UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

Photo from website of U.S. District Court (W.D. Mi.).

Why would a prosecutor and judge not try to have alternate members on a criminal jury? Certainly a criminal defense lawyer might not raise the issue, in order to have a chance -- if a juror were stricken -- for a mistrial to get a better jury, to move settlement negotiations further, or to have the advantage of better knowing the opponent's strategy and evidence on retrial.

Steven Powell was accused of several counts of third degree sex offense, and proceeded to trial in a Maryland Circuit Court. Nobody sought alternate jurors. Soon after Mr. Powell's jury was selected and sworn, and before opening statements, one of the jurors informed the judge that he knew Mr. Powell. The juror said he was concerned that he could not be a fair and impartial juror, so the judge struck the juror, leaving eleven jurors in a state that guarantees criminal defendants a twelve-person jury. Powell v. Maryland, __ Md. _ (Dec. 15, 2008).

Powell's attorney declined to proceed with an eleven-member jury. At the time, it seems that the remaining potential jurors were in the courtroom and had not been dismissed, and the judge decided to proceed to select a replacement juror from the remaining potential jurors. Powell's lawyer objected, but did not move for a mistrial. Had Powell made such a motion, he would likely not have had a good argument against a retrial. The parties proceeded to select a replacement juror, but the judge refused to permit the parties to exercise peremptory strikes against any of the original eleven jury members. Powell v. Maryland

Maryland's intermediate appellate court affirmed Mr. Powell's conviction, and said that by not moving for a mistrial, Mr. Powell waived making his complaints about seating the replacement juror. Six of the seven judges of Maryland's highest court last week reversed Mr. Powell's conviction, finding no obligation for the defendant to make a mistrial motion to protect that right. Here, defense counsel said "[t]his is going to be a mistrial" after refusing to proceed with an eleven-member jury, but he did not make a motion for a mistrial, but that was neither here nor there for the outcome before the Court of Appeals.

Concurring in the result, Judge Murphy said that a mistrial for choosing from the remaining jury pool should only have been granted if the defendant had moved for a mistrial. Judge Murphy concurred in the reversal of Powell's conviction due to the trial judge's refusal to permit any peremptory strikes to be used against the original twelve jurors during the selection of the replacement jurors.

How would your state's law have handled Mr. Powell's jury situation? Jon Katz

Image from public domain.

Roy Pearson flushed his $100,000 administrative law judge job down the toilet over his widely and justifiably lampooned multi-million dollar lawsuit against a dry cleaner that allegedly misplaced his pants.

Last Thursday, the D.C. Court of Appeals affirmed his trial loss against the dry cleaner. The appellate opinion reveals that Pearson mishandled his pro se case by missing the ten-day deadline for demanding a jury trial, which he was never able to get reversed by the trial judge.

Out of the deep pain that Pearson's lawsuit caused the small businesspeople he sued in this litigation came the gift of providing sufficient information to have him removed from his administrative law judge position. Congratulations to the Chungs, who are the appellees and ultimate trial and appellate victors. Jon Katz

United States Constitution (From public domain.)

How selfish or not was the late W. Mark Felt's motivation to help the Washington Post's Bob Woodward and Carl Bernstein blow the lid off the Watergate coverup right up to Nixon, to the point that Nixon was forced to resign lest he be removed from office by impeachment?

On National Public Radio this past weekend, Daniel Schorr -- who apparently was on Nixon's enemies list -- boiled Felt's motivation to two things: First, Felt -- who took three decades to admit he was the Deep Throat informer -- wanted to preserve the integrity of the Federal Bureau of Investigation. Second, Felt had been passed over by Nixon to succeed J. Edgar Hoover as head of the FBI.

Schorr's first point is tempered by Felt's 1980 conviction while Carter was president -- if he were indeed guilty -- for approving illegal "black bag" break-ins of the homes of suspected Weather Underground members, for which Reagan pardoned him five months later while the case was on appeal. Schorr says Nixon long suspected Felt of being Deep Throat, and NPR reports that Nixon supported Reagan's pardon of Felt.

