UNDERDOG - Criminal/DWI Attorney for Fairfax/Northern Virginia/Md. & beyond. - Constitutional Law

Va. Justice Carrico had me in hysterics before I learned he affirmed criminalizing miscegenation.

nospam@example.com (Jon Katz) — Mon, 04 Feb 2013 00:00:00 -0500

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

As with all new admittees to the Virginia Bar, I was required to take a one-day course for new admittees. During lunch, then state Supreme Court Justice Harry Carrico had me laughing with his sympathetically humorous talk about responding to an inmate's letter using "myself" and "yourself", just as the inmate had as a replacement for pronouns.

Fast forward over fifteen years later to last week, when I learned that the late Justice Carrico penned the Virginia Supreme Court's unanimous opinion allowing the criminalization of racial intermarriage, which the United States Supreme Court unanimously reversed in 1967. Although Justice Carrico's Loving opinion said that the matter had already been settled a decade earlier by Virginia's Supreme Court he had a duty to vote against miscegenation as unconstitutional nonetheless, but passed up that opportunity. Similarly, even though the United States Supreme Court majority in 1986 wrongly decided that states could constitutionally criminalize adult consensual sodomy, sixteen years later a majority of that court admitted that the 1986 decision was wrong and overruled it.

Racism still runs too rampant, and has not been limited to the South, where it has been the most overt. By my having relocated from the Northeast to the South (moving to Arlington, Virginia, when I started law school in 1986), I was braced for reminders of ugly side of the South, versus just "Virginia is for lovers."

How much did Justice Carrico change, or not, after affirming miscegenation in the Loving decision? That likely has been written about; I just have not looked for nor found such information, yet.

Seventh Circuit expands the wild, wild, west by invalidating Illinois' strict limits on carrying a handgun on the street.

nospam@example.com (Jon Katz) — Wed, 12 Dec 2012 01:00:00 -0500

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

When it comes to the prevalence of lawfully carrying concealed handguns, Virginia is like night and day from Maryland and Washington, D.C., where that right is still strictly limited. I sometimes cynically wonder whether the sunshine-y charm displayed in so much of Virginia is partly influenced by not wanting to upset a person who might be carrying a concealed weapon. Concealed carry permits are easy to obtain at Virginia circuit courthouses.

Nevertheless, I strongly believe that the Second Amendment must be given real teeth -- unless it is amended -- because to do otherwise helps defang my beloved First Amendment all the more than the First Amendment already gets damaged by courts and governments.

In the aftermath of the Supreme Court's monumental Heller Second Amendment decision invalidating D.C.'s total ban on handguns, yesterday the Seventh Circuit, 2-1, ruled that Heller clearly provides Second Amendment protection beyond one's home -- allowing the possession of handguns ready to use, rather than unloaded -- in part seeing that the home is far from the only place where people face threats that might lead them to arm themsevles in defense. Moore, et al. v. Madigan,

On a Constitutional basis, I am pleased with Moore. On a personal level, I urge everyone to refrain voluntarily from possessing and using handguns. Nonviolence is the way. Violence begets violence. These are truisms, not hollow platitudes.

Death penalty film claims to show hidden electric chair execution footage.

nospam@example.com (Jon Katz) — Sun, 11 Nov 2012 20:00:00 -0500

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

The death penalty must be abolished.

Thanks to a colleague for alerting me to a new film entitled Execution, which is having a limited run now through next week serially in Washington DC (yesterday), New York, Boston, Chicago, Atlanta, Austin, San Francisco. and Los Angeles at Regal Theaters. Apparently Regal will show the film more broadly depending in part on audience turnout for the limited run.

Execution's website boldly proclaims to include hidden electric chair execution footage that was secretly filmed in 1995, confiscated, and never seen by the public until now. Of course, today the preferred execution method in the United States is lethal injection, which hides from view the torture suffered by the person being executed. The reports are legion of terrible suffering from lethal injection -- beyond the act of killing itself that is part and parcel of an execution, and beyond the death penalty being the ultimate form of torture.

The trailer for the film, alone, shows very gruesome images, which is in keeping with the topic of the film.

My colleague informed me of the film and its November 11 local screening just three days ago. I was not able to go. If you see the film, please tell me your impressions. Here is the schedule for Execution's screenings.

Death penalty film claims to show hidden electric chair execution footage.

nospam@example.com (Jon Katz) — Sun, 11 Nov 2012 00:10:00 -0500

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

The death penalty must be abolished.

