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

Read before you plead.

nospam@example.com (Jon Katz) — Wed, 22 May 2013 00:00:00 -0400

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

Federal felony guilty plea agreements ordinarily are multi-page documents with much information and many concepts to absorb. They must be reviewed with a fine-tooth comb by the criminal defense lawyer, and fully read and explained to the defendant before making counter-proposals based on the draft plea agreement and certainly before signing the agreement. As much as such a review may be a lengthy and painstaking process, that is nothing compared to the frequently years-long federal prison terms and painstaking time spent in prison.

Ours is a society of sign first and read later, or never. People go to home purchase closings and sign a dizzying array of critical lengthy legalese-laden documents that they have barely or will never read. A huge number of raised hands among my fellow property law class students confirmed they never read their apartment leases before signing them. People repeatedly electronically sign lengthy computer software contracts and website entry portals without reading the terms and conditions of the signed agreement. Courtroom personnel shove binding documents in front of defendants to sign, with many of these personnel going into impatience and even huffs when the defendant dares to wish to read the documents before signing them.

How many people end up reading the contracts that they resolve ultimately to read? When was the last time you read your rental car agreement after you drove off of the rental car lot?

Joseph Laslie signed a federal plea agreement, but then appealed on a sentencing enhancement that was stipulated in his written plea agreement. Whether or not he completely read his plea agreement before signing it, he got nowhere on his appeal, with the appellate court confirming.

Joseph Laslie pled guilty to crossing state lines to have sex with a minor. He appeals his sentence, arguing that the district court erred when it applied a sentencing enhancement based on his use of a computer to facilitate his crime. We hold that Laslie waived this challenge. He stipulated to the enhancement in his plea agreement and raised no objection to its inclusion in the district court’s calculation of his sentence. Therefore, we affirm the sentence imposed by the district court.

U.S. v. Laslie, __ F.3d _ (D.C. Cir., May 17, 2013).

Further, Laslie points out:

Unlike in [U.S. v.] Accardi, [669 F.3d 340 (D.C. Cir. 2012)], the record before us is unequivocal. Beginning with his plea agreement, Laslie repeatedly affirmed that his Guidelines range should be calculated with a two-level enhancement to his offense level under U.S.S.G. § 2A3.1(b)(6)(B). He therefore waived his challenge to the enhancement.

Laslie.

Beware mandatory minimum sentencing for a substantially similar conviction.

nospam@example.com (Jon Katz) — Tue, 21 May 2013 00:00:00 -0400

In criminal law, "three strikes and you're out" refers to severe mandatory minimum jail sentencing, and not baseball, other than that mandatory minimum sentencing, for the defendant, can feel like being slammed on the skull with a baseball bat and smashed in the eye with a high-speed baseball.

A vast number of politicians believe that tough on crime garners more votes than treating criminal defendants as individual human beings entitled to compassion under the law, at least until the public sees the excessive bill for such lengthy incarcerations, to the tune of over $30,000 annually per inmate. At over two million inmates in the United States, that amounts to at least $60 billion dollars annually to incarcerate people.

When a criminal defense lawyer's client faces potential mandatory minimum sentencing based on prior convictions, early on the lawyer should examine how to dismantle such efforts. Sometimes, the prior conviction is from a state different from the current prosecution, which opens up possibilities to argue that the prior conviction from the other state does not qualify as a predicate conviction for mandatory minimum sentencing.

Today, Virginia's intermediate appellate court rejected Terry Dillsworth's efforts to avoid a mandatory five-year minimum prison sentence for possessing a firearm after being convicted of a violent felony. Dillsworth v. Virginia, __ Va. App. _ (May 21, 2013). Dillsworth argued that his predicate conviction under Maryland's first degree assault law was not substantially similar to the Virginia statutory provision that would have qualified as such a predicate offense. Virginia law requires that the out-of-state conviction be for a statute that is substantially similar to a Virginia statute that qualifies for the predicate offense.

In affirming Dillsworth's mandatory minimum sentence, the Court of Appeals underlined:

As we recently observed, “[k]ey to our analysis . . . is the established principle that a crime in another state is not ‘substantially similar’ to the most closely corresponding crime under Virginia law if the other state’s law ‘permits convictions for acts which could not be the basis for convictions under [the Virginia law at issue].’” Dean, 61 Va. App. at 215, 734 S.E.2d at 676 (quoting Cox, 13 Va. App. at 330-31, 329, 411 S.E.2d at 446, 445) (citation omitted).

Dillsworth.

Consequently, before a criminal defendant ever pleads guilty to a crime, s/he needs to keep in mind how that conviction will affect not only the defendant's current liberty, but any future sentencings, as well.

4th Cir.: Commission payments essential to illegal activity is not money laundering.

nospam@example.com (Jon Katz) — Mon, 20 May 2013 00:00:00 -0400

When commission payments are essential expenses of illegal activity, the payments of such commissions does not constitute money laundering. U.S. v. Abdulwahab, __ F.3d _ (4th Cir., April 29, 2013), slip op. at 17.

