UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

My two-year-old son loves the aquarium store down the street. With the aquarium and zoo, I do not ask my boy to consider whether the mistreatment and suffering of captive water and land animals would change his mind about visiting these places, particularly not at such a young age. As he gets older, he will decide for himself how to address such issues.

Recently at the aquarium, we visited the reptile room. I was at first looking with fascination at a dragon lizard in a dry glass tank all alone. I then saw that this dragon lizard was clawing at the side of the tank in the direction of the adjacent tank that had two smaller dragon lizards. The larger lizard looked so anxious for companionship that it was not ready to recognize that it would not get to be with the other two lizards without the help of an aquarium employee.

Doesn't the foregoing scenario help illustrate the plight of prisoners? Sure, they interact with other prisoners. However, in prison they must watch their back at all times. If they learn a family member died, they probably steel their exterior lest they be labeled and targeted as weak. if they break down crying in front of other inmates over the news (at least that was a real risk related by a juvenile inmate in television interview many years ago). When family members and significant others visit, if they are lucky not to be separated by plexiglass, the guards might permit prisoners to hug them hello and goodbye, but that is it. Most inmates probably cannot rely on their significant others to maintain sexual fidelity to them. Prisons can be suffocating hells.

Many or most people must know how much prisons are hells to want to radically overhaul and shrink the criminal justice system so as to make them less hellish and to have fewer people there. In the meantime, as I blogged last year, healing must continue, both inside and outside jails and prisons.

You can make a difference in providing compassion and more humanity for inmates, who consist of people still presumed innocent and awaiting trial, and those already convicted. After all, accumulated feathers still sink the boat. Every little bit helps, and every larger step helps all the more, including getting on the backs of your lawmakers and the other government powers that be; spreading the word of justice for prisoners and criminal defendants to your family, friends and acquaintances; and visiting inmates, giving them moral support, and even offering to provide them classes in your areas of strength, be it academic, creative, supportive, or otherwise. .

The Human Kindness Foundation has an excellent webpage about how to easily arrange to visit with inmates and what to do with the visits, and sends this message about what you can do to help inmates.

In this spirit of helping inmates, Vipassana meditation teachers have gained access to inmates in such places as Seattle -- since at least 2001 -- to help their healing and harmonization process. Hopefully, jails and prisons nationwide will welcome such programs, both for their inmates and for the jailers.

A  Vipassana meditation program worked at India's heavily crowded Tihar jail, which likely is more of a hell-hole physically than American jails and prisons. The initiative -- see the video clip here -- was led by longtime law enforcement official Kiran Bedi, who will hopefully give courage to law enforcement officials and jailers to avoid making prisons mere warehouses, but places where inmates are helped to transcend the hell of prison so that when they are released they may move forward and so that they may keep hold of a feeling of humanity before release. Ms. Bedi recounts her prison reform work in It's Always Possible.

Before the year ends, please reach out to and humanize a prisoner, through a visit or a letter at the very least. It will do both of you good. Jon Katz.

A fellow criminal defense lawyer has over the years been an active local leader in the National Lawyers Guild and the American Civil Liberties Union. Over the years, I have felt strong dissonance over remaining a Guild member, but have stayed for the reasons expressed here, here and here. My points of departure with the ACLU -- which I have belonged to for over two decades -- are fewer and less deep. Unfortunately, if I leave the Guild, no sufficient alternative lawyers group exists to fill the void, so I stay, for now.

I asked the above-mentioned lawyer what motivates his decision to be so active in the Guild rather than remaining satisfied with the ACLU, which stands up for the rights of all regardless of political viewpoint, whereas the Guild focuses overarchingly on so-called progressives (which is one of my points of departure with the Guild). Without missing a beat, this rather calm-speaking lawyer declared either: "Because the system is racist" or "Because the court system is racist". Either way, racism still runs too rampant in society, including in the court system and criminal justice system, including racism running through judges, jurors, prosecutors, cops, trial witnesses, jailers, and court personnel. I suppose, then, that this lawyer, like I, would not stomach nor accept prosecuting.

