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 espa±ol. On parle fran§ais.
Just Say Know. See Jon Katz's additional YouTube videos.
Challenging Obamas 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.
Don't let the opponent break your spirit.
Monday, July 27 2015
Answering police questions of course leads to more questions.
Friday, July 24 2015
A magical evening with Neil Young.
Monday, July 20 2015
Interviewed about Maryland's upskirting law.
Friday, July 10 2015
Back to blogging. Comments and my blogsearch box are briefly disabled.
Thursday, July 9 2015
Engage and do not resist in life and the battleground.
Thursday, June 25 2015
Private prisons are entrenched big-profit centers in an unholy alliance with government.
Tuesday, June 23 2015
The Charleston massacre- Words are not sufficient in response.
Monday, June 22 2015
I refer many clients to AA meetings. What happens there?
Sunday, June 21 2015
A federal controlled substance analogue conviction requires knowing its features or that it is a controlled substance.
Friday, June 19 2015
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NOTE: CASE RESULTS DISCUSSED IN THIS BLOGÂ 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).
Wednesday, August 27. 2014
Staying connected to why I attended ... 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
Law school is not for everyone. I found law school in large part to be a necessary, time-consuming and money-consuming pain in the ass -- and sometimes worse -- for finding a way to use the law to help make the world a better place. Law school had its good moments -- including the immigration law clinic, where I got a chance to represent clients at two critical administrative trials, and the opportunity to learn from some brilliant people, whether or not I agreed with the pedagogical approach of some of them -- but I asked myself several times why I was paying money to have most of my grades mainly depend on one three hour exam held at the end of the semester, and to have plenty of closed-door policy law professors.
Maybe I went to the wrong law school, which was George Washington University, which I attended when all the second-tier law schools to which I applied accepted me, but none of the top-tier schools did, save for having been waitlisted at Cornell, which I dutifully informed to remove me from consideration after meeting GW's acceptance deadline. Maybe some other law schools had more students than GW who wanted to make the world a better place, and more law professors who supported that. Later, one of my favorite law professors told me that even his law school alma mater Harvard had professors galore with closed-door policies. I attended GW interested in being in Washington, D.C., and with the possibility of doing stints both in government and private practice. As it turned out, I did only one government sting, for my first summer, at the nation's savings and loan regulator in the thick of the savings and loan crisis in 1987.
In the end, everything fell into place and worked out. I took a detour for three years from making the world a better place when working as a summer associate, then law clerk and then attorney with a Washington, D.C., corporate law firm, learning litigation, regulatory advocacy, and corporate counseling from some great lawyers. I took the job with hesitancy, knowing that it was away from my ideal path, but wanting to know how to serve clients in a private sector setting. I later started applying for jobs more in line with myself, including public defender positions, and fortunately got hired at the Maryland Public Defender's Office in 1991. I quickly learned that criminal defense was my calling, which to this day I love doing, together with occasional forays into First Amendment defense. I left the public defender's office in 1996 to join a civil trial law firm in Washington, D.C., believing that it was important for me to know how to litigate and try civil cases beyond the smaller picture I had obtained at my first law firm. Defending the Constitution extends to civil litigation and not only criminal defense. In 1998, I became my own boss, joining forces with my former law partner Jay Marks for ten years, and then becoming a solo practitioner in 2008, when the respective law area focuses of Jay and me had little overlap, with me doing almost all criminal and DWI defense, and Jay doing almost all immigration defense.
Succeeding in the practice of law is much easier when a lawyer has true commitment and passion for his work. That is what drew me to the four-week Trial Lawyers College in 1995. This was a place that I felt would not only help me become a better trial lawyer, but also would be a place where I would find other lawyers not committee to the traditional legal establishment and believing in putting clients ahead of money. I have had some sharp differences with the Trial Lawyers College's subsequent path, as I recount here and here. Nevertheless, the TLC was a program I needed at the time, and have benefitted immeasurably from since then.
