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.
A full day with Jon Kabat-Zinn, a key catalyst to making mindfulness and meditation mainstream.
Friday, March 27 2015
Being fearless of death and injury makes one more powerful.
Wednesday, March 25 2015
Deaf man denied sign language interpreter at Arlington jail. Pleads guilty to receiving stolen property after alleged theft victim says he found his iPad.
Tuesday, March 24 2015
Difficult clients give their lawyers a chance to rise to the occasion, or to fail.
Friday, March 20 2015
More on the power of the now, interconnectedness, and openness.
Wednesday, March 18 2015
My return speaking engagement at GW's Human Sexuality class.
Friday, March 13 2015
The power of transcending being sidetracked.
Thursday, March 12 2015
Winning a DWI trial despite less than stellar evidence for the defense.
Tuesday, March 10 2015
Judicial mandates for AA meetings violate the First Amendment. Alternatives to AA are few and far between.
Sunday, March 8 2015
Jodi Arias's experience underlines: It only takes one juror holdout to hang a jury.
Friday, March 6 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, June 6. 2014
Beware turning your back on ... 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
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
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
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
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
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.
Wednesday, April 9. 2014
Don't fall on your own sword in ... Posted by Jon Katz in Criminal Defense at 00:00
Recently I posted the following on Twitter and Facebook: Even if a person has indeed committed a crime, s/he should not fall on his or her sword. Fight the charge unless it gets favorably settled.
A non-lawyer dissented, placing a high value on accepting responsibility when one commits a crime.
I responded: Plenty of people are prosecuted through violations of their right to remain silent and their right against unlawful searches. Too many are prosecuted through trumped up charges.
Too many are unjustly incarcerated -- while presumed innocent -- pending trial. Too many are sentenced totally out of proportion to their actions and history, and too many for racist reasons. Too many people are sent to death row, when capital punishment is a barbaric act that must be eliminated. All prosecuted people would be foolish not to fight their prosecutions tooth and nail.
Friday, April 4. 2014
Criminal defense lawyers should hang ... Posted by Jon Katz in Criminal Defense at 00:00
At the signing of the Declaration of Independence, Benjamin Franklin aptly proclaimed "We must all hang together, or assuredly we shall all hang separately."
Prosecutors police, and, unfortunately probably more than a handful of judges, would love nothing better than to see a fractured criminal defense bar. What is better than them trying to divide and conquer the criminal defense bar themselves? To see the criminal defense bar do it all to themselves, Yojimbo style, where Sanjuro led the town's two rival groups to decimate each other.
I wrote in extensive detail on this topic last year, including:
"In this still-challenging economy, lawyers feel the increased competition when some others cut their fees to a level that they would not otherwise do so in a better economy, when marketing goes on at a dizzying pace, and likely (but hopefully not) when lawyers will unfairly badmouth their competition in seeking to grab a new client. I prefer to view the competitive legal market as one of abundance, with an abundance of potential clients, an abundance of paths for a personally and professionally rewarding career, and an abundance of creative approaches on the way to victory. I believe strongly in helping colleagues rise as I rise, and not to step on their heads in my own efforts at success:
"Perhaps some colleagues feel so comfortable talking to me about their financial concerns that one criminal defense colleague not long ago told me that his direct mailing approach to getting new clients was about all that was keeping himself financially afloat. He told me that he was again taking Virginia court-appointed cases after he had vowed he would not do so (court-appointed cases are great for helping equal access to justice and to varying one's practice mix and experience, but are not good for pay in Virginia state courts). He said that he now has a practice of parking his butt on a chair near heavy foot traffic in a courthouse hallway before court starts, in case potential clients might have questions for him. Rather than cutting my fees, offering payment plans, or sitting in the courthouse hallway, I pursue a law practice focusing on collaborating with colleagues and taking care of and serving my clients as best I can, just as Bill Evans spoke of taking care of the music for the music to take care of the musician."
