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

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Praised be my clients -- amounting to the vast majority of them -- who do not rush to plead guilty in an effort to avoid worse sentencing exposure in the event of a trial loss, than from pleading guilty. By the time my clients and I discuss settlement negotiations, usually a strong relationship of trust has developed between us where they take into serious and strong consideration all advice I give about all aspects of their cases. By my clients not rushing to plead guilty, they help to better assure being satisfied with their decision whether to go to trial or settle the case, and in so doing, they reduce the risk of saying aw sh*t over the outcome of their case.

A decision to plead not guilty or guilty is a serious one that requires deep consideration, including looking at the strengths and weaknesses of both parties' cases, the chance that the other side will be fully or partially ready for presenting a strong and complete case at trial, and any overarching moral or political considerations that make some clients less willing to plead guilty no matter what. First, a criminal defendant must consider his or her goals, including but not limited to goals of avoiding a conviction, lengthy or any incarceration, onerous probation conditions and probation length, limits on driving and other privileges and liberties, violations of pre-existing probation and parole arising from being found guilty, getting convicted of more serious rather than less serious counts in multi-count prosecutions, loss of appeal rights, high litigation fees and expenses, harm to reputation and employability from a conviction, and harm in such other collateral areas as immigration status and convictions requiring registration as a sex offender.

If a client is charged with multiple murders and has been caught on video and by multiple live witnesses, with no foreseeable defense, I would typically urge the client to plead guilty to one count of manslaughter -- a much less serious charge -- if offered that by the prosecutor., and would be ready to invest many hours and even days to convince my client of the wisdome of entering such a plea. With many of my clients, though, the choices are not as stark as that, so I assist my client sin making an informed decision, respect their ultimate decision, and continue doing my best to get them the best possible results on their decision.

I take many cases to trial each year. This past week alone, I have had several litigation victories, one of which I address in today's blog entry. Few trial victories are assured. When my clients ask me to tell them their chances of winning in percentages, I tell them that, rather than using percentages, it is easier for me to tell them if I think they have a strong, moderate, small, slim, or near non-existent chance of winning. However, I can only state that opinion with the information I have at hand. I do not know completely in advance what will happen on the witness stand from the opposing and defense witnesses, nor do I know completely what is on the mind of judges and jurors nor what they will do. Outcomes of trials involve human behavior. We cannot control human behavior, but can do our best to persuade others to be their best selves on behalf of our side and our causes. However, when a client is weighing whether to go to trial or negotiate a settlement, I have an obligation to tell my client what I think are the strengths and weaknesses in material aspects of his or her case.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

If a drunk driving suspect has alcohol in his or her system, s/he risks a blood alcohol reading over the legal limit of 0.08. If a drunk driving suspect refuses to take a breath or blood test when offered to do so at the police station or jail (not the handheld device on the street, which should always be refused, in the jurisdictions where I practice), here are the sanctions one risks for such a refusal, in the jurisdictions where I practice:

- Virginia. Where the defendant has no prior DWI convictions, the magistrate -- after finding probable cause that the defendant violated the DWI law -- will suspend the defendant's driver's license for seven days, whether or not the defendant refused to take the breath test. If the defendant refused to take the breath test after being advised pursuant to the statutory language by the police of the one-year sanction faced for a refusal (and the jail risked for a refusal where the defendant has prior refusal or DWI convictions), the first-offense sanction for so refusing is a civil offense carrying one year of no driving and no restricted driving privileges. Defenses against a refusal charge are that the police arrested without probable cause to believe the defendant was in violation of the DWI law, that the defendant did not refuse (police will sometimes list inability to blow into the machine sufficiently as a refusal, when they should instead then offer a blood test), and that the refusal was reasonable (for instance, the defendant can argue whether the test runs counter to his or her religion, or whether the police followed up the implied consent statutory language with confusing commentary on it).

- Maryland: When a DWI defendant refuses to take the breath test or has a blood alcohol content result (through a breath or blood test) of 0.08 or higher, the police officer ordinarily seizes the driver's Maryland license (if the driver has one) and, regardless of the licensing state, issues a suspension notice that takes effect in forty-five days unless the defendant timely and correctly delivers a hearing request to the Maryland Office of Administrative Hearings. Postmarking the hearing request no later than ten days after the issuance of the suspension notice extends the licensee's privilege to drive in Maryland until the administrative hearing date. If the administrative law judge finds that the officer had reasonable grounds to believe that the licensee was driving or attempting to drive in violation of the DWI laws, and that the licensee refused the breath or blood test after being properly advised of the sanctions for refusing, for a first-time violation the sanction will be 120 days of no driving on a Maryland license, or in Maryland for an out-of-state licensee, unless the Maryland licensee requests and receives an order allowing driving with the ignition interlock for a year. One convicted for violating the drunk driving laws can be exposed to up to sixty additional days of jail for a refusal.

