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Sunday, November 9. 2008
Image from Bureau of Engraving and Printing's website. What are the United States' largest socialist programs? This year's nearly trillion dollar bailout of AIG and other financial institutions is one. The social security system is another. Certainly, the criminal justice system is a major socialist enterprise, as well, which helps explain why so many economic conservatives want to downsize or eliminate the drug war. In these belt-tightening times, the criminal justice system is particularly overgrown. The system needs to be shrunk substantially, in large part through legalizing marijuana, gambling and prostitution, and by heavily decriminalizing all other drugs. Drug prosecutions occupy a huge chunk of court, police, and prosecutorial time, so marijuana legalization and heavy drug decriminalization already will help to heavily shrink the nation's criminal justice system. How expensive is the criminal justice system? As the ACLU blog points out on November 7, 2008: The introduction to "Smart on Crime: Recommendations for the Next Administration and Congress." -- produced by an organization that includes the ACLU -- "ends with a prescient reminder that during these very challenging economic times, there are critical cost savings that can come from reforming a system that incarcerates 2.3 million people (that’s more than 1 out of every 100 adults in the U.S.) at a staggering cost of more than $60 billion per year." The ACLU blog quotes as follows from the foregoing "Smart on Crime" study: At a time when the nation is facing its worst economic crisis since the Great Depression, it is essential to review the cost of the criminal justice system to all Americans. Such a review should not only account for the cost in terms of dollars and cents, but also in terms of human lives and capital, which are our nation’s most valuable resource.
On the indigent defense side alone, public defender offices are so overburdened with criminal defense cases that seven such offices have been turning away many people who otherwise would be qualified for their services. Consequently, the criminal justice system must be substantially shrunk. Jon Katz
Friday, November 7. 2008
During my first summer in law school, working in the regulations and legislation division of a federal agency, I mentioned my interest in becoming a litigator. One of the staff attorneys -- who had paralegaled at the ACLU, which was one of the places I wanted to work -- exclaimed: "Don't you know that is the legal path that causes the most ulcers?" Ulcers shmulcers, I reasoned. I went to law school intent on learning better how to fight for civil liberties, and preferred -- and still do -- an ulcer doing work I enjoy than having a less meaningful life without stress. Of course, ultimately I found the path to being calm even in the eye of the most virulent trial storm, as I describe here. Before reaching that path, though, many times in my first two years of practicing criminal defense I would walk into the courthouse feeling my heart sink to my stomach, obsessed over how much injustice was being done every minute in any courthouse I walked into. Ultimately, I reversed that view to seeing every visit to court as an opportunity to add more justice to the world and to reverse all the world's injustices, although the opposite view still tugs at me. Ironically, I probably would not have found this path of calm in the eye of the storm had I not met the eye of the storm so many times as a trial lawyer fighting tooth and nail for my clients' liberty. Too many people lose touch with the child within them as they get farther away chronologically from childhood. Look at the adults to whom children gravitate at holiday gatherings, at weddings and other big celebrations, and on boring shopping trips with their parents, and you are bound to see adults very much in touch with the positive child within. The division between work and play needs to be dissolved, for each living moment to be part of a harmonious, powerful and enjoyable whole. Two people who bridge the gap between work and play, and adulthood and childhood are the late Ella Fitzgerald and Thich Nhat Hanh. Who else but Ella could have elevated "A Tisket A Tasket" from a droning kindergarten-required song to the masterpiece seen in this video, and even more so when I experienced Ella and Oscar Peterson separately on stage on a magical summer evening in 1982? The only thing better would have been for Thich Nhat Hanh to have joined them onstage. A few years ago, I found the following passage from Thich Nhat Hanh, which brought me all the more closer to living and lawyering fearlessly and in the moment: Contemplation on No-Coming and No-Going
By Thich Nhat Hanh This body is not me
I am not limited by this body.
I am life without boundaries
I have never been born,
And I have never died.
Look at the ocean and the sky filled with stars,
Manifestations from my wondrous mind.
Since before time, I have been free
Birth and death are only doors through which we pass
Sacred thresholds on our journey
Birth and death are a game of hide and seek.
So laugh with me,
Hold my hand,
Let us say goodbye
Say goodbye to meet again soon.
We meet today
We will meet again tomorrow
We meet at the source every moment.
We meet each other in all forms of life.
