Satellite meeting location: ARLINGTON, VIRGINIA 2111 Wilson, Blvd., Suite 700, 22201.
Jon Katz on RTV (June 25, 2014) on requiring warrants to search cellphones.
Jon defends in the state and federal courts in Fairfax, Northern Virginia, and beyond, including courts in Fairfax City, Arlington, Falls Church, Alexandria, Prince William and Loudoun County. Criminal defense is about defending people and upholding civil liberties. Se habla español. On parle français.
Just Say Know. See Jon Katz's additional YouTube videos.
Challenging Obama’s spying-gate. (Fox News, June 8, 2013).
National Association of Criminal Defense Lawyers member since 1991.
Marijuana's legalization is critical for advancing everyone's civil liberties. Defending marijuana clients since 1991, Jon fights pot prosecutions running from simple possession to marijuana trafficking to growing dozens of plants. On several occasions, he has pursued misdemeanor dispositions in marijuana cultivation prosecutions, sometimes with the assistance of a marijuana cultivation expert and medical marijuana expert. Here is how Jon became obsessed over marijuana legalization by 1990.
The importance of helping the prosecutor and judge reach the right decision.
Friday, May 22 2015
Several ounces and thousands of dollars by themselves do not prove possession with intent to distribute marijuana
Thursday, May 21 2015
Challenging claims that the defendant is the source of an incriminating email.
Monday, May 18 2015
Allowing Tsarnaev to be executed strengthens the entire death penalty machine and the overgrown criminal justice system.
Sunday, May 17 2015
Mindfulness and meditation: Where to start? Here are some links.
Friday, May 15 2015
Sometimes the best group to meditate with is yourself.
Thursday, May 14 2015
A transformative mindful lawyering retreat.
Tuesday, May 12 2015
Persuading as just folks, without the airs of Hermes ties and gold cufflinks.
Tuesday, May 5 2015
A DWI victory obtained through getting the breath test result discounted.
Monday, May 4 2015
Political asylum is critical to human rights protection.
Friday, May 1 2015
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Prosecutors/Law Enforcement - Know the Opposition
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CRIMINAL DEFENSE/ DWI / DRUG / MARIJUANA LAWYER FOR FAIRFAX & NORTHERN VIRGINIA.
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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).
Sunday, April 19. 2015
On creating the space, flow, and ... Posted by Jon Katz in Persuasion at 00:00
By Fairfax County/Northern Virginia criminal defense lawyer Jon Katz. Fighting for the best outcome for DWI/DUI, drugs, marijuana, sex charges, felonies and misdemeanors.
Success for my clients requires my not only working hard, but also a well-balanced approached to my work for me and my staff. When my clients can join in that balance, all the better.
This balance includes creating the space to feel abundant in time and space, and with myself and my work so that I relish tackling each moment of work rather than dreading anything as a chore, even things as otherwise unexciting -- at least if it were not related to winning for a client -- as ordering paper clips and other supplies, and copying and assembling multiple exhibits and other documents when I receive the items too late before a trial date for my staff to organize them.
This same balance is important for my staff to succeed. A key ingredient to achieving such balance is for me or any business owner or manager to have trust in his or her employee' work ethic, abilities and devotion to the organization and its clients, and to work at benefiting from a staffmember's strengths and to seek ways to offset weaknesses.
Ideally, successful work will not be seen as divorced from one's personal life. Instead, successful work will smoothly transition from a successful personal life, and a successful personal life will easily flow from successful work.
Most people seek fun as part of a successful personal life, so work should incorporate significant components of fun. It is ideal in one's personal and professional life to love what one does and to do what one loves.
It is ideal for my staff to feel invigorated from the time they walk into our building to the time they leave work for the day, and all times in between. It is important that my staff knows at all times how much I value them and their work, welcome their suggestions and improvements for helping our clients and administration of our firm, welcome their interest in professional development internally and through outside educational programs, and honor and respect the importance for them to have a healthy life-work balance. They are each a valued member of our team, and never a cog in the wheel.
I know I always have room to do even better in motivating and thanking my staff, and supporting and encouraging their professional development. Every staff member knows I like them very much and am very inspired by the very positive and professional way with which they deal with everyone. Appreciation for my staff can be shown in ways big and small. On the smaller level, on Fridays, breakfast and lunch are on the house for my staff. On days before federal holidays, I usually let staff leave early and get paid for the whole day. I remember their birthdays. I endeavor to pay my staff well. Most importantly, I endeavor to give each staff member my full time, attention and caring.
While my staff knows my belief in meditation and mindfulness practice for my own self development, I do not imply nor encourage that they do the same; that clearly is a matter of personal choice. For me, daily meditation and mindfulness practice lets me feel the necessary space and abundance to be fully prepared and powerful for everything that happens during the day, and to resolve the day for a restful sleep at night. Daily meditation and other mindfulness practice is the opposite of laziness. It undams the flow of daily energy into a powerful river.
Thanks always to my staff and to my clients.
Thursday, April 16. 2015
Lego in the shadow of John Coltrane Posted by Jon Katz in Jon's news & views at 00:00
By Fairfax County/Northern Virginia criminal defense lawyer Jon Katz. Fighting for the best outcome for DWI/DUI, drugs, marijuana, sex charges, felonies and misdemeanors.
My favorite part of Philadelphia is John Coltrane's spirit. On my family's visit last month to Philadelphia, we enjoyed former corporate lawyer Nathan Sawaya's Lego sculpture exhibit. Among the best parts of the exhibit is Yellow (pictured above with my son), the musical ensemble, and Hokusai's Great Wave of Kanagawa. Sawaya's Art of the Brick exhibit is currently showing in several cities.
Wednesday, April 15. 2015
More on engaging and being relaxed, ... Posted by Jon Katz in Persuasion at 00:00
More on engaging and being relaxed, open, fearless, and non-judgmental, whether an extrovert or introvert.
