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 plight of criminal defendants alone in the courthouse, or with limited funds to hire a lawyer.
Friday, October 24 2014
Are police and underage sex/pornography aficionados like bears and spawning salmon?
Wednesday, October 22 2014
A key to success is unblocking.
Tuesday, October 21 2014
Whether and when a criminal defense lawyer should show his or her hand and power.
Monday, October 20 2014
The undemocratic power of judges.
Friday, October 17 2014
Criminal defense is unconventional warfare.
Wednesday, October 15 2014
D.C. voters are likely to approve marijuana legalization initiative. Congress should not interfere with the democratic will.
Tuesday, October 14 2014
We are open today, Indigenous People's Day. Columbus did not discover America.
Monday, October 13 2014
Storytelling to an acquittal at trial on charges of DWI and breath test refusal.
Friday, October 10 2014
Using humanity rather than lawyering in dealing with clients and others in distress.
Thursday, October 9 2014
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Copyright Jon Katz, P.C.
CRIMINAL DEFENSE/ DWI / DRUG / MARIJUANA LAWYER FOR FAIRFAX & NORTHERN VIRGINIA.
703-383-1100, 10509 Judicial Drive, Suite 101, Fairfax, Virginia 22030.
Satellite meeting office: 2111 Wilson Blvd., Suite 700, Arlington, Virginia 22201
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).
Wednesday, October 1. 2014
The essentials of a trial outline ... Posted by Jon Katz in Criminal Defense at 00:00
By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients.
Just as a great musician cannot be great without knowing such basics as scales, cords, and rhythm, a successful trial lawyer needs a good trial outline and an idea book. Here are the outline I use and the idea book format I use, thanks to my amazing trial law teacher Steve Rench. For further discussion on these items, see my prior articles on using trial outlines and idea books.
Tuesday, September 30. 2014
Documents and links for my clients. Posted by Jon Katz in Criminal Defense at 00:00
By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients.
Here in one location are some essential links and documents that my law firm uses to assist our clients:
- General information release form.
- HIPPA medical information release form.
- Sign-in log for attending such self-help groups as Alcoholics Anonymous and Narcotics Anonymous.
- Suggestions for taking mouth temperature, for challenging the Intox EC/IR II's erroneous assumption of a 34 degree Celsius mouth temperature.
- Authorization for our firm to obtain potential clients' Arlington General District Court criminal complaints.
- Programs to assist with case negotiations and any sentencing proceedings.
Friday, September 26. 2014
Unarmed victim of police shooting ... Posted by Jon Katz in Jon's news & views at 00:00
By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients.
South Carolina Trooper Sean Groubert's unjustified shooting of an unarmed man (see the police dashcam video here) retrieving his license as ordered by Groubert, underlines the need to shrink and improve the criminal justice system to have only the best police acting only at their best. The shot man, Levar Jones, is such an angel that he summons himself to call the cop sir, politely at all times asking Groubert why he shot Jones.
I would like to find out how to contact Mr. Jones to give him my moral support and a financial contribution, as he recovers from this shooting. Not having found Mr. Jones's contact information online, I left his lawyer J. Todd Rutherford a message. (UPDATE: On September 29, Todd Rutherford's office called me back, and told me I may use Todd's office for sending any greetings or donation to Mr. Jones.)
Trooper Groubert rightfully lost his job. He now is being prosecuted for the shooting, as must happen, not because of his occupation at the time, but because of his shooting of Mr. Jones. Trooper Graubert remains presumed innocent unless and until proven guilty beyond a reasonable doubt. I wonder whether Groubert and his lawyer will pursue a not criminally responsible/temporary insanity defense, a defense of post-traumatic stress disorder, or a defense of reasonable justification based on Groubert's insufficiently grounded fear that Mr. Jones was reaching for a weapon. All police and their cars must be equipped with running video, so that this and all other police violations do not stay in the shadows.
Monday, September 22. 2014
Treating criminal defendants as ... Posted by Jon Katz in Criminal Defense at 00:00
Treating criminal defendants as individuals: The military court and immigration consequence examples.
Too many criminal court judges and prosecutors see criminal defendants more as numbers than individuals. To treat them as individuals might incline them to allow more time for each case in the face of bursting court dockets, and will make them have to more directly confront the human consequences of how they treat each defendant's case.
Military members and military veterans are about the most compelling defendants to humanize with judges and prosecutors. I take it that most judges and prosecutors like current and former military members, and feel that they have selflessly devoted themselves to their nation and fellow citizens. However, one nearby county has so many military members that prosecutors and judges seem reluctant to give much credit to them, to avoid opening a floodgate of criminal court benefits for military members.
Immigrants at first blush might seem a tougher sell to prosecutors and criminal court judges, but when I portray them as having followed the law in waiting their turn to obtain lawful immigration status, at least some prosecutors and judges will find compelling the harsh immigration status consequences from a whole host of convictions and sentencing schemes. Similarly, plenty of conviction categories will lead to military members losing their jobs.
I get my share of clients who are military members and employees with military defense contractors. A good number suffer from post-traumatic stress disorder from their wartime experiences. A trend is afoot in numerous states to have separate dockets addressing certain criminal cases involving military veterans as defendants. Here is a map showing those courts, and a Facebook page on the trend. Across the street from my law firm, chief misdemeanor court judge Penney S. Azcarate has a goal to add the Fairfax, Virginia courthouse added to that list, with an eye to starting the veterans docket by January 2015.
It appears that the Fairfax veterans docket will be geared towards treatment. Good treatment cannot be one size fits all, and needs to fit within the principle of innocent until proven guilty beyond a reasonable doubt, but it is a start. Hopefully, success in treatment will lead to more favorable case dispositions and more favorable sentences for those who are convicted.