Today, a client asked me why I chose to practice law, and I told him it was because I wanted to save the world. That was a main motivator for me to attend law school, in addition to feeling that a bachelor's degree alone was not going to cut it for my professional aspirations. Whether or not my goal of saving the world was naÃ¯ve, I kept my eye on that goal ever since starting law school, even when I let myself get sidetracked. The Trial Lawyers College helped me keep on that path. Here are some thoughts I wrote about the Trial Lawyers College after my client asked that question:
In 1988 the law firm where I was a summer associate took us to a summer law firm associate bar dinner. I was bored, until the keynote speaker Gerry Spence came to the podium. The event fit the stereotype of establishment and conformity, and I had done nothing to change that, other than feeling bored and uncomfortable and out of place. The dinner chair came to the podium encouraging everyone to return to practice law in Washington, D.C. after finishing law school.
Her invitation to practice law in D.C. became comical soon after keynote speaker Gerry Spence came to the podium. Thank goodness that the dinner organizers had not vetted Spence, or else invited him despite what he was about to tell the audience (he probably was invited due to his reputation as a great trial lawyer who had won some huge jury money verdicts), which was to urge us NOT to return to practice law in D.C., but to spread out across the nation's smaller towns, underserved by lawyers, to serve people, not corporations. This painfully dull conformist law firm dinner had turned to electrifying once Gerry Spence started speaking.
Gerry's talk included the conflict he dealt with in taking a special appointment, when in private practice, to prosecute a death penalty case when he was opposed to capital punishment. I tried asking him about that during the question and answer session, but he did not hear me. When I asked him face-to-face, he said the answer was in his book Gunning for Justice. The answer in his book has never persuaded me. He talked about wanting to hunt when he finished law school, and that wearing his sheepskin jacket reminded him of his hunting days, for better or worse. He told us about doing well in law school out of fear of failure; I appreciated the willingness of a great trial lawyer to share his weaknesses, and learned at the TLC that showing our true selves, warts and all, is essential on the road to persuasion. He told his many-times-repeated story about how he switched from representing corporations to only people, when he encountered at the grocery store the same injury plaintiff he had beaten down just hours before in the courthouse. The man reassured Gerry that Gerry was just doing his job, and Gerry says he could not take that he was just doing his job in the way he had treated this injured man by winning against him.
Six years later, Gerry, in concert with other lawyers, opened the Trial Lawyers College at his beautiful ranch ten miles from the nearest paved road, outside Dubois, Wyoming. A few months after the maiden TLC session, I met my soon-to-be most valued trial law teacher Steve Rench who urged the benefits of attending the TLC. Steve's recommendation and full-month presence at the TLC were enough for me to apply and attend, when competition was apparently fierce for admission to the TLC.
I spent three often lonely-feeling years at my first law firm in those pre-Internet days, feeling without birds of a feather at the firm to share with anyone my vision for my life and practice of law. I sustained my optimism for getting on track with my devotion to helping make the world a better place with such inspirations as Gerry Spence and his 1988 speech, then-NORML national director and trial lawyer Don Fiedler , and meeting birds of a feather at a subsequent annual conference of the National Organization for the Reform of Marijuana Laws and a local gathering of American Civil Liberties Union members.
Had I attended law school purely as a way to make money or on the path of trying to figure out what to do with my life, I may not have discovered my path to criminal defense and civil liberties defense. Fortunately, I finally tuned out the naysayers who saw me as naÃ¯ve for my reasons for going to law school, to make the world a better place.
Monday, August 25. 2014
Was Maryland judge justified in ... Posted by Jon Katz in Criminal Defense at 00:01
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
The saying goes that a party who represents himself or herself in court has a fool for a client. How many of those pro se litigants get electric-shocked by judicial order for not going silent when the judge says to stop talking? Criminal defendant Delvon King certainly got shocked last month, purportedly for not quieting down when Charles County, Maryland, Judge Robert Nalley (Retired) told him to quiet down, and apparently without warning from the judge -- beyond already having an electric shock mechanism attached to his body -- ordered a courtroom deputy sheriff to shock Mr. King, to the point that Mr. King screamed in pain.
It sounds like more than just one judge could have gotten frustrated or worse with Mr. King's insistence that he is a sovereign citizen not subject to the court's jurisdiction. However, such assertions have been heard for years in courthouses, and irritation from pro se parties likely is all the more commonplace. Now, we have questions including the following:
- How much patience and restraint did Judge Nalley exhibit in ordering Mr. King shocked?
