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

Read before you plead.

nospam@example.com (Jon Katz) — 2013-05-22T04:00:00Z

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.comFederal 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) — 2013-05-21T04:00:00Z

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) — 2013-05-20T04:00:00Z

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) — 2013-05-19T04:00:00Z

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. "

Criminal defense is not for mere dilettantes, but for true believers and true doers.

nospam@example.com (Jon Katz) — 2013-05-17T04:00:00Z

Recently, I bumped into a fellow lawyer when both of us were on the way to Maryland criminal court. I mentioned my intention to move to dismiss my case for being improperly charged by citation rather than by a statement of charges. (The case ended up getting dismissed when the prosecutor's witness did not appear.) My colleague had never considered such an idea, at least not for this particular criminal accusation, and kept asking me about this defense rather than simply showing by words or silence that he was going to arrange to read the citation statute, which I had already cited to him. Md. Crim. Proc. Code § 4-101.

Criminal defense is about defending people's lives and liberty, using all the lawyer's skill, experience, persuasive ability, true grit, passion and entire person. Sometimes the work is like panning for gold. It might feel exhilarating to get a criminal defense victory by hearing a resounding jury acquittal, but getting a case fully and finally dismissed well in advance of trial on an novel or obscure argument or piece of evidence wins the defendant's liberty sooner, reduces the defendant's angst, and saves the defendant on his or her litigation budget. The goal is to win, no matter how the lawyer gets to the victory, so long as the lawyer works honestly and within the bounds of law.

Criminal defense is not for mere dilettantes, not when criminal defendants' lives and liberty are on the line; not when persuasion in criminal court requires knowing the case and applicable law backwards and forwards; not when the criminal statutory and caselaw involve so many nuances, opposing lines of caselaw, and counterintuitive and even exasperating rules, tests and results; and not when too many judges too often find ways to avoid giving criminal defendants the relief they are entitled to, under the rubric of harmless error, lack of caselaw supporting relief (even when the applicable statute dictates such relief), waiver of rights, and lack of authority or jurisdiction over the matter when the judge does have such authority and jurisdiction.

Nobody in his or her right mind would go into the boxing ring against the world's heavyweight champion without experience, wits, courage, and daily focused training and exercise. The same goes for criminal defense lawyers. Unfortunately, dollar signs and empty coffers can entice lawyers to foray into criminal defense if they find the clients; foray not for such mere reasons.

Yes, any professional needs to start somewhere. However, the difference between the dilettante and the devoted criminal defense lawyer is the difference between dabbling and taking on each case as if the life and liberty of the lawyer himself or herself -- or the lawyer's closest friend or relative -- depended on it. No area of law -- particularly criminal defense -- should be viewed by the lawyer with dollar signs rather than as a way to serve clients, with money being a fringe benefit. I have had some lawyers tell me, unabashedly, that the practice of law is all about making money. They should not hold their breaths for me to refer cases to them. When I need to refer someone to a lawyer because of a conflict of interest or calendar, geography, or area of law, I want a lawyer who truly cares, is truly capable and is truly attentive. I want a lawyer who is a true believer and true doer.

What about my colleague, then, who kept asking me about my citation-dismissal argument rather than stopping the action by simply resolving to read the applicable statute? He is not necessarily a dilettante. If he did not care about finding expanded ways to succeed for clients, he likely would have paid little attention to what I had told him. He did not, though, engender confidence in me to the level of referring any clients to him, in part because he did not already know this basic area of the law, and did not exhibit that he was just going to read the short applicable statute for himself.

Devoted criminal defense lawyers are always ready to brainstorm with colleagues, and to expose their personal and intellectual weaknesses and fears in the process, out of the goal first and foremost of serving the client. However, adding to the mix of brainstorming is the necessity to fully and repeatedly engage with and do teamwork with the client, and the essential and often painstaking process of the criminal defense lawyer's being alone with his thoughts and ideas. Criminal defense lawyers on the winning path welcome all opportunities to get closer to victory, and do not feel lonely, but totally alive, when alone in thought and preparation for each client's defense, only missing having nobody else in the room to high-five when the lawyer discovers a new breakthrough towards winning his or her case.

