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Monday, June 29. 2009
Bill of Rights (From public domain.) On March 9, 2009, I blogged about the Fourth Circuit's decision upholding a conviction and steep sentence on counts for obscenity and child pornography in the form of Japanese anime drawings and allegedly obscene e-mails. U.S. v. Whorley, 550 F.3d 326 (4th Cir. 2008). Concurring in part and dissenting in part, Judge Gregory joined the majority in affirming Whorley's conviction for receiving obscenity in the form of the drawings, and Whorley's conviction for violating 18 U.S.C. § 2252(a)(2) (generally prohibiting receipt of visual depictions "involv[ing] the use of a minor engaging in sexually explicit conduct" and displaying such conduct). It is remarkable and most unfortunate that all three judges upheld the foregoing 18 U.S.C. § 2252(a)(2) count, because I believe Ashcroft v. Free Speech Coalition clearly prohibits a child pornography conviction for Whorley's receipt merely of sexually explicit drawings rather than of still or moving photographs of actual minors. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Here is an uPdate on Whorley's ultimately failed en banc petition, filed on January 2. 2009: - Whorley's en banc petition (here is the prosecution's opposition thereto) challenges all counts upon which he was convicted. It does not challenge his sentence. - Judge Roger Gregory was the only judge to vote in favor of granting en banc review. Judge Gregory partially dissented from the original Whorley opinion. He dissented from Whorley's conviction for sending purely textual emails about his sexual fantasies involving children. He also dissented from Whorley's conviction for violating 18 U.S.C. § 1466A(a)(1), which generally prohibits receipt of material that "depicts a minor engaging in sexually explicit conduct; and is obscene." The basis for his conclusion is not Ashcroft v. F.S.C., but instead his interpretation of statutory language and his conclusion that an actual minor must be depicted to violate 18 U.S.C. § 1466A(a)(1). - The order denying en banc review was issued in published form on June 15, 2009. The en banc denial order only mentions obscenity, even though two counts on which Whorley was convicted were based on the apparent age of the image depicted therein, and the remaining two counts were for obscenity. Much has been made about the "pure speech" involved in one of the two obscenity counts on which Whorley was convicted, and that "pure speech" count is the focus of Judge Gregory's dissent from the denial of en banc review, with his using a footnote (n.3) to dissent from Whorley's conviction under 18 U.S.C. § 466A(a)(1). - To my knowledge, the Supreme Court obscenity caselaw still does not -- but should, in my opinion -- completely bar obscenity convictions for words alone. To be certain, the Supreme Court has at least drawn the line at ruling that the Carnal Knowledge film is not obscene as a matter of law. Jenkins v. Georgia, 419 U.S. 13 (1974). However, Jenkins does not create any safe harbor for words one way or the other. Moreover, Jenkins does not create any safe harbor for any type of nudity, other than that Carnal Knowledge shows Anne Margaret's bared backside and part of an unclothed breast, which should bar bared buttocks and partially bared breasts from obscenity prosecutions and convictions. <span style="
Friday, June 26. 2009
Bill of Rights (From public domain.) Five years ago, the U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). For testimonial evidence, Crawford scrapped the rule of Ohio v. Roberts, 448 U.S. 56 (1980), that the Sixth Amendment right to confront one's accusers does not preclude unavailable witnesses' hearsay so long as said hearsay bears adequate indicia of reliability. Crawford applies to testimonial evidence, and has generated substantial litigation over determining what evidence does and does not qualify as testimonial. The twenty-four-year period between 1980's abysmal Ohio v. Roberts and 2004's wonderful Crawford v. Washington saw repeated erosion of Fourth Amendment rights that had been better protected under the Warren Court, before Richard Nixon nominated Warren Burger as chief justice and added Justice William Rehnquist to the court, followed by Reagan's adding Justice Scalia, Bush I's adding Justice Thomas, and Bush II's adding Justice Alito and Chief Justice Roberts. Even in the darkness of four justices who repeatedly pen and join opinions that take dangerously crabbed views of the Constitution's guarantees of individual liberties -- Chief Justice Roberts, and Justices Scalia, Thomas and Alito -- even those four sometimes get it right, but not always as a unified team. Justice Scalia penned Crawford. Yesterday, Justice Scalia penned the opinion that confirms Crawford is alive and well, requires that Crawford be followed full strength by trial and appellate judges, and prohibits chemists' written analyses from coming into evidence at trial when the chemist is absent and the defense objects, because such analyses are testimonial hearsay. Melendez-Diaz v. Massachusetts, __ U.S. _ (June 25, 2009). Websites and attorney listservs are all abuzz about Melendez. Here are some of the main benefits of Melendez to my clients: - Melendez is not met merely by giving the defense the opportunity to summons drug chemists, in part because the defense might be in a pickle if the chemist simply does not honor the subpoena or tries to avoid the subpoena by successfully asking permission from the court to do so (e.g., so as to appear at another court for trial, to be in training, or to be on vacation). Melendez, slip op. at 18-19. - Chain of custody logs and all other chain of custody hearsay for drug cases and all other criminal cases are inadmissible at trial without the testimony of the people in the chain, unless the defense consents otherwise. Melendez, slip op. at 5, n.1. - For such jurisdictions as Virginia that until yesterday treated breathalyzer test results as non-testimonial, clearly they are. Now, I no longer need to subpoena breath test technicians to trial in Virginia; that burden has shifted to the prosecution in order for the prosecutor to try to get the breath test results admitted into evidence. Melendez says that Crawford already shows that drug certificates of analysis are testimonial evidence. If so, why did so many judges refuse to treat such certificates of analysis as testimonial evidence? Is it because they sided more with Melendez's four-justice dissent? Is it because they thought the Supreme Court might make an exception for certificates of analysis when realizing how costly it would be to bar the admission of certificates of analysis without live evidence? Is it because some lower court judges knew exactly what Crawford said, but decided to see if the Supreme Court would call them on it? Now, any time trial or appellate judges hem and haw that the Supreme Court could not have meant this or that in a Supreme court opinion that confirms sweeping rights for criminal defendants, a great response is to whip out Melendez and say: "Melendez tells judges not to make the Supreme Court remind them more than once of their obligations to obey Supreme Court rulings." Jon Katz.
Thursday, June 25. 2009
In addition to my own clients, frequently I receive calls from people asking for help to expunge their criminal records when I had never been in court with them in the first place. For my pre-existing clients, I gladly do the work where they are eligible for expungement. For the second group, I ordinarily decline, in part because I would need to charge (and often do not wish to do so) to overcome the case learning curve that the original trial lawyer has overcome, and because the work is too much of a thankless and sometimes tedious task -- especially if the expungement were denied --- unless I was involved earlier in obtaining the favorable result that led to eligibility for expungement in the first place. Here is a brief rundown about expungement practice, procedure, and strategy in the state jurisdictions where I practice: Where I practice -- absent any statutory benefits for youths -- expungement and sealing is not available without no prosecution action, a dismissal, an acquittal, or, in Maryland, a stet disposition or probation before judgment. - Maryland's expungement application process is the simplest, generally requiring the completion of two triplicate one page forms and a $30.00 filing fee. - In 2006, the District of Columbia loosened its sealing law, that previously generally prevented sealing absent proof by clear and convincing evidence of actual guilt. The D.C. Public Defender Service has a free information packet on the Criminal Record Sealing Act of 2006, with sample motions for those wishing to file pro se, by calling or visiting PDS. - Virginia's sealing procedure requires filing an entirely new lawsuit and filing fee for such relief. Earlier this month, the Virgnia Supreme Court confirmed that sealing is precluded after a dismissal following a judicial finding of guilt or facts sufficient to prove guilt. Brown v. Virginia, __ Va. _ (June 4, 2009). - In federal court, any sealing eligibility is very limited. Criminal defendants need to know that expunging and sealing does not prevent police, prosecutors, or judges from knowing about their criminal charges and dispositions. At least in Maryland, though, expunging can create a substantial hassle for such people to obtain their criminal charge and disposition history. Sealing does not eliminate any information harvested by private parties before the expungement/sealing date. Among others, people who will be applying for immigration benefits from the United States or seeking a U.S. security clearance, should consult with a lawyer before getting their records sealed or expunged. If they do get their criminal case records sealed or expunged, they should in advance obtain multiple certified copies of their case disposition, and probably at least one or two certified copies of some or all of their court case file. The immigration authorities, and possibly the security clearance officials, likely will want to see documentary proof of the case disposition. Jon Katz.