- What would have been the loss to anyone had Judge Nalley warned Mr. King -- with sufficient advance notice -- that he would be electrically shocked if he did not quiet down?
- Was it properly Judge Nalley's decision rather than Mr. King's between being shocked or bound and gagged (also shocking) -- or some other sanction -- if found to have violated the court's oral order to stop talking?
I am very averse to the electric shock inflicted on Mr. King. Such judicial orders should be reserved for the rarest of instances, if at all.
Friday, August 22. 2014
Michael Brown and the subsequent ... 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
I was on vacation and not following the news as much as otherwise when Michael Brown, unarmed, was shot dead in Ferguson, Missouri on August 9. I posted a handful of Twitter entries about events in Ferguson, and here make a few observations about Mr. Brown's killing and the events that unfolded thereafter:
- We have an overgrown police state that over-relies on weapons and other methods of force -- too often with excessive force and other forms of police misconduct -- in too much of an "us versus them" mentality and training approach. When we have too many police -- which the United States has, for instance for over-policing for so-called quality of life matters (including littering, minor traffic violations, and drinking alcohol on the street or in one's car) and against crimes that should not be crimes, including marijuana, prostitution, and gambling -- we will have a higher percentage of substantially racially biased police, because as we have more police, a higher percentage of highly racially biased police are inevitably hired, and we have diminished quality control in selecting, training, monitoring, and promoting police. Racism runs too rampant in society, police are chosen from that same society, and their uniforms do not cleanse them of any pre-existing racism.
- Even if police claims are at all true that Michael Brown physically challenged or brawled with his killer, police officer Darren Wilson, and even tried to disarm Wilson, so long as Brown remained unarmed himself, it sounds unjustified at best for Wilson that he ended up shooting Mr. Brown twice in the head and four times in his left arm.
- Nothing justified the vandalism and looting that followed Mr. Brown's killing.
- How much did police protect people's First Amendment rights to demonstrate after Mr. Brown's killing, and the press's right to report? Why did police arrest two journalists at a McDonald's, a St. Louis Alderman, and a photographer? Why on August 13 did police "force media to move back out of the area and throw tear gas at an Al Jazeera America crew"?
- A curfew was imposed at one point, but withdrawn when it apparently was ineffective. Curfews are antithetical to a free society.
- The National Guard was called in at some point, and then withdrawn. The National Guard should be a last resort. The National Guard is part of the army. When the military is deployed domestically, for me that spells further militarization and escalation of a police state in American society.
- In Ferguson, U.S. Attorney General Eric Holder, a black man, recently recounted being stopped by police when already a federal prosecutor, when he merely was running to make a movie on time in the wealthy Georgetown neighborhood of Washington, D.C., and suffering police car searches on the New Jersey Turnpike. If that could happen to him, such police actions could happen to any black man.
- Officer Darren Wilson remains presumed innocent unless and until prosecuted for killing Michael Brown, and proven guilty beyond a reasonable doubt. To try to water down Wilson's rights as a potential criminal defendant waters down all of our rights as potential criminal defendants in the future.
Wednesday, August 20. 2014
Of empowering storytelling, ... Posted by Jon Katz in Criminal Defense at 00:00
The cashier who recently sold me a lemonade at a carryout restaurant told me simply to return the cup to the cashier for a free refill. I returned around thirty minutes later requesting a refill to the now-different cashier. She went off into a mantra that the only cup given to me was a water cup, and thus was ineligible for a free refill. I uttered barely two words to start saying that the first cashier had said the opposite, and the replacement cashier interrupted with the same mantra. Just as I decided that paying the price of another lemonade or leaving seemed to make more sense than continuing this non-conversation further, the first cashier appeared from stage left and told the replacement cashier that I was entitled to a free refill, which I then received.
With the first cashier, I felt in harmony, and like she had listening and can-do qualities that I value in my own staff. With the replacement cashier, I tried feeling compassion and empathy for her —- including that she may not have felt particularly valued at her job if she were receiving low pay and being treated like a cog in the large corporate wheel -- but then started asking myself how I would react if one of my own staffmembers had been locked into such a non-listening path. However, she was not my staffmember, she was not serving litigants, but instead was providing lemonade and other food and drink, and saw a line waiting behind me.