The main reasoning of Abdulwahab follows:

Abdulwahab’s case creates a merger problem very similar to that present in Cloud. The money laundering counts at issue concerned commission payments to HIC sales agent Tim Bromseth. These payments, like those in Cloud, were for services that played a critical role in the underlying fraud scheme in that it was the promise of payment for services rendered that enticed HIC and Bromseth to obtain investors for A&O. As such, Abdulwahab was no different than "the felonwho uses the stolen money to pay for the rented getaway car or "the initial recipient of the wealth" in "any wealth-acquiring crime with multiple participants . . . [who] gives his confederates their shares." Id. at 404 (quoting Santos, 553 U.S. at 516). Unlike the transactions in Halstead, the commission payments were essential expenses of the illegal activity. Thus, the merger problem we identified in Cloud arises in this case as well, and, following Cloud, we correct it by defining "proceeds" as "net profits." See id.at 409. Under this definition, while payment of the commissions may have constituted evidence of the fraud underlying the money laundering charges, the payments did not constitute money laundering. We therefore hold that the district court erred in rejecting Abdulwahab’s contrary argument and denying his motion for judgment of acquittal as to those counts.8

Abdulwahab, slip op. at 17.

The above-referenced footnote 8 in Abdulwahab’s says:

After the Supreme Court decided Santos, Congress amended the money-laundering statute to specifically define "proceeds" as "any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." Fraud Enforcement and Regulatory Act of 2009, Pub. L. No. 111–21, § 2(f)(1), 123 Stat. 1617, 1618 (2009) (codified at 18 U.S.C. § 1956(c)(9)). With "proceeds" now specifically defined, the issue we address today should not recur in many future cases. See Cloud, 680 F.3d at 409 n.6.

Abdulwahab, slip op. at 17, n.8.

ADDENDUM: The closest I ever came to being a cop was my year before law school as a financial auditor at a large Wall Street commercial bank. Early on, among our duties, we were taught to monitor for violations of the money laundering laws, by verifying that IRS Form 8300 had been properly filed for cash transactions over $10,000, and that multiple deposits by the same customer were not being used to circumvent the money laundering laws. Later on, one of my department's vice presidents, a very colorful man, did a training presentation on money laundering, and spoke of the law's focus on drugs, which I felt was a waste of time and resources for the criminal law to focus on. It was 1985, in the midst of Nancy Reagan's oversimplified "Just Say No to Drugs" campaign (easier for many to say about cocaine and heroin, but how about valuum and percodan?).

Random thoughts through May 19, 2013.

nospam@example.com (Jon Katz) — Sun, 19 May 2013 00:00:00 -0400

On Sundays, I sometimes veer well beyond the law in my blog entries, including the following post that collects my last week's thoughts on the law, government, and beyond from my Twitter postings at @jonkatz5 and elsewhere.

THE LAW WORLD

- 4th Cir.: A guilty plea is reversible as not knowing and voluntary when based in material lies by a cop. U.S. v. Fisher, __ F.3d _ (4th Cir., April 1, 2013).

- The joy of pro bono work can be tempered when the client takes the lawyer for granted or insists that the lawyer help a political agenda.

- Fourth Cir.: A vague statute fails to "provide ... a reasonable opportunity to understand what conduct it prohibits." U.S. v. McLean, __ F.3d _ (4th Cir., -April 2, 2013).

- Va. Ct. App.: "'[S]ome indicia of reliability' is the standard [for admitting hearsay evidence] at sentencing." Blunt v. Virginia, __ Va. App. _ (April 23, 2013).

- Police questioning by 911 and otherwise is testimonial when not for an ongoing emergency. Michigan v. Bryant, 131 S.Ct. 1143 (2011).

- Va. Ct. App. says the state Clean Air Act prohibits indoor hookah bars unless separate from the rest of the place. Kepa v Va. Dept. of Health, __ Va. App. _ (May 7, 2013).

- Kunstler: Ramsey Clark "was satisfied. He didn't really care about life style or luxuries."

- Inmate Tavon White has been indicted and accused of controlling the Maryland Penitentiary.

- Preliminary breath test machines are unreliable:

-- Montana: The "PBT instrument remains inherently unreliable for the purpose of accurately quantifying BAC." MT v. Crawford, 68 P.3d 848 (2003).

-- Ohio: Prelim. breath tests "may register an inaccurate [%] of alcohol present in the breath." Oh. v. Shuler 858 N.E.2d 1254 (2006).

- GW police jurisdiction is limited to the campus unless chasing a suspect.

- The Maryland Code and court rules are available free through Lexis. I subscribe to Westlaw for nationwide searching, but sometimes the free statutory sites are quicker to navigate when I do not need annotations. Beware or time lags and errors in online codes' timely updating (or not) changes to government statutes and regulations.

- Josh Karton is an amazing acting teacher for lawyers.

- Report for ACE and Free Speech Coalition refutes studies claiming negative secondary effects of adult entertainment.

GOVERNMENT-RELATED ACTIONS

- Federal investigators nabbed cellphone records of many journalists.

- As of 2010, the Department of Veterans Affair allowed continued prescription medicine access to medical marijuana users in medical marijuana states.

- Md. Gov. signs laws ending death penalty, enabling partial med. marijuana program & allowing undocumented to drive.

BEYOND THE LAW AND GOVERNMENT

Continue reading "Random thoughts through May 19, 2013. "

Clients and I are all in this together, and Wallace Shawn spotlights people beyond their roles.

nospam@example.com (Jon Katz) — Wed, 15 May 2013 00:00:00 -0400

I once got a glimpse of how clients feel trusting me to fight for them when I frantically called for help to a former client who became my contractor, to fix what became a temporary burp in an important part of my firm's administrative/technological operations. I have ended up using the services of a few former clients, overall with much better results than choosing someone out of the yellow pages or relying on a referral. Merely having been charged with crimes, that does not diminish their talents.

When I finally reached this former client/contractor on the phone, I told him how relieved I was to be in his good hands. He responded that it is the same way that he felt when I defended him so many years ago.

