and caselaw. If this guide had been written twenty years ago, maybe Linda Tripp would have read it, not taped her conversations with Monica Lewinsky, and radically changed the direction of that scandal.
2. Thanks to New Jersey lawyer Evan Levow for compiling a site for finding out the risks to one's driver's license in state A if convicted of DWI in state B, covering all fifty states. Nothing beats verifying Evan's data to the primary source, and Evan provides statutory citations for doing so.
Friday, April 25. 2014
SCOTUS erodes Fourth Amendment by ... Posted by Jon Katz in Criminal Defense at 00:00
No matter how non-plussed, at best, that I am overall about President Obama, his two Republican opponents doubtlessly would have placed much bigger threats on the federal bench than Obama would ever nominate.
On April22, 2014, the dangers of Ronald Reagan's, George Bush I's and George Bush II's Supreme Court nominations reared their Fourth Amendment-damaging heads in a decision allowing police to give exclusive reliance on 911 callers to justify traffic stops, this one leading to a marijuana felony bust. Prado Navarette v. California, _ U.S. _ (April22, 2014). Prado Navarette applies not only to traffic stops, but to all civilian reports to the police. I regret that I did not have Prado Navarette on my radar screen to see about working on an amicus brief in the case.
In Prado Navarette, a police officer stopped a vehicle for no other reason than a 911 call claiming that the vehicle had run the caller off the road and describing the vehicle. That was the sole basis of the stop, with no details on how the vehicle allegedly caused the caller to run off the road (was the vehicle's driver swerving, speeding, or just looking menacing?), what the caller meant by having been run off the road (did the caller' vehicle temporarily go into the shoulder, or go down an embankment?), the extent to which the caller was motivated by racism or racial profiling, the extent to which the caller was or was not credible (and did the caller have prior convictions related to veracity?), and the extent to which the caller was sober or not, experienced driving, distracted by texting, or a whole host of other circumstances potentially bringing the caller's reliability into question.
When a police officer stops my client's vehicle on the basis of the officer's personal observations, I at least get a shot at suppressing the stop by cross examining the officer to obtain further details and possibly to bring into question the officer's veracity, perception and recall. I cannot, however, cross-examine a 911 caller whose whereabouts I cannot determine, to subpoena him or her to court. Even if I subpoenaed the 911 caller to court, the judge might just say, under Prado Navarette that cross examining the 911 caller will be of no benefit to me.
Here is the lineup of justices in Prado Navarette:
- Justice Clarence Thomas (appointed by Bush I) authored the opinion. If a justice is going to pen an opinion this damaging to the Fourth Amendment, let the author at least be one who asked questions at oral argument. Save for many years ago from the bench, the only time Justice Thomas is heard speaking is off the bench, for instance giving lectures at law schools.
- Justice Thomas was joined by Chief Justice Roberts (appointed by Bush II) who is a likeable and brilliant man, but is too often on the wrong side of the Bill of Rights, Justice Anthony Kennedy (a Reagan appointee, who is a swing vote in many respects only due to the Court's rightward shift over the years), Justice Alito (a Bush II appointee), and Justice Breyer (a Clinton appointee who often sides with the government's regulatory functions).
- Praised be Justice Scalia (a Reagan appointee whom I do not want on the bench, but who sometimes carries the day for Confrontation Clause rights and, here, Fourth Amendment rights) for pulling no punches in his dissent, joined by Justice Ginsburg (a Clinton appointee), Justice Sotomayor (an Obama appointee), and Justice Kagan (an Obama appointee).
My understanding is that Justice Sotomayor is the only justice who has tried criminal cases, albeit as a prosecutor. Had the court majority experienced even a score of traffic stop cases in trial court, I would hope that at least one of them would be whistling a tune on the side of the dissenters, thus turning the dissent into the case's decisionmakers.
I take little solace that Justice Thomas points out in Prado Navarette that a tip alone ordinarily does not justify a traffic stop, as he proceeds to say that the 911 caller's report was corroborated by finding the reported vehicle at a place consistent with the 911 call. That is corroboration by fluff, rather than substance.