Wednesday, June 17. 2009
Bill of Rights. (From the public domain.) On June 17, 2009, the Fourth Circuit issued an opinion in a drug conspiracy case, addressing the following particularly important issues, in U.S. v. Marc Jeffers. __ F.3d _ (4th Cir., June 17, 2009): - The Fourth Circuit rejected Jeffers's request for plain error review on the absence of a jury instruction about the possibility of multiple unrelated conspiracies. Jeffers said: "We have heretofore explained that '[a] single conspiracy exists, when the conspiracy had the same objective, it had the same goal, the same nature, the same geographic spread, the same results, and the same product.' United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995) (internal quotation marks omitted). Error will be found in a conspiracy instruction 'if the proof of multiple conspiracies was likely to have confused the jury into imputing guilt to [the defendant] as a member of one conspiracy because of the illegal activity of members of the other conspiracy.' United States v. Roberts, 262 F.3d 286, 294 (4th Cir. 2001)." Jeffers, slip op. at 10-11. Jeffers further said: "As we observed in Banks, a drug conspiracy may 'result[ ] in only a loosely-knit association of members linked only by their mutual interest in sustaining the overall enterprise of catering to the ultimate demands of a particular drug consumption market.' Id. As such, there was no instructional error — much less plain error — made by the trial court in this respect." Jeffers, slip op. at 12. - The Fourth Circuit rejected Jeffers's contention that the "trial court failed to instruct the jury that it had to determine the quantity of cocaine base attributable to him." Jeffers said: "In United States v. Collins, in 2005, we held that, in order to properly apply the sentencing provisions of § 841(b)(1) in a § 846 drug conspiracy prosecution, the jury must determine that the threshold drug quantity was reasonably foreseeable to the defendant. See 415 F.3d 304, 314 (4th Cir. 2005). In this prosecution, the district court instructed the jury that it had to find that ‘the object of the unlawful plan was to distribute or possess with intent to distribute at least 50 grams of a substance containing a detectable amount of cocaine base.’" Jeffers, slip op. at 14. Concurring Judge Niemeyer added his "continuing objection to our application of United States v. Collins, 415 F.3d 304 (4th Cir. 2005), which remains inconsistent with well-established conspiracy law, as defined by 21 U.S.C. § 846 and governing Supreme Court decisions, such as United States v. Shabani, 513 U.S. 10, 13-14 (1994). See United States v. Brooks, 524 F.3d 549, 565-79 (4th Cir. 2008) (Niemeyer, J., dissenting). Our court should have seized this opportunity to correct the problem, although, I suspect, it will have to be the Supreme Court and not our court that does so." Jeffers, slip op. at 23. - Jeffers confirmed that: "A sentencing court is obliged to make factual determinations by a preponderance of the evidence. See United States v. Brika, 487 F.3d 450, 459 (4th Cir. 2007). We review such a court’s findings of fact for clear error, reversing such findings only if we are 'left with the definite and firm conviction that a mistake has been committed.' United States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008) (internal quotation marks omitted)." Jeffers, slip op. at 17. - Jeffers found a Rule 16 discovery violation through the government's refusal to permit Jeffers to copy discovery, and instead only to examine some of it. However, Jeffers found no showing of sufficient prejudice to merit appellate relief. Jeffers, slip op. at 19-20. - The Court denied Jeffers's Brady challenge, and confirmed the following approach for evaluating such challenges: "In order to establish a Brady violation, Jeffers is obliged to show that the non-disclosed evidence was (1) favorable to him, (2) that it was material to his defense, and (3) that the prosecution possessed it and failed to timely disclose it to Jeffers. See United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001). Evidence will be deemed 'favorable' if it is either exculpatory or if it can be used as impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). Such evidence is properly considered as 'material' if there is a 'reasonable probability' that its timely disclosure would have produced a different result. See id. at 682. A 'reasonable probability' exists if the failure to make such a disclosure "undermines confidence in the outcome of the trial." Id. at 678." Jeffers, slip op. at 22. Jon Katz.