Roles get played and reversed. Role reversal is a key element of psychodrama. Director/actor/playwright Wallace Shawn -- of Aunt Dan and Lemon, Manhattan, and Princess Bride fame -- talks of the "cashier in her oddly matched pink shirt and green slacks" -- and the rest of us -- as capable of harnessing the "infinite vastness hiding inside."

Whether it be the cashier wearing pink and green, a sales manager for Muzak, Inc., or one charged or convicted with a vile crime -- and everything in between, Publius Terence aptly underlined: Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me. Thich Nhat Hanh takes Publius Terrence a step further in his poem "Please Call Me by My True Names," recognizing that but for his fortune in experience, resources, compassion and wisdom from an early age, he could have become the child raped by a pirate as well as the pirate who raped her, "my heart not yet capable of seeing and loving." Similarly, Mitakuye Oyasin. We are all related, and it is an illusion and delusion to think otherwise. There is no them versus us in the final analysis. It is all we, including our perceived and actual opponents and enemies. Connectedness with each other is not some sort of touchy-feely approach to life, but a reality that, once recognized by more people, will reduce wars, violence upon others and trespasses against others, and will bring us towards a much better world where people will open their hearts to each other and share with each other of themselves and of their resources.

I recently bought Essays, by Wallace Shawn. The first time I took notice of Wally Shawn was in his short appearance in Manhattan, in which he plays the Diane Keaton character's ex-husband, whom she describes as being found by women to be devastating in bed. Then he walks on the screen for the first time, making the audience wonder how this most ordinary, not particularly handsome man could be the one that Keaton had just described, followed by the no-less unremarkable-looking Woody Allen's character scratching his head over it all. How superficial that such lookism rolemaking was, but likely intended to teach a lesson against such superficiality; yet I bought into scratching my own head over that scene for the next three decades.

When I finally met Wally Shawn, by sheer accident in Grand Central Station around 1989, I noticed the man, not his looks. I told him how deeply I liked his play Aunt Dan and Lemon. He happily responded, "Really?". Then, getting stuck in my role as a law student and not feeling worthy enough in the presence of theatrical greatness, I deep-sixed my compliment by saying: "Well, my view probably does not mean much." He asked "Why not?" I replied, "Because you are up here, and I am down here." If you are reading this blog entry, Wally, I fully meant my compliment, still do, and should not have watered it down.

In his Essays, Shawn points out that "to spend one’s life as a so-called 'creative artist' is probably the most comfortable, cozy, and privileged life that a human being can live on this earth..." Similarly, I feel deeply blessed to be spending my career as a criminal defense lawyer, getting to exercise creative persuasion in the courtroom stage all the time.

A big focus at the National Criminal Defense College's Trial Practice Institute (attended 1994) and the Trial Lawyers College (attended 1995) is to find and summon the powerful magic within ourselves to be the best people and trial lawyers we can be. The goal is not to emulate others but to be our most powerful real selves. Skilled trial lawyers can inspire their clients and everyone else to do the same.

Being all connected, everyone can transcend their so-called roles, and should not be pigeonholed by those roles. My clients and I are ordinary humans before we take on the roles of client and lawyer. Once we see beyond the roles of ourselves and others, we will transcend many of the hurdles that can otherwise constrain and strangle each of us and the possibilities for ourselves and others.

An assault sentenced for three years is not automatically an aggravated felony.

nospam@example.com (Jon Katz) — Mon, 13 May 2013 00:00:00 -0400

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

Criminal prosecutions automatically put defendants in a challenging situation. Non-United States citizens face additional challenges when charged with offenses that can put in jeopardy their immigration status and adjustment of status.

When a non-United States citizen is charged with assault, I do my best to avoid a felony assault conviction (versus misdemeanor assault conviction), and seek for the total of active and suspended jail time not to exceed 179 days ideally (to try to get it treated as a petty offense) or at worst for the sentence to be under one year.

Congratulations to Ali Sina Karimi today, for convincing two of three Fourth Circuit panel judges that the record in his case does not qualify his Maryland misdemeanor assault conviction and sentence (three years imprisonment, suspending all but four months) as an aggravated felony. Karimi v. Holder, _ F.3d __ (May 13, 2013).

The assault victim, a police officer, alleged that as "Karimi grabbed her, he spat on her arm, then 'jumped up and acted as if he was going to strike [her] with his free hand.'" For the Fourth Circuit's 2-1 panel majority, the foregoing allegations did not suffie to qualify as an aggravated felony.

When a prosecutor, cop, complainant, and witnesses all have a human conversation with me.

nospam@example.com (Jon Katz) — Fri, 10 May 2013 00:00:00 -0400

A combination of high-volume caseloads, certitude, challenges seeing criminal defendants as individual humans, and sometimes (and with some prosecutors often) arrogance leads many prosecutors to close their ears to a criminal defense lawyer's trying to humanize his or her client during negotiations or to offer novel negotiations.

Once a prosecutor has no concerns that the lawyer will be anything but trustworthy, respectful of the prosecutor's time and caseload, not a time waster or irritant, not a droner or complainer, and not a beggar, the prosecutor may open up more to actively listening to the lawyer. (On the other hand, when a prosecutor sees the lawyer as being a pain in terms of all the time the defense lawyer legitimately requires the prosecutor to spend on the case, the prosecutor may be more willing to offer a favorable settlement, to save time.) The prosecutor may also open up more to listening to the lawyer if the prosecutor feels listened to, cared about, provided information and ideas that are important to the prosecutor, and in some instances even relevantly and briefly entertained (whether by an irrelevant well-placed joke to start the day, or by short tangential humor related to the case (the humor must not breach keeping the client in a respectful light)).

