UNDERDOG - JON KATZ, Criminal Defense in and beyond the Capital Beltway.

Dr. Phil exposes the unreliability of eyewitness testimony.

nospam@example.com (Jon Katz) — Mon, 08 Feb 2010 00:00:00 -0500

Dr. Phil exposes the unreliability of eyewitness testimony here. Just click the video link listed below the headline EYEWITNESS EXPERIMENT, and read in this link how, after seeing a video of a "suspect", "40 percent of [Dr. Phil's] audience chose suspect number 3. Dr. Phil inform[ed] his audience that anyone who voted chose an innocent man because the real perpetrator was not in the lineup."

And there I was assuming that Dr. Phil's show was just about fluff. That is what happens when I make assumptions about television shows without even having broadcast and cable television at home for the last three blissful years.

Thanks to a fellow lsitserv member for this link.

Super Bowl: $$ meet Exxon meets drug testing meets gender segregation meets metal detectors meet excellence in athletics.

nospam@example.com (Jon Katz) — Sun, 07 Feb 2010 00:10:00 -0500

Another Super Bowl comes today that I will not watch. I think I last watched around 1992. Of course, by my not watching, I miss television's efforts to avoid a repeat of nipple-gate and to be more lenient in running controversial commercials; and miss any further explanation of the roots of "Who Dat", including whether the phrase is or is not racially demeaning.

The problem about Soviet Olympic sports was that the Soviet government apparently poured so much money into its athletes as to make them hardly resemble amateurs any longer. A big problem about professional football, baseball and basketball in the United States is that it is overly commercialized to make watching on television a substantial irritant.

I still enjoy watching sports, particularly a good lacrosse game and some of the televised daring non-ball sports, including wild obstacle courses. I still appreciate the awesome athletic abilities of many athletes. As my nearly four-year-old boy gets older, I likely will be watching more live and televised games, if he wishes. My wife is not big on sports, so we have enjoyed this break from sports together.

Watching sports was more fun for me before I got bothered by my college years that professional football, baseball, basketball, and more are segregated based on gender; before I realized how rampant is drug testing throughout professional and amateur sports, which was not nearly as rampant in my younger days, it seems; and before people had to pass through metal detectors to get into a stadium. I have great memories seeing the Yankees, Knicks, Lakers, and Bruins in their home stadiums. Later, the Yankees put doo-doo on their games by prohibiting people from leaving their seats during the national anthem, or maybe that was the case even when I attended in the late 1970's, without my knowing it.

A few years ago, the local National Lawyers Guild chapter arranged for an outing at Camden Yards. When I stated my concerns about gender segregation and drug testing to a particularly excited member -- who is an avowed communist, to boot -- he focused me on the fun of the Orioles game. Sure, I had fun when I went to a game at Camden Yards. That was not enough to overcome my concerns about returning, and I did not.

Because I may be watching more professional sports in the future, this blog entry is not an effort to convince others not to watch the Super Bowl. I do, however, wish to know your views on the concerns I have stated here.

The power of silence and danger of verbal diarrhea, revisited.

nospam@example.com (Jon Katz) — Thu, 21 Jan 2010 00:00:00 -0500

What makes a lawyer in court, a lawyer's client, a television interviewee or anyone else think that verbal diarrhea is preferable over covering the subject to the extent needed, and no more? As much as I oppose fishing and other activities for catching animals for food and sport, trial lawyer Terry McCarthy makes utter sense when saying -- about cross examination -- once you catch the fish, bag it and don't play with it.

I have overtalked many a time, and probably even some of the greatest lawyers do it now and again. Hopefully by treasuring the power of silence, I will more often than not get it right.

A balancing act is involved between talking and talking during closing argument -- and during oral argument, which does not require using up the entire allotted time if not needed -- and having uncomfortable silences when trying to summon something to say. Of course, uncomfortable silences might be a cue that it is time to end the closing argument, or else the lawyer can share why the silence has arisen (e.g., "I am at a loss for words how to respond to the outrageous assertion by [opposing counsel] concerning [A, B and C]") so as not to lose credibility with the jury/listener, and so as to eliminate or reduce the listener's irritation at the lawyer for forcing the listener to endure what might otherwise seem to be the lawyer's plodding along to the listener's torture.

Over two years ago, I cited excellent examples of the power of silence and simplicity in argument, through Count Basie, Larry Pozner, and Hamlet. Another great example of the power of silence is yogi Baba Hari Dass, who went silent many decades ago and communicates by a chalkboard hung around his neck. Such communication helped Baba-ji free himself from excessive verbal and written noise so he could focus on living the yoga life. This is very much the opposite of sending multiple daily text McMessages from a cellphone followed by McTwitter.

Now to this list of inspirations for the power of silence and spoken simplicity I add Beop Jeong, a septuagenarian Korean Buddhist monk who lives/lived for years mainly as a hermit in the mountains, turning out an average of one essay per month for publication to offset his general unavailability to the public.

In one of Beop Jeong's infrequent returns to be among people, the story goes that a woman in mourning came to him. She poured her heart out to him. Instead of responding with words, he kept his full attention, mindfulness and compassion on her and on nobody and nothing else, including serving her food and tea. She felt more comforted by that than a whole bunch of words.

In Beop Jeong's May All Beings Be Happy is talk about refraining from speaking about great new ideas right away, lest that weaken the ideas, or prevent them from further developing their full strength. Certainly, trial lawyers do not have the luxury of saving ideas for the next day if in the middle of a closing argument that must finish the same day. However, Beop Jeong's lesson is a reminder that ideas that seem great at first blush are not always any greater than when we write down details of a seemingly great dream immediately upon awakening at 3:00 a.m. from the dream, only to realize at 8:00 a.m. that the writing was nothing better than gibberish.

I used to not understand the idea of the power of haikus, design minimalism, and feng shui. Now, I say hail haikus, the power of brevity, and the power of silence.

ADDENDUM I: Google did not help me find out if Beop Jeong is still alive, although he sees birth and death as interrelated and unable to stand alone. In response to my inquiry about Beop Jeong's current situation, a U.S.-based staffer at Korean book seller Han Books replied on January 19, 2010: "We hear that he is seriously ill, but haven't heard that he's passed away."

The 2006 Wisdom House Publishing Catalogue talks of his having "lived" in the mountains:

"From the humble, solitary confines of his wood hut located somewhere deep within the Korean mountains, Beop Jeong stands as one of the most well known Korean Buddhist Masters. Beginning his literary career working withing Jogye Buddhist Order and writing in protest against the SouthKorean dictatorshin of the 1960s, he would later leave everything behind to rekindle his life as a solitary mountain monk. Combining lessons for spiritual practice with a strident objection to the mundane values of the modern world, his works have maintained their popularity for over three decades, owing to the invigorating power they have in influencing the lives of his readers."

ADDENDUM II: After writing this blog entry, I went looking for my copy of Beop Jeong's May All Beings Be Happy, and could not find it. It is not readily sold everywhere, but I tried nevertheless to exercise the same non-attachment to the book that Beop Jeong and Buddhism teach. Interestingly, I tracked this Buddhist book down to the area's best bagel place -- where I ate last weekend with my boy -- that is kosher for its religious Jewish customers. The juxtaposition reminds me of the many Jewish people who have added Buddhism to their lives, which is a topic covered in many parts of Rodger Kamenetz's The Jew in the Lotus, which was born from his joining several rabbis to Dharamsala at the invitation of the Dalai Lama, who wanted to learn more about diaspora survival of religion and culture.