Thursday, June 11. 2009
Last night I stopped by the annual D.C. Bar-sponsored meet-the-judges reception at the District of Columbia Superior Courthouse. I am of two minds about attending such gatherings, which I rarely attend. On the one hand, the situation is somewhat artificial because the lawyers' conduct rules prevent me from talking about my most burning concerns and questions without my opposing lawyers' presence. On the other hand, there is an artificiality, particularly in a land where democratic ideals are so widely touted -- whether or not necessary -- of having a mere human sitting up on an elevated judge's bench in black robes with the power to lock up people and render other devastating decisions at a moment's notice. T'ai chi teaches to know others by getting close up to them, so I attended. The gathering was in the jury lounge, complete with a musical trio, unlimited wine and soft drinks for the admission price, and servers walking around with appetizers when leaving them on a table to get soggy would have done just fine. The jury lounge location was a strange juxtaposition to say the least. I did not learn anything revealing about any of the judges. Then again, I did not make any effort to do so. I got more out of talking about some case strategy with some of my colleagues. Then I left. In the interim, among those speaking to the crowd was Judge Royce Lamberth, who is the chief judge of the U.S. District Court for the District of Columbia. Pricking up my ears the most were Judge Lamberth's comments about the court's overloaded docket thanks in part to the Guantanamo cases, from which I gather he means the the Guantanamo habeas corpus cases; and the court's docket currently including prosecutions for tons of cocaine rather than just kilograms. (Here is the federal government's take on the cocaine tons prosecutions during the closing weeks of the Bush Administration). Judge Lamberth discussed the Guantanamo cases publicly as long ago as last March, and at that time had some choice words for all political parties for what he described as serious delays in filling vacancies on his court. Last night he forecast the possibility -- or maybe just his hope -- that Guantanamo cases would occupy significantly less of the court's docket come this October, and said that visiting judges from other jurisdictions had been assisting on the non-Guantanamo cases, due to a shortage of enough judges in his courthouse to handle them. As to the alleged tons of cocaine being prosecuted, I say that where there is a demand for drugs, there will be a supply. How many people would be turning to cocaine, marijuana and numerous other unlawfully-sold drugs if they had the funds and access to qualified physicians to prescribe them medication to assist their psychological and physical problems; if the funds and access to quality mental health counseling; and the funds, access, and will to live a balanced and harmonious life? How much are criminal prosecutions really going to suppress illicit drug use after all these decades of failure on this front? In any event, I briefly spoke afterwards with Judge Lamberth. I have not appeared before him, but found him to be easy to talk with and apparently interested in interacting off the bench with lawyers. Had a prosecutor been present and had the lawyers' professional conduct rules allowed, I would have repeated to him my formula for eliminating bursting court dockets: Legalize marijuana, heavily decriminalize all other drugs, eliminate mandatory minimum sentencing, eliminate the death penalty, and eliminate per se rules of guilt in drinking and driving cases. On the one hand, judges are not lawmakers. On the other hand, many lawmakers will listen more to such lobbying from judges than from me. Jon Katz. Bill of Rights. (From the public domain.)