By Fairfax County/Northern Virginia criminal defense lawyer Jon Katz. Fighting for the best outcome for DWI/DUI, drugs, marijuana, sex charges, felonies and misdemeanors.
In 1977 and again in 1978, I met my jazz trumpeter hero Dizzy Gillespie. I was fourteen at our first meeting, and he was forty-five years older. Both times, he seemed distant at best with me. On our first meeting, I shook his hand after his nightclub quintet performance that blows me away to this day, after telling him how great was the performance. My brother and I got a bonus when one of his band members let us help load up their equipment on their van to wherever they were next going after Westport, Connecticut.
The second time was fourteen months later when Dizzy was taking a break from practicing with his big band at the annual outdoor Nice, France, jazz festival. I asked if I could get a picture with him, and he humorously, or ominously, responded "As long as you don't charge me for it." The resulting picture did not show him being jolly about my photographic request.
Both times, I saw Dizzy being jolly with others, with a woman at the jazz club and with his fellow musician Mary Lou Williams that same afternoon in Nice.
A person's openness or not with another depends on many dynamics involving the two people and factors outside themselves. I suppose I came across both times to Dizzy as a fan wanting a piece of him rather than as someone caring about Dizzy and wanting simply to express true gratitude. The woman Dizzy beamed at in the jazz club had truly connected with him. Mary Lou Williams had already been his good friend for decades.
Although disappointed both times at Dizzy's seeming distance when I approached him, I ultimately recognized that I need to start by looking inward about people's reactions to me, and that Dizzy owed his audiences nothing more than the performance they had paid to hear.
I was wowed experiencing Kareem Abdul-Jabbar at two Lakers home games in the early 1980's. Possibly because I rarely viewed sports in the news or on television, little did I know at the time that he was very much an introvert at the time. Jabbar said two years ago: "My shyness and introversion from those days still haunt me. Fans felt offended, reporters insulted. That was never my intention.”
Magic Johnson was also very introverted when he started with the Lakers. I would not have known that Johnson had been an introvert, when seeing him waving back in a friendly way to fans as he crossed a busy downtown Washington, D.C., street around two years ago. By the late 1980's Magic Johnson said Kareem had become much more approachable.
Depending on the time and place and who is interacting with me, I suppose many people will say I keep to myself a lot, and others will say I am very friendly, open, and talkative. The two can be reconciled. Sure, I love being in public defending my clients and spreading the word of justice in court, news interviews, and everywhere else. I love getting to know and work with my clients and many others. I love spending time and growing with my wife and son. However, at a cocktail party, I am not particularly interested in pumping hands for pumping hands' sake, nor in standing around being bored by someone rather than exiting purportedly to refresh my food plate or drink or to head to the restroom. I do not rush to join such so-called "traditional" lawyers' social events as attending professional sporting events, cocktail parties, and dances, not only because those things are not usually my personal cup of tea, but also because I do not thrive on joining the crowd, particularly when the event is about conformity rather than another opportunity to learn and discuss how to help our clients and to make the criminal justice system more just and society a better place.
Many successful people in history are very introverted. Everything needs to be about good balance.
Critical to persuading others is engaging everyone on all sides, and being relaxed, open, fearless and non-judgmental. Being non-judgmental does not mean abdicating critical analysis. It means not alienating others by judging them. For instance, I have watched videotapes where police, sadly, get suspects to wag their tongues, simply by the police being fully present with and listening to the suspect, withholding all judgmental words and gestures.
Recently, I was driving up to a parking garage, and a large pickup truck was parked twenty yards from the garage entrance over the center line, so that he was slowing traffic too much and unnecessarily. I gave into my knee-jerk reaction so late at night to stop alongside him and ask: "Is it necessary for you to be blocking traffic like this?" Without missing a beat, he replied: "Is it necessary for you to be talking to me?" I knee-jerked back: "Fine. I will report you." Although he soon left, I certainly would have accomplished more by instead saying something along the lines of: "How are you doing?” [After he responds:] “I wasn’t sure if you know that your truck’s position is making it hard safely to drive around you. if you could make some more room for the other drivers." In the first instance, I was just judging and reacting. In my latter substitute approach, I would have been relaxed and more open to this driver, non-judgmental, and offering him a way to save face. Or I could have said nothing, not in order to surrender, but because we need to choose each day where to focus our energy, and to act rather than react.
Along the way, here are some other things I have written about being open, compassionate, engaging, relaxed, and fearless:
Kindness to all is persuasive strength, not weakness.
Being fearless of death and injury makes one more powerful
Persuading and not fearing judges, by seeing them as just one of us.
Beware turning your back on prosecutors and wrestling opponents. Don't be paranoid, either.
Engaging with clients in the place where they are, even if on a roller coaster.
Tuesday, April 14. 2015
Prosecuting wrongful killings by ... Posted by Jon Katz in Criminal Defense at 00:00
Prosecuting wrongful killings by cops will not reduce police misconduct as much as overhauling the entire criminal justice system.
The videotaped and other reported incidents of wrongful killings and other misconduct by police keep pouring in. With this month's police killings of Walter Scott (shot in the back) and Eric Harris (shot by a part-time cop claiming he meant only to tase Harris), we see swift action through condemnation by government officials of the killings (at least over Mr. Scott's killing) and prosecution for the police actions, where government condemnation action has not always been as decisive, widespread, and swift against wrongful killings by police.
Prosecuting and condemning of such killings by police goes after the symptoms of the sickness but not much after the causes. Where, for instance, have we come to that we still have police forces with part-time police officers (as in Mr. Harris 's case) doing the part-time work for the excitement and without sufficient daily experience? Where have we come that we have a police officer who would shoot Walter Scott dead in the back when Scott posed no noticeable physical risk by running away after a traffic stop?