If Felt approved such break-ins without judicial search warrants, did he do so on the orders or urging of a higher-up, or was this just business as usual at the time at the FBI that Felt was not going to stop? Was Felt a carbon copy of J. Edgar Hoover, who was no great friend of civil liberties, and did he just want to maintain FBI independence from the White House? In any event, this man who was convicted of one break-in helped blow the lid off a more monumental break-in.

Most likely because the radio segment was so brief, Daniel Schorr did not elaborate on how Felt was motivated by Nixon's not having him replace J. Edgar Hoover. Was Felt paying back Nixon? Was he in so much pain from not being elevated to the FBI's directorship that he was willing for Nixon to experience the profound pain that Nixon ended up experiencing? Would Felt have felt more loyalty to Nixon had he been made FBI director? Felt left the FBI in 1973, so his insider information ended or fizzled there.

Regardless of Felt's motivation, he did the nation a great service by revealing the cover-up to Woodward and Bernstein. However, we must remember that few battles for justice are between the extremes of black and white and pure good and pure evil. Power will be abused in and out of government as long as people have power. Moreover, too many Americans seem to thirst for a powerful America just to have a powerful America.

In the foregoing context, Ronald Reagan's overly-simplistic 1980 campaign message of making America great again rang strongly with many Americans who did not want to see America surrender any more wars after Vietnam and did not want to see presidents like Jimmy Carter restrain the military from very violently addressing such international "embarrassments" as the taking and lengthy keeping of American hostages in Iran. Probably in a proverbial game of chicken, the Iranian leaders recognized that Reagan was trigger-happy enough to invade Iran and possibly drop a nuclear bomb or more there if the hostage crisis were not dropped post-haste, which led to the Iran-Contra abuse and solidification of presidential power, but Reagan was into his final term once everyone knew about Iran-Contra.

George Bush I took over after Reagan, probably less from his own qualities than the robotic failure of Mike Dukakis to connect with the American people, as exemplified by his failure to even say during a debate who his heroes were. Of course, Quayle said his grandmother was his hero, because he underlined she taught him that you can achieve anything you resolve to achieve; how non-profound a reason to choose a hero. Of course, the nagging question remains of where was George Bush I during the Iran-Contra scandal.

Then came Clinton, who did not seem to be such a power-hungry paranoid as Nixon nor a Rambo Reagan. However, Clinton for the most part continued the status quo of the military-government-industrial complex. Then came Bush II, who used September 11 as an excuse to run roughshod over the Constitution, along with the excessive number of Congressmembers who let him do it. And he still got re-elected in 2004; then again, his opponent John Kerry did not do much to connect with voters.

Now comes Obama, who spoke loudly and amorphously of "change" during his campaign, and who has named a slew of establishment people to cabinet posts and other high-level posts who do not seem yet to offer much beneficial change from what the Bill Clinton administration offered. Like Bill Clinton, Obama is a lawyer and very bright, and probably well understands Constitutional law. How much will Obama protect the Constitution, including the Bill of Rights as it applies to everyone, including criminal defendants?

Unfortunately, until the economy heals much further, too many people are going to see civil liberties as luxuries that can take a back seat to the economy. However, anytime that civil liberties are permitted to be weakened, it takes much more struggle to revive them than the heavy lifting it already takes to expand and keep them going. .

Watergate made clear the absence of limits to the possible and actual abuses of governmental power, but by no means spelled an end to such abuses. The successes in reversing the Watergate nightmare will be of little use if we do not constantly, effectively, and thoroughly scrutinize the actions and abuses of power of everyone in government, from executives to their underlings, to legislators, to judges, and to the cops on the street, prosecutors in court, and jailers in the overpopulation of the nation's detention facilities.

For those, like I, who believe they are on the side of the angels fighting in court for criminal defendants, that client-by-client approach by itself will not secure civil liberties; constant vigilance over government actions outside the courthouses is also critical. Jon Katz

ADDENDUM: A quality video of Nixon's resignation speech apparently is not on YouTube, but can be found here. Dan Aykroyd could not have delivered a more surreal performance than Nixon during this video of final studio preparation for his resignation speech.