The magic mirror takes hold. As criminal defense lawyers try humanizing their clients to prosecutors, lawyers need to show that they see prosecutors, their witnesses, police, and everyone else as whole humans. Being human, prosectors and police sometimes will appreciate a criminal defense lawyer's empathetic (and never butt-kissing) ear to hear their angst about the case and matters divorced from the case (for instance, about their feeling they have too high a caseload, or about illness in the family). When I say empathetic, I say genuine and not manipultive. Just see how many seconds it takes for such maniputlative talk to boomerang back at the criminal defense lawyer and even the client. The more energy and other blockages that the lawyer removes from the conversation, the more that others will be at ease talking about the case and getting closer to yes and/or providing information that is vital to the defense.

Just as storytelling can be powerful for the criminal defense, everyone has their own story that they want to tell and be heard. Prosecutors, police and civilian opposing witnesses, then, have their stories. Those stories may be filled with pearls for the defense, or just a way to get the conversation rolling. The magic mirror takes hold again. If a lawyer wants the prosecutor to hear the client's persuasive story, the lawyer must be willing to listen to what the prosecutor and others have to say, and to listen with as little judgment and irritation as possible.

Storytelling can be very important for trial lawyers to help themselves, their clients and witnesses become ready to testify and to prepare for the rest of the trial, and to move the case investigation forward (e.g., to get otherwise recalcitrant witnesses to talk, which might start as simply as talking about something entirely unrelated to the case, and drawing out the story (e.g.: "I am riveted by your calm demeanor," (if you dare be anything but honest and real in talking, watch out for the fallout), and see if that draws out the person's story (e.g., "My grandmother was as calm as gently flowing waters. That always stayed wtih me").

All the foregoing is part of getting to yes, in negotiating based on the parties' goals rather than their positions.

With the foregoing in mind, I give credit to the prosecutors, police and opposing civilian witnesses who often do listen -- and not merely hear -- what I have to say. For them to give me their time and active ear, I need to give them my forthrightness, preparation, and compassion. In a recent case for instance where I obtained a favorable resolution of the case with the prosecutor, I told him that I had a gift for him, in the form of documents confirming that my client had completed dozens of hours of community service and taken several other proactive measures to pay pennance for his alleged crime and to demonstrate his devotion to not committing future criminal activity. There, my client, by having taken such proactive measures, automatically stood head and shoulders over so many other criminal defendants, many who do little to nothing in advance of trial to show they are serious about not committing future crimes.

I then offered the prosecutor to tell why my client acted the way he did on the day of the incident. Who does not want to hear a compelling story? The prosecutor not only welcomed hearing about this from me, but found it very important as a factor in deciding the approach he wished to take in negotiations. The lead police offcer in the case was present during this conversation -- they can be a hurdle or help to negotiations -- and seemed to appreciate my approach to the discussion, and joined in a bit on the conversation and did not pose a hurdle to negotiations.

Additionally, the complaining witness in the case and other witnesses were also very open to talking with me. None of them threw any hurdles in the path of me or my client.

In negotiations and all other challenges in life, there is no "out there" for the mind. Getting to beneficial places for my client with judges, prosecutors, opposing witnesses and everyone else all starts with me.

Murder conviction reversed for coercive judicial response to deadlocked jury.

nospam@example.com (Jon Katz) — Mon, 06 May 2013 00:00:00 -0400

One of the most basic tenets of criminal jury trials is that judges may not coerce deadlocked juries to reverse their deadlock. Delonte Fortune's trial judge disregarded that tenet, and last week the D.C. Court of Appeals granted him a retrial on his second degree murder conviction as a result. Fortune v. U.S. , __ A.3d _ (D.C., May 2, 2013).

Mr. Fortune's jury announced its unyielding fifty-fifty deadlock eight hours into deliberations. In response to the jury's foregoing announcement, the trial judge:

told the jurors he did not agree with them and that it was his “job to make that kind of decision.” With that, the judge sent the jurors back for further deliberations, telling them not to reveal how they were voting “until after [they had] reached [a] unanimous verdict.” Appellant objected that the judge's remarks had been unduly coercive. When the jurors resumed deliberations, it took them only 93 minutes to notify the court they had a verdict—one acquitting appellant of first-degree murder but finding him guilty of the lesser-included offense of second-degree murder.

Fortune.

The D.C. Court of Appeals reversed Mr. Fortune's conviction due to such a blatantly coercive judicial response to a deadlocked jury coupled with the relatively quick unanimous verdice reached 93 minutes after the judge's coercive response and the juries' previous multiple hours of deliberations.

As to the utility of proving coercion of deadlocked jurors by hearing from the jurors after the polled return of a guilty verdict, the Court of Appeals declined to do so, even though two jurors told the trial judge they did feel coerced by his response to the jury's deadlock note, when he asked the jurors, immediately post-verdict, whether any had felt so coerced. Fortune says that such questions go to proceedings in the jury deliberation room, and thus are not to be considered in analyzing the judge's response to the deadlocked jury. Interestingly, the trial judge actually granted a mistrial, at first, after two jurors confirmed feeling coerced by the trial judge, but reversed his mistrial order two weeks ago after the prosecution filed a moton to do so.

A drug dog's positive alert, by itself, does not justify searching the car's passengers.

nospam@example.com (Jon Katz) — Fri, 03 May 2013 00:00:00 -0400

A drug dog's positive alert, by itself, does not justify searching a car's passengers, where the police have no particularized suspicion to believe that the passenger possesses drugs or is acting criminally together with the others in the car. Whtehead v. Virginia, 278 Va. 300, 683 S.E.2d 299 (2009). (Thanks to a colleague for having reminded me of Whitehead).

