Criminal Defense

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

This video, which hit the Internet at least three years ago, is essential for convincing suspects not to speak with the police.

Thanks to Regent law professor and former criminal defense lawyer James Duane for presenting the video, and then-cop/now prosecutor George Bruch for his candor about his techniques for getting people to talk.

As underlined by the video, suspects cannot win talking with cops any more than a couch potato can score off Michael Jordan. Do not do it.

Please circulate this video far and wide.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

In 2008, I urged criminal defense lawyers always to poll the jury in the event of a conviction.

Jury polls might rarely turn up gold, but there is no harm to them after a criminal conviction other than the disenchantment of hearing "guilty" all the more times.

Last week after visiting the criminal clerk's office at the D.C. Superior Court, I dropped in on a misdemeanor jury trial in progress, where the criminal defense lawyer is someone who at every turn encouraged me to go into private criminal defense practice when I was a public defender lawyer. He was trying a misdemeanor leashless dog case (jailable in D.C.) before a jury along with another criminal count. He is qualified for much more serious cases. Being on the court-appointed panel, he is eligible also to be appointed such minor misdemeanors as this one, as well. 

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

Recently while waiting for my own client's criminal case to be called, I periodically pointed out to my client the hallmarks of the then-in-progress lawyerless pot possession bench trial's examples of the pitfalls of going to trial for a jailable offense without a lawyer. The defendant asked a slew of unhelpful open-ended questions that invited more damage. He testified without first moving for acquittal/to strike the evidence, and without the judge's advising him of his Fifth Amendment right to remain silent. He testified and editorialized many times during his cross examination of the police officer. He complained about the cop's "unprofessionalism" to deaf ears at askance, even if the cop may have been unprofessional or not. He alienated the judge with his ad hominem arguments and his placing supreme value on speaking rather than on listening.

The defendant seemed like an otherwise likeable man. Put a rookie in a major league ballfield, though, and watch him sweat, get bent out of shape, and rise to the level of performance anxiety and poor performance.

Why did the defendant proceed to trial without a lawyer? This was in Virginia, where it is supremely difficult to qualify for court-appointed counsel for plenty of people who can barely afford a qualified criminal defense lawyer. Maybe he was dilatory in applying for court-appointed counsel or in seeking a paid lawyer. Maybe the judge did not give him enough of a trial date delay to gather the funds to pay a lawyer. Maybe he was supremely confident that he simply did not need a lawyer. Maybe he did not want to wait to get a lawyer. I did not hear his reasons, having entered the courtroom in mid-trial, but those are the main reasons why criminal defendants proceed without lawyers.

And then, just as I was expecting that this trial was on the road to a guilty verdict, the defendant asked for permission to call a witness. The witness came in, and said that the marijuana in the car was his and only his. The judge asked if he realized that his testimony had risked getting him charged with the crime, and he acknowledged understanding that.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

 A "lawful detention cannot be predicated upon a mistake of law." Gilmore v. Maryland, __ Md. App. _ (April 25, 2012). Again and again, police profile or otherwise target a person to check for criminal activity -- including drug possession, weapons possession, open fugtive warrants, and drunk driving -- and only next do they try to find a lawful way to stop the person whether by finding (if not prevaricating on) a moving violation, finding reasonable articulable suspicion to interact with the person, and, their favorite, to just engage (and often harass) someone in conversation without stopping them. Why do cops stop and harass young black males infinitely more often than white lawyers in suits? Profiling.

Such profiling is antithetical to human decency, to the Constitution's Due Process and Equal Protection guarantees, and to the very reason why we give up any liberty in the first place to have governments. How many hours or days pass before you hear a bigoted comment from someone? Police, prosecutors, and judges come from the general population, so there will be bigots among them. (And if you think that racial, ethnic and religious bigotry somehow avoids certain professions, then how is that possible in a nation that allowed slavery for so long, and in states that had Jim Crow and other forms of racial segregation for so long?) That is another reason to shrink the criminal justice system by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating the death penalty; eliminating mandatory minimum sentencing; and eliminating per se drunk driving laws. In so doing, we will have a less expensive, higher quality and more manageable criminal justice system that can better weed out the bad apples in the first place, and that will contribute tremendously to balancing our overburdened governmental budgets in these tough economic times.