Today's blog entry is meant partly to urge lawyers to stay away from criminal defense unless they are going to jump into it full force, with their full true belief, devotion, heart, soul, time and attention, intellect, and experience. This blog entry is also meant to encourage criminal defendants to seek out such lawyers, not the ones who just talk the talk, but who have shown that they are walking the walk. The walk cannot always be easily found, but must be found, including researching and observing the lawyer, paying close attention to how the lawyer talks and pays attention to the potential client, reading some of what the lawyer has written, and asking the lawyer why s/he practices criminal defense.

I am grateful to know many true believers and true doers in the criminal defense practice, with all being great teachers to me by their teachings and example. I thank and deeply bow to them all.

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

nospam@example.com (Jon Katz) — 2013-05-15T04:00:00Z

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) — 2013-05-13T04:00:00Z

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.

Government abuse of power and truth never started nor ended with Nixon. Now IRS-gate and Benghazi-gate.

nospam@example.com (Jon Katz) — 2013-05-12T04:00:00Z

Once the Oval Office secret taping was revealed -- followed by my being convinced that Nixon knew about and kept mum about the Watergate break-in, let alone his involvement with covering up the scandal -- I told myself by age eleven in 1974 that I did not like him. Not helping Nixon on my assessment of him were his looks (not ugly but not photogenic nor kind-looking, either; I had many years of challenges to overcome lookism), the political cartoonists' wild caricatures of him, and my view that he was anything but cool when the counterculture's strong inclusion on the airwaves was still recently strong. Pat Oliphant's image of an isolated and lonely-seeming Nixon awkwardly commandeering the peace symbol into a victory sign (in my view) summed up my not being able to relate to the man.

I later learned that I would have been wiser to have opposed Nixon for some more extensive and overlapping reasons, removing any issues about his looks or demeanor. As I understand it, Nixon saw few boundaries on presidential power, and, thereby dangeroursly threatened individual liberties and the balance of power among the three branches of the federal government. He used smear tactics -- including playing on anti-Communist fears -- to advance. He apparently kept an enemies list. He was very bigoted. He ordered a burglary of the Brookings Institution, a pre-Watergate break-in at that. I learned that I could not dislike him so much for secret oval office tapings -- with the tapes' ultimately strangling Nixon's presidency -- because they started with Franklin Delano Roosevelt and continued with Truman, Kennedy, and Johnson.

Nothing, though, is black or white, all good or all evil, or done in a vacuum. Nixon would not have taken and consolidated power absent many people supporting his doing so. Not everything he did was bad; for instance, regardless of his motivations, he placed a diplomatic focus on reducing tensions and nuclear war with the Soviet Union, and paved the way to diplomatic relations with China.

Barack Obama does not come across as a Richard Nixon. He seems to mean well without being obsessed and paranoid over his opponents, and without seeming to wield presidential power for his own image and legacy. I have never been crazy about Obama, and believe that his "no drama Obama" approach goes too far. All shrewd politicians have learned to do their best to avoid what Nixon did to suffer the downfall of his presidency.

Now, regardless of President Obama's involvement or knowledge (and any failure or not to disclose the following scandals), he has two huge scandals on his hands that were reported last week: The IRS's admission that it targeted conservative political groups for audits, and revelation of emails from the State Department seeking to mislead the public about the cause of the Benghazi killings of American diplomats.

I doubt that Obama would have directed nor allowed the IRS to target anyone for political reasons. I have not explored enough how much responsibility Obama did or did not have for misleading initial explanations of the cause of the Benghazi killings. However, Obama by now clearly knows about both scandals. What will he do to explain his role -- or lack therein -- in the scandals, what he will do to fix the situation, and what he will do with the government personnel who caused and perpetuated these scandals?