Before winning in the state Supreme Court on suppression of the search that found heroin on him, Whitehead went through the angst of losing his motion to suppress evidence before the trial court, rolling the dice by going to trial rather than pleading guilty, likely remaining in prison when the Virginia Court of Appeals upheld his search as havng been based on probable cause (and finding that the likelihood increased that the dog had alerted to drugs on Whitehead, as the police eliminated the car and the vehicle's driver and other passengers as drug possessors), and awaited argument in and a decision from the state Supreme Court.

Thanks to the unanimous Virginia Supreme Court for recognizing that police inability to find drugs in the car nor on the driver nor other passengers after a positive drug dog alert, could as easily (if the drug dog alert had been accurate and reliable) have been the result of residual odor of drugs that were no longer in the car, as an indicator that Whitehead possessed drugs. Whitehead.

Police set a dangerous precedent with warrantless Watertown searches for suspected Boston bomber.

nospam@example.com (Jon Katz) — Wed, 01 May 2013 00:00:00 -0400

Last week, I decried law enforcement plans -- which ended up being carried out for multiple hours -- to interrogate Boston bombing suspect Dzhokhar Tsarnaev without Mirandizing him first.

Sadly, police not only violated Mr. Tsarnaev's Constitutional rights by not Mirandizing him, but also violated the rights of the occupants of every home, in Watertown (nearby Boston), that the police entered searching without a warrant and wthout always obtaining consent (for starters, how is there consent at gunpoint and when ordered to put one's hands behind one's head?) -- and at gunpoint, most sadly, as shown in video footage here -- without success for Mr. Tsarnaev.

The Fourth Amendment circumscribes the authority of police to search homes, as follows:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

These warrantless home searches were an abomination of civil liberties that were not justified by the emergency involved. Moreover, for police and government officials to suspend Constitutional rights, they are playing right into the hands of the violent people whose actions the government officals use to justify violating our Constitutional rights, by causing more damge to people's lives than the violent people were themselves able to cause.

Thanks to Ex-Cop Law Student for recently posting a compendium of shocking videos of the warrantless searches, and links to various blog entries on the issue. Thanks to Jonathan Turley for, once again, stepping up to the plate to speak up for preserving our Constitutional rights.

Please add your voice, as well, by telling your local and national lawmakers, government officials, and law enforcement chiefs your opposition to warrantless home searches -- including in Watertown -- at gunpoint no less.

Beware what happens to your own rights when Boston bombing suspect is not read his Miranda rights and when some politicians urge sending him to Guantanamo.

nospam@example.com (Jon Katz) — Mon, 22 Apr 2013 00:00:00 -0400

The recent weeks have witnessed not only last week's Boston bombings, but also reports of several instances of weapons violence in various other parts of the United States. The recent and ongoing violence in the world of course needs to be reversed. The temptation, though, to paint violent people and their cohorts as us versus them, with "them" having no rights to be treated as humans nor to be afforded the full protections of the Bill of Rights is a huge mistake.

Not long ago, a close family member was asked at a spiritual gathering how someone as kind as I am could do criminal defense work and gave a wonderful and on-point answer about the compassion I feel for all people, the need I feel to humanize everyone, and the need for everyone to feel humanized and to receive compassion and empathy. As Publius Terence said: Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me. Thich Nhat Hanh takes Publius Terrence a step further in his poem "Please Call Me by My True Names," recognizing that but for his fortune in experience, resources, compassion and wisdom from an early age, he could have become the child raped by a pirate as well as the pirate who raped her, "my heart not yet capable of seeing and loving."

Mitakuye Oyasin. We are all related, and it is an illusion and delusion to think otherwise. There is no them versus us in the final analysis. It is all we, including our perceived and actual opponents and enemies. Connectedness with each other is not some sort of touchy-feely approach to life, but a reality that, once recognized by more people, will reduce wars, violence upon others and trespasses against others, and will bring us towards a much better world where people will open their hearts to each other and share with each other of themselves and of their resources.

It appears that in an effort to obtain as much information as possible from surviving Boston bombing suspect Dzhokhar Tsarnaev, police have decided not to read him his Miranda rights to remain silent. Ordinarily, an arrested defendant's non-Mirandized answers to police are inadmissible at trial. It appears that prosecutors may try to circumvent that limit by claiming the public safety exception enunciated, for instance, in New York v. Quarles, 467 U.S. 649 (1984). However the public safety exception must not be expanded beyond such circumstances as that in Quarles where a police officer asked a detained rape suspect, un-Mirandized, where his gun was. Quarles decided that the exigency of removing the gun from harm's way overcame any right for Defendant to suppress his un-Mirandized statements.

However, Tsarnaev's knowledge about risks of physical harm to others is so attenuated from the time and place of last week's bombing that Miranda rights -- already riddled with Supreme Court exceptions and erosions over the decades -- will take a severe extra beating if the trial and appellate courts decline to suppress, from trial, Tsarnaev's un-Mirandized answers to police questions.

The Fifth Amendment to the Bill of Rights to the United States Constitution is not just some sort of quaint guarantee drafted over two centuries ago. The Fifth Amendment includes the guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The foregoing Constitutional right is one of the most vital bedrocks of civil liberties in the United States.

On another civil liberties note, John McCain and various other politicians are calling for Dzhokhar Tsarnaev to be sent to Guantanamo to be treated and tried as an enemy combatant. The United States government imprisons people in Guantanamo partly in an effort to not afford inmates there the full force of the Bill of Rights, even though the Supreme Court has nevertheless extended some Constitutional rights to Guantanamo inmates. Guantanamo inmates, when they have trials, proceed before military courts rather than civilian courts, with severely shortchanged protections compared to those afforded criminal defendants in civilian courts in the United States.