As I repeatedly say, we must substantially shrink the criminal justice system to improve it, including by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum prison sentencing; eliminating per se drunk driving blood alcohol laws; and eliminating the death penalty. Let our nation truly be the land of the free and home of the brave, and not the current land of the cops and home of the caged.
Adding insult to deadly injury in the killing of Eric Harris was the police officer belittling Mr. Harris with "F*ck your breath." Whether or not that police officer knew that Mr. Harris had been shot, that police tirade has no place in a society where police are supposed to serve the public -- and not the other way around -- and is likely repeated all too often by police nationwide as variations on that theme.
Of course the police officers being prosecuted for killing Walter Scott, Eric Harris, and unarmed Malissa Williams and Timothy Russell in 2012 (see here and here) are entitled to the presumption of innocence and an effective defense as much as any criminal defendant, and no criminal defense lawyer should hesitate to defend them against prosecution, so long as they pay to be defended or qualify for court-appointed counsel. That does not diminish from the horrific nature of all the police killings listed above.
Praying for Walter Scott, Eric Harris, Malissa Williams, Timothy Russell, their families, and everyone else wrongfully killed and otherwise mistreated by police officers and by the entire criminal justice system.
Sunday, April 12. 2015
Random thoughts through April 12, 2015. Posted by Jon Katz in Jon's news & views at 00:00
On Sundays, I sometimes veer well beyond the law in my blog entries, including the following post that collects my random thoughts on the law, government, and beyond from my Twitter postings at @jonkatz5 and elsewhere.
THE LAW WORLD
“’I Wasn’t Interested In Justice’: Prosecutor Writes Apology To Innocent Man That He Sent To Prison.” From Jonathan Turley.
- Through his murder conviction, Rahul Gupta learned the Pandora's box for any suspect to talk with police.
- Allowing courts to fine, enjoin and otherwise sanction businesses refusing to assist gay weddings is a dangerous precedent against First Amendment guarantees of free exercise of religion, and against freedom of conscience. Sure I disagree with such denials of service, but such laws are not justified, for the foregoing reasons. Today, the fines are against those refusing to assist with gay weddings. Where will the line be drawn?
- Va. Ct. App. affirms conviction for false information on a handgun purchase application.
- 4th Circuit on the jurisdiction of the U.S. courts for prosecuting pirates for crimes in international waters.
- A lawyer helps his or her clients while bows and arrows are flying. A surgeon cuts in calmer settings, unless in wartime.
- “Mississippi Judge Bars Public Defenders from Representing Clients.
- The senseless shot-in-the-back killing of Walter Scott underlines how unjust the criminal justice system remains. The shooting police officer deserves as strong a defense as anyone in criminal court. I will wait to see whether he will claim that the video shows a justifiable use of force, or will rely on additional information not shown in the video. The shooting is here. The police dashcam video is here.
- Thanks, MA Sen. Warren, for opposing the death penalty, including for Tsarnaev.
- Storytelling and psychodrama transport us into the now, which is the most powerful place from which to perceive and argue.
- Why was Michael Jackson so successful in popularity and income at a time when so many of his peers were facing declining profits? He must have had a true belief in himself, one that was not unrealistic, and a great ability to motivate those on his team.
- Success rarely comes overnight. Nor does it come from debilitating ourselves from overly dwelling on the risks. People are attracted to those who vibrate highly and with optimism even when fighting a tough battle. That is why few people want to eat at a restaurant that shows desperation for customers, lest that restaurant have moldy food from lack.
- Everything in life must be balanced. Do not walk on a tightrope one mile above the ground before practicing just 2 feet off the ground. On the other hand, stop crawling when it is time to soar.
- I wasn't a fan of Ronald Reagan, not his overly simplistic-sounding optimism. His internal optimism was essential to the success he had with earning so many votes.
BEYOND THE LAW
"We are all connected. When you touch one thing, you are touching everything." – Thich Nhat Hanh.
- Money in and of itself is not evil, bad, nor the result of greed; it is a means of exchange for goods and services. As with everything else, the pursuit, use, and investment of money needs to be well balanced and ethical.
- Here are links to online retailers of vegan neckties, shoes, briefcases, wallets and belts.
-- Brave Gentleman has a very limited list of vegan men's suit separates.
-- The Professional Vegan has many options, particularly for women.
-- Linen suits can also be vegan.
Wednesday, April 8. 2015
Tsarnaev will either spend the rest ... Posted by Jon Katz in Criminal Defense at 00:00
Ordinarily, criminal defendants go to trial intent on obtaining a full or partial acquittal, except for trials that are more like slow guilty pleas in non-capital cases -- when the chances of acquittal look bleak -- and trials as preludes to the sentencing phase of a capital murder trial, when a murder conviction looks certain.
Monday, April 6. 2015
Fourth Circuit judge recognizes the ... Posted by Jon Katz in Criminal Defense at 00:00
Fourth Circuit judge recognizes the harshness and fallibility of the child pornography possession sentencing guidelines.
With no prior convictions, on a federal court guilty plea to one count of child pornography, Steven Helton received a five year prison term and lifetime probation. U.S. v. Helton, _ F.3d _ (April 2, 2015). Helton could have fared much worse at trial, based on the multiple child pornography counts that he faced, in addition to the hundreds of child pornography images, multiple images of prepubescent children, and multiple sadomasochistic images of children for which the sentencing judge found him responsible.
On April 2, 2015, the Fourth Circuit affirmed Helton's sentence, including his lifetime of probation that not only requires the twenty-one-year-old Helton to be supervised by a probation agent for the rest of his life, but also bans cellphones with Internet access (do such cellphones exist any longer?).