The trailer for the film, alone, shows very gruesome images, which is in keeping with the topic of the film.

Court websites should not link to news articles on pending cases. The D.C. Courts website so links.

nospam@example.com (Jon Katz) — Sun, 28 Oct 2012 00:00:00 -0400

UPDATE: December 11, 2012. The problem discussed below has now been solved. I circulated my foregoing blog entry to various colleagues after posting it, figuring that fixing the problem might be more likely and quick by my joining with others of like minds. Curiously, my blog post received the most support from members of the Trial Lawyers Association of the District of Columbia, which I had not associated as being a very activist group other than in advocating for laws and court procedures benefiting personal injury victims.

A bar leader and TLA-DC member, of his own volition, called an administrator involved with the courts website. The administrator said that news of pending cases would be removed, but a stream of news links continued about arrests (without counterbalancing links explaining the presumption of innocence and other basic rights of criminal defendants) and trial court results (despite the possibility that such cases will come back to trial if successful on appeal). Another leader in the TLA-DC spoke with an administrative judge of the Superior Court and forwarded my emaled ongoing concerns to the judge. Within short order thereafter, the courts' website stopped posting links about arrests, pending cases, and case results. The administrative judge called me and said he agrees with my view on this, and welcomes viewpoints on other matters involving the court's functions. Thanks deeply to the TLA-DC members who joined in the effort to fix this problem, and thanks to the administrative judge who listened and helped get the problem fixd.

It might feel invigorating to engage in efforts like Michael Moore's to even get an audience with General Motors' chief (never materialized) in Roger and Me, but is all the more effective when those in power actually listen, avoid ivory towers and make changes when they agree that changes are due.

Court websites are official voices and should be closely monitored by the judges running the courts.

Sadly, the District of Columbia's courts Internet front webpage leads off with a running feed of articles from newspapers and blogs not only about completed cases, but even about pending cases, including criminal cases, in which all defendants are entitled to the presumption of innocence. Courts should say nothing nothing about pending cases -- to do otherwise creates additional problems obtaining impartial juries, for starters -- other than the assigned judges' words in the courtroom and in official court filings, and in making case files, dockets and schedules available to the public. Here is an image that I have archived of today’s page: http://katzjustice.com/welcomeDC.pdf .

The running articles feed on the D.C. courts website either is automatically generated (which may be the case, considering that the newsfeed this morning includes a Saturday, October 27 article link (that is, not from a business day)) -- which prevents quality control issues. If the court's website producers are specifically selecting such links to be posted online, that appears to be a misallocated use of their time.

Here is a sample of links on the courts' newsfeed this morning that should not be there:

- A FindLaw.com link (apparently a dead or incorrect link to the Post at that) to a Washington Post article on jury deliberations in the criminal trial of a police officer prosecuted for shooting into a car. Trial judges admonish jurors not to pay attention nor read about news coverage of the cases the jurors are considering. What if a juror visited the courts' website pending deliberations to get the phone number of the jury office, only to find the link to the foregoing story. Would the juror then think that the trial judge could not have seriously meant to prohibit the jurors from reviewing coverage of jurors' trials if the courts website itself linked to such news coverage?

- A Homicide Watch blogpost on a recent homicide arrest, that then affords the reader to roam further around this blog that purports to report on all city homicides. Absent from the courts' newslink are any links about the rights of criminal defendants and criminal suspects from civil liberties group and criminal defense groups. The courts are not providing balanced links to online stories, particularly when law and order folks (including bloggers, police and prosecutors) are commenting in the stories being linked on the courts website.

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When the U.S. government strands those wrongly put on no-fly lists.

nospam@example.com (Jon Katz) — Mon, 22 Oct 2012 00:00:00 -0400

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 tirelessly for the best possible results for his clients. http://katzjustice.com.

The September 11, 2001, terrorist acts have led to extraordinarily disproportionate, extensive and intensive grants of power to the United States president and government to combat terrorism, with civil liberties repeatedly trampled as a result, and with rampant warmaking, killing with drones, rendition, U.S. government sponsored torture, and the list goes on.

After September 11, the United States government has maintained no-fly lists, constantly updated with the virtually or totally unbridled discretion of the executive branch, ripe for mistakes and abuse and damage to those on the list.

A case in point is the multi-day ordeal of Wade Hicks, Jr., who boarded a plane in California without incident, to go to Japan, but learned during his layover in Hawaii that in the interim he had been added to the federal no-fly list. He was stranded for days until he was removed from the list as mysteriously as he was added. Was Hicks added for hsi disagreement from the September 11 commission's conclusions? If so, that would be a violation of Hicks's First Amendment right of free expression, which opinion hardly suggests a terrorism risk.