Abuse of governmental power is not limited to any one political party. We are stuck in a Tweedledee-Tweedledum American two-party political world that is a far cry from a true democracy when considering the stranglehold that the Democratic and Republican parties have on the political landscape. Both parties have consolidated too much power. Huge power breeds greater risk of devastating abuse of that power. The federal executive branch has a hugely powerful bureaucracy that tends more to perpetuate itself than to reform from one presidential party to the next.

As to criminal justice, few politicians are willing to risk their careers by pursuing a massive overhaul of the criminal justice system to criminal defendants' benefit. Law and order tends more often to get politicians elected than campaigns to move away from America's incarcerating more people per capita than any other nation, even China.

So long as the United States government remains so powerful, gross abuses of power will continue.

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

nospam@example.com (Jon Katz) — 2013-05-10T04:00:00Z

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.

The persuasive and personal power of softness.

nospam@example.com (Jon Katz) — 2013-05-09T05:00:00Z

Soft is not weak when applied in terms of active relaxation. Collapsed is weak. Brittle is weak. Stiff is weak.

Softness enables listening and winning; loudness deafens; hardness makes brittle and weak.

Softness puts opponents and others more at ease -- and open to the actor -- rather than on guard.

A tidalwave is at once soft and devastatingly powerful. The same goes for a tornado, and fire.

I do my best to cultivate powerful softness throughout the day and the rest of my life. Daily taijiquan practice is ideal on that path. When I do taijiquan sparring/sensing hands with great local taijiquan practitioners, I am reminded that soft is the way.

The power of softness in trial battle recently was re-affirmed when I was crossing a DWI case's reporting police officer who was having material memory problems to my client's potential benefit. Before trial had ever started, I had a pleasant brief conversation with the officer, and continued being pleasant with the officer, even when I felt something was off that the officer was recalling numerous harmful details about the months-old incident that never had found their way to the officer's report on the case.

Softness does not preclude being well armed, and being ready to use those proverbial and/or actual arms. None other than television's Kung Fu underlines such an approach to trial battle and all other battle, through Master Kan: "Perceive the way of nature and no force of man can harm you. Do not meet a wave head on: avoid it. You do not have to stop force: it is easier to redirect it. Learn more ways to preserve rather than destroy. Avoid rather than check. Check rather than hurt. Hurt rather than maim. Maim rather than kill. For all life is precious nor can any be replaced." (Emphasis added.)

Consequently, the runaway opposing witness often needs more than just a smile to nudge what the criminal defense lawyer needs in fighting for the criminal defendant. Larry Pozner has analogized effective cross examination as offering the opposing witness to sit on a new thumbtack with each question. Sitting on the thumbtack is uncomfortable, but less uncomfortable than the witness's being punished with multiple questions to get a direct answer to the one question that could have been answered with one simple answer. Watch out, of course, for the judge who steps in and says for the punishing cross-examiner to move it along -- or emphasizes that the witness has already answered (but the defense lawyer has the right to challenge that answer) -- but even the least understanding and least fair judge will get impatient with the witness who repeatedly slows things down by evading even the most simple of questions. With the foregoing thumbtack approach, by the end of the cross examination, the effective cross-examiner may have stuck so many thumbtacks into the opposing witness as to be the equivalent of a dagger, when no witness will be willing to sit on a dagger versus on sequentially-applied thumbtacks.

Recently, two Rocket Docket judges underlined how few jury triable cases proceed to trial in their courthouse. The stakes in those cases are often too high not to settle. However, a trial lawyer must go to court fully ready for battle. That way, the client does not plead guilty out of fear that his or her lawyer will choke at trial; and the lawyer will not come down with the "aw sh*ts" when learning that the prosecutor is not offering as favorable a deal as the lawyer had expected, the client decided not to settle after all, or the judge does not accept the settlement. Moreover, a case is more likely to settle when a lawyer is prepared for trial, and a case is more likely to go to trial if the lawyer prepares it to settle. Moreover, the more the opposing lawyer knows that the lawyer always is trial ready, the more the opposing lawyer will convince his or her client that a formidable fight is looming if the case does not settle.