- District of Columbia: Ordinarily, at least with the Metropolitan Police, police will issue a suspension notice to a DWI suspect who refuses a blood, breath or urine test, who has a BAC test result of 0.08 or more, or who police claim was driving under the influence of alcohol or drugs. The licensee has a designated number of days to demand an administrative hearing with the DMV, with out-of-state licensees having additional days to demand a hearing. The DMV seems to require unrepresented licensees to come personally to the DMV to request a hearing --which can be particularly cumbersome to those who live and work far away. As a courtesy to my clients who hire me for their parallel DWI cases, I, on the other hand, am able to satisfy the hearing demand deadline by both emailing and snail mailing a hearing demand to the appropriate DMV personnel. Police often do not appear at the DMV hearings, which makes it all the more worthwhile to demand a hearing, lest one lose one's D.C. driving privileges for a year for a refusal, or for sixth months if the hearing examiner finds clear and convincing evidence that the driver was driving in violation of the drunk driving laws, and, for the one year suspension), refused any requested breath, blood or urine test. Restricted driving privileges are rarely granted for DMV driving suspensions for DWI cases.

Federal court: For DWI cases in federal court, I usually am dealing with National Park police, Pentagon police, CIA police, and military police for those trying to drive into military installations. At least with park police, a regulation is in place that provides for up to six months in jail for refusing a breath or blood test. In fact, most park police moving violations carry up to six months in jail, even for speeding just a few miles over the speed limit. To expose a person to jail for low-level moving violations is nuts. Because such prohibitions and sanctions are creatures of federal agency regulations, it is all the harder to convince Congress to change the situation.

Whether or not to refuse a breath or blood test in many respects comes down to balancing the arrestee's interests in beating the DWI charge (in which case a refusal is more advisable) against the arrestee's interest in preserving his or her privilege to drive. Unfortunately, depending on the jurisdiction and circumstances, taking the breath or blood test might make it more likely that the defendant will lose the DWI case AND get his or her driving privileges suspended.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

The recent weeks have witnessed not only last week's Boston bombings, but also reports of several instances of weapons violence in various other parts of the United States. The recent and ongoing violence in the world of course needs to be reversed. The temptation, though, to paint violent people and their cohorts as us versus them, with "them" having no rights to be treated as humans nor to be afforded the full protections of the Bill of Rights is a huge mistake.

Not long ago, a close family member was asked at a spiritual gathering how someone as kind as I am could do criminal defense work and gave a wonderful and on-point answer about the compassion I feel for all people, the need I feel to humanize everyone, and the need for everyone to feel humanized and to receive compassion and empathy. As Publius Terence said: Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me. Thich Nhat Hanh takes Publius Terrence a step further in his poem "Please Call Me by My True Names," recognizing that but for his fortune in experience, resources, compassion and wisdom from an early age, he could have become the child raped by a pirate as well as the pirate who raped her, "my heart not yet capable of seeing and loving."

Mitakuye Oyasin. We are all related, and it is an illusion and delusion to think otherwise. There is no them versus us in the final analysis. It is all we, including our perceived and actual opponents and enemies. Connectedness with each other is not some sort of touchy-feely approach to life, but a reality that, once recognized by more people, will reduce wars, violence upon others and trespasses against others, and will bring us towards a much better world where people will open their hearts to each other and share with each other of themselves and of their resources.

It appears that in an effort to obtain as much information as possible from surviving Boston bombing suspect Dzhokhar Tsarnaev, police have decided not to read him his Miranda rights to remain silent. Ordinarily, an arrested defendant's non-Mirandized answers to police are inadmissible at trial. It appears that prosecutors may try to circumvent that limit by claiming the public safety exception enunciated, for instance, in New York v. Quarles, 467 U.S. 649 (1984). However the public safety exception must not be expanded beyond such circumstances as that in Quarles where a police officer asked a detained rape suspect, un-Mirandized, where his gun was. Quarles decided that the exigency of removing the gun from harm's way overcame any right for Defendant to suppress his un-Mirandized statements.

However, Tsarnaev's knowledge about risks of physical harm to others is so attenuated from the time and place of last week's bombing that Miranda rights -- already riddled with Supreme Court exceptions and erosions over the decades -- will take a severe extra beating if the trial and appellate courts decline to suppress, from trial, Tsarnaev's un-Mirandized answers to police questions.

The Fifth Amendment to the Bill of Rights to the United States Constitution is not just some sort of quaint guarantee drafted over two centuries ago. The Fifth Amendment includes the guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The foregoing Constitutional right is one of the most vital bedrocks of civil liberties in the United States.