What is your view about how racist are the judicial and criminal justice systems, and how can we eliminate it, or at least radically diminish it if the racism cannot be entirely excised?  Jon Katz.

Today and every December 10 is Human Rights Day, renewing life into the sixty-year-old Universal Declaration of Human Rights.

Human rights violations run too rampant to just observe human rights day once a year. Daily, government officials, soldiers and police worldwide torture people, execute within and without the judicial system, and jail people because of their political beliefs, or racial, ethnic or religious status. In the United States, too many cops, judges, prosecutors, and jurors treat the Constitution as a nuisance in the way of their getting their job done. Too many cops love tasers and have tremendous trouble keeping them holstered. Human rights violations come in many additional forms, of course.

Too many people stay silent in the face of human rights violations until their own human rights are violated. They stay silent so as not to make waves, and so as not to cause problems with their jobs, for their family members, and for themselves. However, if you wait to speak up until your own rights are immediately threatened (they already are), that is too late. Silence is the voice of complicity; do not stay silent.

The above-displayed video to shut down Guantanamo at first blush might seem outdated seeing that Barack Obama pledged to close Guantanamo anyway. However, the American government's human rights violations in the name of an anti-terror war, an anti-drug war, and an anti-crime war go well beyond Guantanamo. For instance, what will Obama do about Ali Saleh Kahlah al-Marri, a Qatari national whom the United States government has incarcerated without charge nor trial in a military brig inside the United States? The Supreme Court recently agreed to hear al-Marri's challenge of his detention. Obama will have to decide what position the government takes in the Supreme Court in al-Marri v. United States.

Before you go to bed tonight, do your own part to strengthen human rights, even if it is as little as emailing and talking to your friends, family, and acquaintances about Human Rights Day, and writing at least one letter or email to a government official domestically or abroad to insist that human rights be protected now and forever. Jon Katz.

Well before he gave voice to Darth Vader, James Earle Jones paid homage to children with two incredible performances, one of the alphabet and the other of the first ten numbers, on Sesame Street.

Jones is so captivating an actor and speaker that he entertains fully when doing nothing more than the alphabet. That is a gift that would serve him well as a trial lawyer.

Many people have voices that would get them kicked off any screen test. That does not prevent them from spinning magic in the courtroom by offsetting ordinary or otherwise annoying voices with realness, passion and caring. In any event, if the speaker does not enunciate well enough, the message to the judge and jury will be weakened.

"Luke, I am your father, with a vital message: A, B, C, D..."

Jon Katz.

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

An essential focus at the Trial Lawyers College is to replace verbal legalese droning at trial with painting word images, telling persuasive stories by re-enacting events, and talking from the first-person perspective of non-lawyers involved in the drama.

Last week, I went to a nearby courthouse remembering last week's advice to me from local t'ai chi teacher Warren Connor, which was to focus all the more on my centering now that I know the t'ai chi principles. My client was wrongly accused of assaulting a man in a bar, with my client's fists and a knife, causing superficial wounds. I knew we had a good chance of winning, but also knew that if we lost, the knife part of the attack probably would have enhanced the sentence.

Fortunately, by the time of trial, I had already ramped up my fourteen years of t'ai chi practice from a few times a week to twice a day for six weeks until forever without fail, on the advice of t'ai chi megamaster Ben Lo. I have felt much more healthy spiritually and physically by having increased my t'ai chi practice. This is extremely imperfectly akin to t'ai chi master Cheng Man Ch'ing, who took up the martial art when very sick, recovered, stopped doing t'ai chi because he had reached recovery, got sick again, and reversed the sickness once and for all by returning to regular t'ai chi practice the rest of his life.