Let us not stop at veterans, of course, in providing treatment alternatives to harsh court dispositions. Certainly, battlefield experience can cause severe psychological challenges, to say the least. Nevertheless, we have a whole host of civilians, as well, whose alleged crimes are heavily rooted in post-traumatic stress disorder, past abuse, depression, and drug abuse, among other factors.
Sunday, September 21. 2014
Lawyering without borders, and as ... Posted by Jon Katz in Jon's news & views at 00:00
When we were selling our house, our very experienced real estate agent emphasized minimizing displays of family pictures, and keeping the appearance and mood neutral, to make it easier for potential buyers to see the house as their potential house. Most hotels I stay at are neutral, even some of the so-called best ones. Neutrality is dull.
Neutral I am not, and my choices in the arts and my lifestyle reflects that. My motivation for doing criminal defense is rooted in my decades-long obsession with protecting civil liberties. I am fortunate that I found a way to earn my living with such work that I love. A prosecutor recently saw me leaving his office's hallway after I went there to review discovery in a case, and jokingly inquired: "Does this mean you have decided to switch to the side of right?" I passionately replied: "Never! And the right over here is the right wing."
My office design is not neutral. The place is calm and comfortable extension of my own home, more evoking a warm living room that is conducive to a harmonious place to visit and work, than a rarefied law firm with portraits of dead judges and others from bygone officialdom eras.
My personal appearance probably looks conformist, save for the unobtrusive cedar wrist mala beads I wear to keep and return me to powerful center in the heat of battle, and to remind me of the powerful calm and non-dualism that a well-lived and effective life and trial practice are all about. The clothes and hairstyle I wear to court are my battle uniform, which should not interfere with the battle nor on judges and juries focusing on me rather than on my accoutrements. I am a guerrilla clothing shopper; I find what I want, try it on, pay for it, and get the heck out of there.
Among criminal defense lawyers are those who are very skeptical about the criminal justice system and those who embrace it. Plenty of my clients are very conformist, and hire me either because of my views against the criminal justice system or despite them. My staff is free to hold any views they want, as long as they are committed to our clients. I would hesitate, though, before hiring a former police officer, probation officer or prosecutor, until assuring myself that their work in those professions does not reflect an ongoing mindset nor brainwashing that is antithetical to the work I do for my clients.
I do not judge my clients' political nor world views, nor their alleged crimes and actual actions. Judging has no place in life, anyway, except when serving as a courthouse judge. I am here to serve all my clients, regardless of their political, employment, or socio-economic stripes, and have defended a broad spectrum of clients, from so-called progressives and radicals to reactionaries to everyone in between; and from the most anti-military to those squarely part of the military-government-industrial complex and national security state. The best tradition of the American Civil Liberties Union -- on whose local national capital area board I served in the early 1990's -- is to fight as hard for all their clients in defense of their civil liberties, whether fellow civil libertarians, communists, far right wingers, or even members of the Ku Klux Klan and Nazi party. I am the same real person with all my clients, of course never hesitating to call out the less than occasional client who says something racist to me, at minimum by telling them that the only thing good I can tell them about what they just said is that the First Amendment protects their right to say it.
Plenty of criminal defendants have a preconceived notion of what they want their lawyer to look and be like. Some think they want a former prosecutor, or lawyer who otherwise seems to be squarely part of the legal establishment; I am not that. Some are skeptical of former prosecutors as not being ready to stomach fighting hard enough for them, although at least some former prosecutors got sick to their stomachs at some point about aspects of their prosecutorial work, whether before or after leaving the prosecution role. One of my clients improvidently and only partly jokingly told me awhile after hiring me that he likes his bartenders to be named Murphy and his lawyers to be named Katz. When I warned a potential client who called to make an appointment that I would not represent him if he continued saying he wanted a Jewish lawyer, I made good on my word, and did not meet with him.
Here is my list of recommended criteria to consider in choosing a criminal defense lawyer, and none of them have anything to do with the items addressed in the last paragraph. The paramount quality to look for in a lawyer is who will do the best job for the client and for that particular case, which is also how people should choose a surgeon. Choosing a criminal defense lawyer and surgeon are often of similar levels of importance, because the goal is for the lawyer and surgeon to stop the bleeding and make the situation as better as it can be made, of course in teamwork with the client.
With me, what you see is what you get. I am outspoken on my blog, therefore getting those views off my chest while focusing on the best possible preparation for and results in court. The power of being persuasively real and of being committed and passionate to my clients and work cannot be exceeded by anything else.
Friday, September 19. 2014
The dangers of disorderly conduct ... Posted by Jon Katz in Criminal Defense at 00:00
The United States is a police state. The streets and beyond are littered with police, other security personnel, security agencies, security contractors, security cameras, security laws, and warrantless NSA spying on citizens compliments of President Obama, which follows up from George Bush II's violations of our privacy. This state of affairs did not just happen on its own. In our supposed democracy -- and how is it possible to have a true democracy in any nation populated by over 10,000 people? -- too many voters have let fear of terrorists, communists and other real and imagined threats; apathy; and busy-ness with other things allow this police state to be created, mushroomed, financed, protected, and nurtured.