I particularly am thankful of those colleagues whom I know I can call about some of the toughest litigation challenges, and get a welcoming, helpful and non-judgmental response, and who have joined me in trial workshops that I have arranged for having me battle ready for trial. Those colleagues include my following fellow alums of the Trial Lawyers College: Anne Arundel County, Maryland, criminal defense lawyer Chris Flohr; Fredericksburg, Virginia, civil trial lawyer Leila Kilgore; Greenbelt, Maryland, criminal defense lawyer Gladys Weatherspoon; Pennsylvania trial lawyer Anna Durbin; Westminster, Maryland, trial lawyer Tom Hickman; Ohio trial lawyer and psychodramatist Simina Vourlis, and Maryland public defender lawyer Anne-Marie Gering. The non-TLC alums in this list are Anne Arundel County, Maryland lawyer Bill Blackfordl; Baltimore County public defender lawyer Jerri Peyton-Braden; Rockville, Maryland lawyer Steve Conte; and Laurel, Maryland, lawyer Brian Bregman. There are more colleagues who are my confidantes, including in my home base of Virginia, and I deeply thank them all.
If a colleague performs well, other criminal defense lawyers should acknowledge and encourage that performance. If a colleague is missing the boat, colleagues should point that out as well, compassionately, constructively and effectively. Defendants' lives and liberty are at stake. If a judge, prosecutor, or opposing witness is coming down unfairly on a colleague, we must band together for that colleague.
Battle onwards, effectively, courageously, relentlessly, and in teamwork with colleagues.
Wednesday, April 2. 2014
Nothing beats giving clients my full ... Posted by Jon Katz in Criminal Defense at 00:00
For my criminal clients, I am here to help them get back to harmony and balance from the imbalanced situation of their prosecution.
My clients manage this imbalance in ways, ranging from equanimity, to trying to submerge their concerns, to sleeplessness, to often starting from square one in speaking with me, to being nervous wrecks, to being a combination of these things.
When I am at my best, I can help my clients feel more calm not merely by their knowing that my staff and I are covering the essential bases for them, but also by my being powerfully calm and compassionate with my clients, by my giving them my full time and attention, and by my clients seeing that I am unflappable in the face of their tension and in the face of any bows and arrows coming from prosecutors, judges and opposing witnesses.
Some clients ask the same set of questions several times. I encourage them to ask questions, but sometimes tell them that my answer to a repeated question will not have changed from the last time I answered it, and then offer to answer the question anyway, because sometimes my client simply wants to hear the answer again to absorb and understand it. Some clients hope that my answer will change to a more optimistic appraisal of their situation, and will interrupt my answer when dissatisfied with the answer.
If I wanted always cheerful and calm clients, I could choose to work at an island paradise hotel. Clients hire me to fix big hurdles as best I can. Watching my clients along the way can be an experience in observing their dealing with some of the deepest depths of their feelings.
My work with unsettled clients must be child's play in many ways compared to what emergency room physicians must constantly deal with in helping patients and their loved ones make tough choices over risky medical procedures. I remember visiting someone in the hospital, and talking with the parents of a man who had just been in an awful motorcycle accident. Their son was unconscious, and they had been tasked with deciding between surgery that might kill him, or leaving things as they were, which might also have led to death. Imagine the calmness, compassion and patience that this man's doctor needed in working with the parents to make an informed decision on proceeding with surgery or not.
As we approach the trial date, it is important that an unfocused client become more focused. I have had some clients who repeatedly start from square one when we talk, to the point that I sometimes need to tell them that we are running out of time to cover the remaining essential ground ahead. When my client knows I am actively listening to, remembering, internalizing, and giving credence to what s/he is saying, we are in a better position to move forward.
Sometimes a client tries to avoid moving forward in our conversations, when that forces the client to be face-to-face with the risks and challenges that s/he is actually facing in the case. This reminds me of an amazing trial workshop/psychodrama session that I attended fourteen years ago, where psychodramatist Don Clarkson worked with a lawyer defending a man in a capital case (the man ultimately avoided the death penalty) and the defendant's mother; the defendant was jailed pretrial.