Also troubling is that Justice Thomas says the stopping officer had reasonable suspicion to believe the vehicle's driver was driving intoxicated. Erratic driving can be caused by many factors. Sit in moving violation court, and hear the many non-alcohol-related factors that cause people to drive erratically.
How do we undo and dilute the damage of Prado Navarette? Do not expect to see a Constitutional amendment. If the right justice replaces any of the justices in the Prado Navarette majority, that may be enough to reverse this bad decision, despite stare decisis principles that often lead justices to hesitate before overturning Supreme Court precedents. For state-level prosecutions, criminal defense lawyers can argue the extent to which the state's law and constitution provide more protection than Prado Navarette. Finally, we must consider judicial appointments when deciding whom to elect as president.
Prado Navarette constitutes a low mark for the Supreme Court.
Monday, April 21. 2014
In Virginia, Starrs is a potential ... Posted by Jon Katz in Criminal Defense at 00:00
Better late than never, I am today providing a link to Starrs v. Virginia, which is this year's most beneficial Virginia Supreme Court opinion for criminal defendants. Starrs, 287 Va. 1, 752 S.E.2d 812 (Jan. 10, 2014).
Starrs confirms that trial judges have the full authority to withhold entering a final judgment of guilt, and to dismiss a criminal case at any time after a defendant is found guilty and before entering a judgment of guilt. Before Starrs, many prosecutors insisted that only certain crimes were eligible for such dispositions. Starrs takes away that argument from prosecutors.
Although Starrs's reasoning is grounded in principles of judicial authority rather than compassion, the possible motivations for a judge to issue a Starrs-friendly disposition include avoiding unduly harsh consequences of a conviction, and motivating a defendant to do well on probation in the hopes of ultimately having the case dismissed.
Let Starrs be contagious throughout the land.
Friday, April 18. 2014
Engaging with clients in the place ... Posted by Jon Katz in Criminal Defense at 00:00
One of my favorite clients and I were debriefing about his case, and talking and joking a lot just as regular people -- not as lawyer to client -- in a courthouse conference room, after we scheduled the next proceeding in his case. This man who has seen overseas combat before and is fully willing to do so again, exclaimed that he does not know how I handle the constant challenges and bows and arrows of court day in and day out. I told him how I seek powerful calm in the eye of the storm.
Wow, of all people, a combat soldier who has been shot at (and lived to tell about it, with all his limbs intact) marvels that I go to the lion's den daily. As much as I have my strong reservations about America's overgrown military that needs to keep its weapons holstered more often, I know the benefits of fighting experience in the courtroom, whether from the taijiquan martial art that I practice or other fighting experience. I also know that I defend all my clients to the hilt, no matter how much I do or do not agree with their work, political views, or choice of music; usually I find points of commonality with them all, early on.
One of the keys to effective combat, whether inside or outside of the courthouse, is being fully engaged and present in the moment and with all clients, all other people, things, and phenomena; and being fearless of death.
All of my clients are seeking to return to or stay in harmony. Otherwise, they would not need my services. Their cases alone challenge their harmony. Some of my clients feel more than mere imbalance from their cases. Some of them have felt plenty of life imbalance long before they ever got arrested. It is not my role to judge my clients, only to defend them to the hilt, and to tell their story to prosecutors and in the courtroom as persuasively as possible. I am not obligated to get sucked into any of my clients' trauma, but I cannot engage with a client who is on a roller coaster without finding a way to do some following of that client on the roller coaster -- without my getting nauseous along the way -- until I can slow or stop the roller coaster or wait for or achieve intervals when my client is not on the roller coaster.
It is not always easy to help my client who is on a roller coaster without feeling the effects of the roller coaster. Can you honestly tell me, for instance, that you have never wondered whether you would vomit after seeing and smelling someone vomit next to you?
In visualizing engaging with my clients while they are on a roller coaster, I remember the Quantum Leap 1990's television series involving a time traveler who gets catapulted from one tumultuous time and place to another while his assistant, who is in the present moment, continues giving his all not only to find a way to get the time traveler back to the present moment, but also to assist the time traveler in helping the many people in dire straits in the different times and places visited by the time traveler. The assistant sees and hears what the time traveler is experiencing, but does not experience queasiness from any roller coaster, because he is not on the roller coaster. Of course, in engaging with my clients, I must relate to them and even crawl under their hide to know and feel what they are going through. Therefore, unlike the time traveler's assistant, I am going to feel more of what my client is feeling.