Recently, I was in a courtroom in a courthouse where rules against smartphone use are uneven in each courtroom, depending on who is the judge, the courtroom security personnel and/or the weather. As I waited for my bond hearing to be called (getting my client released that day), while sitting several rows away from the judge, I was quietly handling email on my smartphone, near my lap area. I ultimately felt a tap on my shoulder. It was a deputy sheriff: "Did Judge L__ give you permission to use that phone in here?" He then asked the same question of the lawyer behind me, who apparently also had been handling email. I had no obligation to answer the deputy, and did not; I simply pocketed my cellphone. The deputy could have simply politely advised me --without tapping on my shoulder -- that no cellphone use is allowed without the judge's permission; but that would not have been a controlling approach. (To be fair to the law enforcement population, many of them are upstanding, at least with me, and do not start with a controlling approach when dealing wth me.) Instead, after the deputy walked away, I passed a note to the lawyer behind me asking "When was our nation not a police state?" He laughed darkly in agreement, but answered "I don't know. I was not born until 1980," when the police state already was in full force.
This is the same courthouse where too many deputies before court starts, bark -- barking is not needed to be heard, and not barking earns more respect -- to the audience about the court decorum rules. Recently, I headed for the exit so as not to dignify the deputy who was shouting the rules louder than other deputies I have heard, as if he were commanding prisoners sentenced to hard labor: "If you misbehave, you're going to the box!!!," that being the steel box that tortures its inhabitants by amplifying the heat and cold outside the box.
The police state is heavily about control. Tell me that police are not trained to control suspects and arrestees, and I will sell you a bridge in Brooklyn at a nice price, and will throw an open bag of stale, moldy potato chips in for good measure, and a worn copy of Grimm's fairy tales.
In the police arsenal of asserting control over the very public that they are sworn to serve -- rather than the other way around -- are disorderly conduct laws. When a police officer has no other basis to arrest someone whose actions offend the officer, s/he might arrest for disorderly conduct, and plenty of judges convict for disorderly conduct.
Had I sued the airport police officer who temporarily detained/Terry-stopped me in 2008 when someone(s) reported me for doing slow-moving calisthenics/taijiquan well away from others, he likely would have claimed he had reasonable articulable suspicion that I had been acting disorderly -- or may alternatively have claimed he was considering hauling me to a mental ward for doing a centuries-old form of calisthenics practiced daily by at least hundreds of thousands of people, and related to the tao. The subsequent police officer who arrived knew better, and let me go on my way once I reluctantly told her I was simply doing taijiquan, having told her so I would not have been late getting to the arrival gate for the airplane passengers I was picking up, who were arriving at the gate at the very moment I appeared.
Yesterday, Nation of Change reported -- apparently barely reported elsewhere until now, if a Google search is any indication -- on Miles Kristan's late July 2014 arrest for disorderly conduct outside a Wisconsin state legislator's office. Unless there is more than meets the eye in Nation of Change's story and accompanying video and police report excerpt linked in its story, this arrest violated Kristan's First Amendment right of free expression -- and any ongoing prosecution continues violating his First Amendment rights -- having been shown on Kristan's own video camera merely asking a tough question of a legislator in a more obnoxious way than an establishment print reporter likely would have done.
We can reverse the police state in America. We can reverse the excessive extent police acting and believing as if they are here to control rather than to serve people. The change will not happen without many people banding together to do so, and even then still will be a slow change. The change must start now, in a peacefully powerful way that is a counterpoint to all the heavyhandedness we see from too many police and prosecutors.
Wednesday, September 17. 2014
Oakland schools use restorative ... Posted by Jon Katz in Jon's news & views at 00:00
Restorative justice is great when all parties agree to participate in it.
I was blown away when I learned that restorative justice is being practiced in Oakland, California, public schools, not only for non-violent matters, but even for assaults on school personnel. Read this article to learn more.
I have seen my share of kangaroo court machinations by school authorities in student discipline cases. Oakland's restorative justice approach is another wakeup call to do away with kangaroo court discipline.
Monday, September 15. 2014
Va. Supreme Court reverses sentence ... Posted by Jon Katz in Criminal Defense at 00:00
Praised be Virginia's top court for reminding the lower courts that even the most heinous crimes do not rob convicts of all rights against government searches while on probation. Last Friday, the Virginia Supreme Court reversed a child rape convict's probation conviction allowing police and probation officer searches for no reason other than wanting to search. Murry v. Virginia, _ Va. _ (Sept. 12, 2014).
Here is the elegantly simple sum and substance of the Court's holding:
The defendant, Ronald Stuart Murry, Jr., is subject to a probation condition requiring him to submit to warrantless, suspicionless searches of his person, property, residence, and vehicle at any time by any probation or law enforcement officer. The probation condition is not reasonable in light of the offenses for which Murry was convicted, his background, and the surrounding circumstances. We will therefore reverse the judgment of the Court of Appeals of Virginia.
Before raising a mug of beer in celebration over the Virgnia Suprme Court's Murry decision, remember that the U.S. Supreme Court requires nothing more than reasonable suspicion to search a probationer, when that is a condition of probation, versus the higher probable cause standard that otherwise applies to searches. U.S. v. Knights, 534 U.S. 112 (2001).
Friday, September 12. 2014
Transcending anger and roles to ... Posted by Jon Katz in Persuasion at 00:00
A dog does not betray anyone. Humans have the ability to betray, and too many people betray others. A dog does not form sinister plans, but too many humans do. A dog does not lie; too many humans do. Maybe that helps explain why so many people like having dogs; I have never had a dog.
A dog, of course, can go on the fierce attack against strangers. A dog once bit me on the shin unprovoked. Luckily I was wearing blue jeans. Another dog one day ran angrily over to me when I was taking a run, and put a few holes in my sweats with his claws before his companion human successfully called him off of me. Curiously, no dogs have hassled me since I was fourteen.