Thich Nhat Hanh, Chanting and Recitation from Plum Village. Page 188. In the above-displayed video, Thich Nhat Hanh talks of being mindful, happy and in the moment with each passing second. Not only is such an approach essential, but, when applied, it helps one concentrate on the task at hand, even if the person prefers being elsewhere in time, place, health, and experience. Many talk of time management, but overly thinking about the future in an effort to manage time will boomerang against the time manager if s/he cannot be here now. A big challenge to keeping work as play is to transcend the feeling of imprisonment being in a stuffy, windowless, courtroom where one cannot even enliven the experience with an I-Pod. Then again, before the days of electronics, electricity and batteries, people found a way to do that without I-Pods, and I will endeavor to do the same. As the week comes to a close, I have posted the above videos. The first video presents Ella Fitzgerald in Berlin singing Berlin's "Blue Skies". The second video presents Thich Nhat Hanh bringing the benefits of mindfulness/being in the moment, to life. Thanks to a listserv member for the link to the latter video. Jon Katz ADDENDUM: After posting the forgoing blog entry, I finally listened to the rest of the above clip of Ella Fitzgerald to see that the song is actually "On a Clear Day" after Ella starts off with the first line of "Blue Skies". I found no close rendition of "Blue Skies". Here is one by Willie Nelson.
Thursday, November 6. 2008
From National Archives website. Lucy van Pelt consistently invited Charlie Brown to kick a football. She held it to be kicked, but then would withdraw the ball. Similarly, a few times recently, the National Security Archive complained in federal court that Lucy van Pelt -- I mean the CIA -- had unlawfully refused its request to be classified as a representative of the news media under the federal Freedom of Information Act, seeing that such representatives only need to pay for duplication costs of FOIA-requested documents, rather than needing to pay any fees to process the FOIA request. 5 U.S.C. § 552(a)(4)(A). Each time that the National Security Archive complained, the CIA would respond to the court with an apology, saying that such a classification should not be denied to the National Security Archive. Then, with the federal court's back barely turned, the CIA would repeat its actions of refusing to grant news media representative status to the National Security Archive, and the tango continued, until November 4, 2008, when U.S. District Judge Gladys Kessler put the brakes on such nonsense from the CIA, and ordered that it be stopped. Curiously Judge Kessler's opinion does not give a definition of "representative of the news media," because the parties agreed that the National Security Archive does so qualify. National Security Archive v. CIA. _ F.Supp.2d (D. D.C. Nov. 4, 2008). In any event, hopefully the Bush II administration's contempt for the FOIA will not spill into Barack Obama's presidency. Jon Katz.
Wednesday, November 5. 2008
Bill of Rights (From public domain.) Why listen to government/FCC-censored broadcast radio and television when we have the choice to listen to satellite and online radio and to watch cable television? Why listen to broadcast radio and television when the FCC might still get upheld in court for heavily fining a station for broadcasting Allen Ginsberg's Howl masterpiece during prime time, or even a fleeting expletive by a winner at an awards ceremony or a successful player in a sporting event? Yesterday's Supreme Court oral argument in the F.C.C. v. Fox Television broadcast indecency case gives insight into such justices as Chief Justice Roberts and Justice Scalia, who seem to have no problem with heavy F.C.C. fines for the use of the words f_ck and sh_t during primetime on broadcast television. Justice Ginsburg showed skepticism about permitting the F.C.C. to skewer the use of such words in such a blanket fashion, and Justice Stevens underlined how silly it is to be punishing mere words so harshly. Of course, you need not wait for the Supreme Court to decide this case. You always can insist that your U.S. Congressmembers insert First Amendment teeth to replace the F.C.C.'s constant urination on First Amendment rights by looking for sh_t and f_ck words all over the place on the taxpayers' backs. Will you make such a move? Jon Katz.
Tuesday, November 4. 2008
"Al-Qaida terrorists still plot to inflict catastrophic harm on America ... [Barack Obama is] worried that someone won't read them their rights." Sarah Palin at the Republican National Convention (Sept. 3, 2008). As much as I am not thrilled about Barack Obama -- and I am not thrilled at all about John McCain -- McCain blundered abysmally never to have rejected Palin's above-quoted mis-hyperbole about the essential right of detained criminal suspects to be read their rights to remain silent and to an attorney. Palin's RNC convention speech was scripted, with no impromptu words, and it is doubtful that Palin's above quote got approved without McCain's okay. Remember your own rights today on Election Day: You have the right to vote with your Diebold election machine or dimpled chad producer, to tell Palin and McCain what you think about their trying to score political points through their lampooning Barack Obama as more for protecting criminal suspects' decades-long rooted rights than they will ever be. Jon Katz.