The late John Johnson, who lived the power of softness, reminded me to have my bows and arrows at the ready when kindness alone does not cut it. Those arms will always be with me, along with softness.

Recommending Claude AnShin Thomas in Annapolis tonight through Saturday.

nospam@example.com (Jon Katz) — 2013-05-09T04:00:00Z

Praised be Claude AnShin Thomas, who metamorphosized from killing scores of people during the Vietnam War to being an example of living internal and external peace and compassion, creating a new relationship with our own suffering, and acknowledging and coming to terms with our own internal demons. Thanks also to Brother Claude's spiritual partner and assistant Wiebke KenShin Andersen, who manages his public appearances.

I challenge anyone not to be profoundly changed for the better after experiencing one of Brother Claude's presentations or reading his book At Hell's Gate.

Claude AnShin Thomas will be in Annapolis tonight through Saturday, on the Real Costs of War tonight (open to all) and tomorrow (for veterans only), and the Courage to Change all day this Saturday. I highly recommend experiencing him.

Murder conviction reversed for coercive judicial response to deadlocked jury.

nospam@example.com (Jon Katz) — 2013-05-06T04:00:00Z

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) — 2013-05-03T04:00:00Z

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.

Non-consensual field sobriety tests should be inadmissible at trial.

nospam@example.com (Jon Katz) — 2013-05-02T04:00:00Z

Field sobriety tests are not mandatory tests in drinking and driving cases where I practice law. Therefore, when the police offiicer commands a drinking and driving suspect to take the field sobriety tests -- or makes the taking of the tests anything but fully voluntary -- the results should be excluded.

Virginia caselaw confirming that field sobriety tests are voluntary tests is Hammond v. Virginia, 17 Va.App. 565, 439 S.E.2d 877 (1994) (thanks to my colleague who introduced me to Hammond), which says:

A field sobriety test is not mandatory and is administered by an officer only with the consent of the accused. The test provides an immediate indication of whether probable cause exists to believe that the accused is under the influence. If a defendant refuses to take the test, that refusal may be evidence of guilt. Farmer [v. Com.], 12 Va. App. at 341, 404 S.E.2d at 373. Similarly, we assume arguendo that if a defendant readily volunteers to take a field sobriety test, the willingness may be relevant to prove innocence. Farmer held only that evidence of the accused's refusal to take the test or his actions in voluntarily **879 performing the non -required field sobriety test may be relevant to prove the accused's guilt or innocence.

Hammond, 17 Va.App. 565, 568 (1994).

Maryland caselaw confirms that field sobriety testing amounts to a search requiring reasonable articulable suspicion to proceed with such tests in drunk driving cases. Blasi v. State, 167 Md. App. 483, 893 A.2d 1152, cert. denied, 393 Md. 245, 900 A.2d 751 (2006). Blasi says:

[T]he administration of field sobriety tests by a police officer during a valid traffic stop intrude into an area of an individual's reasonable expectation of privacy because: (1) the process of conducting field sobriety tests exposes certain aspects of an individual not otherwise observable by the public; and (2) the information disclosed by the field sobriety tests may reveal private facts about an individual's physical or psychological condition. Therefore, we hold that the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a search within the meaning of the Fourth Amendment to the U.S. Constitution."

Blasi, 167 Md. App. at 505.

Although Virginia law does not recognize field sobriety tests to be searchs, Blasi does. Blasi, 167 Md. App. 483. Consequently, the prosecution in Maryland cases has the burden of showing that the Defendant submitted to the field sobriety test/search voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973).

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

nospam@example.com (Jon Katz) — 2013-05-01T04:00:00Z

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.