ADDENDUM III: Thanks to a former student of Baba Hari Dass, who may be posting a comment here, for sending me an email about his encounters with Babaji going back to the early 1970's, and for providing me the URL for the Hanuman Fellowship, which includes some of Babaji's words, and some of his photos.

ADDENDUM IV: Regarding my foregoing reference to Beop Jeong, one of his passages about silence in May All Beings Be Happy is in "People of Few Words," which includes the following:

- "Trust goes to those who know how to treat silence carefully."

- "If an idea comes to you, and you hastily speak of it, it does not ripen inside. Because of this, one's insides remain empty. In order to allow the meanings of our words to ripen inside, we must be able to purify these meanings, waiting until they have passed through the filter of silence."

- "The Buddhist sutras say, 'When there are few words in the mouth, idiocy turns into wisdom.' We must be able to endure the impulse to speak."

James Shellow on cross-examining drug analysts.

nospam@example.com (Jon Katz) — Thu, 04 Feb 2010 00:00:00 -0500

On a recent criminal defense lawyers' listserv thread, a colleague recommended James Shellow's Cross Examination of the Analyst in Drug
Prosecutions (Lexis-Nexis). My colleague who posted on Shellow's above-listed treatise points out that he was a chemist before going to law school.

Interestingly, Justice Scalia references Shellow, as follows, in his majority opinion in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009):

"While we still do not know the precise tests used by the analysts, we are told that the laboratories use 'methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs,' App. to Brief for Petitioner 1a–2a. At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence §23.03[c], pp. 532–533, ch. 23A, p. 607 (4th ed. 2007) (identifying four 'critical errors' that analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry analysis); Shellow, The Application of Daubert to the Identification of Drugs, 2 Shepard’s Expert& Scientific Evidence Quarterly 593, 600 (1995) (noting that while spectrometers may be equipped with computerized matching systems, 'forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment')."

As an aside, I have briefly met Jim Shellow, when he was on faculty for a couple of days at the Trial Lawyers College in 1995. He comes across as a very respectful man with no big ego. From having listened to his in-depth talk there about challenging chemical analyses of alleged drugs, it would appear that he is very thorough with his cross-examinations of chemists. Jon Katz

Keeping drug field tests out of evidence.

nospam@example.com (Jon Katz) — Fri, 05 Feb 2010 00:00:00 -0500

Virginia has a statute allowing marijuana field testing testimony into evidence:

"In any trial for a violation of § 18.2-250.1, any law-enforcement officer shall be permitted to testify as to the results of any marijuana field test approved as accurate and reliable by the Department of Forensic Science pursuant to regulations adopted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.), regarding whether or not any plant material, the identity of which is at issue, is marijuana provided the defendant has been given written notice of his right to request a full chemical analysis. Such notice shall be on a form approved by the Supreme Court and shall be provided to the defendant prior to trial." Va. Code § 19.2-188.1.

Here are my mostly off-the-cuff recent comments on this matter to the Virginia Association of Criminal Defense Lawyers' listserv, on this topic:

I am trying to transcend being burnt up that any judge will allow in marijuana field test evidence at trial, particularly where the defense has obtained an order for the plant material to be tested. Here are a few thoughts:

- The field test calls for expert testimony. Were there expert testimony, the field test hopefully would be exposed for its holes.

- Just as cops are not permitted to give conclusions about the meaning of field sobriety tests, neither should cops be permitted to give interpretations of the meaning of field tests. If cops are going to be able to testify about field tests, it should be limited to saying something along the lines of: “I took a medicine dropper, inserted it into a bottle (argue that it is inadmissible hearsay for the cop to read out the name of the test kit used, nor the expiration date, without bringing the same one to court), put a drop on a portion of the green leafy material, and saw that green leafy substance turn to this or that shade of purple (or whatever other result) after I did so.”

To permit the cop to testify that the material tested positive for marijuana brings in inadmissible hearsay and expert testimony about what on earth the change in color of the marijuana from adding the test chemical means.

- Maybe lawyer Jim Shellow will have more ideas. I wrote about him yesterday about his command of challenging drug chemist analyses: http://katzjustice.com/underdog/permalink/DefendingDrugAnalysis..html

- As mentioned in my foregoing blog entry, Melendez-Diaz mentions Shellow. These field tests involve testimonial evidence, geared towards testimony at marijuana trials. Sure, the requirements of the unavailability of the witness in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) does not fully apply when the field testing officer is present, but the whole field testing scheme is testimonial, and the prosecutors do not present the testimony (nor even written certifications) of the people who manufacture nor approve the field testing kits for accuracy. Of course, that is also a problem when prosecutors try presenting results of Intoximeter results without the testimony nor certified letters from the people certifying the Intoximeters.

- Although I have had judges discount caselaw from other jurisdictions – unfortunately sometimes without even knowing what is in the decisions – two opinions to keep in the backpocket relating to the above issues, and to DWI cases, are:

-- Blackwell v. Maryland:, addressed and cited at http://katzjustice.com/underdog/permalink/DUIdefense..html (only expert testimony is allowed to present testimony on the administration of the horizontal gaze nystagmus test, so only expert testimony should be permitted to allow police to talk about their procedures and observations with field tests of suspected marijuana);

-- U.S. v. Horn, 185 F. Supp. 2d 530 (D.Md. 2002) (helping to cut down field sobriety tests towards the junk science that they are).

Meeting macaca-gate's central anti-Allen catalyst.

nospam@example.com (Jon Katz) — Wed, 03 Feb 2010 00:00:00 -0500

S.R. Sidarth and Jon Katz (Copyright Jon Katz.)

I kept my composure when encountering such excellent and accomplished people as Lou Jacobi (through a storefront window), Geoffrey Holder (on a SoHo street), and Madeline Kahn (in the audience of Aunt Dan and Lemon).

A rare group of people leave me awestruck. Tears welled in my eyes when I met McCoy Tyner, who made musical and cultural history with John Coltrane. When with Jun Yasuda, I try my best to restrain myself from doing a full questionography of her life. When Pramoedya Ananta Toer strolled into Olson’s Books, I pinched myself.

Shekar Ramanuja Sidarth has joined that group that leaves me awestruck. He is an accidental mini-celebrity who contributed to George Allen’s downfall by merely being present to lead Allen to blunder into Macaca-gate.

I met Sidarth, as he calls himself, for the first time, today, as he was filing something for the law firm he works at, as he continues his second year of George Washington Law School. The descriptions of him as a low-key man who apparently does not seek the limelight seem accurate.

At first, Sidarth seemed so low-key that I wasn’t sure how he would respond to a request for a photo together. But then I remarked how he was accustomed to training the camera on Allen during his failed re-election campaign, and he seemed happy to accept my request for a photo, which turned out to be rather fuzzy in the courthouse’s dark café area, with my cellphone.