This encounter reminded me of the innumerable instances where people do not listen or barely listen, whether because they think they are right, have limited patience, have limited focus, have limited confidence, feel uncomfortable with or dislike towards the speaker or in their own skin, have limited intelligence, are too focused on planning their own next words to speak so as not to be able to listen, fear the outcome of hearing out the other person, or because of a host of other reasons. Non-listening afflicts people at all levels in the world, from cashiers, salespeople, teachers, managers, executives, judges, prosecutors, to police and more. Are any of the most successful people bad listeners? One would seem to cancel out the other.
Alleged crime victims and criminal defendants so often feel marginalized in the courtroom and by criminal case procedure. Criminal complainants can feel dwarfed by the agendas of busy prosecutors and busy judges, many of whom want to move along dockets, and plenty who want to chase dockets, and many who want to triage cases. Criminal defendants can feel voiceless by their lawyers who urge them generally not to discuss their cases with anyone other than their legal defense team, to assert their right to remain silent in court, and not to discuss their entire version of events with their lawyer until at least the first round of criminal discovery is received.
I recall a misdemeanor mediation that I attended with my client, where our only chance of getting our case dismissed through mediation (which dismissal happened, ultimately) was for both the complainant and my criminal defendant client to tell their version of events uninterrupted -— their story -— and how they felt about the incident. It is not easy for me to give up so much of my representative role in favor of having my client speak face-to-face with the complainant, but I was reassured by two reliable colleagues practicing in this particular courthouse that the mediation discussions are well protected from being used against the defendant outside the mediation room, and I had no other choice if mediation was going to have a chance of benefitting my client.
Because of the confidentiality agreement for this mediation, I will go into no specific details of this case. Suffice it to say, though, I witnessed at this mediation the power and feeling of self-worth that the complainant seemed to feel he had reclaimed by telling his detailed story, without interruption by anyone, let alone by my cross examination, and without being bound by courtroom procedure or rules of evidence. He got listened to fully.
The possibility of a dismissal through mediation also required my client to talk, which runs counter to my default of telling my clients not to discuss their cases with any opposing witnesses. Here, too, my client was able to tell his story, without being guided by me during his talk, and also was fully listened to in this safe environment of a mediation program that had already been underway for a long time. Of course I prepare my clients for what to expect and what to say in a mediation and in court, but also I remind my clients to be in the moment, to put the key points into their own words, to speak from their hearts in tandem with using their minds and wisdom, and not to speak as if grasping for a script.
The complainant at this mediation had gotten the matter off his chest, and more, my client got a chance to get his message out, without any filtering from his lawyer, and the parties, facilitated by the mediator, reached a written agreement for the prosecutor to dismiss the case, on for specific and mild terms and conditions that I omit here. The mediation came to a resolution, my client and I departed, and later came the notice that the prosecution against my client was being dismissed by the prosecutor.
Many misdemeanor charges — and some lower level felony charges, at least — are excellent candidates for mediation efforts, where the complainant can feel that rather than the criminal defendant’s case getting resolved with limited complainant involvement, the defendant will be required to confront the complainant, the complainant’s words, and the complainant’s feelings if the defendant wants a chance of a dismissal or case inactivation through mediation. Sadly, such mediation programs are rare in the jurisdictions where I practice. That can change and must change.
How to have a mediation with such so-called victimless crimes/alleged crimes as drug cases? Perhaps the role of complainant in such mediations can be that of a police officer who handles many drug cases, or a representative of the community to express concerns the representative has about illegal drugs’ effect on the community’s quality of life and on the children who use those drugs. Ideally, police will not be present at criminal case mediations.