On another civil liberties note, John McCain and various other politicians are calling for Dzhokhar Tsarnaev to be sent to Guantanamo to be treated and tried as an enemy combatant. The United States government imprisons people in Guantanamo partly in an effort to not afford inmates there the full force of the Bill of Rights, even though the Supreme Court has nevertheless extended some Constitutional rights to Guantanamo inmates. Guantanamo inmates, when they have trials, proceed before military courts rather than civilian courts, with severely shortchanged protections compared to those afforded criminal defendants in civilian courts in the United States.

On a more global matter, the United States' lease of Guantanamo was inked and signed in a different era, before Fidel Castro took power over fifty years ago. It is beyond ironic that the United States has generally barred trade and travel with Cuba (other than welcoming its refugees  generally with open arms, which Fidel Castro took advantage of with the Mariel boatlift), but rubs its brute muscle in the face of Cubans by using their backyard for detaining and trying people intentionally outside of United States borders. After the Berlin Wall collapsed, no justification remained for the United States to remain in Guantanamo without the consent of Cuba's government with or without a lease. (I understand that Britain had a lease for Hong Kong until it withdrew its government near the end of the last century, but have not yet checked how much that lease was a contract of colonial adhesion.)  As much as I am not enamored of Fidel Castro and the Cuban government, and abhor Cuba's abysmal human rights practices, Cuba has the right to be a sovereign nation without the colonial appearances and actions of a United States military base on its soil that the Cuban government clearly does not agree to be in existence.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

On April 17, 2013, the Supreme Court issued a splintered opinion in which a 5-4 majority ruled that nonconsensual blood draws ordinarily require a search warrant in driving while intoxicated investigations and arrests. Missouri v. McNeely, __ U.S. _ (April 17, 2013). McNeely says that the totality of the circumstances needs to be reviewed to determine whether an exigency existed to draw the blood without first obtaining a search warrant, but underlines that search warrants will usually be required for such investigations.

McNeely, unfortunately, focuses on the dissipation of alcohol in the suspect's body, and includes no discussion about the many instances in which alcohol continues absorbing into one's bloodstream after the suspect's driving activity is complete. Consequently, criminal defense lawyers and their expert witnesses (experts on breath testing, for instance) must be at the ready to educate judges about the frequent ongoing absorption of alcohol into the bloodstream after driving ceases.

Among McNeely's benefits is the elimination of the draconian practice in at least one or more states where police have reportedly pinned down resistant drunk driving suspects on the scene, to draw blood onsite.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

I have been to places that experienced murderous violence or attempted murderous violence, but not when the violence happened. I visited the beach in Netanya, Israel, in 1979, and learned that the beach was evacuated the next day when a bomb was found and defused. I worked for a year after college nearly in the shadows of the World Trade Center, which was a bombing target before being destroyed on September 11, 2001. I visited a prosecutor at the Pentagon in 1998 to get discovery, and was around ten miles from there on September 11.  In all likelihood, now-convicted snipers John Allen Mohammedand Lee Malvo were at the YMCA while I worked out there that morning, and probably numerous times before that. I grew up just around three towns from Newtown, Connecticut. I went to college outside Boson, and spent scores of times in the blocks where the recent marathon day bombings happened.

I feel deep sadness, at the very least, over all violence, not only mass violence, terroristic violence, nor violence taking place nearby me. Open today's newspapers, and you will see a tidalwave of reports on worldwide violence, including suicide bombing, suicide murders, and mailing deadly poison to a legislator.

Before the Berlin Wall fell, terrorism inside the United States was limited. For instance, many Afghans who allied with the United States against the Soviet domination in Afghanistan are now violently hostile to the United States, no longer having a greater enemy in the Soviet Union to align against.

Terrorism within the United States has also been domestically grown. Witness Timothy McVeigh (trained in violence while in the United States military) and Terry Nichols with the Oklahoma City bombing, where a rush to judgment first had many focusing on non-Americans. Witness the sniper attacks by John Mohammed (also trained in violence while in the United States military) and Lee Malvo, where a mistaken suspicion that the terrorists were driving a white van led to numerous unconstitutional stops and investigations of white vans and their drivers,

Violence begets violence. Violence needs to be a last resort -- if any resort -- in trying to stop violence. It takes more time, resources and effort to get at the roots of violence, but without doing so, we will continue living in a very violent world.

I have no easy answers for reducing and stopping violence. Certainly, achieving a peaceful world will not happen before each of us achieves peace within ourselves. Violence also will be reduced significantly when more people do not feel so powerless, desperate and oppressed that they buy into violence as an answer and violence as a way to heavenly paradise.