On a more global matter, the United States' lease of Guantanamo was inked and signed in a different era, before Fidel Castro took power over fifty years ago. It is beyond ironic that the United States has generally barred trade and travel with Cuba (other than welcoming its refugees generally with open arms, which Fidel Castro took advantage of with the Mariel boatlift), but rubs its brute muscle in the face of Cubans by using their backyard for detaining and trying people intentionally outside of United States borders. After the Berlin Wall collapsed, no justification remained for the United States to remain in Guantanamo without the consent of Cuba's government with or without a lease. (I understand that Britain had a lease for Hong Kong until it withdrew its government near the end of the last century, but have not yet checked how much that lease was a contract of colonial adhesion.) As much as I am not enamored of Fidel Castro and the Cuban government, and abhor Cuba's abysmal human rights practices, Cuba has the right to be a sovereign nation without the colonial appearances and actions of a United States military base on its soil that the Cuban government clearly does not agree to be in existence.

"Doctor, do something!!!"/ "Lawyer, do something!!!"

nospam@example.com (Jon Katz) — Thu, 11 Apr 2013 00:00:00 -0400

What is it like for a doctor handling a life-or-death emergency when the patients' relatives are pleading, even screaming "Doctor, do something!" "Doctor, what is my relative's situation?" "Doctor, why are you not doing a better job?"

As a criminal defense lawyer, I also face relatives wanting to discuss my clients' cases. My experience has been that I can deal with just about any curveball from a client, but that curveballs simultaneously from my client and his or her relatives are an extra challenge.

Probably for numerous reasons -- including where the relative has bankrolled my attorney's fee -- I find a more frequent and stronger interest in relatives to be involved in my privately-retained clients' cases than when I was a public defender lawyer.

As a private lawyer, I have an option about how much relatives are or are not involved in my clients' cases. The upshot of a relative's involvement can be the comfort it might provide the client in dealing with a new situation, and, where the relative has been a beneficial confidant in the client' case, to continue as a confidant.

Potential downsides in dealing with relatives include:

- If they participate in all meetings with the client, the client is less likely to level honestly with the lawyer. After I struggled with such a situation many years ago with two different clients whose spouses were just about always present at our meeting, I resolved that getting my clients' waiver of the attorney-client privilege -- by having a third party present -- is not enough. I have only one client, and I will make the ultimate decision about the extent to which relatives are or are not involved in my work for my clients. It is best that I make that decision through fully deliberating with my client, fully listening to my client, and being fully responsive to my client, but the ultimate decision remains mine.

- Some relatives and clients have seriously unresolved relationship issues with each other. Letting those relationship issues spill into my dealings with my client can present a plethora of challenges.

- Some relatives are much more vocal. than my clients, even domineering over clients. If a lawyer is going to agree for relatives to play a substantial role in clients' cases, the lawyer should consider billing extra for the extra time, and at times extra aggravation, for allowing such extra participation.

- Criminal defendants are often dealing with very difficult situations. For some clients, a relative's presence can provide comfort. For others, the relative's presence can be a distraction that makes it more difficult for the defendant to focus on the matter at hand, to prepare to testify (if testimony becomes necessary), and to make informed decisions in the case.

Many times, I have heard relatives try to strongarm their way to the center of my attorney-client relationship with the refrain of "It is my money that has paid you, and I am going to be involved in my relatives' case." I think I have been successful in averting that situation in a great number of instances by having an engagement contract addendum where relatives pay for my clients' legal services, which confirms that I have but one client, and being a paying party does not put them in any different a situation than if they had paid me anonymously.

Here are a few more considerations for a criminal defense lawyer to make in determining how much involvement to afford his or her clients' relatives:

- Using the medical doctor analogy, reasonable and balanced limits must be placed on a relative's involvement in the case. Relatives are barred from operating rooms. Relatives are barred from sitting at counsel table in courtrooms, and from lawyer contact visits with inmates at jails ad in courthouse lockups. Those should not be the only reasonable limits placed on relatives' dealings with the lawyer.

- Clients need a voice. If a relative always is present during conversations wth the client, the client sometimes will be uncomfortabe and even unwilling to say when s/he wishes to speak exclusively with the lawyer. When a client allows a relative to be present for all communications with the lawyer, that can open a Pandora's box that the client regrets, not wanting to offend or anger the relative when the client realizes that the box should be closed again or closed more. A Pandora's box does not re-close.

- Beware relatives claiming to need to be present as language interpreters for clients whose English is limited or relatives who claim that the defendant has cognitive disabilities that require interpretation. If such language or cognitive challenges exist, it is best -- despite the additional financial cost -- for the client to pay an interpreter who will faithfully interpret and not participate as a relative as well, and for the lawyer and any cognitively challenged lawyer to bring in a relevant professional, not merely a relative, to determine how to transcend any cognition hurdles in the attorney-client relationship.

- Beware incarcerated clients who share sensitive attorney-client communications by phone and in person with relatives and friends. Those conversations ordinarily are recorded and monitored, and can have unexpectedly serious consequences for the client.

- Beware when a client or his or her relative insist that the client is so consumed with work or academics that the client has made the relative a proxy for dealing with the lawyer. Beware also when clients give the green light for the lawyer to communicate extensively with the relative without the clients' presence at (by phone or in person) and participation in the conversation. To have repeated conversations with relatives in the clients' absence can breed miscommunication among the lawyer, client and relative, and can create all the more confusion about where the reasonable boundaries are for relatives and t necessity of the client's direct involvement in his or her own defense.