I have stepped in my share of dog poop, which is so hard to get off running shoes that my father would ask running shoe salespeople about running shoes that were good at not picking up too much dog poop. And he was serious in his inquiry, as I laughed my head off.
There we have it: too many humans who betray and hatch lying and sinister paths, and too many dogs who attack unprovoked and leave stinky poop in our paths that won't easily come off our shoes. And that is not to mention the bird that pooped on my necktie, as I wore it.
Those same people can ultimately be encouraged to do the right thing, if not in this lifetime perhaps in a future lifetime if we indeed have future lifetimes. The attacking dog might be as loving as anything to its companion humans, but attacking when fearful of a strange human or feeling protective of its companion human. As to the bird, as long as humans and birds live in the same geographic area, birds will poop on them.
The best way to address the foregoing obstacles is to do it with as much grace as the milk farmer I visited, who got cow poop flung on his eye by a cow, wiped it off with his handkerchief, and moved onto the next cow.
Trial lawyers and dairy farmers both experience sh*t. Perhaps it is too trite to envision the sh*t as fertilizer for good things. Perhaps the sh*t is better viewed as something to be neutralized, disinfected, dwarfed, or, when necessary, flung back into the thrower's mouth. I like seeing the sh*t more as a balloon to deflate.
The sh*t trial lawyers deal with is nothing compared to what soldiers face on the battlefield, including boobytraps, landmines, hand grenades, missiles, bombs, fire, and a whole host of other maim-, torture-, and death-risking circumstances. And when a soldier is captured, the physical and psychological torture can be about to begin if the capturing fighters do not follow the international law against war crimes.
I know a personal injury defense lawyer against whom I dealt peripherally on a case, too peripherally to know how upstanding or not he is in dealing with opponents. I found him likeable. We would chat about some of our mutual leisure interests; he was more interesting than plenty of my opponents. Then one day, I mentioned a lawyer who flat-out volunteered to me that he will sometimes note a hearing date to an opposing lawyer for the purpose of wearing down the opposing lawyer. When I jokingly asked my opposing lawyer whether he would do the same thing. He jokingly said no, as if he would.
As I say to my staff, I am not being paranoid to say we never know how much we can trust people outside of our firm. That does not mean to walk around everywhere with full body armor. That does mean to expect that at least some people outside our law firm -- beyond my fellow criminal defense lawyer friends and other confidantes -- will try to figure out how to use information from our firm to their sinister advantage.
Even with the foregoing realizations, I can still go through my day being persuasively open, joyful, and battle-ready. Just as I do not freeze up out of fear of being hit by another car on the road because it is second nature for me to know basic safety precautions, I can persuasively enjoy myself in the courtrooms and courthouse hallways while still taking the right safety and offensive precautions.
When I am driven by the path to victory rather than the path of fear and anger (which is rooted in fear), I am all the closer to victory.
Yet who never gets angry? One of my key spiritual teachers, a Buddhist nun, told me she still sometimes gets angry after all these decades of peaceful practice. Asked if he ever feels angry or outraged, the Dalai Lama replied: "Oh, yes, of course. I'm a human being. Generally speaking, if a human being never shows anger, then I think something's wrong. He's not right in the brain. [Laughs.]"
My teacher Ram Dass, after returning to India after having achieved new spiritual heights on his first visit there with his guru, got so angry one day that he threw a plate of food that was offered to him. His teacher Neem Karoli Baba told him then and there: “Ram Dass, love everyone and tell the truth.” Ram Dass says that his teacher "was telling me to take a different path and become a soul. What he was saying is that when I can relate from that soul plane of consciousness, which is who I really am, I will love everyone. That is my truth. It’s only taken me forty years to figure it out."
There we have it, two great monastics who still get angry, and Ram Dass who took forty years to apply relating to others from "that soul plane of consciousness." Nobody ever said this will be easy.
My devotion to and insistence on winning precludes me from becoming angry. Anger weakens and gives the other side an advantage over me. I will not allow my opponents that advantage.
The idea here is not to accept an opponent's bows and arrows -- nor a prosecutor in robes' dangerous actions or inactions -- with an inane grin or with tucking my tail between my legs, but to always apply the taijiquan approach of finding calm in the eye of the storm and being at zero, and to not beat up on myself when I learn I have let my guard down improvidently. I must learn from my mis-steps while still proceeding towards victory. The opponent who sees that I do not knee-jerk react to every trespass will be more scared and weakened than if I did the opposite. The hurricane, tornado, and tidalwave are no less powerful by taking their time to strike at the right time, rather than to react for reaction's sake. My goal as a criminal defense lawyer is to do my best to harmonize my clients' imbalanced situations, and not to let myself be sucked into personality conflicts nor anger with prosecutors, opposing witnesses, and judges.
Thursday, September 11. 2014
September 11, thirteen years later. Posted by Jon Katz in Jon's news & views at 00:00
Today's blog entry re-prints my September 11, 2008 entry.
September 11, 2008- The Silver Spring, Maryland, YMCA has become an eerie place of sorts. On September 11, 2001, I was working out there before starting the workday. On my way to the locker room to the office, I saw the television playing the horrifying footage of the World Trade Center attack and collapse, and learned that the Pentagon -- just about ten miles away -- also had been attacked.
A year later, on October 22, 2002, I hit extraordinarily heavy morning traffic on the way to the same YMCA. The radio said that another sniper shooting had just happened. I finally arrived at the YMCA, and later learned that, in all likelihood, now-convicted snipers John Allen Mohammed and Lee Malvo were at the YMCA while I worked out there that morning, and probably numerous times before that. If I ever saw them there, I was never able to match their photos in the media with anyone I saw at the YMCA.