As Time said a few weeks after Allen’s defeat:

“It was definitely not Sidarth's idea to put the clip [of Allen’s macacagate] on YouTube. ‘Getting drawn out into the limelight was really surprising," he says, and he means it. He's an intensely private person, and he declined to answer quite a few of the questions put to him by TIME. He's focused on keeping his head down and getting into law school. ‘Ultimately I'd hope people wouldn't pay as much attention to things like this, instead caring more about who can serve the country or the state better,’ he says. ‘Of course,’ he adds, ‘character plays into that. And this event reflected on Allen's character.’”

Where Sidarth was an accidental catalyst to Allen’s downfall, Mike Stark sought to get Allen’s goat during the campaign, got tackled by some goons who were either present to support Allen or possibly were asked by his campaign to provide security or order, and helped further the unravelling of Allen’s reelection bid. Sidarth told me he knows Stark.

On Jeopardy two months ago, Sidarth told Alex Trebeck about going on a religious pilgrimage with his mother to Tibet.

Although I am not crazy either way about Jim Webb, who defeated Allen, I think an Allen reelection would have been much worse. Sidarth wrote a great piece a few days after Allen’s defeat, turning an ugly situation into an inspiring look forward.

Challenging breathalyzers with engineers.

nospam@example.com (Jon Katz) — Tue, 02 Feb 2010 00:00:00 -0500

Forensic toxicologists and forensic chemists are common experts for challenging the accuracy and reliability of breathalyzer tests. Sometimes an engineer should be consulted for providing analysis and testimony about the breathalyzer, including testing the breathalyzer with such equipment as an oscilloscope.

One engineer who does such work is Thomas E. Workman, Jr. His related article is "Massachusetts Breath Testing for Alchol: A Computer Science Perspective." 8 J. High Tech. L. 209 (2008).

"Swear words" are not sufficient by themselves to get a conviction.

nospam@example.com (Jon Katz) — Mon, 01 Feb 2010 00:00:00 -0500

Recently, Virginia's Court of Appeals confirmed that so-called "swear words" are insufficient by themselves to convict for obscene or profane language. In Lofgren v. Virginia, __ Va. App. _ (Nov. 3, 2009), the Court reversed Lofgren's conviction for a phone call in which he let loose a tirade against the complainant with F-bombs, and the words bitch and c-nt. The Court examined the definitions of those words and prior Virginia caselaw about obscene speech, and found that the primary purpose of Mr. Lofgren's speech was not shown by the evidence to have been an appeal to the prurient interest.

D.C. City Council to hold hearing on medical marijuana.

nospam@example.com (Jon Katz) — Sun, 31 Jan 2010 00:00:00 -0500

Image from public domain.

The District of Columbia City Council will hold hearings on February 11, 2010, on the road to effectuating the medical marijuana initiative that D.C. voters approved in 1998, but which Congress blocked until recently. Further details are here http://www.dccouncil.washington.dc.us/media/2010%20Meeting%20Notices/HandPSJpublichearingFebruary1120101000.PDF. Thanks to the person who notified me of this important date.

Citizens United v. FEC

nospam@example.com (Jon Katz) — Mon, 25 Jan 2010 00:00:00 -0500

The Internet is abuzz about Citizens United v. FEC. For the First Amendment defense side of my law practice -- and as a concerned person -- Citizens United is a critical opinion for me to read and digest, all 183 pages of the case, which covers Chief Justice Roberts's opinion, two concurring opinions (by Justices Scalia and Thomas), and Justice Stevens's opinion (joined by Justices Ginsburg, Breyer, and Sotomayor) that partially concurs and objects.

As an advocate for erring on the side of providing too much free expression protection than too little, I expect I will be on the side of the Supreme Court's majority that is in opposition to Justice Stevens's opinion. Even if the opinion will favor Republican candidates and more "mainstream"-sounding candidates, the First Amendment means little if it is not given full protection. As to those who wish to give less First Amendment protetion to corporations than to individuals, I see no such limitations in the language of the First Amendment. Moreover, when corporate First Amendment rights are watered down, damage to individuals' First Amendment rights will be simultaneous and consecutive to such damage to corporations' free expression rights.

Jon Katz files further arguments for dismissing libel lawsuit against Westboro Baptist Church.

nospam@example.com (Jon Katz) — Fri, 20 Oct 2006 00:00:00 -0400

Our law firm represents defendants Westboro Baptist Church and Fred W. Phelps, Sr., against a lawsuit alleging defamatory statements on the Internet and at a protest concerning Matthew Snyder -- an American soldier killed in Iraq -- and his funeral. This WJZ TV news story hits it on the head that I am disgusted by the messages that are the basis of this baseless libel action, but that I believe strongly in the defendants' right to express those views.

The federal trial court in Baltimore now will decide whether to grant our motion to dismiss the lawsuit. We filed a motion to dismiss last month. Yesterday, we filed a detailed reply to the plaintiff's opposition to our motion to dismiss. The filings of the parties and the court's orders can be found on PACER for Snyder v. Phelps, et al., Civ. No. 1:06-cv-01389-RDB (D. Md.).

Our previous blog entries about this case and our philosophy behind representing the defendants, are here and here. Jon Katz

Judges lay some cards on the table at criminal defense seminar; treading carefully with press coverage.

nospam@example.com (Jon Katz) — Tue, 24 Oct 2006 00:00:00 -0400

This follows up on my October 22, 2006 blog entry about my speaking on a panel of criminal defense lawyers and judges at the Maryland Trial Lawyers Association's October 23 seminar entitled "Successful Strategies for Circuit Court Criminal Cases."

I spoke about trial techniques, opening statements, direct and cross examination, and immigration consequences of criminal convictions and sentences. I focused on using consultants to prepare for trial (my favorites are psychodramatist Don Clarkson and acting consultant Josh Karton); being in the moment at every step of the trial (I start with the lessons of t'ai chi) so that the opening statement, cross and closing often are quite different than the outlined arguments and are seamlessly integrated; persuading through storytelling at every stage of the trial; and protecting non-citizen defendants from the complex of immigration landmines from criminal convictions.

Also on the panel were Circuit Court judges from Baltimore City, Baltimore County, and Anne Arundel County; and two additional criminal defense lawyers discussing case preparation through the jury selection stage; and jury instructions, closing arguments and sentencing.

One of the panel's criminal defense lawyers talked about dealing with the press and asserted potential publicity benefits to the lawyer from such news coverage. My view is to tread very carefully when discussing one's criminal defense clients with the press. Newspeople have their own agenda (and hopefully that is for the truth) that is separate from the defendant's interests, and are on tight deadlines that can interfere with giving an accurate picture of the defendant's case. While at first blush the lawyer may feel it important to talk with the press to help get the defendant's side across, once the trial is underway, the jury is not supposed to be following news of the case in the first place. Moreover, journalists have plenty of criminal defense lawyer talking heads available who have no involvement in the case.

Through Jon Katz's in-depth experience talking with the press (more often as talking heads, rather than about particular clients), he has developed a sense of when to talk on the record, and when not to. We make ourselves freely available to provide legal analysis and views to the press for cases and issues that we are not directly handling. When the press calls about a client, however, our sole obligation is to our client (and not to get attention to our law firm), which often limits the extent to which we will talk on the record to the press. Just as the pause in a song can be as important as the note that is played, knowing what to say and what not to say to the press can be equally as important. Consequently, when a lawyer is eager to talk to the press about a client with the hope of gaining publicity, that may be all the more reason not to speak with the press much or at all, or to keep the discussion off the record (and to verify that the journalist has agreed to keep the discussion off the record).