At my best, I vibrate highly for my clients, witnesses, legal team and me as we pursue the criminal defense battle. Humor, music, and magic -- in discovering, cultivating, and delighting in my own personal magic and in benefiting from my four decades as an amateur magician -- help me on that path. So does this passage by Ringu Tulku that helped matters unfold all the better for me in a book I bought several years ago: See "directly without adding any concept or philosophy. Within this clear vision there is not the slightest doubt about anything, so there is no need for clinging or running away... Although we see that others are suffering greatly, we know that their suffering is almost needless. They are not doomed to be in pain, because their suffering just comes from a wrong way of seeing and reacting. If they could see how things truly are, they would not suffer anymore." Ringu Tulku, Daring Steps Toward Fearlessness: The Three Vehicles of Buddhism at 58 (Snow Lion Publications, 2005).
As Geshe Kelsang Gyatso says: "A controlled mind will remain calm and happy no matter what the conditions." How to reach that controlled mind that will remain calm and happy? For me, it starts with finding fulfillment from inside me, and not from the vagaries of the weather, time, and public opinion. To find fulfillment from inside, one must find peace. Meditation and mindfulness are an important part of that, whether the moving meditation of taijiquan or sitting meditation. So is following the path of zero. There is no out there for the mind. Everything unfolds from finding internal fulfillment.
I have heard of healers who experience temporary discomfort when in the process of healing their patients or reducing their discomfort. I have no obligation to take on my clients' pain in helping them. However, I must engage with them, and not ignore any tumult they feel. I cannot do both without feeling compassion for myself and my clients and without being fully committed to my clients and their causes.
Like a river, everything and everyone changes from moment to moment, right down to our breath and blood cells, which never stay in one place. A client may feel up today, down this evening, in the middle tomorrow morning, and back up in the afternoon. It is a mistake for me to feel offended when a client acts all bent out of shape about his or her case, and even expresses doubts about how I am handling his case. A patient with deadly cancer cannot be expected always to be all jolly-jolly and lovey-dovey with his or her oncologist and nurses, and criminal defense clients cannot be expected always to be the same either, with their lawyers and law office staff.
It is always easier for me to talk and write about -- than to handle -- the challenge of succeeding in dealing with clients as they experience and express their up and down feelings. Nothing replaces, putting it into practice. One of my clients recently was expressing numerous concerns and doubts about his case and the way I was representing him -- such crossroads moments are to be seized as opportunities and not as crises -- that I offered him the option of hiring another lawyer, which option he of course knew he already had. I underlined that I remained honored and delighted to keep defending him, but that it was important that he be satisfied with his lawyer. I was not bluffing, and my client knew that I was not bluffing, and knew that I truly care about him and want to help him as best I can. My client had a lot at stake if convicted, and it was for me not to take anything personally in dealing with him, and he meant nothing personally.
My client ended up staying with me as his lawyer and showing and expressing satisfaction with my work for him, and we got a great outcome in his case. If I were putting interest in money ahead of serving him and my other clients, he would have smelled that a mile away, and might have whistled a different tune.
My staff sometimes has marveled over the equanimity that I have displayed in interacting with some of my most challenging clients. It is for me to always keep that equanimity; it can be a true challenge. I see that when I just take off my damn lawyer's hat to spend time dealing with my clients as human to human in the place where they are right now mentally and emotionally -- rather than where I might prefer them to be -- without the barriers of our roles as lawyer and client, and with the power of the pause, we can relate to each other better and more comfortably.
Serving, inspiring and persuading for my clients starts as an inside job, with my working on myself first and foremost. When my clients see I have no script with them, as opposed to my goal of obtaining the best possible outcome for them, that I care about them as individuals, that I can relate to them as person to person rather than merely as lawyer to client, and that I neither fear nor armor myself against even their firmest words and actions, then my clients can trust me more, and talk more openly and calmly with me, not fearing that they are walking on eggshells with me, nor throwing saltwater in my eyes to get my attention.