Sadly, neither Romney nor Obama seem to have any interes in running on a platform of reversing the abuses of the U.S. government's war on terrorism. Tweedledum and Tweedledee.

Texas wastes no time executing man found not mentally impaired based on looking at a fictitious Steinbeck character.

nospam@example.com (Jon Katz) — Wed, 08 Aug 2012 00:00:00 -0400

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

(ORDER LIST: 567 U.S.)

TUESDAY, AUGUST 7, 2012

CERTIORARI DENIED

12-5349 WILSON, MARVIN L. V. THALER, DIR., TX DCJ (12A128) The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

The same night that the above cold words from the United States Supreme Court hit the page, Texas executed Marvin Wilson, whose mental impairment was hotly contested by the parties, because the Supreme Court prohibits executing people who are too mentally impaired, but SCOTUS gives wide leeway to the states to set standards for determining such impairment.

Here are some items on last night's execution of Marvin Wilson:

- Amnesty International says that to determine whether Wilson was mentally impaired, his jury was instructed with questions inpired by John Steinbeck fictitious character Lenny in Of Mice and Men:

The [Supreme Court's refusal to stop Wilson's execution] was made despite Wilson‘s lawyer‘s contention that Texas‘ stereotype-riddled set of questions to determine "mental retardation" in capital cases is, in fact, unconstitutional. These questions were inspired by Lennie Small, the mentally impaired ranch hand in John Steinbeck‘s Of Mice and Men. The American Association of Intellectual and Development Disabilities (AAIDD) has written that Texas‘ questions "…are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated."

- Here is the Associated Press's account of Marvin Wilson's case, and the cold details of the murder for which he was convicted and of Wilson's execution.

- A Houston Chronicle writer opposed to Wilson's execution gives her take on the parties' debate over whether he was too mentally impaired to be executed.

On July 4, let fly sparks of civil liberties promotion and protection.

nospam@example.com (Jon Katz) — Wed, 04 Jul 2012 00:00:00 -0400

Bill of Rights (from the public domain)

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 tirelessly for the best possible results for his clients. http://katzjustice.com

Whenever I look around on July 4, the scene is long on fireworks, beer, and merrymaking, and too short on discussion of what Independence Day is all about.

The Declaration of Independence was hardly signed by a bunch of pacifists. The signers must have realized that the bloodshed among the warring sides would lengthen and intensify with the signing of the Declaration of Independence, and it did. Violence begets violence, and the rampant violence that led to Britain's surrender did not take place in a vacuum. Instead, it has fed into all subsequent American wars and smaller military actions. The United States' repeated victories in wars (and the Vietnam War probably would not have dragged on so long if the United States had lost any prior wars) likely has made the United States all the more militaristic and cocksure militarily.

By now, the United States government thrives on control backed by force, the threat of force, and punishment, not only through military might, but also through an overgrown and overbearing criminal "justice" system of police, laws, money, prosecutors, courts, and prisons; an overgrown national security system that leaves us little privacy, security, or sufficient liberty; and an overgrown spying and "intelligence" system.

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Police and governors deserve no extra footing in courthouses.

nospam@example.com (Jon Katz) — Thu, 07 Jun 2012 00:00:00 -0400

For the first time practicing criminal defense, I recognized that a courthouse had a picture of the governor, and his lieutenant at the entrance. Maybe I have been oblivious in not recognizing this before. Maybe it is common. Maybe I am too wrapped up in my clients' cases that take me to court to have paid enough attention to this antithesis of separation of powers. Maybe I have become so numbed to breaches of good sense in government that it took a visit to the courthouse without needing my client's presence for a simple hearing, to notice this photo rather than being wrapped up in conversation with my client.

This particular courthouse is the District Courthouse in Rockville, Montgomery County, Maryland. It surely a multi-, multi-million dollar new courthouse, very modern looking from the outside, with a two-story atrium, but, sadly, with windowless courtrooms.

Of course, displays of governors are not the worst breach of separation of powers that one sees in a courthouse. In the state-level courthouses where I practice, police repeatedly are permitted to walk inside with their full panoply of weapons, including handguns, tasers, and "defensive" batons, carrying them openly and notoriously and bypassing the metal detectors that the non-lawyers and non-police must pass through (and lawyers also must go through metal detectors in most non-Maryland courthouses where I practice). The courthouses already have security personnel. Everyone but the courthouse security personnel should be required to check their weapons at the door.

