Criminal Defense

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond, pursuing the best possible results for clients. 301-495-7755. http://katzjustice.com. 

Two nights ago while I was about to make a U-turn around a blocked-off street while police searched the Discovery Channel building after James Lee had already been killed, a woman crossing the street in front of me started asking if I could give her a ride. I said that I do not give rides to people I did not know. She responded: “Get going, then.” 

Good reasons exist for refusing to give strangers rides: Protection against robbery and assault; and avoiding problems with the passenger if stopped by police for speeding or another moving violation, including passengers with drugs or weapons who throw the contraband to the driver’s side of the car when stopped, or who leave the contraband on the passenger’s seat or elsewhere nearby when asked to get out, leaving the police to arrest everyone in the car for the contraband. 

Curiously, this was the first time in many years that a stranger had verbally asked me for a ride (as opposed to hitchhikers asking with their thumbs), and just earlier that day I had read the previous day’s Virginia Court of Appeals opinion -– discussed further below -- that re-underlines the risks of riding in cars with risky people. Atkins v. Com., __ Va. App. _ (Aug. 31, 2010). 

Appellant Kentora Atkins was a passenger in a vehicle stopped for having a burned-out license plate bulb. Lesson one: Beware riding in a car with equipment defects that allow a traffic stop. 

A police officer asked Mr. Atkins for his identification. Mr. Atkins first said he had none, and then handed over identification. Lesson two: The United States thankfully has not gotten as bad as European countries and other countries that require people to carry identification papers. Except for drivers, who are required to carry drivers’ licenses while driving, non-drivers have no obligation to carry identification, nor to display identification to the police. 

The traffic stop got longer when the police hit on open arrest warrants for another passenger. Lesson three: Police might be empowered to detain everyone in a vehicle during a moving violation stop, including the time period that the police are checking for other occupants’ open warrants. That is another reason to beware whom you drive with in a car. 

During the traffic stop, police officer Gallacio: 

[O]bserved appellant bobbing up and down in the car as if he was bending over the seat. Then, appellant began to behave strangely as soon as he was removed from the car. His hands were balled into fists and he continued to move in circles, ultimately in the direction of the police vehicle. Appellant’s arms indicated he was a heavy drug user; his manner was very nervous. He did not comply with Special Agent Gallaccio’s request to remove his hands from his pockets. See Walker v. Commonwealth, 42 Va. App. 782, 792, 595 S.E.2d 30, 35 (2004) (finding appellant’s refusal to remove his hand from his pocket is a factor to be considered in finding reasonable suspicion).

Atkins concluded: “Given appellant’s behavior and demeanor, Gallaccio had objective facts sufficient to give him reasonable suspicion to stop appellant and investigate further.” 

Lesson four:  Beware having needle marks exposed for the police to see. In the presence of police, beware bobbing up and down, bending over carseats, balling fists, moving fists in circles, and putting hands in pockets. 

Unfortunately, when Atkins allegedly struggled with a police officer after being told a weapons patdown was coming, he allegedly dropped a container of heroin. Lesson five: Police love when contraband drops from a person without the police having conducted any patdown or more intrusive search, possibly making the contraband harder to suppress. 

Also unfortunately, the police found weapons in the car (Atkins gives Mr. Akins no standing to challenge the car search). He got convicted of the weapons, too. Lesson six: Possession of contraband is defined as knowledge, dominion and control, which allows for joint possession even for those who have never touched the contraband. 

Lesson seven: Atkins was prosecuted and convicted in Virginia, where the jury recommends a sentence if the defendant is convicted, and where appellate caselaw for criminal defendants is generally less favorable than Maryland’s criminal appellate caselaw. Does that mean that criminals are going to immigrate to Maryland as a more hospitable place to commit crime? No. It does mean that Mr. Atkins may have gotten a geographic disadvantage from being prosecuted in Virginia rather than in Maryland.

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond, pursuing the best possible results for clients. 301-495-7755. http://katzjustice.com. 

During a midtrial lunch break in a Maryland jury trial for a drug felony prosecution, two jurors patted a testifying police officer on the back and said "good job".

The trial judge denied the defense lawyer's motion for relief, and Maryland's intermediate appellate court affirmed the conviction. Praised be the good job of Maryland's highest court for today reversing the conviction, due to the trial judge's inaction on the matter. Dillard v. Maryland, __ Md. _ (Aug. 15, 2010).