Don started asking the mother some questions, and she ultimately said: "I cannot do this." In Don's own masterful way, he put his hand on her shoulder, and reassured her "This is the perfect time." Reassured, the woman moved forward with Don.
When I had my most challenging client who repeatedly started at square one when speaking with me -- in a serious personal injury case, when I handled more of such cases -- Don sat down with me and my then-law partner Jay Marks at my request, and started off not by asking about the client, but about how things were going for us, just two months into our then new partnership in 1998. It all starts with me in dealing with my clients. Don ultimately suggested that I arrange to spend time with my client in more comfortable and familiar surroundings than my law office, for instance taking a walk in the park, and for me to ultimately share with him how much I care about him, and how concerned I was about the outcome of his case if we kept starting from square one. Don was right, even though such an approach is not always an instant recipe for fixing all such hurdles.
Unlike the emergency room physician, I have more time available to spend with my clients. That time must be made. One thing I love about being my own boss is that I have no boss pressuring me to reduce the time I spend with my clients in order to serve a high volume of clients. I keep my number of clients moderate.
Some medical doctors might find comfort in having their doctor's uniform as a barrier between them and their patients. I find that I move forward with my client more beneficially when I remove those barriers.
If I feel that I am getting stuck with my client at a critical crossroads, it is not sufficient for me to advise my client ways to get unstuck, but for me to assure that I am not stuck either, and that I do not feel stuck.
I am in this fight together with my client. I must constantly work on improving myself as I encourage my client to be the best s/he can be, as well, in our fight for justice.
Friday, March 21. 2014
Virginia: The sentencing firestorm ... Posted by Jon Katz in Criminal Defense at 00:10
A psychological experiment was performed with alcoholics, administering electrical shocks to them each time they drank liquor. At least some of them continued to imbibe, despite the shocks.
I have heard stories of people so addicted to crack cocaine that they have sold crack to people they know are cops, with the unrealistic hope that they might still get a fix of crack as payback.
At what point of pain, threat of punishment and actual punishment do people curb their addictions, and resist their desires?
For decades, people have known about the harsh penalties -- both criminal and civil for the obligation to register as a sex offender, and to face the consequences of being s registered -- that can accompany child pornography convictions, yet thousands of people continue to get charged and convicted annually with child pornography offenses.
I have defended people charged with distributing and possessing multiple child pornography images, often of prepubescent children. I have had to view these images as part of my job to see which images I could contest as not of minors, doctored or computer-generated, not from the original source (and, therefore, possibly distorted to be able to determine the age of the subjects), not fitting chain of custody, and not othterwise fitting within the definition of child pornography; and to know what the prosecutor might be trying to present to the jury and judge, for me to contest doing so. It can be tougher to look at such images than viewing photos of murder victims. However, if I am not going to view the images, I have no business defending such cases.
Thus far, I have avoided convictions for more than one count of child pornography for the same client. I have had my arguments ready for why one session of viewing child pornography does not constitute more than one count of child pornography possession. On March 18, 2014, Virginia's Court of Appeals essentialy ruled that not only does each computer click to obtain child pornography represent a separate criminal act (when the click elicits a new image), but clicking once to obtain such images from multiple sources constitutes multiple criminal acts. Also, the court confirmed that, under Va. Code § 18.2-374.1:1, committing multiple counts of child pornography possession in one sitting is sufficient to qualify a defedant to be convicted for a class 5 felony (rather than the class 6 felony for a first offense) as a subsequent child pornography possession violation. Papol v. Virginia, __ Va. App. _ (March 18, 2014).
Will Papol scare anyone enough to lead fewer people to access child pornography? Or will they simply succumb to their impulses, to the fase feeling of anonymity online, and to a false expectation that the odds are in their favor not to get caught?