In Gilmore. supra, a cop detained a man who had the gall to park in two parking spaces at once at a liquor store parking lot, thus making it hard for other imbibers to park there. The cop claimed that the post-detention actions of the suspect, Mr. Gilmore, gave him reasonable, articulable suspicion to believe he was armed. The cop alleged that Gilmore answered that he had a knife, and that when the cop pulled out the knife, a bag of drugs was convenientily, for the cop, attached to the knife. Praised be the Maryland Court of Special Appeals for declaring the search unlawful for having been based on an unlawful detention that arose from the cop's mistaken belief (or invention) that a car parked in two spaces has committed a traffic offense.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

Bryan Stevenson says: "The Opposite of Poverty is Justice. 072 ." I briefly met Bryan in 1991. He is a class act.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

Accumulated feathers sink the boat. It took me twenty-seven years to find, embrace and internalize that truism, posted on an Amnesty International calendar. 

Likewise, stand on the shoulders of past and present giants rather than reinventing the wheel. Only arrogance would lead people otherwise. I have been arrogant for too long, even while honoring and deeply thanking such giants as my trial law gurus Steve Rench and Sunwolf; taijiquan teachers Julian Chu, Ben Lo, and Len and Ellen Kennedy; and such in-the-moment masters as Ram Dass, Cecil Taylor, and Dizzy Gillespie.

In this society that focuses so heavily on socializing everyone for individualism, including the rarity of allowing groups to do school exams rather than individuals, the rarity of truly integrated villages where neighbors positively join in achieving mutual betterment, and even the focus on individual liberties (which remains essential to collective benefits), looking beyond our individual selves can be all the more challenging.

In that context, it is all the more remarkable that a slew of prisoners accumulated their collective feathers so heavily that their multiple pro se handwritten court filings alleging wretched jail conditions in Suffolk County, New York, led the court to ask the ACLU to step in. Kudos and thanks to the ACLU and the mainstream corporate law firm Shearman & Sterling that rose to the challenge.

Thanks most of all to the inmates who never gave up and never gave in on this challenge. 

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

A criminal defense lawyer at once needs abundant compassion, empathy, and a cast-iron stomach. Even with that ongoing goal, I am still retching over yesterday's Virginia appellate case opinion concerning the following allegations proven against a woman -- and apparently admitted to by her trial testimony -- who as a result was convicted of felony murder:

Lisa Hylton, while under a protective order for child neglect -- which included a ban on using illegal drugs -- illegally purchased methadone. Concerned that she had been shorted on her purchase price, Hylton measured the liquid methadone into her three-year-old son's cough medicine measuring cup to find that she had indeed been shorted. Hylton v. Virginia, __ Va. App. _ (April 10, 2012).

Hylton left the methadone on the counter to focus with her boyfriend on how to handle having been shortchanged. In the meantime, her son thought the methadone was his cough medicine to take, and he drank it. When Hylton realized what had happened, she refused to take him to the hospital, not wanting to get into further trouble with the child protective service.

As a result, her son died.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

My native Connecticut is expected to repeal capital punishment, but not for those already on death row. Abolish the death penalty everywhere, now.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

Over 85% of NYPD stops and frisks are of blacks and Latinos. Only 10% result in criminal charges. How is racial profiling not at work?

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com 

State-sponsored legalized murder -- also known as capital punishment -- must be abolished.

Thanks to the lawyers at Sidley Austin for obtaining a final trial court order on March 27 barring the importation of unapproved drugs used for lethal injection. Here is the court's memorandum opinion, and here is the case docket, in Donald Edward Beaty v. FDA, et al.., Civ. No. 11-289, (D.D.C., March 27, 2012) (Leon, J.). This was a successfully creative way to slow the death penalty machine.

I anticipate an appeal by the government.

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com 

One day I had breakfast with a local top-notch veteran medical malpractice lawyer who seems to deeply care about his clients and the quality of his work. To this day, he has not found a way to save time by limiting his potential client meetings to those whose case he is willing to accept in this world where a lawyer can easily advance tens of thousands of dollars in expert witness fees for trial, wait years to recover the advanced expenses, or never recover them if the jury returns a defense verdict or if the defendant successfully appeals.

With potential criminal defendants, I ordinarily will accept any client who will pay my fee for a trial or appeal that interests me and that I know I can handle well, and is not looking for a lawyer to help him or her snitch. For me to limit providing free time for potential clients -- as not every one of them I meet hires me -- I ordinarily bill for initial consultations, except for ordinarily not billing for drunk driving, drug, and weapons defendants. I ordinarily limit the initial consultation to thirty minutes, and inform potential clients that I will start my next meeting promptly, not running overtime for a visitor who has arrived late. I bill cancellation fees when visitors have not let me know in advance that they are running late or will not arrive at the appointed day and hour. This works out well for me, and enables me to primarily focus on serving my existing clients as I spend some time each day talking with potential clients.