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond, pursuing the best possible results for clients. 301-495-7755. http://katzjustice.com. 

May cellphones be searched without a search warrant? Yesterday, Arkansas blawger John Wesley Hall addressed caselaw supporting the need for a search warrant before the cellphone may be searched.

By Jon Katz, a Virginia and Maryland criminal defense lawyer and DWI defense lawyer practicing in Fairfax County, Montgomery County, and beyond. 301-495-7755. http://katzjustice.com. 

As another academic year starts, our part-time assistant Wendy will be going to college out of town. Who better than Underdog readers to recommend her replacement, to join me and my full-time assistant Lina? I believe in showing my proper appreciation for such recommendations that end up being on-the-money for the long term. I also deeply thank Lina and Wendy (and our previous assistants Letam and David who both moved on academically) for their wonderful assistance.  

Here is our CraigsList ad for our job opening, either for a part-time legal assistant or part-time clerical assistant:

Highly-rated veteran criminal defense lawyer in the news seeks top-notch part-time Legal Assistant or Clerical Assistant to replace his current part-time assistant who is moving out of town.

This is a rare opportunity to join 19-year criminal defense lawyer attorney Jon Katz and his full-time legal assistant to be an integral part of our law firm team focused on winning advocacy, first-class client service, and fighting for people's Constitutional and Civil Rights.

This opportunity is immediately available and we are interviewing now.

BEFORE APPLYING: Please read our job description and requirements here: http://katzjustice.com/JOBS.htm , where we have a separate description for the part-time legal assistant and part-time clerical assistant positions, and our application requirements.

WE ARE VERY SELECTIVE in our hiring, and welcome applicants who are first-rate and who show that in their applications and interviews. In return, you will be well-paid and well-trained, and will learn amazing things about persuasion, harmonizing disharmonious situations, written and oral advocacy and putting a smile on people in unharmonious circumstances.

Again, full details on our hiring and application criteria are at http://katzjustice.com/JOBS.htm . Please only apply if you satisfy our hiring requirements.

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com. 

Often discovery from prosecutors where I practice costs under $30, which is usually too small an amount to challenge. Voluminous discovery can cost much more than that. Here, for instance, is a new discovery price menu from the Montgomery County, Maryland, prosecutor's office, running from $20 for basic discovery to a whole à  la carte menu including $100 for a copy of a video from a police car.

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com. 

Last month, I thought that the obscenity prosecution against Evil Angel and John Stagliano had been put to final rest after U.S. District Court (D.D.C.) Judge Richard Leon granted the defendants’ Rule 29 motion for judgment of acquittal after the prosecution rested.

However – and thanks to a listserv member for bringing this to my attention, on August 4, 2010, Judge Leon issued two memorandum opinions to explain why he had denied the defendants’ motion to have an in-courtroom playing of all the allegedly obscene movies, rather than just to send the films to the jury room, and to present expert witnesses on artistic merit and on the community standard as to prurient interest. 

Having dismissed the prosecution, it is not clear why the judge would have issued these opinions in the first place, unless he wishes to provide food for thought for prosecutors, defense attorneys and judges for future obscenity prosecutions. However, now that Judge Leon has issued the opinions, I sharply disagree with his view  in his first memorandum opinion that the allegedly obscene films should not be played in the courtroom in their entirety when so requested by the defense. The definition of obscenity includes whether the allegedly obscene material, taken as a whole, appeals to the prurient interest. That requires the jury to take the material as a whole, rather than leaving the jury to fast forward through the video in the jury room to skip scenes that might upset some jurors (and thus missing any dialogue in the process, as well). 

I also sharply disagree with Judge Leon’s views in his second memorandum opinion  that I believe mis-applies the governing federal expert witness law, in his refusal to permit the testimony of the defendants’ two proffered expert witnesses, one about serious artistic value (which is part of the Miller obscenity test) and the other expert concerning the community standard, which also is part of the Miller obscenity test. 

I wish Judge Leon would have written no opinions in this case after having dismissed the prosecution. 

Image from National Institute of Standards & Technology.

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com. 

Unfortunately, the state of the law reduces how carefree one may feel being in a car with others. If the car is stopped -- or a house searched -- and contraband is found on anyone in the car or home, do not be surprised if the police arrest everyone in the car, and if the prosecutor's office dragnets everyone into a prosecution. If you accept a ride from someone and the car is stolen, do not be surprised if you are arrested along with the driver.