In jurisdictions that do not have formal mediation programs, the criminal defense lawyer can still offer the prosecutor a mediation option where the defense will arrange to obtain and pay a mediator if the prosecutor does not want to help pay for mediation. Whether or not a formal mediation offer is accepted by the prosecutor, I can increase the chances that a complainant will be on board to recommend a case dismissal or inactivation by my offering the complainant a third way to try to resolve the criminal case, not one where the complainant, the criminal defendant or both feel they have been shafted in the judicial process, but one where the complainant can seek an alternative and more fruitful way to move forward and to heal from the incident (where my client can hear out the complainant, but not talk himself or herself if we do not have an enforceable confidentiality provision through a mediation agreement), and where my client will have a shot at avoiding a conviction through facing up to his complainant, regardless of where the real truth of the case lies. This is a restorative justice approach, focusing on moving forward and healing, rather than on seeking a pound of flesh or an eye for an eye, nor for the overburdened, overly institutionalized, overly formal, overly inflexible, and overgrown criminal justice system to take a stab at doing anything good in helping the complainant and the defendant. This approach involves empowering the parties by letting them tell their story, and having them truly heard and listened to. This is also a way to reduce the clogged daily trial court dockets around the nation.
Friday, August 15. 2014
It is all about client service. 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
My full-time assistant Kelly is a gem, as is my part-time assistant Hira. How wonderful it is to be on vacation this whole week with confidence that my support staff is taking care of my clients, law firm and litigation matters the entire time I am away.
I know the wisdom of including my support staff in the process of reviewing resumes and interviewing support staff applicants who will work with my existing staff. It is not enough for an applicant to look good on the paper of his or her resume and cover letter, but for the applicant to be a promising fit in working with me, my support staff, our clients; and in dealing with courthouse personnel, opposing counsel, witnesses, potential clients, and everyone else who deals with our law firm.
I previously tended to distill the formula for success as a staffmember at my law firm as CCOLPP, namely commitment to the work, good communication, good organization, loyalty to the firm and our clients, promptness with work, and productivity. Kelly distilled it even better when joining me recently in interviewing a part time legal assistant candidate: "It is all about customer service." I was floored, not only that Kelly had hit the nail on the head with that comment, but in her thusly having reminding me that customer service is what Kelly has fully internalized. Being focused on customer service might sound as basic as breathing. However, finding and keeping employees who are truly committed to customer service and delivering customer service -- rather than merely collecting a paycheck every two weeks -- is a challenge and art in itself. This of course is a two-way street, with my being obligated to treat and train my staff well, and to show them my proper appreciation.
Just as the late jazz great Bill Evans underlined for musicians to take care of the music and success will follow, in the criminal defense field, we must first and foremost take care of the clients (and, with me, take care of my support staff, as well), and success will follow. We must put clients ahead of money; of course, more money comes with that approach, anyway, than doing the opposite. My law firm is like a hospital emergency room (as the late lawyer Don Chaikin put it about his own trial law firm, where I worked many years ago), meaning that each client merits full time and attention to fully understand and address the client's plight and to work closely with our client to arrive at a tailor-made approach to finding the best way to harmonize his or her challenge, with a win always being the most desirable harmonizer.
As a lawyer who is in the courtroom the vast majority of the weekdays, I could not imagine working without a support staff. I am truly blessed by Kelly and Hira, and know that our clients can tell how committed they both are to helping our clients. I deeply thank and bow to Kelly and Hira.
Thursday, August 7. 2014
In Virginia, a dangling object that ... Posted by Jon Katz in Criminal Defense at 00:00
In Virginia, a dangling object that does not obstruct one's view is not a lawful basis for a car stop.
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
Praised be the majority of the Virginia Court of Appeals panel who this week reversed a drug felony conviction, due to a bad car stop that led to the discovery of the drugs. Mason v. Va., _ Va. App. __ (Aug. 5, 2014). The police stopped the defendant's vehicle solely because a parking-type tag was hanging from his rearview mirror without obstructing his view. Virginia Code § 46.2-1054 was the only provision of the law that would have been applicable for stopping a car for having an object hanging from the rearview mirror. However, that code section only applies to objects that obstruct the driver's view.
Why did defendant Mason even have to go through the angst and deprivation of liberty to wait for Constitutional vindication at the appellate level? The trial judge should have ruled the stop of Mr. Mason's car was a violation of the Fourth Amendment. But wait. There is more, because Mason left open the option for the prosecution to seek to retry Mason on a claim that the search of his car was sufficiently attenuated from the bad stop so as not to have the bad stop prevent the search. Any such attenuation argument should go the way of the toilet. But for the unlawful stop of Mason, the drugs would not have been recovered by the police.