Moreover, a journalist should not automatically be trusted, as they are humans, fallible, and competing against the 24/7 never-ending churning of news stories online and off. Additionally, beware when journalists try to create a soundbite by a lengthy yes/no question. Such a question is the journalist's soundbite, at best, and not the interviewee's words.

Many of the three Circuit Court judges' comments were candid and very relevant to criminal defense lawyers. That was quite a change of pace from a talk earlier this year by a District of Columbia appellate judge who was advertised as bringing an inside view from the court, and instead talked plenty from an inside view of the physical renovation of the court's new digs; that is not the type of insider's view I had in mind when I went downtown to hear this judge.

The judges all agreed that they generally limit jury selection to judge-directed voir dire that eliminates proposed questions that address jurors' potential discomfort with such critical concepts as the necessity to acquit absent a unanimous reasonable doubt finding. Jurors should not be permitted to wait until jury instructions to realize they cannot follow such a critical instruction; by that time, they are more likely to remain silent on the matter, and a mistrial will be more possible if jurors do speak out at that stage, unless a sufficient number of alternate jurors remain.

The judges expected that more potential jurors will lie to stay off a jury than to stay on a jury. However, I believe that plenty of potential jurors lie to get onto a jury, particularly for trials that seem particularly interesting or high-profile (perhaps sometimes hoping to be able to sell the juror's story to a writer after the trial concludes) . One of the judges surmised that potential jurors are no more likely to lie to a judge conducting voir dire than parties' lawyers conducting voir dire. However, I pointed out Dr. Sunwolf's groundbreaking treatises convincingly showing how harmful juror biases are more likely to be revealed through lawyer-directed voir dire. Potential jurors are less likely to admit an inability to follow a judge's instructions when speaking to the authority-figure judge, sitting in an elevated position, than making such admissions to a mere mortal lawyer. I encouraged the judges to permit at least limited lawyer-conducted voir dire (e.g., five-minutes' worth or more) and jury questionnaires to make up for the lack of lawyer-directed voir dire.

All three judges expressed concern for potential adverse immigration consequences to non-citizen defendants. One of the judges will sometimes encourage the parties to reach a case disposition that will reduce such adverse consequences. Judicial training conferences include presentations by immigration judges and government immigration lawyers. Immigrant-side lawyers are needed, as well, at such training; I will check out the situation.

The Baltimore City judge suggested that lawyers encourage legislators to increase resources in order to have more judges, prosecutors, and public defender lawyers available to handle the staggering backlog of criminal cases in that courthouse, which often leaves criminal defendants waiting well over a year to go to trial. After the program, I suggested to the judge my preferred alternative of reforming the laws (e.g., drug laws) so that the number of prosecutions will be reduced in the first place. I give the judge -- a former federal prosecutor -- credit for not waving off my comment as merely coming from a radical lawyer. Instead, she spoke of prosecutors' ability to reach such a goal through their criminal charging decisions, and also talked about a gap that often arises between police aggressively arresting and charging crimes on the one hand, and prosecutors finding alternatives to going to the mat on every single case.

One of the judges encouraged lawyers, for guilty pleas and not guilties on agreed statements of facts, to keep out factual allegations from the record that would not be admissible at trial. He also encouraged lawyers to seek judicial intervention to edit such allegations out of presentence investigation reports, lest such allegations come back to haunt the defendant during parole consideration time. He also addressed the very important option of not seeking a presentence investigation report for sentencing in the first place; if a defense lawyer wants a sentencing hearing separately from the trial date, this judge is flexible for doing so (e.g. to get sentencing witnesses to court, or if the lawyer is exhausted at the end of trial) without needing to obtain the delay through requesting a presentence investigation report, which often will contain information more harmful than helpful to a defendant.

Another judge talked about a lawyer's risk of losing credibility with judges by asking for an unrealistically low sentence. My view is that it is critical to defend one client at a time rather than having such concerns about being seen as seeking an unrealistically low sentence. The same judge said that just as lawyers discuss judges, judges also talk amongst themselves about lawyers who appear before them; this sounds like ex parte judge-judge communications.

Speaking of ex parte communications, perhaps even deeper and vaster candor will shine from judges' seminar discussions when the audience is populated both by criminal defense lawyers and prosecutors in the audience, rather than one or the other. Jon Katz

Jon Katz Speaking at Oct. 23 MTLA Crim. Seminar

nospam@example.com (Jon Katz) — Sun, 22 Oct 2006 00:00:00 -0400

Jon Katz will be speaking October 23 at the Maryland Trial Lawyers Association's "Successful Strategies for Circuit Court Criminal Cases." Jon's topics will be Trial Techniques, Opening Statements, Direct & Cross Examinations, and Immigration Consequences. The online brochure is here. Jon Katz

Applying Gant, D.C.'s Court of Appeals affirms a drug search.

nospam@example.com (Jon Katz) — Fri, 29 Jan 2010 00:00:00 -0500

On January 21, 2010, D.C.'s highest court considered the application of Gant to a car search. In affirming the search and conviction, the court stated:

"Here, appellant was arrested for possession of marijuana – for which the police had probable cause – after seeing him drop a blunt on the ground. The police had noticed that the blunt was unevenly rolled, which suggested that appellant had manipulated the cigar to smoke marijuana. We do not think that Chimel provides a basis to search the car incident to arrest because the car was locked (and appellant handcuffed) when he was arrested, and therefore did not pose a risk to the safety of the officers or the integrity of any evidence. But Thornton does furnish that basis, because having observed appellant lean into the car and close the door shortly before he was seen with a marijuana blunt, the officers reasonably could have believed that appellant had additional marijuana or drug paraphernalia in the car such that it was “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant, 129 S.Ct. at 1719."

Dawkins v. U.S. , __ A.2d _ (D.C., Jan. 21, 2010).

To meet the execution exemption for being mentally retarded, one must assemble the smarts and evidence to prove mental retardation.

nospam@example.com (Jon Katz) — Thu, 28 Jan 2010 00:10:00 -0500

On January 27, 2010, the Fourth Circuit essentially said that to meet the execution exemption for being mentally retarded, one must assemble the smarts and evidence to prove mental retardation. This 2-1 Fourth Circuit opinion sets the bar too high for proving mental retardation to avoid capital punishment. Walker v. Kelly, __ F.3d _ (4th Cir., Jan. 27, 2010). Jon Katz

Recent Maryland appellate opinions.

nospam@example.com (Jon Katz) — Thu, 28 Jan 2010 00:00:00 -0500

Following are two particularly important recent opinions from Maryland's Court of Appeals:

- The Court affirmed a trial court's exclusion of a defense expert on witness identification. Bomas v. Maryland, __ Md. _ (Jan. 15, 2010).

- The Court found that probable cause to arrest (which arrest revealed PCP possession) was absent based on the totality of the circumstances, including the odor of ether on the defendant. Bailey v. Maryland, __ Md. _ (Jan. 14, 2010).