Before September 11, the United States already was a very civil liberties-repressed national security police state, despite the beauty of the Bill of Rights and the many judges who courageously uphold it. If not, we would not need the American Civil Liberties Union, for starters. September 11 gave an excuse to pass the PATRIOT Act and to exercise other oppressive government measures that have made the United States government all the more oppressive, thus feeding into the hands of terrorists to upend American society. 

Even a man as apparently well meaning as Barack Obama perpetuates the oppressive national security and police state, through such actions as favoring warrantless monitoring of communications between people abroad and those in the United States, through pursuing detention without bond of presumed-innocent criminal defendants, and through advocating crabbed interpretations of the Bill of Rights before the Supreme Court and lower courts. I certainly appreciate Obama's pursuing ending direct U.S. military action in Iraq and Afghanistan, but he continues advocating drone attacks and resorting to the secret FISA court system.

Each time we fly, we see the national security police state at work. The United States incarcerates one quarter of the world's population and has the highest inmate population per capita, which would not be the case if drugs were heavily decriminalized.

The United States remains far from the land of the free, rather than being too much the home of the caged. Each of us, collectively, has the opportunity to reverse the police state that we live in.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

The following blog entry is a reprint from my April 16, 2012, posting:

The District of Columbia remains a colony, at least for having been denied statehood right to this day. If D.C. statehood has not become a reality during the presidential administrations of Jimmy Carter, Bill Clinton and Barack Obama, when will it ever become a state?

Hawaii became the last state, fifty-two years ago. How much is race a factor in the denial of statehood to Washington, D.C., which for decades has long had a black majority, although that has fallen to near fifty percent. Other obstacles to D.C. statehood include Republican concern about D.C.' overwhelmingly Democratic voting record, the small size of the city (under 700,000), and possibly its having been carved out of Maryland without a sufficiently influential movement to encourage retrocession of D.C. back to Maryland, except for the federal enclave stretching from the Capitol to the White House and Washington Monument to the Lincoln Memorial.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Last year, I blogged about the five synthetic cannabinoids banned by the DEA through statutory scheduling provisions.

In the ever-continuing exercise of cat and mouse between manufacturers of synthetic cannabis (continually changing the ingredients in response to changes in the law) and law enforcement (wasting scarce resources going after consensually consumed substances rather than focusing on more serious actions including murder, rape and robbery), the DEA recently added three more additional synthetic cannabinoids to the banned list: UR-144, XLR11 and AKB48.

At what point will consumers of synthetic cannabinoids see real marijuana as less risky than the imitation version? Probably only once marijuana can be purchased at the same legitimate retail outlets that sell the synthetic product, and maybe only once marijuana in one's urine no longer threatens one's livelihood, seeing that the synthetic ingredients apparently do not get revealed in drug tests that are currently used by employers.  

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

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..."

Alternatively, do you remember a time in your childhood where adults tried making you invisible? The grade school teacher who one day said to me as a first grader that children should be seen but not heard, had no business being a parent herself.

The thirst of people to be noticed, heard and understood helps explain why so many criminal suspects spill the beans to the police. The police may be the first ones who seem to closely listen to the suspect's story. Under the pain of a harsher prosecution, some suspects give into such a delusion of validation.

In 1983, when doing a short study of the then-infant satellite television industry as an intern with a space industry consulting company, I was blown away that some of the technology's top developers were willing to spend more than a few moments on the phone with me, including giving me their views on what laid ahead with the technology. When I told one of my company's consultants of my surprise, he replied that many of these satellite engineers thirst for people genuinely interested in what they have to say, and that plenty of them likely have spouses who lose interest in hearing about their work.

In the late 1990's to early 2000's, I represented scores of injury victims in personal injury lawsuits. Wise opposing lawyers created an appearance of being as interested as possible in what the injury victims had to say, not out of wanting to help the victims, but to help the opposing lawyers' clients. So many of my clients wanted simply to be heard, that they were willing to weaken their cases by overtalking to opposing lawyers during depositions.

I remember a story of a litigant in a relatively minor matter who heard in open court that the case against him had been dismissed. He got very angry, having preferred to have been heard and to have lost, than to have simply accpeted the dismissal.

Most people want to be validated and noticed. When they are criminal suspects and suing injury victims, they are experiencing at least an analogue to fifteen minutes of fame. Some people relish the attention, while others urgently wish to return to obscurity.

Some of the children who felt ignored and not validated as children grow up to become clients jurors, police, prosecutors, judges, opposing witnesses, and supportive witnesses. It will backfire to patronize them about anything we learned about their childhoods. It benefits our clients to show everyone we deal with on our their behalf that we will give them our full time and attention, and show them that we will focus genuine interest in them.