Tuesday, November 4. 2008
Even though Maryland courts and government offices apparently are closed for Election Day, we will be open today. Remember to vote early and often. Jon Katz.
Monday, November 3. 2008
As I rise early on October 4, 2008, to get to the polls on the way to court, I will still be kicking myself for my own role, through inaction, in our having a two-party-dominated underdemocratic/barely democratic Tweedledum-Tweedledee political system. The tealeaves do not show that Obama will be any better a president than Bill Clinton was, and I was not overly fond of Bill, who maintained a government that was overly militaristic, overly-prosecutorial, and insufficiently protective of civil liberties. I voted for Bill Clinton, as I now vote for Barack Obama, as a less scary alternative to the other major party's opponent. Just as with George Bush, II, a president McCain will feel an obligation to pay further homage to the party's morally conservative (an oxymoron) right wing, beyond his blunder of naming the woefully inexperienced, incapable Sarah Palin, who will be less of a friend to civil liberties than will John McCain. The most lasting damage of a McCain presidency will be his lifetime appointments to the Supreme Court, and his dozens more annual lifetime judicial appointments to the lower appellate and federal trial courts. The next president will likely fill one to three vacancies for the Supreme Court. Justice John Paul Stevens -- Ford-appointed but today comparatively one of the Court's strongest friends of civil liberties -- is eighty-eight, and will be nearly ninety-three when the next president leaves office; it is very doubtful that Stevens will stay on the bench as long as that. Justice Ruth Bader Ginsburg is seventy-five and will be seventy-nine when the next president leaves office. Justice David Souter on the one hand is only sixty-nine, but on the other hand is reportedly antsy to return to New Hampshire. If you are not scared yet, consider this for post-Halloween terror: The three youngest justices are three of the four most rightwing on civil liberties issues, those being Justice Clarence Thomas, 60, Justice Samuel Alito, 58, and Chief Justice John Roberts, 53. That is no typo; Chief Justice Roberts is rightwing, 53, and will be at the Supreme Court's helm a few more decades. The final member of the Supreme Court's rightwing quartet is Justice Antonin Scalia, who is only 72, loves his job, and shows no signs of going anywhere for at least two more presidencies. Even though Chief Justice Roberts may be a mensch off the bench, and has even been known personally to pass out Halloween candy to trick-or-treaters, that does not change the severe damage that he and the other Supreme Court rightwingers inflict on the Constitution each month. A president McCain likely will nominate someone no less conservative than the Supreme Court's current right-wingers. If you think we currently have too many abysmal Supreme Court opinions, just wait and see what will happen if a president McCain names Justice Stevens's replacement after eight years of Bush, II, nominations to the federal courts. Election Day is your opportunity to mobilize against further right-wing lifetime federal judicial nominations, not only to the Supreme Court, but to the lower federal appellate courts and trial courts, too, which apparently number in at least the dozens each year. Sooner rather than later, of course, we need to break free from the two-party dominated system that overtakes the nation's psyche to the point that one wonders whether schoolchildren realize that the nation's political system is not limited to two parties. As Nader's running mate Matt Gonzalez asks, "What do they [the Republicans and Democrats] have to do to lose your vote?" Had Ralph Nader not run for president in 2000, Al Gore would have beaten George Bush, II. Nader knew he would not win the presidency, but also had a powerful message that most Democratic and Republican candidates and officeholders are more fundamentally alike than they are different, maintaining most of the status quo of the government-military-industrial complex. The only way to break out of the woefully underdemocratic two-party system is to risk electoral victories by the worst major candidates on the road to a truly multi-party system. Jon Katz.
Monday, November 3. 2008
 Photo from website of U.S. District Court (W.D. Mi.).