My colleague Jamison Koehler -- whom I bump into sometimes in court and with whom I have broken bread with along with local fellow lawyer Miriam Seddiq -- recently blogged about wanting to empty his office of a mother and criminal defendant who had met with him for an hour, only for the mother at the end to ask the question that had already been essentially answered: "Why should we hire you?" He is uncomfortable with this question, which leads to his blog article.

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving attorney advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com 

NOTE: Following is an article I recently submitted for the Maryland Criminal Defense Attorneys Association’s next newsletter. The article is verbatim except that I excised the name of the referenced forensic psychologist, who is now semi-retired, pending his okay, or not, to print his name online.

DEFENDING CHILD PORNOGRAPHY AND SOLICITATION OF SEX WITH CHILDREN.

By Jon Katz

“Why do you want to defend such a case?” asked one of the most amazing and effective trial consultants/psychological professionals, whom I visited for ideas on defending a man caught distributing multiple images of prepubescent children engaged in the most explicit of sexual activities. He seemed skeptical at my mentioning First Amendment rights and my willingness to defend anybody alleged with any crime in a criminal justice system so lopsided against criminal defendants. He perhaps would have been more understanding about my defending a mass murderer, or perhaps he was urging me on to assure I was in my own comfort zone for defending this man, so that I could shrink the discomfort felt by the judge, prosecutor and jury in the case.

As with all my cases that I discuss with this trial consultant, the talk ultimately included a focus on how I was feeling about this case, and how it was affecting me. He asked if I liked my client. I said I did, and he asked why. I said he does not cause me problems. “Is that what like is about?” asked the consultant. Of course not. I was so wrapped up at the time about what I was hoping to speak about –- including the heartless-seeming prosecutor (or was that instead the disgusted prosecutor?), the horrendous child pornography images, and the potential jurors in this case, that I had not switched gears enough to express why I liked my client. Absent this case, he was a decent person who was abused in childhood, and ended up stuck in the mentality of a child, but was a sexual being in an adult’s body with his wiring all messed up, still identifying sexually with children.

Of course the trial consultant pushed me to articulate why I liked my client, because no juror, judge or prosecutor was going to like him any more than I did.

What is easier? Looking at gruesome photos of corpses when defending those accused of murder or the most explicit of photos of sex between adults and prepubescent children as young as one year old? Which type of case is going to push jurors’ hot buttons more? Child pornography and solicitation of sex with minors victimizes among society’s most vulnerable and innocent members. That is a huge hurdle in dealing with jurors, judges and prosecutors.

Defending such cases, among other things, requires humanizing the clients who often will initially be perceived as monsters by judges, jurors and prosecutors; handling forensic evidence issues; obtaining pretrial release; and sometimes dealing with much harsher sentencing schemes at the federal level than the state level. This article focuses on humanizing the client and dealing with forensic issues.

HUMANIZING THE CLIENT

Repeatedly, I have turned to forensic psychologist D________, of Charlottesville, Virginia –- who established Virginia’s sex offender probation supervision program, which helps underline his lack of bias for the defense --  to evaluate my clients charged with child pornography and solicitation for sex with minors, to set up a treatment plan, to render a prognosis, and to testify at sentencing.

Dr. D’s____ first evaluation takes around three hours, probing into the defendant’s background and life experience, determining how well the person copes with daily life, and determining the primary and secondary age, gender, and racial group that sexually interests the defendant.

Those lawyers who have led relatively trauma-free lives may be surprised at how rampant is the physical, sexual, and psychological abuse that so many people suffer in society. As confirmed by Dr. D________, those who commit child pornography crimes and solicit minors for sex often suffered abuse as children, and are stunted with the mentality of children, but as sexual beings in adults’ bodies, still identifying sexually with children.

Those adults who solicit minors for sex often are playing out fantasies that they do not plan to consummate, but often get caught in police stings when they arrive to meet their “date” only to learn that the date is a cop.

Those who view and trade in child pornography might sometimes start with adult erotic images. However, as Dr. D______ says, sex is not a spectator sport, so many become bored with adult erotic images, and veer towards such risky images as child pornography.

With the case of my client who distributed prepubescent child pornography –- to an undercover cop –- I spoke also with an excellent criminal defense colleague who suggested such themes as “Those who live in glass houses should cast no stones,” where some indulge in too much chocolate and others in child pornography. Comparing the overeating of chocolate to distributing prepubescent child pornography is quite a leap. However, it does help humanize the client.