At forty-five, I still tend to feel invincible, unless I am killed by an accident, natural disaster, warfare, or deadly assault. However, as each year passes, more people I know pass away. I know people in their late eighties and nineties, who have outlived the vast majority of their chronological contemporaries.

Last week, Mark Helm passed away. He attended the Trial Lawyers College in 2004, which was nine years after I did. He was only thirty-eight.

I never met Mark, and do not think we interacted on the Trial Lawyers College's listserv or otherwise. I wish I had met him. From what I understand, Mark was a criminal defense lawyer who defended his clients to the hilt, and was able to be hilarious outside of court (and perhaps in court at the right times, for all I know) when fighting in the pits for justice.

Mark's website talks of the way he defended his clients, which ideally describes the level of representation that all criminal defendants should receive:

"I make every attempt to get to know my clients and fight for them as a friend, brother or sister. I do not fight for a name, a cause, or a case number. I fight for a person I care for often someone that has been forgotten, ignored, and passed by. I often fight for someone that has been kicked so many times and so many ways, it is heroic they chose to fight another day. I fight for people with dreams, often unrealized, because they never had a chance, never were given a chance but, they keep going and do the best they can.

"I believe everyone deserves to have someone in their corner. I feel privileged and fortunate to be able to help, defend, and support others on a daily basis. I aggressively defend and protect people the way I would like to be treated if I were accused of a crime. I never forget if the cards had been dealt differently, our roles may have been reversed and consequently, I do everything within my power to protect and defend the people I represent."

If I am not mistaken, I did not know about Mark because he had the modesty not to be tooting his own horn all the time, but instead focused on defending his clients. Think of all the wonderful people we do not meet nor spend time with because we let ourselves get sucked into the daily grind of work, sleep, personal calendars and beer. Not only does it enrich our own lives to make time for such people, but it also speaks loudly to them how much we think of them.

Thanks, Mark, for your inspiration. My thoughts are with you and your family. Jon Katz

 The First Amendment and the rest of the Bill of Rights. (From the public domain.)

On December 2, I blogged that updated 18 U.S.C. § 2257 recordkeeping regulations aimed against child pornography were coming around the corner. The aim is overbroad, censorious, and not precise. In any event, the regulations were issued yesterday by the Justice Department and are here. Thanks to some listserv members for posting on the new regulations. My uploaded link to these regulations comes straight from the online Federal Register. I discussed the proposed regulation update here.

The introduction to the updated § 2257 rules says: "This rule finalizes two proposed rules and amends the record-keeping, labeling, and inspection requirements to account for changes in the underlying statute made by Congress in enacting the Adam Walsh Child Protection and Safety Act of 2006." The rule takes effect on Inauguration Day 2009. The introduction to the rules further states: "Compliance date: The requirements of this rule apply to producers of visual depictions of the lascivious exhibition of the genitals or pubic area of a person and producers of simulated sexually explicit conduct as of March 18, 2009."

The Supreme Court's most key recent ruling on child pornography prosecutions is Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In 2001, I became the founding president of the Free Speech Coalition affiliate for the District of Columbia, Maryland and Virginia, and for many years have defended the First Amendment rights and sometimes criminal defense rights of adult video stores, strip clubs, online providers, and individuals in the field. The FSC is the main trade association for the adult entertainment industry, particularly for the recorded and print image side of the business. However, I have made my disagreement clear from the beginning that I disagree with and refuse to participate with the Free Speech Coalition's support of child pornography prosecutions, considering that the First Amendment applies even to the possession and distribution (as opposed to creation) of child pornography, even while I acknowledge that this area includes some of the most upsetting violations and images imaginable and beyond imagination. The FSC's child pornography policy might make good business sense, but the First Amendment must come first.

I plan to review and comment on the updated § 2257 regulations in the near future. Jon Katz