Three fake crack rocks insufficient to prove intent to distribute.

nospam@example.com (Jon Katz) — Wed, 27 Jan 2010 00:00:00 -0500

Praised be Virginia's Court of Appeals, for finding that possession of three fake crack rocks -- without more -- is insufficient to convict for intent to distribute. Holloway v. Virginia, __ Va. App. _ (Jan. 26, 2010).

Curiously, just four days before Holloway was decided, the New York Post reported on the abortion of justice by the arrest and multi-day jailing of two men who possessed candy that might look like crack, but would have tested negative had the cop(s) taken but a moment to use a field drug test kit, which they did not. As underlined at Drug War Rant, this candy arrest should be enough reason for people to refuse police searches.

Briscoe is but a blip on the screen.

nospam@example.com (Jon Katz) — Tue, 26 Jan 2010 00:10:00 -0500

Through the sheer elegance of minimalist language, the Supreme Court -- without dissent -- kept Melendez-Diaz in its rightfully supreme place. Here is the Court's per curiam Briscoe opinion from January 25, 2010:

"SUPREME COURT OF THE UNITED STATES

No. 07–11191

MARK A. BRISCOE AND SHELDON A. CYPRESS,

PETITIONERS v. VIRGINIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

VIRGINIA

[January 25, 2010]

PER CURIAM. We vacate the judgment of the Supreme Court of Vir-ginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massa-chusetts, 557 U. S. __ (2009). It is so ordered."

Briscoe v. Virginia, __ U.S. _ (Jan. 25, 2010).

Recent Virginia Supreme Court opinions.

nospam@example.com (Jon Katz) — Tue, 26 Jan 2010 00:00:00 -0500

Following are some particularly important recent Virginia Supreme Court opinions:

Logan v. Virginia, __ Va. _ (Jan. 15, 2010): The "exclusionary rule is not applicable in probation revocation proceedings absent a showing of bad faith on the part of the police."

Jones v. Virginia, __ Va. _ (Jan. 15, 2010): In a DWI case, refusal to submit to field sobriety tests is inadmissible as to the defendant's consciousness of guilt, but is admissible for a probable cause determination whether to arrest if accompanied by other indiciae of DWI. Compare this to Maryland, where field sobriety tests are a search, and, therefore, refusal to perform such tests is not applicable to find probable cause to arrest nor to find guilt or innocence.

Anderson v. Virginia, __ Va. _ (Jan. 15, 2010): The Court affirmed a conviction, applying the public safety exception where the police did not Mirandize the defendant before he was asked whether a gun was loaded.

A policeman's lying eyes lead to a drug felony dismissal.

nospam@example.com (Jon Katz) — Sun, 24 Jan 2010 00:10:00 -0500

As I have repeatedly said, a large percentage of people repeatedly lie; police are drawn from the general population without any more immunity from lying than anybody else; so a large percentage of police will repeatedly lie, even on the witness stand when under oath. Add to this that caselaw permits police to lie to suspects, to an extent, to extract confessions, and that might make it even harder for many cops to know when to turn lying on and off.

Although technology is cheaper than ever to reveal police lies through videotape and audiotape of all their actions, too many police departments either refuse to use such technology, or are playing slow-as-molasses catchup in buying, installing and using such technology.

For instance, the Washington, D.C., police do not record communications between undercover police looking to snag drug dealers. Consequently, we have no recording of the description made by police officer A (the “eyes”) to arresting police officer B of the physical description of a suspected drug dealer.

Washington Post reporter Gene Weingarten recently sat as an alternate juror on a drug deal prosecution, and concluded that the “eyes” cop had lied about the suspect’s description that he had reported to police officer B, after the defense established through satellite photography and an investigator’s testimony, that the eyes had been 170 feet from the alleged drug transaction, and not the 80 feet to which the “eyes” testified. Seeing that the case proceeded to trial, it would seem that the trial judge, at the suppression motion hearing, believed that the description made was accurate. Did the defense present the satellite imagery and investigator testimony at the suppression motion hearing, or only at trial?

Weingarten’s article is great for revealing the police testilying at this trial. His article is all the more grabbing for his confirmation that he was ready to acquit through jury nullification even though he believed the defendant was guilty beyond a reasonable doubt. He reports that the other alternate juror said that the testilying had created reasonable doubt for that juror.

The jury hung 10-2 in favor of acquittal. Fortunately the prosecution –- run from the United States Attorney’s Office/ United States Justice Department –- decided not to proceed further with the case after the jury hung.

However, why did the prosecutor not dismiss the case once the testilying had become clear? If the line prosecutor needed approval for dismissal from a higher-up, the prosecutor had at least four hours during jury deliberation to have sought such approval. If the prosecutor’s cellphone had died, s/he had only three blocks to walk to the United States Attorney’s Office to seek such approval, and only twelve blocks to seek Attorney General Eric Holder’s approval. Assistant United States Attorneys are among the highest paid federal lawyers, probably with support staff and support resources not exceeded by any state-level prosecution offices, and often with stellar law school names and grades -– and sometimes stellar judicial clerkships –- on their resumes. They are answerable to the people, because our government must be answerable to the people, and not the other way around. At the very least, I want to know whether this line prosecutor spoke with a supervising attorney about the police testilying evidence presented by the defense.

Prosecutors: You know that there are lying cops and lying civilian witnesses. When the defense offers you evidence and witnesses to show that you have lying or mistaken evidence, it is critical to pay attention to the defense evidence. Too many prosecutors refuse to pay attention, or else pay superficial attention, to my witnesses and evidence when I offer them to the prosecutor in my effort to get a dismissal of the whole case or of specific counts. This must stop.

ADDENDUM: Thanks to a listserv member for bringing this case, ths testilying, and this article to my attention.

Judges must tread carefully in sentencing more harshly where remorse is not shown.

nospam@example.com (Jon Katz) — Wed, 06 Jan 2010 00:10:00 -0500

Many judges focus on remorse, and the lack thereof, in sentencing. If a defendant has been wrongfully convicted, however, how may s/he show remorse?

In Maryland, at least, judges may consider remorse in deciding whether the defendant is a good candidate for rehabilitation. Jennings v. Maryland, 339 Md. 675 (1995).

A sentence that is based on a refusal to admit guilt is erroneous:

"[I]t is a violation of due process to punish a person for exercising a constitutional right. State v. Kelly (1994), 265 Mont. 298, 301, 876 P.2d 641, 644. Furthermore, we have followed federal law in holding that a defendant's silence at criminal trial cannot be used as evidence against him. State v. Wilkins (1987), 229 Mont. 78, 81, 746 P.2d 588, 589 (citing Griffin v. California (1965), 380 U.S. 609, 614, 85 S. Ct. 1229, 1232, 14 L. Ed. 2d 106, 109). We have also held that the privilege against self incrimination "does not turn upon the type of proceeding in which its protection is invoked, but [rather] upon the nature of the statement or admission and the exposure which it invites." Fuller, 276 Mont. at 160, 915 P.2d at 812 (citing Estelle v. Smith (1981), 451 U.S. 454, 462, 101 S. Ct. 1866, 1873, 68 L. Ed. 2d 359). Accordingly, the protection against self incrimination extends beyond trial to those already convicted of crime and applies to punishment as well as the determination of guilt. Fuller, 276 Mont. at 160, 915 P.2d at 812; Estelle, 451 U.S. at 462-63, 101 S. Ct. at 1872-73. Given these rules, this case presents the question of whether the rule against a negative inference from silence at criminal trial applies to sentencing as well, when the defendant has maintained his innocence throughout the proceedings.