What message is sent to jurors and judges who see fully-armed police in courthouses that often do not even allow non-lawyers (and sometimes do not even allow lawyers) to bring in a cellphone (clearly cellphones are not weapons)? The message is to trust these armed folks who are not part of the judicial branch, despite the usual criminal jury instruction to neither give more nor less credence to a police officer merely because they sport a badge.

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New York federal trial judge enjoins new statute allowing indefinite domestic detention for accusations of terrorism-related activity.

nospam@example.com (Jon Katz) — Mon, 28 May 2012 00:10:00 -0400

Last November, I urged readers to oppose a provision of the Defense Authorization Bill that empowers the military domestically to detain United States citizens, Unfortunately, the measure passed.

Praised be one of the newer federal trial judges, Obama appointee Katherine B. Forrest (S.D.N.Y.) (who graduated law school a year after I), for having issued a preliminary injunction against that provision, § 1021, on May 16, 2012. See the opinion in Hedges, et al. v. Obama, et al. here and the Constitutional Law Prof blog entry here.

The Justice Department recognizes First Amendment right to videotape cops.

nospam@example.com (Jon Katz) — Fri, 18 May 2012 00:00:00 -0400

Yesterday I posted about the Baltimore cop fired three years after a civilian videotaped his misconduct, Coincidentally, a few hours after I uploaded the posting, I received this link on a lawyers' listserv to the Justice Department's detailed recognition (May 14, 2012) of civilians to videotape police in public. The eleven-page Justice Department position is addressed to the parties involved in settlement discussions in a lawsuit alleging that in 2010, "Baltimore City Police Department officers seized, searched and deleted the contents of [Christopher Sharp's] cell phone after he used it to record officers forcibly arresting his friend."

I skimmed over the Justice Department letter. It is another weapon against continued abuse, arrest, and prosecution of too many innocent civilians shining a light on police actions by video, who are here to serve the public, and not the other way around.

Jon Katz interviewed at 2010 Woodhull Sexual Freedom Day

nospam@example.com (Jon Katz) — Mon, 23 Apr 2012 00:00:00 -0400

Without sexual freedom, our other civil liberties are not sufficiently protected.

Around two months before I started law school, the Supreme Court ruled 5-4 to permit states to continue criminalizing sodomy (oral sex and anal intercourse). Bowers v. Hardwick, 478 U.S. 186 (1986). That effectively exposed millions of people to prosecution and conviction. Seventeen years later, the Supreme Court, ruling 6-3, barred criminalization of consensual adult sodomy. Lawrence v. Texas, 539 U.S. 558 (2003).

Little did I realize before starting law school that the Supreme Court would even get in the way of consensual oral sex. By the time I read Bowers, I realized that nothing is automatically sacred at the Supreme Court.

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D.C. Cir. on determining who is part of the Taliban.

nospam@example.com (Jon Katz) — Mon, 13 Feb 2012 00:00:00 -0500

By Jon Katz, a criminal 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

Two weeks ago, the D.C. Circuit Court affirmed the trial court's grounds for finding Abdul-Rahman Abdo Abulghaith Suleiman to have been part of the Taliban, in order to justify Guantanamo detention. Suleiman v. Obama, et al., __ F.3d _ (D.C. Cir., Jan. 27, 2012).

In affirming the trial curt, Suleiman stated:

Our task is to determine whether this undisputed evidence provides a legally adequate basis for the district court's conclusion that Suleiman was part of the Taliban. We have previously stated that "the purely independent conduct of a freelancer is not enough to establish that an individual is 'part of al-Qaida," and the same is true for being part of the Taliban. Salahi v. Obama, 625 F.3d 745,752 (D.C. Cir. 2010) (quoting Bensayah v. Obama, 610 FJd 718, 725 (D.C. Cir. 2010)). But the facts here show that Suleiman was no freelancer.

There is no dispute that Suleiman' s travel was initiated at the suggestion of and facilitated by a Taliban recruiter, and that he traveled a well-wo111 path to Afghanistan frequently used by Taliban recruits. We have stated that such travel may indicate that an individual traveled to Afghanistan to join the Taliban. See Al Odah v. United States, 611 F.3d 8, 14 (D.C. Cir. 2010) ("[I]nterrogation reports of a third party concerning al Qaeda and Taliban travel routes into Afghanistan . . . although far from conclusive ... suggest[] that an individual using this travel route to reach Kandahar may have done so because it was a route used by SOlTIe individuals seeking to enter Afghanistan for the purpose of jihad."