Wesley Snipes and Paul Little (a.k.a. Max Hardcore) both are actors -- very different actors, at that -- with pending federal criminal appeals from the Middle District of Florida. Their similarities end there both with the types of convictions involved (Snipes for a tax conviction and Hardcore for an obscenity conviction), the lengths of their sentences (Snipes possibly for a shorter period than the time to argue and decide his appeal, and Hardcore for nearly four years), and their abilities to make movies pending appeal (Snipes yes; Hardcore, no, because his appeal bond motion was denied). Curiously, Wesley Snipes's judge granted him an appeal bond after determining that his appellate issues are not particularly strong, but are not frivolous. Conversely, in denying an appeal bond to Max Hardcore, his trial judge wrote: "The Court does not find it likely that this Circuit will afford Defendant relief based on the Court’s ruling here, as it is this Circuit’s precedent that necessitated it. In addition, even if the appeals Court were to grant relief on this ground, it would only affect Counts I–V, the sentence for which runs concurrent to the sentence imposed for Counts VI–X. Therefore, Defendant will be unable to obtain the relief listed in § 3143 required for a stay of his sentence on this matter." Here are relevant documents concerning the appeal bond litigation in the cases of Snipes and Hardcore: - Max Hardcore: Order denying appeal bond. Amended appeal bond motion. Wesley Snipes: Order granting appeal bond. Appeal bond motion (a good motion for all practitioners' reference). Prosecution's opposition to an appeal bond. Snipes's reply to the prosecution's opposition to an appeal bond. Also, see my previous blogpostings on Max Hardcore's case, and Ellen Podgor's recent listing of some white collar criminal appellants who have and have not been granted appeal bonds. Jon Katz.
Sunday, November 2. 2008
Zoos keep captive animals for the entertainment of humans. Yes, some zoos may have a higher educational and preservationist purpose. However, if attendees' entertainment motivation for going to zoos were eliminated, few would be visiting zoos, and many of those on display would no longer be put on display. Nevertheless, my 2 1/2 year-old-son loves the zoo, and I admit having enjoyed myself immensely with him at the National Zoo for many hours today. One day he will know about the animal rights movement's opposition to zoos and circuses and make up his own mind. Our primary motivation for driving to the zoo today was to visit the apes. All of the apes there exemplify the essential life and lawyering approach of being here now, as lived and taught by such philosophical giants as Bhagavan Das and Ram Dass, and as exemplified in the following story: "A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and -- with his life hanging in the balance -- thinks of how delicious the strawberry tastes." Here is another being here now story from the same websource: "A Japanese warrior was captured by his enemies and thrown into prison. That night he was unable to sleep because he feared that the next day he would be interrogated, tortured, and executed. Then the words of his Zen master came to him, 'Tomorrow is not real. It is an illusion. The only reality is now.' Heeding these words, the warrior became peaceful and fell asleep." As the apes moved about above our heads effortlessly along ropes, as they ate and drank, and as they sat in the moment, they were being here now, as was my son, who was moving forwards in the moment. Jon Katz.
Friday, October 31. 2008
Image from Virginia Forestry Dept's website. Halloween treats came before sundown today with the following favorable criminal rulings from Virginia's Supreme Court, which issues opinions around every six weeks: - Virginia's Supreme Court reversed a rape conviction where not more than a scintilla of evidence supported a jury instruction that the jury could consider the defendant's departure from the alleged victim's home, where Defendant claimed consensual sexual activity and where the evidence showed the Defendant's departure complied with the complainant's telling him to leave. A retrial is required, because the erroneous jury instruction was not harmless error: "'[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand.' Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731 (2001) (omissions in original) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946))..." Turman v. Virginia. - When cops ask if any drugs, weapons, guns, or nuclear devices are in the car, stay silent, or else ask if you are free to leave. If you do not follow that admonition, pursue a Miranda challenge. Here, Defendant Hasan drove a car matching a robbery lookout. In 2005 in Dixon, the Virginia Supreme Court said that handcuffing by itself does not automatically require Miranda warnings, nor does placing the suspect in a police car without anything more. In Mr. Hasan's case, the Supreme Court confirmed: "However, several factors not present in Dixon distinguish this case. For example, the defendant in Dixon did not face drawn weapons or a readily available K-9 unit, and at the time of the custodial interrogation, only one trooper was interacting with the defendant. See id. at 37-38, 613 S.E.2d at 399-400. In contrast, Hasan was confronted during questioning with both drawn guns and a K-9 unit close by, and was surrounded by a 'cone' consisting of multiple officers." With the foregoing factors present, Mr. Hasan confirmed the presence of a handgun in his car. The Virginia Supreme Court granted Mr. Hasan a retrial |