State v. Shreves, 60 P.3d 991, 995 (Mont. 2002).

By the way, in winning an appellate reversal of his conviction, blogger Carlos Miller posted the appellate opinion, which shows that the sentencing judge crossed the impermissible line in the way he treated lack of remorse at sentencing.

Jack Litman leaves his body. Kindness, brilliance and passion personified.

nospam@example.com (Jon Katz) — Sun, 24 Jan 2010 00:00:00 -0500

Over the weekend on a lawyers' listserv came news that Jack Litman left his body yesterday. Because death seems to be an artificial boundary, other than to describe the shutdown of one's organs and body, I prefer not to say that he died, including when considering how many lives Jack continues to positively touch, which became all the clearer from the numerous listserv comments I have read from those close to him.

When I joined the National Association of Criminal Defense Lawyers 1991, I believe Jack was already a member of its board. I was floored when I first heard him give a presentation a few years later about dealing with forensics evidence in defending a murder case. He seemed to be a man as comfortable, passionate, and persuasive in handling street crime defense as suite crime defense.

Somehow I never bumped into Jack face-to-face until around 2000, after he spoke on a panel at the Libel Defense Resource Center in Manhattan. Jack was very approachable and kind, and shared with me that his law practice included libel defense, as does mine.

I was taken by Jack's kindness and about his apparent ability to talk as respectfully to all as does the Dalai Lama, without having his apparently brilliant intellect get in the way of truly connecting with people.

Others have highlighted Jack’s kindness, as well. Ellen Podgor writes on White Collar Crime Prof: “He was one of the nicest most caring individuals one could come across in life.” Ellen quotes Barry Scheck as saying of Jack: “But perhaps most impressive of all, sometimes with gestures of kindness and loyalty unknown to many, he delivered when it counted for his friends, his clients, and the cause of liberty.”

Jack’s passing was from lymphoma, and his obituary shows that he was already battling lymphoma when I met him around 2000.

Thanks, Jack, for you. I send you and your family all good karma.

Almost hitting another car, by itself, does not permit a police stop.

nospam@example.com (Jon Katz) — Fri, 22 Jan 2010 00:00:00 -0500

Almost hitting another vehicle is not legal grounds to stop the suspect vehicle, absent sufficiently stated reasonable articulable suspicion for negligent or reckless driving. Lewis v. Maryland, 398 Md. 349, 920 A.2d 1080.

Tracking Virginia criminal law legislative proposals.

nospam@example.com (Jon Katz) — Wed, 20 Jan 2010 00:00:00 -0500

Thanks to a fellow listserv member for posting the following links for tracking criminal law legislation being proposed during the current Virgnia legislative session:

Criminal law - substantive:http://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+018

Criminal law -procedure:http://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+019

Juvenile:http://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+099

Circuit Court - procedure:http://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+017

District Courts - procedure:http://leg1.state.va.us/cgi-bin/legp504.exe?101+sbj+016

Is D.C.'s Tabaka decision alone on certificates of no record?

nospam@example.com (Jon Katz) — Tue, 19 Jan 2010 00:00:00 -0500

Based on Melendez-Diaz, the District of Columbia's highest court has rejected the admission into evidence of certificates of no record, where the records custodian does not testify. Tabaka v. D.C., 976 A.2d 173 (D.C. 2009), accord, Walker & Boyd v. U.S., 982 A.2d 723 (D.C., Oct. 22, 2009).

My recent Lexis search has not found any other judicial jurisdictions that have followed in Tabaka's footsteps. On the other hand, Melendez-Diaz is so new that it may just be a matter of time for other appellate courts to rule that Melendez-Diaz bars records custodians' certificates without the testimony of such custodians.

Aside from the federal rules of evidence's provisions for the admission of records custodian's declarations without the need for their live testimony, Virginia is another jurisdiction where I practice that has a similar provision. Va. Code § 8.01-390. Have you seen any trends towards Tabaka in the jurisdictions where you practice?

Moving through the actions of an abdominal ball.

nospam@example.com (Jon Katz) — Sun, 17 Jan 2010 00:00:00 -0500

After fifteen years of t'ai chi practice, a fellow t'ai chi practitioner recommended that I re-learn the t'ai chi form through our mutual amazing teacher Julian Chu, who became my teacher just this past summer. So as not to start completely from square one, I attend Julian's beginner's class at 10:00 a.m. on Sunday mornings, and then join the 11:00 a.m. advanced class, at a middle school under a mile from my home.

Last week, one of the most powerful things I learned was about connecting each body movement to the movement of a ball in one's tan t'ien, located in the abdominal area. I previously learned that in t'ai chi, one turns from the waist, but my teacher said that when one turns from the waist, the coordination must come from the tan t'ien ball.

My teacher does not know the English word for this tan t'ien ball. I am still looking. Jon Katz

Most Virginia courts were closed last Friday, too.

nospam@example.com (Jon Katz) — Mon, 18 Jan 2010 00:10:00 -0500

Most Virginia state courts -- and state agencies, I presume -- are closed both on Martin Luther King, Jr., Day and the Friday before, which is [Robert E.] Lee-[Stonewall] Jackson Day.

Consequently, instead of the four-day weekend being a means of paying penance for Virginia's shameful centuries-long role with slavery and segregation right into the second half of the 1960's, here is the real story:

Until 2000, Virginia set the same date for celebrating Lee-Jackson day and Martin Luther King, Jr., Day, until legislation passed to separate the two holidays with Lee-Jackson Day falling on the Friday before Martin Luther King Day. The Roanoke, Virginia, Times quotes a regional Virginia NAACP leader as follows on this peculiar holiday juxtaposition:

"The Rev. Glenn Orr, president of the Montgomery County-Radford City-Floyd County branch of the National Association for the Advancement of Colored People, said it's not a matter that members dwell on. 'We're really focused on honoring Dr. King rather than trying to tell somebody they can't honor Lee, Jackson,' Orr said. 'We just celebrate our opportunity to remember Dr. King and the values that he helped us to develop.'"

Having visited the Washington, D.C./Virginia area three times before starting law school here in 1986, I knew full well that I was going to the South, at least when crossing the border into Virginia. As with probably many others, I was drawn to Washington, D.C., with the possibility of getting involved in what was going on in the nation's capital. Ultimately, my resulting law practice is only relevant to the federal government for a small part of my law practice. The Confederacy's history permeates Virginia, starting with the first memorial I witnessed to that history when driving on Lee Highway/Route 29, which runs well over one hundred miles, and terminates just about two hundred yards from Washington, D.C.

Praising and thanking Martin Luther King, Jr.

nospam@example.com (Jon Katz) — Mon, 18 Jan 2010 00:00:00 -0500

Martin Luther King, Jr., presented his immortal "I Have a Dream" speech when I was just four months old. When he was shot dead on April 4, 1968, I was only five years and three days old, and he was only thirty-nine. He would have been eighty-one years old today.