- Beware of relatives who monitor the clients' email, and even send emails from the client's email account. This is a big red flag.

- The initial meeting with a potential client has many honeymoon/courting aspects, with the potential client, lawyer, and any relative putting on their best face. To get a better feel for the possible dynamic in dealing with the relative, consider observing how the potential client and relative interact with each other. If you meet at a cafe, for instance, how are the potential client and relative interacting with spoken and body language? Is the relative deciding what the potential client will order (possibly a more common occurrence among the general public than we think). Did the relative arrange the meeting with the lawyer, identify the lawyer, or urge or mandate that the client hire the lawyer? None of the foregoing -- other than the mandating -- is automatically bad, but are items to be considered in the mix. How much is the relative dominating the conversation, belittling the potential client, devaluing the potential clients' personal abilities and potential, interrupting, and even trying to silence the conversation? Those are red flags, as can be relatives references to "the lawyer WE hire.

- Ask yourself why you became a criminal defense lawyer in the first place, the extent to which you will enjoy your law practice more when relatives are not limitlessly involved in communications with the lawyer, and the extent to which you are willing to lose income by losing potential and existing clients by announcing clearly from the get go that the lawyer is the final arbiter of how much and in-depth will be the relative's role in the case. I know that I ordinarily serve a client best -- and my law practice enjoyment best -- by making such a clear pronouncement. Although I may lose some potential clients along the way, that is better than facing loggerheads down the road, and some relatives and potential clients end up agreeing with such a pronouncement, and may just have not known where reasonable boundaries are for relatives without the lawyers' first suggesting them. Some potential clients may prefer hiring a lawyer who makes the client king, rather than relatives

In any event lawyers must remember that their potential clients and actual clients do not come to them in a vacuum. Some are very timid and trepidatious about meeting a lawyer alone, particularly if they have never consulted with one before. Some wish to have a second pair of eyes and ears at the initial meeting with a lawyer (I ordinarily suggest that the extra visitor join us later on in the meeting). Some come from a very nurturing family background where relatives' involvement has benefitted them very much. Regardless of how kind or not relatives deal with the lawyer, the lawyer needs to remain compassionate, empathetic, and respectful, while at the same time not being a client's or relatives' doormat nor constant verbal dumping ground (when the relatives and client know that there is nobody else in the courtroom to dump on) nor recipient of constantly inconsiderate behavior. Moreover, merely because a lawyer has been paid for his or her services, that does not convert the lawyer into a verbal whipping child of the client and his or her relatives, nor into a lawyer who is available 24/7 at the client's beck and call, while at the same time being obligated to stay on top of communications with and work for the client. The lawyer is a professional, and will provide the best service by being a professional who makes reasonable boundaries clear to the client and his or her relatives.

Of course, the magic mirror http://katzjustice.com/underdog/FairfaxDUIAttorneyFeb19..html always is present. The more that clients and their relatives feel confidence in the lawyer, feel valued and respected by the lawyer, and feel validated by the lawyer, the more that the lawyer will generally will find a more positive experience with them. The more that the lawyer sees potential clients and their relatives as full human beings with feelings, feels no better than they are, sees their strengths and weaknesses, understands their fears and anxieties, and knows the potential to do better as part of developing the strongest possible strategies, the more that the client and his or her relatives will feel more comfortable with the lawyer and empowered. No two clients are cookie-cutter situations. The lawyer should be able to reverse roles with the client and relatives to understand what they are going through; to help motivate, empower and inspire them to be at their best to the benefit of the client; and to sense when a relative's involvement (and to what extent) will be of benefit, including just making a hugging symbol to the relative or friend when the client can benefit tremendously from that hug.

By definition, criminal defense work inevitably involves relatives' involvement in many cases. Lawyers who want to avoid all such involvement might wish to consider practicing corporate law or another area of law that does not involve assisting people.

Being human, judges can make even severely damaging mistakes.

nospam@example.com (Jon Katz) — Wed, 10 Apr 2013 00:00:00 -0400

A recent Virginia appellate opinion reminds us what we already know: Being human, judges can make serious mistakes. Parties' lawyers, must be at the ready to prevent and remedy those mistakes.

Latasha Gordon was convicted at trial for two counts of unlawful wounding (each count carrying up to five years in prison, as a class 6 felony) and petty theft (carrying up to a year of incarceration). Gordon v. Virginia, __ Va. App. _ (April 2, 2013).

At sentencing, the prosecution requested ten years incarceration on each of the two counts of unlawful wounding, thus adding five years to the statutory maximum for each count. The judge went along with that recommendation. Ms. Gordon's defense counsel did not object. Ouch!

Fortunately, Ms. Gordon obtained a lawyer to convince Virginia's Court of Appeals to take her appeal, convince the Court of Appeals to hear her case (Virginia has no automatic right of appeal in a criminal case), and convince the appellate court to remedy the trial court's sentence that exceeded the statutory maximum, by ordering a resentencing.

People make mistakes. Some mistakes inflict more severe damage than others, including Ms. Gordon's original sentence that exceeded her statutory maximum by twice on each count of unlawful wounding.

For every Latasha Gordon who ultimately get relief from such a glaring error, how many more criminal defendants suffer from serious judicial errors without those errors ever getting remedied?

Prosecutor's belittling the defense becomes feces thrown at a fan.

nospam@example.com (Jon Katz) — Mon, 08 Apr 2013 15:13:46 -0400

A great trial law teacher warned criminal defense lawyers about throwing feces at an opposing witness during cross examination, lest the witness act like a cooling fan that shoots back the feces all over the lawyer's face and clothes.