Wednesday, June 10. 2009
Before this month, rarely a business day passed without an Underdog posting. This month has seen some business days without postings. When I am not working or spending time with my family, I am spending increased time practicing t'ai chi ch'uan. At first, when I started practicing t'ai chi in 1994, I thought t'ai chi development needed at least one daily full round of the 37-posture yang style short form, as developed by Cheng Man Ch'ing. The form takes around eight minutes. Then, last fall, t'ai chi master Ben Lo advised me to practice in the morning and evening, increasing my practice to sixteen minutes daily. Next, two months ago I started learning sensing/push-hands t'ai chi practice well beyond the few times I tried it out for a few short moments, rarely missing a Saturday morning practice now at Lincoln Park, a few blocks from the Capitol. Through talking with one of the advanced practitioners and reading Wolfe Lowenthal's t'ai chi book Gateway to the Miraculous, I learned that doing the t'ai chi form once in the morning and once in the evening is not much more than a warmup. Thereafter, I have increased my daily t'ai chi practice to an average of 45 minutes to ninety minutes total, as I describe here. My daily t'ai chi commitment is akin to the time spent driving to and being at a health club. The beauty of t'ai chi is that the time driving to the health club can instead be used to exercise wherever a person happens to be. My increased t'ai chi practice helps me achieve further in such essential t'ai chi practices as fully relaxing, sensing my surroundings and opponents' actions better through quieting the mind and emptying overclutter in the mind, and rooting the soles of the feet to the ground like a plant that cannot be pushed over. Particularly with the summer weather, I am doing more of my t'ai chi practice outside, not only in the morning after I awake, but in the evening before going to bed. Where before I usually fell asleep easily but sometimes started waking up before I planned and with an unquieted mind, I am sleeping more soundly for a longer time and am spending more sleeping and waking hours with a much more quieted mind that is no less active than needed. T'ai chi is not only a martial art, but according to the late physician and t'ai chi master Cheng Man Ch'ing, t'ai chi is unparalleled at making the strong stronger and the weak stronger, and at making one healthy in the first place so as to reduce the need for acupuncture and any other medical treatment. For those who believe in the benefits of acupuncture, which focuses on the flow of one's chi, t'ai chi focuses on the same. Professionally, t'ai chi continues providing me tremendous and increasing benefits. Some of the benefits come from my daily practice, including the increased relaxation, calmness, and mental sharpness that are a far cry from the dread I often felt in the pit of my stomach early on in my criminal defense career when walking into courthouses and recognizing head-on all the injustice being inflicted on too many people, including the many unjust bail orders that lead to many defendants coming to court in chains rather than through the front door. Additional benefits come from speaking with fellow t'ai chi practitioners and reading some excellent t'ai chi books. Wolfe Lowenthal provides great lessons in fearlessness and equanimity, which is a topic I frequently blog about. One of my t'ai chi teachers is a lawyer who found the time to teach t'ai chi while a big firm law partner and while the chief lawyer at a huge corporation, all the time exhibiting total calm when I have seen him, together with his having fun pushing and bumping into me to illustrate his answers to my longtime questions about whether t'ai chi really works as a martial art. The foregoing t'ai chi benefits help me not only as a lawyer, but as a person; of course, to become a better lawyer, one must simultaneously become a better person. Around 1997, I wrote about the overlapping benefits I derive from applying the lessons of t'ai chi, the Trial Lawyers College, and the path of peace. As I continue to apply these lessons, I learn that the thick skin I have developed over the years to toughen myself in coping with and fighting injustice, unfairness, heartlessness, and inhumanity did not help me sense often enough when others felt harm by words and actions that often roll off my back like water on a duck. This foregoing path that I have taken helps me shed unnecessary armor to better empathize when, for instance, a client feels all bent out of shape when a court starting time changes, and to better sense how everyone around me is reacting to -- and may react to -- me, others, and everything else taking place. This is critical in persuading and living inside and outside of the courthouse. I continue benefitting professionally from blogging. Blogging keeps me motivated daily to review appellate court opinions, to continue developing the art of persuasion in every aspect of trial and appellate litigation, to continue to know myself and others, and to get the word out when it needs to get out about justice and injustice. Therefore, I will continue making time to blog. At the same time, blogging is a solitary practice, sitting in front of a computer, sedentary. T'ai chi is anything but sedentary. It is alive. It is the supreme ultimate.