I have been very positively influenced by the nonviolent path in fighting for social justice from Gandhi and Martin Luther King, How did they take up and stay on the nonviolent path? For both, their deeply-held religious beliefs helped them on that path. For Gandhi -- writes Radhika Rao --he was also influenced by the non-violence of his mother and of Tolstoy, and the civil disobedience message of Rousseau. Martin Luther King, Jr., was heavily influenced by Gandhi's non-violent path, starting with Mordecai Johnson's discussion of Gandhi. Ironically, hanging in King's office was a picture of Gandhi; both were assassinated.

On non-violence, King said:

"The ultimate weakness of violence is that it is a descending spiral,
begetting the very thing it seeks to destroy.
Instead of diminishing evil, it multiplies it.
Through violence you may murder the liar,
but you cannot murder the lie, nor establish the truth.
Through violence you murder the hater,
but you do not murder hate.
In fact, violence merely increases hate....
Returning violence for violence multiplies violence,
adding deeper darkness to a night already devoid of stars.
Darkness cannot drive out darkness; only light can do that.
Hate cannot drive out hate; only love can do that."

In overcoming violence, we have a very long way to go. Let us make the first step and the next step today on the non-violent path.

Happy birthday, Martin Luther King, Jr., and thanks many time over. Jon Katz.

"We need to get you in front of a jury," urged Gilbert Arenas's judge in 1991.

nospam@example.com (Jon Katz) — Fri, 15 Jan 2010 00:10:00 -0500

In 1991, I was in my second year out of law school, practicing civil litigation and federal regulatory law at a 25-lawyer Washington, D.C. law firm that mainly represented financial institutions and transportation companies. My feeling was that at best the clients generally were not raping and pillaging society, but that I was not doing much to give back to society, either, at the firm. I learned from some great mentors, but wanted something more meaningful, and had been particularly interested in criminal defense for some time.

A fellow law school graduate suggested I give lawyer Bob Morin a call. I recalled his name, because not too long before that, I had asked capital defender Steve Bright (see here, too) to suggest an enlightened law firm that I might check with that would fit in with my eagerness to do more good as a lawyer. At first he said that "enlightened law firm" is an oxymoron. Then he pointed me to now-Judge Morin's then-law partner Jerry Fisher. I forget what now-Judge Fisher said, other than probably saying that his law firm was not hiring at the moment, and possibly telling me the path he took to criminal defense work.

When I called Bob Morin in 1991, one of the things that stood out was his saying "We need to get you in front of a jury." His encouragement to switch to criminal defense was infectious. I joined the Maryland Public Defender's Office later that year. By now, I have tried many jury trials and many bench trials, and, among the trials, the appellate oral arguments, multiple times before radio microphones and television cameras, and years of performing the trumpet with school bands, getting on the court stage involves little stage fright, but certainly deep concern about doing right by my client. Yes it is a thrill to try cases before juries; many of my arguments that draw in their attention would make a judge be non-plussed; and jurors are not jaded in the way that most judges are. Of course, when I do a bench trial, I can look up the judge's biography; jury lists only give bare-bones information about each juror.

Judge Morin seems a walking example of pure modesty, whereas a very large percentage of criminal defense lawyers have huge egos; the modesty is a better approach, as long as that does not lead to lackluster and quiet performance in court. As a criminal defense lawyer, Judge Morin reached a great victory in reversing the Kirk Bloodsworth rape-murder conviction in the early 1990's (see here, too) in Baltimore County, Maryland, when DNA was expensive and cumbersome to test. Through DNA testing he obtained Kirk Bloodsworth's liberty. He did not even seem to toot his own horn over his earth-shaking Bloodsworth victory.

Flash-forward to today. Judge Morin is pro-basketball player Gilbert Arenas's judge in his handgun prosecution. I understand that Judge Morin currently is handling a sizeable chunk of the Superior Court's criminal trial docket, and would not be surprised if Mr. Arenas's case was but one of many other criminal cases on Judge Morin's docket today, unless the court arranged a separate courtroom to accommodate the many seats likely filled by the press and the curious.

Here is Arenas's court case docket. It is thin, because the case is fairly new, and today apparently was the first court appearance date. He entered a guilty plea today to a negotiated count (negotiated, seeing that the case proceeded on a criminal information rather than by grand jury indictment) of carrying a pistol without a license. Reportedly, the prosecution is seeking an executed sentence not over six months; as always -- unless the judge binds himself otherwise -- the judge is free to go below or above that recommendation, and Arenas's lawyer presumably has reserved the option to seek the lowest possible sentence. The maximum possible sentence is five years for a first offense, and ten years for a repeat offense or for a convicted felon, but there will be no ten-year sentencing exposure without the prosecution's seeking one and proving the prior qualifying conviction, which the prosecution doubtfully will be doing under the plea agreement. D.C. Code § 22-4504 Arenas was previously convicted in California for possessing an unregistered handgun rather than an unlicensed handgun; his California conviction likely was a misdemeanor, but might have been a felony depending on the circumstances of his conviction there. Cal Pen Code §§ 12025 and 12031.

One is left to wonder what made Arenas choose his legal team. Instead of selecting among the many highly qualified local criminal defense veteran lawyers, he chose a recently-minted criminal defense lawyer who for years only knew prosecution and other government lawyer roles. His lawyer is Kenneth Wainstein -- assisted by associate attorney Jeff Nestler -- who has held such posts as United States Attorney for the District of Columbia, Assistant United States Attorney, and George Bush, II's homeland security adviser. Granted, prior prosecution experience does not preclude one from becoming a great criminal defense lawyer. However, for such an alleged street crime defense as this, why did Arenas -- who presumably has the funds to pay a lawyer, and likely is paying plenty to Wainstein, who is a partner at a big corporate law firm -- not choose a lawyer with plenty of experience defending street crimes, including guns?

Arenas will be sentenced in February. What happened to the Second Amendment?

A view into now: Where medical marijuana dispensaries are lawful.

nospam@example.com (Jon Katz) — Fri, 15 Jan 2010 00:00:00 -0500

Recently, I heard Steve DeAngelo speak live about medical marijuana. During his talk, he showed his above-displayed video about the Harborside Health Center in San Jose, California, where he is the executive director. The center provides medical marijuana and holistic services.

I know that the above-displayed video puts HHC's own spin on their facility, but it is great propaganda nonetheless. Jon Katz

When federal appellate courts rule that sentences are too light.

nospam@example.com (Jon Katz) — Wed, 13 Jan 2010 00:00:00 -0500

Since a very young age, I would hear people urging not to "make a federal case" out of this or that. The phrase has not been my cup of tea, but in the jurisdictions where I practice, more often than not it is better for my clients' criminal cases to be resolved in state court than in federal court, as federal court often involves harsher penalty exposure.

In federal court, for instance, prosecutors can raise appellate arguments that a sentence is too lenient. Federal appellate courts sometimes agree, including a Fourth Circuit opinion from today that concluded in a tax evasion case:

"To summarize, we conclude that the district court committed significant procedural error by minimizing of the seriousness of Engle’s conduct, failing to consider the relevant policy statements and the need for general deterrence, and insufficiently explaining the reasons for its view that a term of imprisonment was not required. We also conclude that the sentence imposed was substantively unreasonable because of the district court’s improper focus on Engle’s financial ability to pay restitution. Accordingly, we hereby vacate Engle’s sentence and remand for further proceedings before a different district court judge." U.S. v. Engle, __ F.3d _ (4th Cir., Jan. 13, 2010).