To give others our full time and attention, we must also do so with ourselves. How can we attend fully to others without also fully attending to ourselves?

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Earier this week, Briton Sean Jude Kelly's allegedly drunken and "let's fight" behavior on a plane returning to England from Cancun, led to an emergency landing in Florida. Police arrested and removed Kelly from the plane, and he then allegedly proceeded to try to kick and threaten to kill one or more police, which is a felony jailable up to five years for each count in Florida.

Right now, Kelly is charged with the alleged crimes on the police. It remains to be seen whether he will be prosecuted for his in-air behavior, which might also pose interesting questions about the proper country in which to prosecute him for the on-flight behavior, and possible difficulty in getting the passengers and flight crew to fly to such a trial.  

Such on-flight behavior as that alleged against Kelly is probably frequent on planes. Kelly posted Twitter messages before the flight started about his plan to get drunk to overcome his nervousness about the long flight. Unfortunately, drunkenness frequently brings out the worst and even most violent sides of people, whereas we do not frequently hear about marijuana increasing violent tendencies. Yet, marijuana remains illegal in the United States (with the exceptions of medical marijuana states, and possession in Washington and Colorado), and alcohol is ubiquitously legal. They should both be legal.

Close to finishing in D.C. Superior Court late yesterday morning, BBC television news invited me once again to be a talking head about the American criminal justice system, this time about Mr. Kelly's case. Late television news interview invitations are par for the course, in part because the news is ever changing and news organizations update their news coverage focus from hour to hour. That means that my availability to appear on the news is hit or miss, particulalry when I am asked to interview during business hours, because I am in court most days often not knowing when court will finish.

Was it worth it for me to change my afternoon's schedule to appear for what I already knew from past experience might be just two or three questions? Yes. Each time I get a chance to discuss the criminal law with the news, I am able to get the message out from the criminal defense side. Moreover, in this instance, the studio was less than two miles from the courthouse, and the interview time was only around ninety minutes after my court completion time, leaving me additional time to debrief with my client and to handle a matter at the court's criminal clerk's office.

The interviewer, Polly Evans, asked me the following questions, followed by my answers:

(1) Sean Kelly faces up to twenty years in prison. Will he have to serve that much time?

My answer: His first goal should be to win the case and not to get any jail time at all. He is presumed innocent, and it is the prosecutor's burden to prove him guilty beyond a reasonable doubt. If Mr. Kelly is convicted, the sentencing judge will consider such factors as the allegations proven in the case, the circumstances of the case (e.g., drunkenness), his prior criminal record, and the rest of the picture of his life (for instance, he possibly leads an otherwise ordinary life in the business world).

(2) If convicted, will Mr. Kelly be deported?

So long as Mr. Kelly is not a United States citizen, if convicted of an aggravated felony (for instance by receiving a sentence -- both active and suspended -- over a year) or crime of moral turpitude (most felonies are considered crimes of moral turpitude in the immigration law, and he is charged with a felony), he likely will be deported. I did not add that his lawyer can try to craft an immigration-friendly disposition, including a subtitute count of disorderly conduct or misdemeanor assault with a sentence below a year (and ideally with the suspended and active sentence below six months to convert the matter to a petty offense), depending on how Florida law for those charges is written.

This interview was on  BBC South East Today, on BBC One, live at 6:30 p.m. London time, and rebroadcast at 10:00 p.m.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

What is it like for a doctor handling a life-or-death emergency when the patients' relatives are pleading, even screaming "Doctor, do something!" "Doctor, what is my relative's situation?" "Doctor, why are you not doing a better job?"

As a criminal defense lawyer, I also face relatives wanting to discuss my clients' cases. My experience has been that I can deal with just about any curveball from a client, but that curveballs simultaneously from my client and his or her relatives are an extra challenge.

Probably for numerous reasons -- including where the relative has bankrolled my attorney's fee -- I find a more frequent and stronger interest in relatives to be involved in my privately-retained clients' cases than when I was a public defender lawyer.

As a private lawyer, I have an option about how much relatives are or are not involved in my clients' cases. The upshot of a relative's involvement can be the comfort it might provide the client in dealing with a new situation, and, where the relative has been a beneficial confidant in the client' case, to continue as a confidant.

Potential downsides in dealing with relatives include:

- If they participate in all meetings with the client, the client is less likely to level honestly with the lawyer. After I struggled with such a situation many years ago with two different clients whose spouses were just about always present at our meeting, I resolved that getting my clients' waiver of the attorney-client privilege -- by having a third party present -- is not enough. I have only one client, and I will make the ultimate decision about the extent to which relatives are or are not involved in my work for my clients. It is best that I make that decision through fully deliberating with my client, fully listening to my client, and being fully responsive to my client, but the ultimate decision remains mine.