Thursday, June 4. 2009
Bill of Rights. (From the public domain.) Although a relative warned me, when I considered law school, that many lawyers are dissatisfied by the tediousness of practicing law, an essential part of practicing criminal defense -- if not all litigation battle -- is to meticulously obtain, review, analyze, synthesize, and apply the applicable evidence and law. It often is like panning for gold, sometimes with the appearance of gold specks being few and far between. When a lawyer is passionate for his or her client and the client's cause, such otherwise tedious work becomes no more distasteful than stretching before taking a long distance run or regularly changing a car's oil. Praised be the legal team for Charceil Davis Kellam for successfully panning for such gold, and thereby obtaining a reversal of her three-strikes life sentence for an alleged third drug felony conviction. U.S. v. Kellam, et al.,, _ F.3d _ (4th Cir., June 3, 2009). The Fourth Circuit ruled that the federal three strikes law obligates the prosecution to prove beyond a reasonable doubt the existence of two applicable prior convictions, and the identity of the person so convicted. In this instance, the prosecutor introduced certified court documents of prior drug felony convictions. However, the prosecutor did not produce conviction orders signed by judges, photographs of the convicted defendant, nor fingerprints of the convicted defendant. Although the Fourth Circuit did not say that all of the foregoing items are required at once to obtain a three-strikes sentence, it did show that the absence of all of them are fatal to obtaining such a sentence if the defendant does not stipulate to the prior convictions. Additionally problematic for the prosecutors in Kellam's sentencing was that at least one of the certified documents included aliases that apparently did not match the names in the then-pending indictment against Kellam, and had partially redacted the social security number and birth date. The Fourth Circuit ordered a resentencing. On the one hand, Kellam's alleged relevant prior convictions were in state courts in Virginia and Maryland, which does not pose a geographic problem for the prosecutor to try to obtain more documentation to support a three strkes conviction. On the other hand, the more time marches on, the greater the chance that such documents will have become misfiled, lost or destroyed. Jon Katz.
Tuesday, June 2. 2009
Bill of Rights. (From the public domain.)
NOTE: Underdog's June 2 blog entry is being posted late. Stay tuned for a resumption of regular daily postings. Criminal defendants sometimes focus on their time out of jail versus in jail, and not enough time on the often onerous and even draconian deprivations of liberty involved during supervised probation and parole. Consider William Robert Bender. He got a four-year prison sentence for sexual activity with an underage female, and was ordered to be on five years of supervised release thereafter. U.S. v. Bender, __ F.3d _ (8th Cir., June 2, 2009). His probation conditions included no access to so-called "pornography" (which has no legal definition), no unsupervised contact with minors, and no access to libraries, lest he use the Internet there or look for children there. Mr. Bender was found in violation of supervised release for entering a library and using a computer to access "pornography", on top of being in a place (a library) frequented by minors. On appeal from Bender's sentence for violating supervised release, the Eight Circuit vacated some of his conditions of supervised release and remanded for sentencing. For instance, the Eighth Circuit held that a total ban from access to libraries is disfavored (including consideration of inmates' needs to use libraries) and vacated that condition. The Eighth Circuit also found that his supervised release conditions for no access to "pornography" and ability to be near minors unchaperoned was not tailored well enough to his circumstances rather than to a general class of similarly-situated people. Bender is an important read for its addressing similar issues in other circuits, and because similar supervised release conditions are very common by now for those convicted of soliciting or engaging in sexual activity with minors. Jon Katz. ADDENDUM: Thanks to my brother lawyer Larry Sutter -- Senior Counsel, FriendFinder Networks Inc. -- for alerting me to this Bender case.