As I went to court for this assault trial, I relaxed, sank, and centered myself and my mind to my tan t'ien, which is the part of the abdominal area where the chi is stored, say my t'ai chi teachers and theirs. By doing this centering, I felt more relaxed and in control of my situation, knowing that any negative situation and negative energy can be harmonized and neutralized, and that this can best be done by applying the five t'ai chi principles simultaneously at all times, those principles being relaxing and sinking into the ground and into one's seat when sitting, keeping the body upright as if the head is suspended from the heavens, keeping the weight balanced and separated as in yin and yang, turning always with the waist (which is near the tan t'ien) as the commander, and keeping the wrists softly unbent.

Now centered, I was ready to add the storytelling and word pictures to the trial, essentially with the following focus and approach:

- The prosecutor focused on proving an assault and getting the knife used for the assault into evidence. I did not deny the assault nor the severity of the assault For unanswered reasons, the bouncers or off-duty cops at the bar let the assailant go rather than holding onto him for the cops to arrive. Our defense was that our client was not present. My client and his roommate testified they were across the street at "Club Ah", whereas the assault took place nearly a mile down the street at "Club Blah." Neither ever frequented "Club Blah" because the club is worse than blah. My client's roommate and stepfather testified to my client's utter peacefulness, and that he never had a knife like the one found at the club. My client's stepfather has a security clearance, which removed any possibility that he would risk his security clearance with perjured testimony.

- The prosecutor tried showing that the complainant's identification of my client as the assailant was airtight, including his having chosen my client's picture from a photo array. I focused on the complainant's absolute unfamiliarity with my client, his name, and his face before the assault, and his having gotten my client's name from an acquaintance (that information got in over my objection in the first place) and then having found his picture on Facebook (ah, the pitfalls of posting public photos to Facebook). I also focused on how the complainant told the cops the assailant had a full beard, but then backpeddled at trial to try to show that my client's scraggly, slow-growth whiskers never longer than a five-o'clock shadow could qualify for the phrase "full beard."

- By closing argument time, I wrapped up our version of the story with the following additional themes and images:

-- As the prosecutor closed with attempted word logic about how the assault clearly happened and about how the complainant's identification of my client had been proven beyond a reasonable doubt, I started thinking about a song or titles that might clinch our version of events, versus focusing on SODDI (some other dude did it). One answer was "Moment's Notice", here performed by Trane. The other title that came to mind was Tell Me a Story, which is a modification from Tillie Olsen's Tell me a Riddle. Of course, the latter title was apt on its own, because the trial was about the riddle of whodunit? The actual assailant still remains at large.

-- In the t'ai chi moment, I realized that it might be most effective to show the judge what happened (this was a bench trial, with the option of appealing for a whole new trial by jury in the event of a conviction), rather than merely telling him. Consequently, I took the acting role of the assailant and the complainant as follows:

ASSAILANT: (Rushing and shouting towards the complainant) You stole my jacket, Mr. C________.

COMPLAINANT: No, I didn't.

ASSAILANT: Yes, you did.

COMPLAINAINT:  Ow! (Drops to ground, writhing in pain from having been punched and stabbed.)

BACK IN CHARACTER AS MYSELF: A moment's notice. That's the only notice Mr. C________ took of his assailant. The whole assault happened so quickly, and Mr. C________'s first instinct is self-preservation, not getting a detailed rundown of his assailant's appearance. Why would my client leave the Nirvana of Club Ah on a cold December night to go to the hell of Club Blah in search of a sweatshirt stolen or lost two months earlier, particularly when he and his roommate have always avoided Club Blah like the plague?

After the prosecutor completed his rebuttal closing, the judge gave his verbal findings of fact and conclusions of law, including referencing my argument about how quickly the whole assault happened.

The judge -- who post-verdict told me he enjoyed my theatrics, but did not say how persuasive he found them -- expressed sadness over the harsh assault. He found the defense witnesses credible and reasonable doubt that my client was the assailant. Numerous of my acquitted client's friends burst into loud applause. As I motioned a suggestion to them to take their applause outside the courthouse, my thoughts transferred from "Moment's Notice" to "Bright Moments". If only all courtroom moments could be as sweet. Jon Katz.

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