In July 2005, I visited for the first and only time the site of the World Trade Center attack. Eerie does not begin to describe the feeling. For the year before law school, I worked just six blocks from the World Trade Center, sometimes used its subway and commuter train stop, and rode its elevators several times. Now those buildings were gone.
In airports and beyond, our civil liberties have been tremendously curtailed after September 11. After first dealing with the horror and sadness of the tragedies of that day, anger ran rampant with countless people, and I do not fault the feelings of anger. How best to channel and diffuse that anger? Do violent responses guarantee further violent counter-responses?
As I often do when pondering such questions, I ask "what would my teacher Jun Yasuda do?" Jun-san once said: "You know, several times I have had somebody hitting me during a prayer. I do not hit back. That would just make him more angry, more hateful. My way, if somebody is trying to hurt me, is to bow to him and to pray. I try to ask why he is angry, and to listen to him. I want to know why is he wounded inside." In that regard, I once asked Jun-san what she would do if she lived in the 1940's and bumped into Hitler, since I knew her response would not have mirrored my response of shooting him dead first and asking questions later. Whether or not I agreed, Jun-san explained that everyone has several personalities including good parts of their personalities; she mentioned Hitler's having been a painter. Jun-san would have asked Hitler why he was so angry. She said she might have started by offering him a massage, looking at it as soothing the soul of a savage beast, I suppose.
Before closing, I repeat and continue agreeing with the article I wrote about September 11 soon after it happened, which was published in a special edition on the tragedy in the Trial Lawyers College's Warrior magazine.
ON JUSTICE, MILITARY RESTRAINT AND PEACE: SEPTEMBER 11 LEADS TO CRITICAL CROSSROADS
October 2001- The only just goal of battle and war -- if there is any -- is to achieve a just peace. There can be no just war if no side struggles for justice, restraint, peace and love within and without.
The September 11 terror attacks hit all the more home for me, because I have spent plenty of time living and working near the Pentagon and World Trade Center, and have visited people who work in both buildings. To the extent that these attacks involved an anti-Israel campaign, the attacks also strike at my strong support over the years for a secure and just peace for Israel and for a just Israeli government and military.
It is hard enough for me to have sufficient faith in the United States government and military in general, let alone when the United States is preparing for battles and warmaking. The United States military has not shown that it can stop more My Lais and more military atrocities. The United States government and military executed the unjustified Grenada invasion, the unjustified Panama invasion, the premature invasion of Iraq, and the numerous premature post-war bombings of Iraq. The United States government and military also push for military solutions to drug trafficking, often empowering unjust foreign governments in the process.
Before the September 11 attacks, we already had a government that provided insufficient protection of civil liberties and civil rights, and a president who vocally supported the Texas death penalty machine and who can be expected to do the same at the federal level. In the weeks and months ahead, we can expect unjustified and unconstitutional gags and obstacles on peaceful demonstrators and the press, further erosion of Fourth Amendment rights, increased harassment of immigrants, expanded use of the unconstitutional secret terrorism courts, and expanded enforcement of the statutes criminalizing financial donations to organizations that the State Department deems to be terroristic.
For those of us who oppose the death penalty and embrace full due process rights for criminal defendants and civil litigants, how do we jibe such sentiments with sending United States troops to battle where they will cause soldier and civilian deaths and wounds without any sufficient semblance of due process? How can death penalty abolitionists harmonize their total opposition to court-ordered killing, with the even wider-spread killing of soldiers and civilians that comes from going to war? For those, like myself, who are scared about putting a gun and power of arrest in a rookie police officer's hands, how do we feel about putting guns and bombs in the hands of inexperienced soldiers and unjust soldiers?
The power of love has been a big focus at the Trial Lawyers College. Wartime cannot suspend our struggle to continue to be loving -- or at least just -- even towards our most heinous enemies.
Through it all, I continue to be reminded of the message of so many pacifists that violence begets violence, and also of my intention to flee or fight when those I love or myself are threatened with immediate physical harm.
To sufficiently restrain themselves, United States warmakers must listen to the voices of the rational pacifists. One of them is Jun Yasuda of Grafton, New York, who is a longtime peace activist and nun with the Nipponzan Myohoji Buddhists. She once told me about the day she joined a protest supporting the land rights of native people in Canada. At some point, an opponent of the protest rushed towards Jun-san and some other protesters swinging a metal pipe. Jun-san expected she would die. Instead of protecting herself, Jun-san prayed for the attacker, because he and all human life are sacred to her. Jun-san did not flee or fight in fear, because she has resigned herself that she will die one day anyway, and she sees death as just another part of life. Somehow, the attacker's pipe never hurt anyone, and he was subdued (clearly not by Jun-san).
Rev. Ishi Bashi-san of Queens, New York, also with Nipponzan Myohoji, told me about being held up at gunpoint one summer evening in Central Park. Instead of fleeing or fighting or fearing, Ishi Bashi-san profusely apologized to the robber that he had no money on him, since he only had on shorts and a t-shirt without pockets. Ishi Bashi-san told the robber that the robber clearly needed money more than Ishi Bashi-san, so he invited the robber to come home with him, where he could give the robber money. The robber became scared, bowed, and ran away.
I asked Ishi Bashi-san whether he thinks it wrong for a person to defend against an immediate physical attack. He accepts this as an option, but says he would never do so himself.
Let us learn from past military injustices, atrocities and overkill. Let us learn from the rational pacifists. We are at a critical crossroads where we all must struggle to maintain and enhance justice and human rights during the heightened national security and military actions and hysteria that will take place. We will pay a high price if we do otherwise.
Originally appeared in the Trial Lawyers College's Warrior magazine (October 2001 special edition), Jon Katz shares copyright with the Warrior.