Praised be concurring Circuit Court Judge Gregory, who warns "against undue deference to what are only advisory Guidelines." Judge Gregory continues: "When we begin to accept these Guidelines as irrefutable truths, we tend to give ourselves to overgeneralizations like that made by the majority when it writes: 'It would be almost unprecedented to credit a defendant’s challenge to a sentence as substantively unreasonable when the district court actually reduced the term of imprisonment below the recommended Guidelines range.' To the contrary, it can be unreasonable for a twenty-one year old with no prior criminal convictions to spend five years in prison even when the Guidelines advocate for a minimum term of six and a half years." Well said.
Sunday, April 5. 2015
Thanking my former co-counsel David ... Posted by Jon Katz in Jon's news & views at 00:00
In 2003, I teamed up with then-Emory law professor David J. Bederman to represent a group of American military veterans in litigating against a federal statute -- the Uniform Service Former Spouses' Protection Act (USFSPA) --that undid a United States Supreme Court ruling that protected veterans' retirement pay from being divided with ex-spouses in divorce court.
Although I was named lead counsel by the group that organized this litigation effort, David prepared and drafted our court filings -- with my reviewing and always agreeing with them -- and handled all but one in-court argument, which made sense considering his excellent experience and abilities for this litigation. My work included working with our clients, presenting our message to the public, arguing a hearing in trial court, and flying to Cleveland to depose government agency witnesses during the trial court discovery phase.
David had a resume to open many great career doors. Before becoming a law professor, he was a partner at Washington, D.C.'s Covington & Burling, which I would have been delighted to work at if offered the chance, before I decided to transition my career to criminal defense in 1991.
David impressed me by at once having great intellect and litigation abilities without any ego. He was kind. He believed in winning advocacy, as do I. He applied his full focus in our litigation work against this federal law.
One day during the litigation, David told me he had cancer, and that he was undergoing treatment for it. He never complained about his cancer and never let it get in the way of his work on this litigation to overturn the USFSPA.
This litigation, unsurprisingly, was an uphill battle, and David led the litigation battle superbly. We lost in the Eastern District of Virginia federal trial court after substantial litigation work there. We lost in the Fourth Circuit (see the Appellants' opening brief), where David argued the appeal in that court that so often does not even entertain oral argument. The Supreme Court denied certiorari review in 2007; our cert. petition is here.
This litigation work made sense for my law practice, not out of a support for the military in general (I see the United States as overmilitarized) but out of a recognition that the USFSPA was giving the shaft to veterans -- so many of whom had placed their lives on the line and on hold to serve in the military -- particularly to those veterans who became victims of the retroactive application of the USFSPA, and that important Constitutional issues were involved. We are talking about real financial harm to veterans from the USFSPA.
From hearing him talk about this litigation, I think that part of David's motivation to join against the USFSPA was true gratitude to America's military servicemembers. David and I did not need to discuss our motivations for handling this litigation nor our philosophies about the law and politics; we simply dug in and did the work. I learned much from his excellence as a lawyer.
Interim Emory Law School dean Robert Schapiro aptly observed of David: "David knew that there is a time to speak and a time sit down… This maxim applied to his style of quiet leadership at Emory, where he served on numerous committees and panels. When David chose to speak, everyone knew it was time to listen."
Consequently, it is totally fitting that when David ended an oral argument before the Supreme Court, his exchange went as follows:
Mr. Bederman: "I have no further substantive points."
Chief Justice: Do you have any non-substantive points?"
Mr. Bederman: "I will not rise to that invitation, Chief Justice."
I had no further contact with David after 2007, not because I did not like him, which I always did, but because the case and our work together was done, and our connection had not gone much beyond professional.
Recently, David's name popped to mind, and I looked up David, only to learn he passed away in 2011 at age fifty, which is two years younger than I now am. That means that he survived for several years after getting cancer.
My blog only makes a handful of tributes each year to those who have passed away. David fully deserves that honor.
Deeply thanking and bowing to David J. Bederman.
Friday, April 3. 2015
Parables, schmarables. To persuade, ... Posted by Jon Katz in JK in the news & live. at 00:10
Parables, schmarables. To persuade, open your heart to help open others' hearts, and tell a persuasive story.
This year, the Voice of America and a freelance journalist with a major magazine interviewed me about the Boston marathon bombing trial against Dzhokhar Tsarnaev, humanizing criminal defendants to jurors, and Tsarnaev's lawyer and my hero Judy Clarke.
The Voice of America interview was videotaped in mid-January 2015, but apparently was reduced to the following correctly-presented article quote in early March 2015:
“'Mr. Tsarnaev has hit a gold mine by having Judy on his side,' said Jon Katz, a criminal defense lawyer who has met and admired Clarke for many years. 'I doubt he could do any better.' 'When a jury remembers that every single criminal defendant starts as an innocent baby, has a beating heart, has blood running through their veins, the jury has less trouble realizing this is not a monster,' Katz said."
Then, last week, a freelance journalist preparing an article for a major magazine -- with an anticipated June or July 2015 pubication date -- interviewed me about humanizing clients, including in the context of Judy Clarke's client Tsarnaev. Early on, the interviewer asked me about using parables to persuade jurors. Parables, schmarables. If a lawyer wants to win a trial, s/he needs to spend substantial time talking with and knowing his or her client; investigating the case,;obtaining and reviewing discovery; fully developing a strategy, persuasive story and effective flowchart alternatives for potential curveballs,; knowing the applicable law; and fully absorbing, living, and breathing life into the case. Once that is done, the lawyer can best proceed with minimal if any notes and be in the moment at every stage of the trial. If parables fit with the persuasion, fine; if not, then not.