Thursday, July 31. 2014
Prosecutors must NOT tell or even ... Posted by Jon Katz in Criminal Defense at 00:00
Prosecutors must NOT tell or even hint at cops and other witnesses not to talk with defense lawyers.
Prosecutors must NOT tell or even hint at cops and other witnesses not to talk with defense lawyers. With certain exceptions applicable to private practicing lawyers, lawyers simply are not permitted by lawyers ethics rules to do that. Nevertheless, prosecutors exist who will tell police and other witnesses between the lines to not talk with defense counsel. For starters, some prosecutors' offices provide "victims' assistants" to sit with alleged crime victims while waiting for the case to be called. Why? They are not lawyers able to answer lawyer questions; these "victims' assistants'" very presence conveys to beware of anyone having to do with the accused, including the accused's lawyer.
Then we have prosecutors who use certain code words, body language, and tone of voice to convey that it would be better for the witness not to talk with the defense lawyer. When cops advise witnesses not to talk with lawyers the cops are no even bound by lawyers' ethics rules.
I have experienced cops and prosecutors stand close to me and prosecution witnesses when I speak with them. What message does that send the witness about whether to speak with me. Then we have prosecutorial timing, only telling witnesses once I approach them that it is up to them whether to talk with me; that is NOT a neutral communication by the prosecutor. Some prosecutors say: "This is defendant Jones's lawyer. You do not have to talk with him. It's up to you," or one of the humdinger prosecutors who proclaimed emphatically while walking right up to the complainant: "Mr. Bushmaster, this is Mr. Fivepoint's lawyer. You DO NOT HAVE TO TALK WTH HIM. It is our right to not talk or to talk." I told the prosecutor that this hardly sounded like a proper communication from the prosecutor. As prosecutors go this one is particularly not liked well by a high number of criminal defense lawyers, who all probably know to expect such shenanigans from her.
Hey, prosecutors and cops: why are any of you trying to hush up witnesses? To hide the truth? I have news for you: You are public servants, and you besmirch yourselves and your offices to seek such hushing. Moreover, each question a criminal defense lawyer asks a witness amounts to potential intelligence for the prosecutor to use to his or her advantage. You don't believe me? The read the same advice from police trainer Val Van Brocklin.
Consequently, Petersburg, Virginia, should clean house at its police department, where police sergeant Carl Moore has email-threatened police officers' jobs (see here and here) (thanks to Jonathan Turley for the tip) should they dare discuss cases with criminal defense lawyers without the prosecutor's green light.
Clearly the Petersburg chief prosecutor Cassandra Conover knows about Sgt. Moore's directive. What is she going to do to knock sense into the police department's head that no job harm will come to any officer to speak with criminal defense lawyers? What is she going to do to publicly decry Sgt. Moore’s message? I am waiting to hear from you on this, Ms. Conover.
Wednesday, July 23. 2014
Perverting your tax dollars- Federal ... Posted by Jon Katz in Criminal Defense at 00:00
When my criminal defense client is incarcerated pretrial, that makes the attorney-client relationship and case preparation all the more a challenge. When my client is not incarcerated, we may freely talk, email, and meet at any time, unmonitored by anyone, with the exception that I warn my clients not to consider email to be confidential, because people snoop and hack into emails.
When my clients are incarcerated, I am fortunate when they are housed in the jail right across the street from my office. However, even there the attorney visiting times are limited to designated three-hour time chunks at best, require waiting awhile for my client to be brought over, sometimes involve waiting for visiting booths to become free during nighttime hours, and do not give anywhere near the sense of confidentiality that my clients and I get when we meet at my office, not being monitored nor heard at my office through the partially glass doors that separate the attorney meeting booths at the jail. Also, at my office, I have immediate phone and Internet access to assist during my client discussions. Moreover, at the jail, we know we are locked in, when ideas need to flow unfettered between me and my clients.
Our tax dollars are being used to give federal inmates Internet access to their lawyers. However, this email system not only warns that such emails are not confidential, but federal prosecutors actively mine attorney-client emails to build and strengthen their cases against inmates. Such prosecutorial snooping into attorney-client communications not only is foul as attorney and prosecutor behavior goes, but is being done with our federal tax dollars paying for the prison email system, and paying for these federal prosecutors' salaries, which tend to rank among the highest salaries o federal government lawyers. Thank to a colleague for alerting me to this pathetic state of affairs.