Suleiman.

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Barbara Arnwine's message on ending police terror, and fighting for civil rights and voting rights.

nospam@example.com (Jon Katz) — Wed, 08 Feb 2012 00:00:00 -0500

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

Each year, the J. Franklyn Bourne Bar Association and Prince George's County and Montgomery County, Maryland, Bar Associations host a joint gathering during Black History Month at the Greenbelt federal courthouse. Beyond the sea of suits -- mine included -- greeting arrivals at these meetings in an expensive courthouse, came a great talk by Barbara Arnwine, who is Executive Director of the Lawyers' Committee for Civil Rights Under Law, a group that started after John F. Kennedy called upon the private bar to assist against racial discrimination, following the assassination of Medgar Evers, with Kennedy's being assassinated only months later.

I first learned about the Lawyers' Committee when I was in law school, when Judith Winston of the Lawyers' Committee came to speak, with my later serving on the local ACLU affiliate Board with Judy, followed by her, along with numerous other ACLU folks, joining the Clinton administration. At my first law firm, I became the liaison to the Washington Lawyers' Committee, which has ever since been headed by the dynamic Rod Boggs. (My great admiration for Rod does not change my strong opposing, on free expression and First Amendment grounds, the Washington Lawyers' Committee's suing the New York Times over printing housing advertisements -- ads that I oppose -- that only featured white models).

Barbara urged further progress with voting rights, which is covered on the Lawyers' Committee's website, and which issue also is covered in this New York Times article. She encouraged lawyers to help with a very time-manageable pro-bono opportunity for them, paralegals law students and activists to "serve as hotline call center volunteers on or before Election Day [and] participate in legal field deployments on Election Day to ensure the process is running properly." You can sign up here.

In a room that included several federal and county judges -- who needed to hear about her following ordeal along with everyone else -- Barbara spoke up about how an apparently warrantless three-hour early-morning gunpoint police invasion of her home last November changed her life and her view of the criminal justice system, and she "had serious issues before" (with the criminal justice system, I take it). She said the ordeal -- which she recounts here on radio -- changed her life, and that the incident terrorized her, by her own Prince George's County police department. She said last month: "President Obama has heard about it and has e-mailed people asking 'What in the world is this?'"

An ABA Journal report on the incident says: "Arnwine says police didn’t believe her when she identified herself as a lawyer, and they asked what law school she had attended. Arnwine is a Duke University law graduate. When she cited her Fourth Amendment rights, Arnwine says, one officer allegedly responded, 'The Fourth Amendment doesn’t apply here.'"

Truth be told, the Fourth Amendment applies everywhere in the United States, at all times, and for all people.

ADDENDUM: After uploading this blog entry, I found this ABA Journal article about a search warrant for Barbara Arnwine's home in Upper Marlboro (the address thereon matches the address on this Huffington Post link), and an arrest warrant for her nephew. The question still remains whether there was probable cause to issue both warrants. Also, police mistreatment of Ms. Arwine, who has been charged with no crime at all, is deeply disturbing.

Federal indictment portrays police terrorism of Hispanics in East Haven.

nospam@example.com (Jon Katz) — Wed, 25 Jan 2012 00:00:00 -0500

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 tirelessly for the best possible results for his clients. http://katzjustice.com

Four East Haven, Connecticut, police were federally indicted last week for systematically terrorizing Hispanics. The lengthy indictment is here, and follows two years after the filing of a pending federal civil rights lawsuit alleging mistreatment of Hispanics by the East Haven police department, and naming three of the four indicted police among the civil suit's defendants.

As criminal defendants, the indicted East Haven police officers are presumed innocent. Sadly, if the allegations are true, this is another key reason why I urge to drastically shrink the size of the criminal justice system in order to have a higher quality criminal justice system that is less expensive, and employs the best candidates, and properly trains and supervises them, and appropriately rewards strong performers. We best shrink the criminal justice system by legalizing marijuana, prostitution, and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum sentencing; eliminating per se rules in drunk driving cases; and eliminating the death penalty.

I grew up just twenty-five miles down the road from East Haven, but never got off the highway to visit there. Before learning of the chilling allegations in this indictment, I associated East Haven with the city's Foxon Park soda that is served at the famous Pepe's Pizza in New Haven. With this indictment, soda pop is the farthest from my mind.