Do we bring notes or parables to a visit for lunch with friends? Do we bring notes when spending time with our families? Notes are from the past. Prsuading is in the moment, and is about seizing the moment and the opportunities the moment provides, and about being in the moment to deflect, neutralize, and deflate curveballs, bows and arrows. Persuasion requires a lawyer's realness. To not be real is to be fake and not trusted. If a parable fits a lawyer's realness in the moment, fine. If not, then the parabl should not be uttered.
Notes do not enable a criminal defense lawyer to help put an emotionally connecting lump in the throats of jurors to fully see and feel the criminal defendant as a full human being and not as a monster. The criminal defense lawyer must fully open his or her heart to the jurors, to the defendant, to the lawyer's self, and to everyone. How is the jury going to open its heart to the defendant any more than the criminal defense lawyer opens the lawyer's heart to all?
Great persuasion at trial ordinarily integrates persuasive storytelling, which helps transport the storyteller and listeners to the very moment, place and feeling of the action, without the distraction of all the data the jury has been presented before the criminal defense lawyer has asked even the first cross-examination question; dispensing with legalese and having the story persuasively unfold from there.
The freelance lawyer asked me what I have learned from my interactions with Judy Clarke. I already know from the news reports that Judy, like I, is fully opposed to the death penalty, and that she invests every fiber of her being to convince jurors to see her clients as full humans who should not be executed. In her presence during the National Association of Criminal Defense Lawyers where I interacted with Judy a few times in the early 1990's and at the Trial Lawyers College where I spent some time with Judy in 1995, she was one of the few people from whom I truly learned and benefited simply by being in her presence, where Judy is a fully caring human, showing no ego.
Shortly after Judy arrived at the Trial Lawyers College for two or three days a few days before the four-week college ended, I returned from running for several miles. When I greeted her, Judy held open her arms to hug me. When I said I had just returned from a run, she still hugged me, without hesitating about whether I had sweated. What a real human being Judy is.
The next day in the later afternoon, Judy and I both took a several mile-long run together. She was well fit to talk as we ran in this hilly higher altitude that took a few days for me to acclimate to from the huffing and puffing in my first few days of running in the thinner air.
The freelance interviewer asked me the role that gender may play with Judy's abilities. I replied that male lawyer John Delgado displays similar excellence to Judy. Gender should not be the determinative factor in a lawyer's abilities.
Judy Clarke rocks. She is among my most favorite lawyers.
Friday, April 3. 2015
Happy Passover, which is about the ... Posted by Jon Katz in Jon's news & views at 00:00
Happy Passover, which is about the necessity of protecting everyone's human rights and civil liberties at all times
Happy Passover to all who celebrate the holiday, which for me is about the necessity of protecting everyone's human rights and civil liberties at all times, and for always feeling and being self empowered to do so, whatever the costs.
The plagues in the Passover story are an example of what is bad about inflicting misery on innocent people and in disproportionate measure in an effort to right a wrong. All struggles for justice must not be at the expense of justice and human compassion.
Tuesday, March 31. 2015
Happy birthday to César Chávez- ... Posted by Jon Katz in Jon's news & views at 00:00
César Chávez: A champion for the empowerment of workers and immigrants.
Happy birthday, César Chávez.
For years, I have seen Mr. Chávez -- a founder of the United Farmworkers -- as a champion of workers and immigrants.
I leaned a few years ago about a debate about how open or not Chávez wanted the United States' borders to be to immigrants. University of Denver Religious Studies Professor Luis Leon claims the following to have been the reality with Chávez on immigration:
"Chavez opposed undocumented labor inasmuch as workers were exploited, used to depress wages, and undercut unionization efforts. While he did oppose Mexican guest worker programs he simultaneously campaigned for the legalization of Mexican citizens. But above all, Chavez demanded that the common humanity of Mexican people be recognized and appreciated. He literally gave his life toward this simple goal so one can be fairly certain that he would have protested any immigration policy that dehumanizes Mexicans, such as Arizona’s notorious S.B. 1070."
Chávez provided a great quote about non-violence: "Non-violence really rests on the reservoir that you have to create in yourself of patience, not of being patient with the problems, but being patient with yourself to do the hard work." He also wisely said: You cannot uneducate the person who has learned to read. You cannot humiliate the person who feels pride. You cannot oppress the people who are not afraid anymore."
Here are some videos about and including Chávez:
- Brief talk by Chávez, including his getting irritated at one of his questioners, despite his above patience quote.
- A segment from The Fight in the Fields.
- A short biography of Chávez.
César Chávez also was a fellow vegetarian, which is particularly curious when considering that farm work ordinarily includes animal slaughter, unless the United Farm Workers -- which Chávez founded -- only dealt with produce farm work.
Happy birthday, César Chávez, Thank you for the personal sacrifices you made for social justice and to better the lives of those who started with little power and influence.
Friday, March 27. 2015
A full day with Jon Kabat-Zinn, a ... Posted by Jon Katz in Persuasion at 00:00
Not surprisingly, because a jailable prosecution puts my clients into an imbalanced situation, many feel imbalanced over their cases. Some of my clients tell me right off the bat how obsessed they are over their cases, and some wait until very close to or after their trial dates. Some never tell me.
My clients can help resolve their case by working closely with me as team, which sometimes includes investing in case experts and self-improvement programs (for instance, substance abuse and anger management) when they have the financial resources to do so.
My clients and I are stronger when my opponents, judges and jurors see that my client and I are a unified front, not needing to sweat because we are fully prepared for battle, and because the samurai who thinks about his or her next move rather than being present in the battle will have his or her head lopped off, which is not the right antidote against dwelling on the future.
Working on one's internal strength and calm is a key element for a warrior to achieve victory, whether for physical or non-physical battling (and litigation often can test one's physical endurance, in addition to mental strength endurance). Eugen Herrigel underlines that in Zen in the Art of Archery, detailing how internal calmness, peace and focus made Japanese archery experts so effective in battle in the days before gunpowder.