- Some relatives and clients have seriously unresolved relationship issues with each other. Letting those relationship issues spill into my dealings with my client can present a plethora of challenges.

- Some relatives are much more vocal. than my clients, even domineering over clients. If a lawyer is going to agree for relatives to play a substantial role in clients' cases, the lawyer should consider billing extra for the extra time, and at times extra aggravation, for allowing such extra participation.

- Criminal defendants are often dealing with very difficult situations. For some clients, a relative's presence can provide comfort. For others, the relative's presence can be a distraction that makes it more difficult for the defendant to focus on the matter at hand, to prepare to testify (if testimony becomes necessary), and to make informed decisions in the case.

Many times, I have heard relatives try to strongarm their way to the center of my attorney-client relationship with the refrain of "It is my money that has paid you, and I am going to be involved in my relatives' case." I think I have been successful in averting that situation in a great number of instances by having an engagement contract addendum where relatives pay for my clients' legal services, which confirms that I have but one client, and being a paying party does not put them in any different a situation than if they had paid me anonymously.

Here are a few more considerations for a criminal defense lawyer to make in determining how much involvement to afford his or her clients' relatives:

- Using the medical doctor analogy, reasonable and balanced limits must be placed on a relative's involvement in the case. Relatives are barred from operating rooms. Relatives are barred from sitting at counsel table in courtrooms, and from lawyer contact visits with inmates at jails ad in courthouse lockups. Those should not be the only reasonable limits placed on relatives' dealings with the lawyer.

- Clients need a voice. If a relative always is present during conversations wth the client, the client sometimes will be uncomfortabe and even unwilling to say when s/he wishes to speak exclusively with the lawyer. When a client allows a relative to be present for all communications with the lawyer, that can open a Pandora's box that the client regrets, not wanting to offend or anger the relative when the client realizes that the box should be closed again or closed more. A Pandora's box does not re-close.

- Beware relatives claiming to need to be present as language interpreters for clients whose English is limited or relatives who claim that the defendant has cognitive disabilities that require interpretation. If such language or cognitive challenges exist, it is best -- despite the additional financial cost -- for the client to pay an interpreter who will faithfully interpret and not participate as a relative as well, and for the lawyer and any cognitively challenged lawyer to bring in a relevant professional, not merely a relative, to determine how to transcend any cognition hurdles in the attorney-client relationship.

- Beware incarcerated clients who share sensitive attorney-client communications by phone and in person with relatives and friends. Those conversations ordinarily are recorded and monitored, and can have unexpectedly serious consequences for the client.

- Beware when a client or his or her relative insist that the client is so consumed with work or academics that the client has made the relative a proxy for dealing with the lawyer. Beware also when clients give the green light for the lawyer to communicate extensively with the relative without the clients' presence at (by phone or in person) and participation in the conversation. To have repeated conversations with relatives in the clients' absence can breed miscommunication among the lawyer, client and relative, and can create all the more confusion about where the reasonable boundaries are for relatives and t necessity of the client's direct involvement in his or her own defense.

- Beware of relatives who monitor the clients' email, and even send emails from the client's email account. This is a big red flag.

- The initial meeting with a potential client has many honeymoon/courting aspects, with the potential client, lawyer, and any relative putting on their best face. To get a better feel for the possible dynamic in dealing with the relative, consider observing how the potential client and relative interact with each other. If you meet at a cafe, for instance, how are the potential client and relative interacting with spoken and body language? Is the relative deciding what the potential client will order (possibly a more common occurrence among the general public than we think). Did the relative arrange the meeting with the lawyer, identify the lawyer, or urge or mandate that the client hire the lawyer? None of the foregoing -- other than the mandating -- is automatically bad, but are items to be considered in the mix. How much is the relative dominating the conversation, belittling the potential client, devaluing the potential clients' personal abilities and potential, interrupting, and even trying to silence the conversation? Those are red flags, as can be relatives references to "the lawyer WE hire.