Wednesday, May 27. 2009
Bill of Rights. (From the public domain.) Yesterday, the Fourth Circuit confirmed that trial courts may not presume reasonableness of Guidelines sentences: While an appellate court reviewing a sentence may presume that the sentence within a properly calculated Guidelines range is reasonable, see United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008), the sentencing court may not, in sentencing a defendant, rely on this presumption. See Gall v. United States, 128 S. Ct. 586, 596-97 (2007) (citing Rita v. United States, 127 S. Ct. 2456 (2007)). Rather the sentencing court must "first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a), explaining any variance from the former with reference to the latter." Nelson v. United States, 129 S. Ct. 890, 891-92 (2009) (per curiam). Because the district court’s statement in sentencing Smith suggests that the court improperly presumed that a sentence within the Guidelines range would be reasonable, we vacate Smith’s sentence and remand for resentencing. U.S. v. Cordell Smith, __ F.3d _ (4th Cir., May 26, 2009). Jon Katz
Wednesday, May 20. 2009
In the courts where I practice criminal defense, even giving an unwanted hug is an assault. That is additional testimony to the wisdom of bowing to others to greet them, apart from the reduced risk of catching swine flu (or mucus, if the person recently sneezed into the right hand), but I digress. Geneva Clark was more than angry that her son's school busdriver successfully recommended that his Henrico County, Virginia, school remove his bus privileges, at least temporarily. Ms. Clark's anger may have gone beyond standing up for her son's rights and dignity, to being frustrated about how he was going to get to and from school, at least if he was not a safe or close enough walk from the school. She acted unwisely, as further detailed below, but her actions should not have merited an assault conviction. After her son's bus expulsion, Ms. Clark one morning arrived at the school's bus parking area, allegedly parking her car to make it hard for the other buses to easily depart after arriving, walked towards the bus that her son would have been on that morning had he not been ejected, and said: “'I told you I’m going to get you, bitch, don’t care, I don’t care where you at, if you’re on the school ground, if you’re in the school, or you’re in the grocery store,' '[I’m going to] [f]**k you up.'" Clark v. Virginia, _ Va. App. _ (May 12, 2009). Ms. Clark allegedly repeated similar actions the same afternoon when it was time for the buses to pick up the students. Understandably, the busdriver was scared, at the very least. Convicted of assault by Circuit Court bench trial for the foregoing actions, Ms. Clark successfully appealed her conviction, with a 2-1 Virginia Court of Appeals panel ruling that the facts were insufficient to find an overt act that would enable an assault conviction. The Court of Appeals reconsidered the case en banc and reversed. The court paid lipservice to the fact that words alone cannot constitute an assault, but proceeded to give the trial judge the benefit of the doubt that maybe the trial judge had concluded that Ms. Clark intentionally and successfully blocked the buses (rather than just getting there on time to get her message to the busdriver) and stood menacingly close to the bus. The en banc court opinion distinguishes another appellate opinion that reversed an assault conviction for similar behavior towards police conducting an investigation in that the police went to the defendant's home as opposed, finding it important that the defendant never sought out the police. Praised be the three dissenters from the en banc opinion in Clark. They did not buy that the facts -- even when viewed in the light most favorable to the prosecution -- presented an overt act that would have permitted a conviction. Beyond Clark's application to overt acts, the opinion confirms that in Virginia, the definition of assault is the same for both criminal prosecutions and civil tort actions. Back to my discussion of bowing at the beginning of this blogpost. Imagine how many fewer arrests, prosecutions, and lawsuits there would be if the West borrowed the practice in Japan and elsewhere of respectfully bowing to each other. Had Ms. Clark done so, more diplomatic words may have followed. In any event, I still disagree with the en banc Clark opinion.
Wednesday, May 13. 2009
Guilty pleas are ripe for attack when the record does not show the defendant was informed of the nature and elements of the charged offense. Miller v. Maryland, __ Md. App. _ (May 4, 2009).
Tuesday, May 12. 2009
Bill of Rights. (From the public domain.) In her wonderfully compassionate way, the amazing SunWolf emphasizes that jurors generally are going to bring their usual behaviors from their daily lives into the deliberation room regardless of the judges' warnings to tell them to change behaviors that jurors are already habituated to -- or see as personally sacrosanct as deciding whether to put the right shoe on before the left one. As SunWolf more specifically cautions, watch out for online jurors. If you are reading this blogposting, just hold up a mirror to yourselves; How long can you resist googling or twittering about matters you hear about during trial when you are in the gallery, let alone when you are in the jury box? As Maryland's intermediate appellate court recounts, Zarzine Wardlaw went before a Baltimore City jury on charges of "rape in the second degree, sexual offense in the third degree, sexual offense in the