Wednesday, September 10. 2014
Connecting with others' heart, ... Posted by Jon Katz in Persuasion at 00:00
With my son after biking sixteen miles to the Lincoln Memorial. Every revolution of our wheels was pure enchantment and bliss.
My eight-year-old son recently asked me: "Why do so many people become less fun as they get older?" If you want an honest assessment of people and life, ask a young child.
I replied that too many people lose touch with their inner child and having fun as they grow older, getting all concerned about school work and exams, earning a living, paying their expenses, health, aging, friendships, time demands, possible loneliness, others' view about them, and responding to all the worldwide and closer-by conflicts around us. I thought that the very purpose of applying oneself diligently to academics and career was to enhance one's life, not to make one's life miserable. If one keels over with a fatal heart attack from stressing and kvetching over everything, what was it worth? If a person is convinced s/he never will be happy until everyone treats each other with dignity and humanity rather than being rotten and violent to others, the person never will be happy. Unless one finds satisfaction in the now, s/he will have a big challenge ever feeling happy.
When persuading others, then, we must both acknowledge that a tremendous number of people have lost touch with the power, wonder and joy of their inner child, and we must endeavor to connect with and help reopen their heart, enchantment and child zones. I am not at all talking about manipulating nor pushing anyone. Manipulation will boomerang truckloads of camel dung and tanks of donkey urine into your mouth, nose and eyes. I am talking about connecting to the most powerful qualities of people -- their hearts, enchantment, and child zones -- to help them transcend concerns about how others will view their decisions, and to invest their whole beings in doing the right thing, even if their decision contradicts the party line of their family, friends, house of worship, workplace, neighborhood, political party, or social club.
Adults can have the best of all worlds of the experience, wonder, and fearlessness of being a child, balanced with the wisdom and experience that come with living into adulthood.
Exhibiting our reconnection with our heart, child and enchantment zones for many people is akin to not admitting to watching a certain campy or corny or melodramatic television show, so as to avoid the embarrassment of others finding us out, only to learn that just about everyone else is watching the same television show in the closet, and thoroughly enjoying themselves every second of the show, but denying themselves from enjoying the show even more by watching and discussing it with others. When people know they will not be ridiculed for opening their hearts and exhibiting their enchantment and children within, they will open up, but sometimes with delay and hesitation after having been berated by their parents to act mature, their teachers to conform, their bosses to be responsible, their peers not to embarrass them, and cops and the law to follow rules made by others OR ELSE.
Even in the most dour, businesslike, and move-it-along probation office I have ever visited, I have found glimmers of humanity bursting forth like weeds pushing through cracks in the sidewalk. One probation agent has a hysterical series of outhouse photos on her wall. Another was truly interested in engaging me in conversation about my law practice and about his also having been previously based for work near my office.
If a person knows you are judging them, dislike them, feel separate from them because of their career choice or hairstyle, or feel uncomfortale with or afraid of them, do not expect them to open up to you. The magic mirror takes hold. If you shed your role that sent you to that person, and open your heart, inner child and enchantment -- without doing it in a way that will only freak out or push away others, so do it in measured doses -- the person will not be self conscious about doing the same.
If a police officer or other witness against my client is recalcitrant with me outside the courtroom or courthouse, that means it is time for me to refocus on simply relating to the witness as human-to-human, without my role as my client's lawyer.
If you can get to the point where you neither feel nor see any distinction between you and the other person, and feel as much love, compassion, and caring for them as you do yourself and your children, then you have reached extraordinary heights, whether or not you are trying to persuade at the moment.
Thanking and hugging my son, whose very presence and love reminds me and catapults me to stay on this path.
Tuesday, September 9. 2014
Great trial lawyers enhance the ... Posted by Jon Katz in Criminal Defense at 00:00
From the beginning of my criminal defense career twenty-three years ago, some of the greatest trial lawyers have urged me to discover, cultivate, and apply my own magic; to not be overly daunted by the risks of failure, and to minimize those risks in the process; to dare to be great; and to not have reality be an excessive obstacle. Zero limits is the way.
Even the best trial lawyers cannot guarantee victory. They do not start with a clear slate. They deal with pre-existing circumstances, pre-written rules, the inability to perfectly predict the type of evidence and testimony that will be presented at trial, and the effect the evidence and courtroom mood will have on the judge and jurors. The lawyer can try to change the cards dealt to the lawyer, by handing back some cards and seeking new ones. The lawyer can seek to obtain rules and rule interpretations that are as favorable as possible to the lawyer's side. The lawyer can seek jury nullification when the rules and evidence are not going the lawyer's way. At the end of the day, though, a lawyer cannot control what a judge and jury decide; the lawyer can only create the best possible circumstances, persuasion, and mood for enhancing the possibility that the judge and jury will rule in the lawyer's favor.
Michael Jordan's famous Nike commercial reminds people going to battle -- whether on or in the court -- the necessity of maximizing the chances of winning, and of finding a way to become stronger even from defeats. Being mortal, even apparent superhumans cannot guarantee a perfect win-loss record in court.
Although I did not closely follow the recent lengthy criminal corruption trial against former Virginia governor (and a former prosecutor) Bob McDonnell and his wife (see the indictment and docketed results), of particular interest to me is that his lead lawyer for the case is Hank Asbill. I understand Hank to be a great trial lawyer. Bob McDonnell's conviction underlines that even the best trial lawyer cannot move a mountain, versus persuading people to come to the mountain.