- Ask yourself why you became a criminal defense lawyer in the first place, the extent to which you will enjoy your law practice more when relatives are not limitlessly involved in communications with the lawyer, and the extent to which you are willing to lose income by losing potential and existing clients by announcing clearly from the get go that the lawyer is the final arbiter of how much and in-depth will be the relative's role in the case. I know that I ordinarily serve a client best -- and my law practice enjoyment best -- by making such a clear pronouncement. Although I may lose some potential clients along the way, that is better than facing loggerheads down the road, and some relatives and potential clients end up agreeing with such a pronouncement, and may just have not known where reasonable boundaries are for relatives without the lawyers' first suggesting them. Some potential clients may prefer hiring a lawyer who makes the client king, rather than relatives

In any event lawyers must remember that their potential clients and actual clients do not come to them in a vacuum. Some are very timid and trepidatious about meeting a lawyer alone, particularly if they have never consulted with one before. Some wish to have a second pair of eyes and ears at the initial meeting with a lawyer (I ordinarily suggest that the extra visitor join us later on in the meeting). Some come from a very nurturing family background where relatives' involvement has benefitted them very much. Regardless of how kind or not relatives deal with the lawyer, the lawyer needs to remain compassionate, empathetic, and respectful, while at the same time not being a client's or relatives' doormat nor constant verbal dumping ground (when the relatives and client know that there is nobody else in the courtroom to dump on) nor recipient of constantly inconsiderate behavior. Moreover, merely because a lawyer has been paid for his or her services, that does not convert the lawyer into a verbal whipping child of the client and his or her relatives, nor into a lawyer who is available 24/7 at the client's beck and call, while at the same time being obligated to stay on top of communications with and work for the client. The lawyer is a professional, and will provide the best service by being a professional who makes reasonable boundaries clear to the client and his or her relatives.

Of course, the magic mirror http://katzjustice.com/underdog/FairfaxDUIAttorneyFeb19..html always is present. The more that clients and their relatives feel confidence in the lawyer, feel valued and respected by the lawyer, and feel validated by the lawyer, the more that the lawyer will generally will find a more positive experience with them. The more that the lawyer sees potential clients and their relatives as full human beings with feelings, feels no better than they are, sees their strengths and weaknesses, understands their fears and anxieties, and knows the potential to do better as part of developing the strongest possible strategies, the more that the client and his or her relatives will feel more comfortable with the lawyer and empowered. No two clients are cookie-cutter situations. The lawyer should be able to reverse roles with the client and relatives to understand what they are going through; to help motivate, empower and inspire them to be at their best to the benefit of the client; and to sense when a relative's involvement (and to what extent) will be of benefit, including just making a hugging symbol to the relative or friend when the client can benefit tremendously from that hug.

By definition, criminal defense work inevitably involves relatives' involvement in many cases. Lawyers who want to avoid all such involvement might wish to consider practicing corporate law or another area of law that does not involve assisting people.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

A recent Virginia appellate opinion reminds us what we already know: Being human, judges can make serious mistakes. Parties' lawyers, must be at the ready to prevent and remedy those mistakes.

Latasha Gordon was convicted at trial for two counts of unlawful wounding (each count carrying up to five years in prison, as a class 6 felony)  and petty theft (carrying up to a year of incarceration). Gordon v. Virginia, __ Va. App. _ (April 2, 2013).

At sentencing, the prosecution requested ten years incarceration on each of the two counts of unlawful wounding, thus adding five years to the statutory maximum for each count. The judge went along with that recommendation. Ms. Gordon's defense counsel did not object. Ouch!

Fortunately, Ms. Gordon obtained a lawyer to convince Virginia's Court of Appeals to take her appeal, convince the Court of Appeals to hear her case (Virginia has no automatic right of appeal in a criminal case), and convince the appellate court to remedy the trial court's sentence that exceeded the statutory maximum, by ordering a resentencing.

People make mistakes. Some mistakes inflict more severe damage than others, including Ms. Gordon's original sentence that exceeded her statutory maximum by twice on each count of unlawful wounding.

For every Latasha Gordon who ultimately get relief from such a glaring error, how many more criminal defendants suffer from serious judicial errors without those errors ever getting remedied?

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Image from public domain.

Medial marijuana is coming to Maryland, albeit in a limited manner. Yesterday -- after the House passed a similar measure -- the Maryland Senate passed legislation to arrange for state-approved agencies to distribute medical marijuana. The governor is expected to sign the bill into law.

Not known as of the beginning of this month is whether Governor O'Malley will sign the marijuana caregiver protection legislation (here and here)  that the state legislature has passed.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

A great trial law teacher warned criminal defense lawyers about throwing feces at an opposing witness during cross examination, lest the witness act like a cooling fan that shoots back the feces all over the lawyer's face and clothes.

Too many prosecutors cloak police with too much honesty and reliability, and criminal defendants in terms of scum, when prosecutors are obligated independently to assess their case evidence, even if it turns out that the office lied or were otherwise inaccurate.

Enter Tyrone Moore, who was convicted of carjacking after the victim identified him in a photo lineup. At the time of the carjacking, Moore wore dreadlocks, and the first driver observed in the stolen car -- Larry Pollin -- also wore dreadlocks. However, throughout the trial and beyond, the prosecution and its relevant police witness insisted that Pollin wore short hair at the time of the carjacking.