Today, Virginia's intermediate appellate court explained that on the one hand, merely being a passenger in a vehicle that one knows to be stolen is not enough for a conviction, and showed that being a mere hitchhiker in such a situation might expose one the least to a car theft conviction. Williams v. Virginia, __ Va. App. _ (August 3, 2010). However, once the passenger, knowing the car to be stolen, asks the driver to use the car to run an errand beyond just remaining in the car until the driver reaches the driver's destination, and once the passenger encourages the driver to keep driving (because car theft is an ongoing crime while the driver knowingly drives a stolen crime), that is where the passenger can be convicted of theft. Id.

In Williams, an additional occupant of the car testified to being picked up when his friend Williams was already in the car, seeing a screwdriver on the floor near the driver's seat (which might have been a theft tool), and being told by Williams that the car was stolen. A neighbor of the theft victim testified to seeing Williams leave the car saying "we haven't been arrested yet". The Court of Appeals allowed the trial judge, sitting without a jury, to infer that Williams had asked the driver to pick up his friend, and concluded that doing so when knowing the car was stolen permitted a car theft conviction against Williams.

In the early Nineties as a public defender lawyer, I defended many car theft cases. The police often arrested everyone in the car, and, in addition to theft, sometimes charged them with unauthorized use of a vehicle, which permits guilt even if there is an intent ultimately to return the vehicle to the owner. If my client was a passenger and there was no evidence to show my client knew the car was stolen, that was one thing, but often stolen cars had such noticeable damage as popped ignitions, damaged dashboards, and smashed windows. With all theft cases, there often are a plethora of defenses, including unlawful stops, and failure by the prosecutor to establish that the same car that the police stopped is the one that was stolen from Mr. V, at least where the only description of the car is that it is a red Toyota Corolla, which litter the road.

In any event, where I practice law, theft is an ongoing crime, and includes being in knowing possession of stolen property. Therefore, think twice before taking even a stick of chewing gum from someone you know to be a frequent shoplifter.

Cesar Chavez: A champion for the empowerment of workers and immigrants.  

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com. 

Your immigration status is your own business. Whether or not law enforcement personnel have the authority to ask you your immigration status, you have no obligation to answer. 

Certainly, people in the United States without legal authorization to be in the country should not answer such questions to people in the criminal justice system, including judges. In addition, people who are not United States citizens should beware of disclosing their immigration status to anyone in the criminal justice system, lest they be reported to immigration authorities upon being charged or convicted for an offense that could harm their immigration status. 

United States citizens can stand up for immigrants by refusing to disclose their immigration status, as well, to those in the criminal justice system. 

Certainly, when entering the United States, United States citizens and those with valid United States visas should disclose their immigration status if they wish to enter the country. Beyond that, what really are the negative consequences of refusing disclosure of immigration status to those in the criminal justice system? Unless law enforcement personnel have probable cause to believe that a person is not lawfully in the United States, the person cannot be detained for such suspicion. 

As to Arizona's draconian law targeting actual and suspected undocumented people, just last Friday and referencing Arizona’s immigration enforcement law, Virginia’s attorney general issued a legal opinion giving the green light for law enforcement personnel to inquire into the immigration status of detained people.  

Curiously, the Virginia attorney general’s opinion includes the following passage: 

It also should be noted that under Article 36 of the Vienna Convention on Consular Relations, state and local officers are required to advise foreign nationals of their right to speak with a consular officer when those persons are arrested and held for longer than a short period of time.16 It is difficult –- if not impossible -- to effectively provide that advice, mandated by treaty, without making an inquiry into the nationality of a person who is in custody.

However, just as judges may not inquire into one’s immigration status, http://katzjustice.com/underdog/archives/1948-Judges-may-not-inquire-into-immigration-status-in-criminal-cases..html, police may satisfy the Consular Relations Convention merely by advising an arrestee that if s/he is not a United States citizen, the person has the right to speak with a consular official. This avoids asking one’s immigration status. 