When I asked the now-late trial lawyer Don Fiedler in 1991 for the names of a few excellent local trial lawyers for me to talk with about my interest in switching to criminal defense from my corporate law firm job, Don gave me the names of three excellent lawyers. Two of them had egos the size of a few football fields, but nevertheless were highly skilled and generous of their time with me. They blessed me with their caring, but left me wondering how much their egos interfered with their persuasiveness with judges and jurors. The remaining lawyer, Hank Asbill, sounded as down to earth as anyone comes. Subsequent to becoming a Maryland Public Defender the same year, I interacted with Hank through the District of Columbia Association of Trial Lawyers. Not only did my interactions with Hank confirm how down to earth he was, but a colleague pointed out the obvious, which was that his regular-folks quality enhances his ability to connect with and, therefore, persuade juries. I will always be deeply grateful to Hank’s kindly sharing his time with me for the handful of times that I called on him.
Thereafter, Hank went from his small several-lawyer boutique law firms to a large corporate law firm to his apparently even larger current law firm of Jones Day. I would think that Hank is as down to earth as ever at this law firm that -- like most large corporate law firms -- likely looks heavily at law school attended, grades, experience clerking for a federal or appellate state judge, class rank, and scholarly journal participation in its decisions to hire new lawyers. Of course, some of the greatest trial lawyers did not shine in their grades and other aspects of academics. Being a great trial lawyer requires going far beyond cerebral pursuits to being as human as they come. Humanity is not measured by grades.
On the day the jury returned its guilty verdict on most counts against McDonnell, Hank told reporters that he was disappointed by the jury's guilty verdict. Of course he was disappointed. I could only begin to imagine all the preparation and sweat that Hank and the rest of the Bob McDonnell defense team put into preparing for and pursuing the trial defense. This was a multi-week trial in Richmond that for weeks on end kept Hank two hours away from his Washington, D.C., office. Multi-week trials are taxing on one's time no matter what, and all the more so when a trial lawyer is camping out at a hotel rather than being close to the lawyer's home. Also probably not lost on Hank is the huge legal fees that McDonnell likely has already racked up, without a victory to show for it. At least McDonnell will have no what-ifs about whether he gave his best fight possible, with a lawyer of the quality of Hank.
The fight is not over. McDonnell will appeal, as is ordinarily essential when one loses a felony trial. He will argue his best at sentencing. His legal team will argue hard to keep him out of incarceration pending his appeal. McDonnell's wife and co-Defendant Maureen will be similarly fighting for her life and liberty.
Losing at trial in imperfect respects can be like visiting the wall where law school grades are posted in a common area of the law school, a particularly imperfect analogy when considering that a bad law school grade only harms the student, but a trial loss harms a lawyer's client. Many students nicknamed that grade result wall at my law school the wailing wall, which describes the response, at least internal, of students who found disappointing grades posted. At least law students exist who repeatedly find a way to come on top of the grade curve in their law school exams. Those same students will have a harder time figuring out how to repeatedly win trials. It can be done, but added to the trial mix is the unpredictability of judges and jurors, and the frequent war of attrition and financial resources waged between and among litigating parties.
Sunday, September 7. 2014
The risk of federal financial aid ... Posted by Jon Katz in Drugs at 00:00
My 2007 blogposting on the above-referenced topic merits updating, as follows:
The financial aid analysis must include a review of the federal financial aid statute, at 20 U.S.C. § 1091(r), which says in relevant part:
A student who is convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance for conduct that occurred during a period of enrollment for which the student was receiving any grant, loan, or work assistance under this subchapter ... shall not be eligible to receive any grant, loan, or work assistance under this subchapter ... from the date of that conviction for the period of time specified in the following table:
A student whose eligibility has been suspended under paragraph (1) may resume eligibility before the end of the ineligibility period determined under such paragraph if—
(B) the student successfully passes two unannounced drug tests conducted by a drug rehabilitation program that complies with such criteria as the Secretary shall prescribe in regulations for purposes of subparagraph (A)(i); or
The student federal financial aid website and White House website are among the resources addressing the effects of drug convictions on federal financial aid. A key is to fight tooth and nail against such charges.
Friday, September 5. 2014
Ho'oponopono for resolving legal ... Posted by Jon Katz in Criminal Defense at 00:00
When I first met ho'oponopono teacher and psychologist Ihaleakala Hew Len, briefly, five years ago, one his first remarks after greeting me with a hug was my being a lawyer. I felt an immediate connection with him, even though I was skeptical about such ideas of his as being able to heal a mental health ward by doing ho'oponopono practice -- a lifetime and lifestyle method for problem solving and abundance creation -- over each patient's hospital file without the knowledge of each patient. Dr. Hew Len and I next and last communicated three years later when I attended his weekend class on Self Identity Through Ho'oponopono. I felt an ongoing immediate connection with Dr. Hew Len without even needing to say much to each other. In fact, he says that if one has to ask a question, at least about ho'oponopono, one is not at zero.
Dr. Hew Len practices and teaches Self Identity Through Ho'oponopono (SITH), which may be controversial or even beyond controversial with practitioners of traditional ho'oponopono practiced in Hawaii, where traditional ho'oponopono involves sessions that gather extended family members with a leader directing the session, versus SITH, which involves self practice and taking personal responsibility for all internal and external challenges that one confronts.
As it turned out, a few months after I attended Dr. Hew Len's 2011 SITH seminar in Washington, D.C., I went on vacation with my family to Hawaii. I wanted to learn more there about ho'oponopono, but due to our schedule and perhaps the way I approached my inquiry, I learned nothing more than that ho'oponopono sessions tend to be family-arranged sessions with a spiritual leader.