Helping my clients become more powerfully calm with their cases and defense starts with me, giving them and their case preparation my full time and attention, giving my clients my full presence, and assuring that I am at my best physically, mentally, and spiritually. There is no "out there" for the mind. It all starts with me in doing well by my clients.
While my work for my clients starts with me, my clients are an essential part of the defense team. Ideally, during our teamwork together, my client will follow a well-balanced diet, exercise and sleep approach, and will take care of his or her spirit with or without religious methods.
When a client feels anxiety, I often ask what my client does to address the anxiety. Some take prescription medicine, but that addresses the symptom rather than acting as a cure. Some tell me they exercise, breathe deeply, meditate or do yoga. That is great if they regularly do that. If they use breathing and meditation techniques, I am happy to join them in doing so if they are interested.
I am on no mission to convert my clients to mindfulness and meditation. However, for those who wish to pursue mindfulness and meditation to help overcome their anxiety, I tell them that an easy way to start is with Jon Kabat-Zinn's Mindfulness for Beginners, and, until they read and apply Jon's book, by staying in the present moment by focusing on their breath.
Jon is a key catalyst to making mindfulness and meditation mainstream in America, without requiring religious trappings. Stripping the religion from mindfulness and meditation may be controversial with some or many religion-based meditation and mindfulness teachers and might receive accusations of dumbing down meditation to meditation light; Jon pointed out when I heard him today that the Buddha found the truth of mindfulness, rather than Buddhism's being essential to mindfulness practice; the truth simply is the truth. If meditation remained religion-based, it would alienate the millions who would would only pursue meditation without the religious trappings. I met Jon today, and attended his five hours of discussion and guided meditation. He is the real McCoy, but I already have known that.
My late friend Trudy Morse believed there are no accidents. She might have seen coincidences as divine ones. In that vein, recently I learned that Jon Kabat-Zinn would be making what apparently is a very infrequent appearance in the Washington, D.C., area, at the annual Psychotherapy Networker conference on a day that I was not yet set for court, when usually my calendar is at least eighty percent booked two months out. I rarely clear my litigation calendar for anything but law conferences and vacation time, and of course mindfulness and meditation are integral to my law practice, which law practice itself can be a healing art.
I joined over one thousand psychological healers today at the Omni hotel down the road from the National Zoo to learn from Jon Kabat-Zinn. One of his key themes was that for us to take care of our clients, we must first take care of ourselves. How, for instance, can lawyers help make our clients calm if we are not calm?
This one 2007 video of Jon leading meditation at Google was enough to make me want to meet him. Over time, I have learned the following from Jon:
- Each moment is precious and unfolds into the next precious moment, leaving no room for boredom.
- We can be mindful in every moment, even when walking from our desk to the restroom.
- Mindfulness does not require being a hippie or non-mainstream person. Zinn himself looks and acts very mainstream.
- Do you remember a time in your childhood when an adult validated you as a whole human being, rather than as a developing or junior human? John Kabat-Zinn includes a focus on this dynamic in Coming to Our Senses in the short chapter entitled "Being Seen". It could have been a quiet moment when a relative peacefully and contentedly watched the sunset with you, or genuinely sought your opinion to help make a decision about a movie to select or a clothing color scheme to choose. Zinn says "It is amazing how few such memories any of us have..."
So much is available on YouTube today that live attendance at lectures has become less important. I still attended Jon's sessions today to understand more of his essence, and to meet and thank him in person.
I share that I tried going with few expectations from Jon. I know he is a great man who has done great things to promote and teach meditation and mindfulness, and recognized that plenty of his talk likely would include the basics, seeing that he would have a broad-based audience. I also share that Jon's five guided meditations came nowhere close to my two most amazing guided meditation experiences, which were with Sharon Salzberg in 2011 and Allan Lokos in 2014. Then again, my several subsequent guided meditations with Sharon did not replicate that same experience with her in 2011, so I conclude that my meditation experiences both mainly depend on me, and the extraordinary experience that I had in 2011 with Sharon with meditation may now seem more commonplace as I pass through deeper and more profound meditative and mindfulness portals as I continue my practice.
Wisely, Jon pointed out that we should shed expected results from meditation. Different people have different results over time from such practice. Meditation is no easy nor immediate fix. It is a lifetime practice filled with peaks and valleys, and sunshine and rainstorms.
Jon also reminded us what we already know but so often forget, which is how precious our lives and all lives are. When one questioner addressed her interest in after-death experiences, Jon emphasized his interest in this current life and in all experiences now through the moment of death, or before death experiences.
Giving one's presence is one of the greatest gifts one can give. I always am inspired by the story of the late Beopjeong Seunim who one day helped a woman in deep grief over her son's recent death, by simply being fully present with her, mostly wordlessly, starting from the moment he poured her tea. Also, I remember a story of how Ho'oponopono teacher and practitioner Morrnah Simeona silently cleaned over a predicament a visitor was having as Morrnah was going about her external tasks. Similarly, we see the magic of Jon's total presence and caring at minutes 22:00 to 24:00 in this documentary from over twenty year ago about his work.
Jon told us that often he rings the bell to start and end a meditation session. He did not ring the bell to conclude the final meditation, reminding us that the meditation never really ends.
Deeply thanking and bowing to Jon Kabat-Zinn.
Wednesday, March 25. 2015
Being fearless of death and injury ... Posted by Jon Katz in Persuasion at 00:00
An essential part of the fight is overcoming one's fears, starting with overcoming our fear of death, which is why I repeatedly write about overcoming fear of death.
Thanks to Norman Fischer -- whom I will meet at the May 7-10, 2015, Mindful Lawyering gathering at the Garrison Institute -- for his following words of insight on overcoming fear of death, and accepting death when it is time (minute 20:00);
"There is no such thing as death. There's only breathing in once and then breathing out and then not breathing in anymore."