fourth degree, three counts of assault in the second degree, two counts of sexual child abuse, and two counts of incest of his 17-year old daughter." Wardlaw v. Maryland, __ Md. App. _ (May 8, 2009). As I have said before, a true resolve and devotion to criminal defense is needed to represent those charged with heinous acts, at least when the criminal defense lawyer does not think the client is innocent. Trial Judge Robert B. Kershaw instructed the jury at the beginning of trial not to investigate the case. That apparently has become like telling some jurors not to blink their eyes at all. One of the jurors did an Internet search on a psychological disorder ascribed to the complainant. Praised be the juror who revealed this by note to the judge. The judge denied the defendant's mistrial motion that was based initially on the Internet searching, and later on revelations of incompetency by one or more jurors whose notes showed an inability to understand some vital jury instructions. Not only that, after the foreperson claimed that a verdict had been reached, a check of the jurors showed that to have been incorrect. As the jury room problems mushroomed, the prosecutor joined in the defendant's mistrial motion. The judge still refused a mistrial. Maryland's Court of Special Appeals reversed over the juror's Internet search scandal, saying: "Because the trial court did not voir dire the jury in the instant case, the presumption of prejudice was not rebutted and the trial court denied the motion without exercising its discretion. Williams v. State, 394 Md. 98, 113 (2006) (In ruling on a motion for a new trial, based upon a revelation that a juror failed to disclose a potential bias, 'the trial court’s sound discretion can only be exercised on the basis of the information that a voir dire reveals and the findings that the trial court makes as a result.') (emphasis in the original); Maddox v. Stone, 174 Md. App. 489, 501 (2007) (We will 'reverse a decision that is committed to the sound discretion of the trial court if we are unable to discern from the record that there was an analysis of the relevant facts and circumstances that resulted in the exercise of discretion.') (emphasis in the original). Moreover, we are not persuaded that the error was harmless beyond a reasonable doubt. Accordingly, we hold that the trial court abused its
discretion in denying appellant’s motion for mistrial and, therefore, we reverse the judgments of the circuit court." Of course, often when a judge questions/voir dires jurors to determine whether a party has been prejudiced by jury misconduct, the taint mushrooms all the more. Why did the government's lawyers switch from joining in the mistrial motion at trial, but then opposing such a remedy on appeal? Because of dissent with the trial prosecutor's decision to seek a mistrial? Because the trial prosecutor only sought a mistrial to avert a lost appeal and longer delay in retrying the case, and now the case is on appeal anyway? Because the government's lawyers did not want to miss the opportunity to challenge the defendant's remaining appellate issues? Because the government's lawyers wanted to minimize the risk of resulting caselaw adverse to prosecutors? Because the government's deciding to elevate conviction-seeking over justice-seeking, when prosecutors are obligated to do the opposite? Jon Katz
Monday, May 11. 2009
Cops must stop shredding the Constitution with hunches, particularly because they are not Quasimodo. Praised be Maryland's highest court for recognizing that the cops had no more than a hunch of criminal activity afoot when witnessing a car drive around a parking lot, and then signaling left and followed by signaling and turning right. Crosby v. Maryland, __ Md. _ (May 7, 2009). No matter how frequently cops look to make presumptive traffic violation stops on the theory that any driver eventually will violate the moving violation laws, the police in Crosby observed no violations of the traffic laws. That should have been the end of the story. Instead, the cops unlawfully detained Crosby while awaiting the arrival of a drug dog, which alerted for drugs, and which led to a car search that revealed contraband. Fortunately, Maryland's highest court confirmed that a mere hunch does not justify a search or seizure. Crosby Did you hear that, cops, judges and prosecutors?
Friday, May 8. 2009
Where do so many judges and jurors get the false notion that cops always tell the truth? Cops are but humans, so they are as prone to prevaricate as any non-cop. Praised be my fellow criminal defense brother Paul Mack -- from neighboring Howard County -- for obtaining and playing the smoking video showing that a cop in a DWI arrest never saw his client in the car's driver's seat, despite the cop's repeated insistence to the contrary. Policing will only be more honest and just after we substantially shrink the criminal justice system, including by legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentences, eliminating the death penalty, and eliminating per se drunk driving rules related to blood alcohol levels. Jon Katz ADDENDUM: Thanks to the listserv members who alerted me to this story.
Thursday, May 7. 2009
Inadmissible hearsay remains inadmissible even if to explain a cop's reasons for being on the scene. At best for the prosecution, let the parties stipulate for the cop to testify simply that s/he was on patrol. Praised be Maryland's highest court for unanimously getting this issue right. Parker v. Maryland, __ Md. _ (May 4, 2009).
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