I believe that the United States’ immigration laws are too crabbed against people who wish to immigrate here. I also believe that plenty of anti-immigrant sentiments thinly veil racist sentiments. My views on immigration law, policy and procedure are informed all the more by my involvement in law school in 1987 with the immigration law clinic, and my handling two deportation hearings at the time, representing a gentleman seeking asylum from Ethiopia, and a green-card holder fighting deportation after a cocaine felony conviction. 

A huge number of non-citizens who are undocumented (that is to say, without documents showing they are in the United States with visas) are actually on their way to obtaining visas (or are awaiting the results of visa applications) or already have documented status without knowing it (including children of a person who obtained a green card without telling the child). Certainly, “illegal aliens” is an unfair term; nobody should be considered illegal merely because they are somewhere on the planet without papers to be there, and the only aliens should be beings from other planets. National boundaries are human-made and should not be permitted to hem people in too much. 

Both United States law and international law protect political asylees from deportation. Most people who obtain political asylum in the United States are undocumented at the time they have applied for political asylum. Clearly, then, people who qualify for asylum -– and the U.S. government routinely denies asylum to people who merit asylum (the factfinding is done at the Executive Branch level, not at the judicial level, unless an Article III court will re-visit such factfinding on appeal), including for cynical political reasons (e.g., often people are more likely to win asylum if they are from a country whose government is at odds with the U.S. government, versus a government that is a U.S. ally) –- certainly do not merit being called “illegals”, for instance. 

The anti-immigrant movement is hot to trot to marginalize undocumented people (and often to lump documented people in with them) as rule-breakers greedily seeking economic benefits in the United States while disrespecting non-citizens patiently waiting abroad sometimes for years for approval of their visa applications. In reality, plenty of immigrants still are escaping non-economic misery, and not just economic misery. Moreover, such economic misery often is created in significant part by the demand of U.S. consumers –- backed up by U.S. government support for governments permitting inhumane working conditions -- for overseas goods produced cheaply as a result of underpaid labor often required to work inhumanely long hours in horrid conditions (not least of which might involve severely limiting any breaks, let alone bathroom breaks). Just see what happens when you google “Nike Indonesia”. It sounds disingenuous at best to benefit from the misery of such mistreated workers and then to bar them from entering the United States to escape such misery. 

Anti-immigrant propagandists who try to portray non-documented people as money seekers, want people to forget those fleeing from wartorn zones, brutal governments, brutal courts, brutal jailers, and brutal military members. Refugees from Darfur and Burma –- as examples –- are fleeing oppression that goes far beyond the economic. 

Additionally, millions of people who want to obtain visas to permanently live in the United States are barred from doing so, because U.S. immigration law primarily favors white collar professionals and relatives of citizens and green card holders. Such people who are ineligible for visas are not cutting in front of any line, because no waiting line has been created for them in the first place; they often live in the United States as third-class citizens at best, as they do not automatically receive visas merely because they are in the United States. 

We are a nation of immigrants. The only people in the United States who can trace their roots to non-immigrants are Native Americans, and even their ancestors apparently arrived from other continents way back when. We honor immigrants and immigrants’ rights when we refuse to answers questions by police and judges about our immigration status. 

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com. 

In August 2009, I wrote about Charles County, Maryland, Circuit Judge Robert Nalley's deflating a car's tire. Judge Nalley soon after the incident admitted very directly both to the press and to the regional chief administrative judge that he let air out of the tire of custodian Jean Washington (see her side here) for being parked where he said it should not have been parked in the courthouse parking lot. Before his admission came to light, a sheriff's deputy said he caught the deflation on video. I was at the courthouse not long thereafter, and cell-videtaped what appeared to be the area of the incident. 

Today, by this consent agreement, Maryland's highest court ordered a five-day no-pay suspension of Judge Nalley, to be served within one month of today. The Court did not issue a public reprimand, although Judge Murphy supported such a result. 

Case exhibits in the matter are here, including the transcript that includes Judge Nalley's testimony before the Judicial Disabilities Commission.

On the one hand, it can be very risky to resist a police arrest that a person believes to be unlawful. Nevertheless, once the alleged resistance takes place, it is time for the criminal defense lawyer to review the applicable law for support for using reasonable force to resist an unlawful arrest.

Both Maryland and Virginia recognize the defense of resisting an unlawful arrest. Virginia v. Hill, 264 Va. 541, 570 S.E.2d 805 (2002); Arthur v. Maryland, __ Md. App. _ (July 2, 2010).

Jon Katz - Criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com.