"Death is happening every moment. Every moment we die to the past moment. It's over. It's gone." "Death is something that liberates our lives and awakens our lives." "Dying in this last moment receives this new moment."
Here are some more thoughts on overcoming fear of death:
- The Tea Master who is at first freaked out at being challenged to a swordfight, but then convinces his opponent to sheath his sword by the tea master's being as powerfully calm with his sword as when at one with the tea ceremony.
- As a swordmaster is said to have proclaimed: "The ultimate secrets of swordsmanship also lie in being released from the thought of death.
- "Tomorrow is not real. It is an illusion. The only real is now." (Zen in Martial Arts.)
- Norman Fischer has said: "In Buddhist funeral services we always say, in true reality there is no coming no going no increase no decrease no birth and no death. This is a deep expression of our gratitude for existence as it is, our knowing that life in order to be life is always full of death, and death, in order to be death, is always full of life."
- When a child lies alone in the wilderness, "a rhinoceros's horn will not harm it. A tiger's claw will not tear it. A soldier's weapon will have no place to land. It is because the baby has no concept of death." Cheng Man Ch'ing, quoted in Wolfe Lowenthal's Gateway to the Miraculous.
T'ai chi master Cheng Man Ching spoke of overcoming our fears in terms of imagining that we are practicing t'ai chi while balanced atop a narrow pointed cliff. To not eliminate one's fears while atop the cliff is to guarantee certain death. Eliminating fear also calls for keeping and tempering the fearlessness of a child filled with wonder, and living in the moment, as wonderfully detailed in the following story of the man and the two tigers: A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and -- with his life hanging in the balance -- thinks of how delicious the strawberry tastes.
Taste the strawberries.
Tuesday, March 24. 2015
Deaf man denied sign language ... Posted by Jon Katz in Criminal Defense at 00:00
Deaf man denied sign language interpreter at Arlington jail. Pleads guilty to receiving stolen property after alleged theft victim says he found his iPad.
As much as I am not fond of incarceration, I previously thought that that Arlington County, Virginia, jail a few miles up the road from me was one of the nicer jails to be jailed at EXCEPT for being able to see much of the outside while there.
Sadly, at that very jail, a deaf man, Abreham Zemedagegehu, who needs to communicated in Ethiopian sign language alleges that the Arlington jail last year denied him a sign language interpreter at the jail during the duration of his six-week incarceration for allegedly stealing an iPad (held pretrial rather than being released on personal recognizance or a bond he could afford), resulting in inability sufficiently to call or communicate with his public defender lawyer whose office is only three blocks away, missed meals, receiving pork against his religion, and insufficient health care. Mr. Zemedagegehu's allegations of unlawful failure to accommodate his deafness and language situation is set forth in his pending amended lawsuit under the Americans with Disabilities Act and Fourteenth Amendment before the United States District Court in Alexandria. The sheriff's answer to the lawsuit is here, their motions to dismiss are here and here, and the federal case docket is here.
Mr. Zemedagegehu has a powerful pro bono team on this lawsuit, led by the Akin Gump law firm's Larry Tanenbaum, who said: “To me, it’s a matter of human kindness. You see a person in your care who’s lost. How do you not help him?” Thankfully, even in these times that are much more financially lean for big law firms before the economy nosedived by 2007, many law firms, including such large corporate law firms as Akin Gump, are still investing substantial resources for pro bono work.
The sad story does not end there, because the Washington Post says Mr. Zemedagegehu entered a guilty plea to an amended charge of misdemeanor receiving stolen property (see county court docket) -- amended from felony theft -- after the alleged theft victim says he found his iPad. The Post reports that Mr. Zemedagegehu's public defender lawyer alleged that the prosecution knew, before the guilty plea was entered, that the iPad had been found, but did not disclose that in time the defense. The court denied Mr. Zemedagegehu's appeal as filed too late. Had Mr. Zemedagegehu's appeal been timely filed, he would have been entitled to a new trial in the Circuit Court.
The criminal justice system is overgrown, and too often mistreats poor and otherwise disenfranchised criminal defendants unfairly through unfairly high rates of pretrial incarceration and such mistreatment as Mr. Zemedagegehu suffered. Such travesties of justice as befell Mr. Zemedagegehu will continue to be all too common until we shrink the criminal justice system, including legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum prison sentencing; eliminating per se drunk driving blood alcohol laws; and eliminating the death penalty. Let our nation truly be the land of the free and home of the brave, and not the current land of the cops and home of the caged.
Friday, March 20. 2015
Difficult clients give their lawyers ... Posted by Jon Katz in Criminal Defense at 00:00
When I was a Maryland public defender lawyer from 1991 to 1996, I could not choose my clients. In representing all of them, I was driven by knowing I was on the side of the angels, finding most of my clients to be a pleasure to serve, and taking great satisfaction in bringing to life Gideon's promise of effective assistance of legal counsel to indigent criminal defendants.
Nevertheless, I knew I was destined to return to private practice, on the path ultimately to becoming my own boss, and to not rely on people's tax withholdings to earn my income.
I like to say that I ordinarily will defend any criminal defendant who will pay my fee, except not snitch work. I say that in response to those who ask me if there is any type of criminal defense case I would abhor so much that I would decline to defend the client, rather than to express a mercenary attitude. If I were a mercenary, I would do snitch work, which I do not, and would represent libel victims (I do not) rather than only welcoming defendants when it comes to libel.
Providing legal representation to people is heavily about the relationship between the lawyer and the client. My clients and their loved ones often feel in distress, at least in dealing with the initial shock of their arrest. A very small number use that as an excuse to be boorish at every turn. On the opposite end are my clients who are so polite that they wait until the end of their cases to tell me about how much they have obsessed and lost sleep over their cases, and this includes clients for whom I could have reassured against any need to so obsess.