Of course, the more confident the lawyer is in his or her trial posture, the better s/he can negotiate the case. We settled this child pornography distribution case for one count of child pornography distribution, avoiding the risk of a multiple count conviction at trial. We drew the right judge, and accomplished close to a time-served sentence for this client who had barely a parking ticket in his criminal history.

A key question at sentencing is why the defendant did not isolate his urges to fantasy rather than action, and to what will stop him from repeating such behavior. Psychological treatment is an important component, from an empathetic rather than paternalistic counselor. However, pretrial incarceration makes treatment very expensive and eliminates group therapy, which often is recommended. It can be hard enough to find a quality empathetic psychological professional ready to provide such counseling outside the jail, and all the more difficult to find for counseling inside the jail.

ANALYZING AND DISSECTING THE FORENSIC EVIDENCE

Internet and computer technology often are involved in child pornography defense and defense of charges of soliciting sex with minors. 

The defense ideally will have a war chest to pay for a top-notch computer forensics expert who will not let retching over the evidence color his or her ability to do an effective job; will not report to the police any unlawful images that the police may have missed; and will be willing to view child pornography evidence at his or her own lab –- rather than at the police location –- when the law or a court order permits taking the images offsite from the police office.

It is essential to pursue the foregoing inquiries in depth with computer forensic experts. Some computer forensics professionals who are great with other computer forensics work -– for instance with proving infidelity in divorce actions –- are not suited for the emotional toll that child pornography cases can take, or who just find such work too repugnant. However, when the almighty dollar is available to them, be careful about forensic experts who will require a long litany of questions before they admit to their discomfort.

My preferred computer forensics expert is David Greetham in Houston, Texas, who has an allied lab available in the Washington, D.C., area. His stomach is cast iron for such work, and he seems to delight in the importance of keeping the police forensics experts honest and to show where they have made mistakes. David is ready to testify and report on computer programs that enable others to hijack one’s computer from offsite, for instance with trojan horses, thus placing child pornography on the computers of innocent criminal defendants. He is able to talk about the ease of access that others have to the computer, thus raising reasonable doubt about knowledge, dominion and control over the images. He knows that when police turn a suspect’s computer on and off, they have compromised the hard drive for forensic analysis, and that a review of hash values helps determine whether police have in fact provided the defense with a precise duplicate of the seized hard drive.

Many computer users do not know that their every move online can be tracked through their unique Internet Protocol (“IP”) address that relates to their Internet account; their Internet service providers archive their online activity; and attempting to delete pornographic images does not automatically erase the evidence of the files’ having previously been on the computer and then deleted. Anonymity is a false expectation that countless Internet users are lulled into.

For trial purposes, and negotiation and sentencing purposes, it can be helpful to review the search phrases used on the computer, to determine the extent to which the suspect was interested in images beyond child pornography. Similarly, it can be helpful to determine the extent to which the alleged child pornography images are only thumbnails that have not been clicked to obtain enlargements, because mere thumbnails may support that the computer user did not intentionally place the images on the computer hard drive.  

For negotiation and sentencing purposes, it can become important for the computer forensics expert to provide estimated percentages of non-pornographic versus pornographic images on the hard drive, and adult versus child pornographic images. This can help show that child pornography was but one type of image that interested the defendant.

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving attorney advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com 

One way or another, I got added to the e-mail list of the National Coalition to Protect Civil Freedoms (NCPCF). The group's recent emailing includes this flyer claiming that jazz musician and former martial arts instructor Tarik Shah -- who entered a guilty plea and was sentenced in 2007 to fifteen years imprisonment on a terrorism-related prosecution -- was entrapped by federal agents and prosecuted on the basis of his offer to teach martial arts. With martial arts -- namely taijiquan -- and jazz music being an integral part of my life, the flyer particularly grabbed my attention.

The flyer urges: "Write to Attorney General Eric Holder... Tell the Attorney General to review the case and to stop entrapping people." Here is a support page for Mr. Shah, whose flyer says he played bass at Bill Clinton's inauguration. Mr. Shah having entered a guilty plea and apparently not having filed for appellate nor post conviction relief, the courts are not going to intervene at this point, and I doubt such letters will sway Eric Holder.

Whether or not Mr. Shah was entrapped, it is disturbing that law enforcement relies so heavily on making up conspiracies in an effort to then arrest and prosecute them, including going so far as to do that with Christopher Tappin, a British citizen who was recently extradited to the United States over a made-up deal arranged by United States federal agents for Mr. Tappin to assist with the sale of missile batteries to Iran. These investigations, pursuits and prosecutions often become tremendously expensive, including payment for multiple hours of work by federal agents, prosecutors, and court-appointed criminal defense lawyers.