I ultimately learned that at least in Hawaii, ho'oponopono has been used in various legal mediation settings, which makes sense, because of the healing benefits ho'oponopono can have, versus engaging in mediation that appears to be nothing better than lawyers trying to resolve the dispute without also focusing to make all the parties feel whole.
Recently, when googling ho'oponopono-related searches, I came across Iowa lawyer Andrew Hosmanek's 2005 law review article that even recommends using ho'oponopono in the restorative justice process for misdemeanor cases. However, Hosmanek says that admission of guilt by the defendant is needed to engage in such a process, which presents serious barriers for such sessions to proceed, unless he actually means to support having the defendant take responsibility, versus admitting guilt, for his or her actions, and to have that acceptance of responsibility shielded from being used against the defendant in court.
The practice of law can in fact be a healing art, and I feel that I am better in serving my clients and helping them get as close to harmony as possible when I am in harmony and apply the lessons of ho'oponopono in finding solutions to challenges, and in getting to zero so that I am not in a funk to adversely affect my clients, but am instead a positive beacon for me and my clients.
SITH ho'oponopono's lessons about taking personal responsibility for challenges and about the absence of any "out there" for the mind are harder for me to wrap my head around when considering the horrors committed by such people as Hitler, Pol Pot and KKK lynchers. Nevertheless, I also know that their crimes did not arise from a vacuum. I know that when I am at zero, one less factor exists to assist the genesis, development and growth of such horrific movements.
Through finding Andrew Hosmanek's 2005 article and website on applying ho'oponopono to mediation and restorative justice, I now have an additional path to finding lawyers who believe in the benefits of ho'oponopono for helping litigants.
Wednesday, September 3. 2014
The strength and non-duality of ... Posted by Jon Katz in Persuasion at 00:00
The times are many that I have referred to certain opposing witnesses by the acronym LSOS (lying sack of sh*t) and those trying my patience or boundaries as POW's (piece of work). That is judging. Where does judging get us other than to throw us off track from our path, into a state of weakening attachment? Who wants to hear us talking that way?
We do not judge earthquakes, rabid dogs, nor even physical diseases, although many judge the weather (as in “The weather is sh*tty”). We judge people all the time. Recently, I was in a state of bliss with my son at a Subway restaurant during our recent vacation, only to ask myself how to remain in that state of bliss as I let myself be annoyed by a customer who I felt was unnecessarily bothering the sandwich maker with the minutest micromanagement of the process, right down to letting the chipotle mayonnaise soak into the bread and assuring that he had a layer of three tomato slices. I caught myself, recognizing that I was not helping me, my son, nor anyone else to lose this state of bliss. Dealing with retail customers will inevitably bring annoyances – as I learned firsthand years ago -- and this man was not berating nor putting anyone down, but instead was acting on his own motivations trying to micromanage the sandwich-making process. I refocused my attention on my son, and returned to my state of bliss.
Good enough. How about being on a sea of calm and then walking by an unavoidable gantlet of cigarette smokers when entering or exiting a building? I have numerous times resisted the temptation to drill into the smokers about why they cannot have the good sense to stand further from the building entrance so as to not torture non-smokers with their stink and to stink up our hair and clothes in the process. Does it help me or anyone else for me to have anything but compassion and non-judgment for these smokers and the micromanaging Subway customer? I could waste my time wondering whether the smokers standing near the entrance do not care, are not aware of the stink they exhale (unlikely unaware with today's many signs not to smoke within fifty feet of a building entrance), want to congregate near their fellow smokers, are being selfish for their own convenience or time, or are acting out of an outcast mentality, for instance. I would just be wasting my time with such ponderings versus having compassion for them and to realize that my walking past their smoke is a temporary annoyance that pales in comparison to the days when smoking abounded even inside buildings, and to remember that I disagree with laws telling private business owners and land owners where and when people may or may not smoke on their property. That needs to be the choice of the businesses and land owners themselves.
I could waste my time wondering whether the Subway customer is lonely, unaware, suffering, or caught up in utter ecstasy over his imagination in developing his ultimate sandwich. That would just be a waste of time. Not only was my only option to show him compassion, but my giving him compassion versus an evil eye or sharp tongue could have spelled the difference between the bliss he possibly experienced in eating or sharing his two sandwiches versus the heartburn and heartache he might have experienced had I said anything negative to him.
What about the man who slammed his horn behind me when I waited for the close-approaching ambulance to pass by, on our way to a great hike on the Billy Goat Trail? Would my flipping him the bird, walking over to his car, or shaking my head have changed his behavior at all for future similar situations, or just have led him to dig in his heels, go deeper into impatience or anger that might next express itself to others, or go into a tirade, whether or not meant as a face-saving device?
I can go outside on a gorgeous weekend morning to practice taijiquan only to get caught by the nastiest bug bites. I can park my bike after a great ride, at the health food store only to get assaulted by the stink of an overflowing sewer system by the bike rack. I can be delighted at grabbing the last seats to a great concert only to be assaulted by stench from the person sitting next to me. To judge the situation, the moment, myself or others in any circumstances is regression from living a fulfilled and powerful life in the present moment.
The same goes for when I face judges, prosecutors and opposing witnesses who exceed the depths of low behavior even for their own reputations and track records. All of us are at our strongest when we set our own agendas for how we feel, rather than letting ourselves get thrown off track by smelling the stinkiest skunk, real or proverbial, on our day's path. A tidalwave loses its strength if it slows its momentum, as does a river. We are most powerful and persuasive when we are like powerfully flowing rivers or momentous hurricanes, with nothing that can stop nor damper us. Once people know that we are full of powerfully boundless optimism and capability, they will be less likely to waste their energy trying to sidetrack us.