Because defending clients is about personal relationships, lawyers must include listening to their guts in deciding whether simply not to accept a potential client, and, harder, whether to seek to withdraw from representing an existing client, which requires minimizing any harm that will befall the client by doing so.
When a lawyer rejects a potential client or seeks to withdraw from representing an existing client, the lawyer truly is putting money where his or her mouth is. If a lawyer finds himself or herself repeatedly rejecting potential clients in the lawyer's field of work, certainly it is time for the lawyer to look within about why that is so. However, never rejecting a potential client may indicate that the lawyer will let disaster come around the corner rather than preventing the disaster in the first place.
I like most of my clients very much. I love that nothing gets in the way of devoting plenty of time to each of them and that I maintain a moderate number of clients to accomplish that, versus the much higher number of clients when a public defender lawyer. I get to learn who my clients really are, where they come from, where they were at during the time of their alleged crimes, how they are faring in bettering themselves post-arrest, and where they are headed. Many tell me how much of a positive influence I am in their lives beyond only their case; and many of them inspire me. I become very friendly with many of my clients. We sometimes enjoy having lunch together, taking time out together, and being enriched with each other. With many of them, I have maintained strong relationships for years.
I have a provision in my client contracts obligating my clients only to provide me truthful information. This is not an issue with the vast majority of my clients. No doubt, I have plenty of clients who proclaim their innocence when they know they committed the offense for which they were charged; that comes with the territory. However, if a client passes along false information to me as true for me to provide the prosecutor or court in defending the client, or to have me barking up the wrong tree in preparing my client's defense, that is untenable, and I will have the necessary discussions with my client to rectify the matter.
A colleague underlined to me that in plenty of countries with oppressive governments, lying becomes second nature as a means of daily survival. Old habits can die hard, but habits of dishonesty must stop at my door. That is not to say that my clients who testify in court will always testify honestly. A lawyer should not do criminal defense if s/he expects all clients to testify honesty. I serve my clients well by convincing them how hard it is to pass off lies as truth on the witness stand. Volumes have been written and discussed about a lawyer's obligations under the governing lawyers' ethics rules and Sixth Amendment about what to do when we know our criminal defense clients are going to lie on the witness stand or are in the middle of doing so, so I will not condense those volumes of discussion into one blog entry. In today's blog entry, I am talking mostly about how I deal with clients who lie to me beyond the context of testifying.
Some criminal defense lawyers have a general practice of urging clients not to tell the whole story about the case before the police reports and other essential discovery is obtained. That suggests an expectation that many criminal defendants will lie to their lawyers, and a desire to reduce those lies through the client's at least seeing the discovery first.
My general approach is to tell my potential clients and clients that I want to know the essential information to defend them so that our battle preparation is not delayed, underline that it is counterproductive and prohibited by me for them to tell me any untruths, and say that they need to be silent with me rather than to tell me an untruth.
Plenty of criminal defendants are not sure that they can trust their lawyers to safeguard the clients' confidences. That can lead to client lying. Why do I ordinarily require that clients not have their loved ones present when I discuss confidential information with my clients? One important reason is that the presence of the loved ones will often lead my clients to lie and to struggle to minimize potential cancers in their cases; and too often it makes them clam up, feeling more self conscious with the addition to anyone beyond me to the conversation. Often, my clients have already told their public relations version of their cases to their loved ones, so good luck with their deviating from that with their family members.
We always have firsts, like with the recent potential client who refused to tell me whom he was with on the night of the incident. He got quite indignant when I told him that I would not offer to represent him if he did not tell me whom he was with, even after I said that at minimum I needed to know if I knew (maybe even had previously represented) the person he was with, and whether that might cause a conflict of interest. This potential client still would not tell me whom he was with. My gut told me that this was not the right potential client to pursue further on the matter by asking why he was so adamant in not giving his friend's name and by assuring that our conversation was completely confidential. Some potential clients merit that, but this and other aspects of our conversation told me to expect too much risk of so much upcoming struggle with this man had I become his lawyer that it would have interfered too much with my providing him strong representation. Hopefully he will turn a better leaf with the lawyer he hires.
On occasion, a criminal defendant comes to me looking to replace his lawyer. The first thing I do to minimize having me replace the current lawyer is ordinarily to bill for meetings with criminal defendants who already have lawyers; that makes many think twice about whether they will meet with me. When I meet with such defendants, if it sounds like the defendant is being well represented, I point that out to the defendant and advise to try to work matters out with his or her present lawyer. Doing so is essential not only because it is right, but also because I am not interested in taking a client who will be thankless with no matter whom is his or her lawyer.
A client recently hired me after his original lawyer, who is highly experienced and skilled, was very dismissive about my client's anxieties about his case. A healthy balance is needed in dealing with a client's anxieties, whereby the lawyer needs to be sensitive and responsive to those concerns and the client needs to understand that the team of the lawyer and client is more powerfully effective when the lawyer-client conversations are balanced with a substantial focus on the best approach to obtaining the best result in the case. This client and I got along great. He has many great qualities that inspire me. We got a good result in his case. Who is to say how much my good relationship with this client had to do with my chemistry with him versus my client's possibly recognizing to go easier with me than with his previous lawyer in addressing his anxieties about his case?
I have sometimes been tempted with some clients to tell them that at the moment they seemed to be causing me unnecessary pains in my neck, and sometimes have told some clients that. However, at my best, I remove the singular "me" from the equation -- of course not at the expense of having compassion for myself, just as I need to have compassion for all -- and approach the matter as "us", giving my client my full compassion, as much liking for them as possible, and full time and attention that my client fully deserves; that can be magical in transcending seeming impasses with clients.
I am devoted to living the admonition from an experienced public defender lawyer soon after I became a criminal defense lawyer: Love your client.