Kudos to Moore for insisting to his lawyers, even after the jury's guilty verdict, that Pollin had dreadlocks at the time of the incident. Praised be Moore's defense team for learning, post-trial, from Pollin's lawyer that Pollin did in fact have dreadlocks at the time of the carjacking. (Query why Pollin's lawyer gave up such information, thus exposing Pollin to a greater likelihood of prosecution for the carjacking)

Shame on the prosecutor for responding as follows when Moore's lawyer asked post-trial for the date of the Pollin short-hair photo presented at trial by the prosecution: “'To the extent that your client claims to have seen [Pollin] ... in December with dre[a]ds, he is either mistaken or lying. Care to guess which it is?'” U.S. v. Moore, 709 F.3d 287 291 (4th Cir., March 1, 2013). The Fourth Circuit retorted last month: "As it turns out, the government was the one mistaken. Pollin did indeed have dreadlocks in November and December 2007, and the date on the Short Hair Picture was wrong." Id

Do Attorney General Eric Holder and President Barack Obama want prosecutors who are so contemptuous of criminal defendants and the criminal defense function?

Praised be Moore's arguing lawyer James Nichols and on-brief lawyer Byron Warnken (also a law professor who helped me pass the Maryland Bar, as an instructor, by boiling the exam down to its simplest parts) for obtaining a retrial for Moore. The Fourth Circuit concluded that Moore met all of the following five prongs for obtaining a new trial, even though the trial court said that Moore had only met the first three prongs:

To be entitled to a new trial under Federal Rule of Criminal Procedure 33 based on newly discovered evidence, a defendant must satisfy a five-part test by showing that (1) the evidence is newly discovered; (2) the defendant exercised due diligence; (3) the newly discovered evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence would probably result in acquittal at a new trial. See United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989) ("Chavis Test"). We review the denial of a motion for a new trial for an abuse of discretion. United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003).

Moore, 703 F.3d at 292.

Moore further explains the date discrepancy on Pollin's short-hair photo:

The government has now admitted that the Short Hair Picture it received from Harford County, produced to Moore, used and relied upon at trial, and represented to have been taken on December 31, 2007, was, unbeknownst to it at the time of trial, not taken until early 2009 when Pollin first cut off his dreadlocks.

This discrepancy resulted from a system utilized by Harford County up until Spring 2009, in which booking photographs were replaced automatically by new photographs whenever an inmate changed his or her appearance dramatically. According to Corporal Christopher Crespo, a booking supervisor with the Harford County Sheriff's Office, under this system, an inmate's original booking photograph would always be retained in a hard-copy file but the electronic copy of the original booking photograph would be replaced by any new photographs that were taken to depict an inmate's then-current appearance. And as is evident from the facts of this case, the new electronic photograph would apparently retain the date of the inmate's initial booking, as if the new picture were taken when the inmate was initially processed and brought into the detention facility. Corporal Crespo further stated that the Short Hair Picture was taken in January 2009 and that his review of the complete record of photographs revealed that Pollin had dreadlocks until January 2009.

Moore, 703 F.3d at 292.

Here, Moore only won through his dogged insistence to his lawyers that Pollin had dreadlocks at the time of the carjacking, through his lawyers' treating Moore's claim seriously, and through Moore and his lawyers fighting through his appeal. Moore's and many other criminal defendants' victories only come through such meticulous, dogged, and panning-for-gold struggles of defendants and their lawyers.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

When I appear in stuffy, windowless courtrooms -- some of which include portraits of unsmiling judges -- I imagine I am instead in the beautiful outdoors with John Coltrane playing in the background, and Zippy the Pinhead reminding me to put things in good perspective.

Plenty of jurors might feel more confined than that in the courthouse, all the more confined by being away from their daily routine, work, and families while in court.

In Superior Court recently, I told a client, while waiting to get his case dismissed, that this courthouse has the most negative energy feel of all courthouses I visit, and he agreed. If I feel that way in this courthouse, how do clients and jurors feel, who are there not by choice, as I am?

This past weekend has been sun kissed, with cherry blossoms about to burst open at the Tidal Basin near the Martin Luther King, Jr., and Jefferson Memorials, and with miles of trails and waterways beckoning to be hiked and paddled.

My son is now seven, and he shares my love for the Billy Goat trail, pictured above. This very rocky trail in Potomac, Maryland, overlooks the Potomac River and has beautiful sights and sounds, including the robins that escaped our camera before they could be photographed. 

My many wonderful experiences outdoors help me transcend the possible feelings of confinement being indoors. Persuasion in criminal defense and in all other aspects of life, as well, includes transcending apparent barriers, which my great teacher SunWolf phrases as "Reality is no obstacle."