Please do not accept this perversion of justice. Please contact United States Attorney General Eric Holder, President Obama, and your federal legislators (here and here) to demand a stop to this invasion of attorney-client communications.
Tuesday, July 22. 2014
8th Circuit follows 6th Circuit in ... Posted by Jon Katz in Criminal Defense at 00:00
8th Circuit follows 6th Circuit in denying 1st Amendment protection to morphing a child's face onto photo of an adult body in child pornography case.
In 2011 and 2012, I blogged about an attorney who -- acting as an expert witness -- morphed a picture of a child's head onto a photo of an adult's body, creating what would have constituted child pornography had the entire photo been an image of a child. The lawyer got hit with a $300,000 civil fine as a result (likely far exceeding his expert witness fee), and is fortunate that the federal prosecutor's office agreed to a diversion disposition rather than putting him at risk of a conviction. The Sixth Circuit allowed the civil suit to proceed against the lawyer.
Late last week (thanks to Jonathan Turley for blogging on the case), the Eighth Circuit affirmed the conviction (leading to a ten-year prison sentence) against a man who did the same thing, but sent the photos to the girl whose headshot he used for the morphed photos, whereas the lawyer in the Sixth Circuit case used the images in court as an expert witness. U.S. v. Anderson (No. 13-2337, 8th Cir., July 17, 2014).
Anderson gives heavy emphasis on protecting minors and too little credence to the First Amendment's protection of free expression. Granted, Anderson's behavior was reprehensible. However, at the end of the day, no minor -- as opposed to an adult -- ended up acting or posing in a manner that could be defined as child pornography. Anderson dismisses outright the appellant's assertion that the bodies in the images clearly were those of adults. However, would the Eighth Circuit have reached the same result had Anderson posted to his website a picture of a Hustler centerfold with the face of a famous 17-year-old actress crudely pasted on the Hustler model's body in a size disproportionately larger than the body image? Where is the line drawn?
Would Aschcroft v. FSC have been decided to the opposite had the justices known that computers one day could easily (as to still images) be used to morph images of children's heads onto images of adults' bodies? Will the day come when the same morphing can be easily done with moving images in video and film?
Anderson gives short shrift to Ashcroft
v. Free Speech Coalition, 535
Friday, July 18. 2014
Beware saying "gotcha" if ... Posted by Jon Katz in Criminal Defense at 00:00
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
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
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 a false sense of security, just as you wouldn't sit on cactus hidden in a blanket.
- Do not assume an opponent will be honest, honorable, nor reliable, but always display such characteristics yourself, and hold open the possibility that your opponent might do the same.
- Beware opponents who are like mercury or, worse, venomous snakes. Don't be angry at the mercury nor snake, but don't touch them with your bare hands, nor turn your back on them.
- 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 battlefield do not belong doing criminal defense in the first place. Battlefields are often strewn with snipers, landmines, booby traps, and even body parts and spattered and spilled blood. By seeing the courtroom in such a way, you will less likely feel debilitated when a cluster bomb gets thrown your way, and you will then be better able to dodge and redirect or neutralize that bomb.
- Uncivil opponents and everyone else deserves compassion, but not at the expense of our well being. Do not give up your power.
- 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 wave, hurricane or tornado, even though humans have the capacity for compassion and evil, while tidalwaves and hurricanes have no will nor agenda.
- Compassion is not balanced against staying strong. I can at once move to pin my opponent on the mat while having compassion for him or her.
- Do not expect an opponent to cut you slack, to keep your words untwisted, nor to watch your back. A hurricane would not do that either.
- 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 -- while still being on guard yourself.
- Always refraining from calling others a**hole and other angry words, helps assure we do not do the opposite out of anger, only to regret it.
- 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, with the recording being broadcast in real time.
- In this day and age of little kept secret, watch out saying anything that you would not want your opponent to hear.
- Do not assume an opponent will not stoop below any particular point. Opponents might stoop so low in part to shock and weaken you.
- If a nasty opponent claims s/he has no need for compassion nor love, that is the person perhaps crying out for it the most.
- 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.