Too many prosecutors cloak police with too much honesty and reliability, and criminal defendants in terms of scum, when prosecutors are obligated independently to assess their case evidence, even if it turns out that the office lied or were otherwise inaccurate.

Enter Tyrone Moore, who was convicted of carjacking after the victim identified him in a photo lineup. At the time of the carjacking, Moore wore dreadlocks, and the first driver observed in the stolen car -- Larry Pollin -- also wore dreadlocks. However, throughout the trial and beyond, the prosecution and its relevant police witness insisted that Pollin wore short hair at the time of the carjacking.

Kudos to Moore for insisting to his lawyers, even after the jury's guilty verdict, that Pollin had dreadlocks at the time of the incident. Praised be Moore's defense team for learning, post-trial, from Pollin's lawyer that Pollin did in fact have dreadlocks at the time of the carjacking. (Query why Pollin's lawyer gave up such information, thus exposing Pollin to a greater likelihood of prosecution for the carjacking)

Shame on the prosecutor for responding as follows when Moore's lawyer asked post-trial for the date of the Pollin short-hair photo presented at trial by the prosecution: “'To the extent that your client claims to have seen [Pollin] ... in December with dre[a]ds, he is either mistaken or lying. Care to guess which it is?'” U.S. v. Moore, 709 F.3d 287 291 (4th Cir., March 1, 2013). The Fourth Circuit retorted last month: "As it turns out, the government was the one mistaken. Pollin did indeed have dreadlocks in November and December 2007, and the date on the Short Hair Picture was wrong." Id

Do Attorney General Eric Holder and President Barack Obama want prosecutors who are so contemptuous of criminal defendants and the criminal defense function?

Praised be Moore's arguing lawyer James Nichols and on-brief lawyer Byron Warnken (also a law professor who helped me pass the Maryland Bar, as an instructor, by boiling the exam down to its simplest parts) for obtaining a retrial for Moore. The Fourth Circuit concluded that Moore met all of the following five prongs for obtaining a new trial, even though the trial court said that Moore had only met the first three prongs:

To be entitled to a new trial under Federal Rule of Criminal Procedure 33 based on newly discovered evidence, a defendant must satisfy a five-part test by showing that (1) the evidence is newly discovered; (2) the defendant exercised due diligence; (3) the newly discovered evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence would probably result in acquittal at a new trial. See United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989) ("Chavis Test"). We review the denial of a motion for a new trial for an abuse of discretion. United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003).

Moore, 703 F.3d at 292.

Moore further explains the date discrepancy on Pollin's short-hair photo:

The government has now admitted that the Short Hair Picture it received from Harford County, produced to Moore, used and relied upon at trial, and represented to have been taken on December 31, 2007, was, unbeknownst to it at the time of trial, not taken until early 2009 when Pollin first cut off his dreadlocks.

This discrepancy resulted from a system utilized by Harford County up until Spring 2009, in which booking photographs were replaced automatically by new photographs whenever an inmate changed his or her appearance dramatically. According to Corporal Christopher Crespo, a booking supervisor with the Harford County Sheriff's Office, under this system, an inmate's original booking photograph would always be retained in a hard-copy file but the electronic copy of the original booking photograph would be replaced by any new photographs that were taken to depict an inmate's then-current appearance. And as is evident from the facts of this case, the new electronic photograph would apparently retain the date of the inmate's initial booking, as if the new picture were taken when the inmate was initially processed and brought into the detention facility. Corporal Crespo further stated that the Short Hair Picture was taken in January 2009 and that his review of the complete record of photographs revealed that Pollin had dreadlocks until January 2009.

Moore, 703 F.3d at 292.

Here, Moore only won through his dogged insistence to his lawyers that Pollin had dreadlocks at the time of the carjacking, through his lawyers' treating Moore's claim seriously, and through Moore and his lawyers fighting through his appeal. Moore's and many other criminal defendants' victories only come through such meticulous, dogged, and panning-for-gold struggles of defendants and their lawyers.

4th Cir.: Guilty plea is reversible when based on material police lies.

nospam@example.com (Jon Katz) — Tue, 02 Apr 2013 00:00:00 -0400

I have repeatedly underlined why police lying is all too common. Lying is bad enough among humans in any time or place. When a police officer lies to the detriment of a criminal defendant's liberty, that is particularly reprehensible.

For every police officer caught lying, infinitely more of them likely go undetected.

Former DEA agent Mark Lunsford admitted to having lied in an application to search the home and car of Cortez Fisher, based solely on agent Lunsford's stated reliance on a confidential informant -- with whom agent Lunsford would split reward money -- whom agent Lunsford later admitted had no knowledge about Mr. Fisher's allegedly criminal activity. Mr. Fisher subsequently pleaded guilty in relation to the items found pursuant to agent Lunsford's fraudulently-obtained search warrant. U.S. v. Fisher, __ F.3d _ (th Cir., April 2, 2013).

The Fourth Circuit, 2-1, determined that Mr. Fisher's guilty plea therefore was reversible as not having been entered knowingly and voluntarily, due to agent Lunsford's material fraud.

I have still to read the entire opinion, but my first skimming of the opinion seems to show that Fisher breaks new or relatively new ground, perhaps because it is so uncommon for police lies to be uncovered after one enters a guilty plea. Dissenting Judge Agee refuses to be breaking such new ground -- despite his agreement that agent Lunsfords lying was reprehensible -- and we are left to see whether the prosecution seeks en banc review by the Fourth Circuit or certiorari review by the Superme Court.