What will Briscoe do to Melendez-Diaz?

nospam@example.com (Jon Katz) — Tue, 12 Jan 2010 00:00:00 -0500

Yesterday, the Supreme Court held oral argument in Briscoe v. Virginia, which will decide how much of Melendez-Diaz v. Massachusetts -- 129 S.Ct. 2527 (2009) -- survives.

Melendez-Diaz holds that the "Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error."

Here are the Briscoe oral argument transcript and the case briefs.

As has been repeatedly discussed among Briscoe watchers, all eyes are on Justice Sonia Sotomayor, in that she will be the swing vote to decide the extent to which Melendez-Diaz survives. Justice Sotomayor replaced Justice David Souter, who joined Justice Scalia's 5-4 opinion along with Justices Stevens, Ginsburg, and Thomas. Will any of Melendez-Diaz's dissenters -- Chief Justice Roberts along with Justices Kennedy, Breyer and Alito -- budge to accept Melendez-Diaz as a stare decisis done deal, or will they say that Melendez-Diaz was too incorrectly and recently decided to keep in place? We will find out in this Supreme Court term.

Salvia salivation, and penalties.

nospam@example.com (Jon Katz) — Mon, 11 Jan 2010 00:00:00 -0500

No matter the prohibition laws, many people will still go out of their way to obtain lawful and unlawful highs, whether through scheduled drugs, frog-licking (if that even works), homemade alcohol, glue-sniffing, gasoline sniffing, and the list goes on.

Around a century ago, and on the heels of alcohol prohibition, lawmakers in the United States criminalized controlled substances with a vengeance. That did not stop LSD from being introduced in the United States initially as an unregulated substance. (See LSD founder Albert Hoffman's fascinating account of his LSD discovery and use here.) Consider all the wasted legislative and criminal justice system energy spent playing catch-up and spending billions of dollars chasing after recreational drugs.

One recreational drug that recently came to my attention -- and which apparently is not criminalized everywhere in the United States, yet -- is salvia divinorum, which apparently produces a mild hallucinogenic effect. (Thanks to a listserv member for posting on salvia). The websites here and here track international and national efforts to criminalize the salvia plant. Jon Katz

Marijuana's benefits for cancer victims.

nospam@example.com (Jon Katz) — Thu, 07 Jan 2010 00:00:00 -0500

Image from public domain.

A recent twitter posting by @colmanfink to this 2000 Alternet posting about marijuana's benefits for cancer victims led me to google the topic. I found the following items:

- The above-referenced Alternet article sums up its focus as follows: "In 1974 researchers learned that THC, the active chemical in marijuana, shrank or destroyed brain tumors in test mice. But the DEA quickly shut down the study and destroyed its results, which were never replicated -- until now."

- In mid-2008, the Duluth News Tribune printed a letter by a spokesperson for Law Enforcement Against Prohibition, which includes this passage: "In a study presented at a meeting of the American Thoracic Society in San Diego in 2006, UCLA researcher Donald Tashkin presented findings from his study of cannabis and the respiratory system. Tashkin revealed that there was not a correlation between pot smoking and lung cancer and that there may well be a protective effect provided by cannabis against cancer. When asked at that meeting about separating pot's high from the clinical benefits, San Francisco oncologist Dr. Donald Abrams said, 'I don't think that a drug that creates euphoria in patients with terminal diseases is having an adverse effect.'"

- Last August, NORML's blog weighed in here http://blog.norml.org/2009/08/18/reuters-pot-kills-cancer-but-dont-even-think-about-using-it/ on marijuana's benefits for cancer victims, including this passage:

"US federal researchers have known for some 35 years that the naturally occurring chemicals in cannabis — not just synthesized agonists — can halt the proliferation of multiple types of cancer, including including brain cancer, prostate cancer, breast cancer, lung cancer, skin cancer, and pancreatic cancer. We even know how.

"'Cannabinoids: potential anticancer agents
via Nature Reviews Cancer (2003)

"'Cannabinoids are usually well tolerated, and do not produce the generalized toxic effects of conventional chemotherapies. … Cannabinoids inhibit tumor growth in laboratory animals. They do so by modulating key cell-signaling pathways, thereby inducing direct growth arrest and death of tumor cells, as well as by inhibiting tumor angiogenesis and metastasis. Cannabinoids are selective anti-tumor compounds, as they can kill tumor cells without affecting their non-transformed counterparts.'"

As an aside, some of the foregoing articles address drug testing on mice, whereby I assume that the mice are ultimately slaughtered and autopsied. As an animal rights supporter, I hope we can get to the point that drugs are not tested on non-human animals. Jon Katz

Teaching police mindfulness.

nospam@example.com (Jon Katz) — Sun, 10 Jan 2010 00:00:00 -0500

Claude AnShin Thomas became a mendicant Buddhist monk years after killing hundreds of people in Vietnam. I met Mr. Thomas in 2005 during his speaking tour, and was taken by his dual approach of not denying or suppressing the anger that he still lives with -- which for quite some time led him to soak himself in drugs, alcohol, and sex -- but also doing his best to dissipate and reduce the pain and anger. When he is about to get angry, he accepts the feeling, but tries to dissipate it by focusing on his breath and on the sound of a bell, which I suppose helps get him back to concentrating on his breath and calm rather than on anger.

Brother Thomas was heavily influenced by Thich Nhat Hanh in his healing process. He was long out of the military at the time, which was sixteen years after the United States military finally pulled out of Vietnam in 1975.

Curiously, Cheri Maples remained a gun-toting police officer and police trainer during and after her first meeting with Thich Nhat Hanh. She found a way to inject the Buddhist approach of mindfulness into her training of police officers, including encouraging them to talk directly to other police personnel with whom they had beefs, rather than to let it boil into gossip and worse.

Ms. Maples ended up attending law school while working at night as a police officer, and eventually becoming an attorney with the Wisconsin Department of Justice. She also previously headed the Wisconsin probation and parole system.

Ms. Maples is currently involved in running the Center for Mindfulness and Justice, which includes incorporating her mindfulness training when she provides presentations to police, prosecutors, criminal defense lawyers and judges.

I just learned about Ms. Maples this weekend, through a Tricycle magazine article about her, which confirms that Thich Nhat Hanh was supportive of having a gun-toting police officer who understood mindfulness, than to have no such gun-toting police officer. See her speaking here.

In 2003, the Associate Press reported that Cheri Maples "said she struggles with ways to help officers handle the stress of police work. Instinct and training teaches them to take charge — which is good for police work but can be hard on relationships, she said. 'What police officers deal with over and over and over again is misplaced anger,' Maples said. “And then our families deal with our misplaced anger and frustration.'"

I was blown away that such transformations are happening among some police at the systemic level this many decades after the Sixties. I wish to know how widespread are the efforts to bring such teachings to police.

"You are talking like a lawyer."

nospam@example.com (Jon Katz) — Fri, 08 Jan 2010 00:00:00 -0500

Photo from website of U.S. District Court (W.D. Mi.).

The phone and emails are constantly ringing from clients, witnesses, courts, opposing lawyers, potential clients, and the list goes on. No sooner does one court date finish than the next court date begins. Snail mail is relentless. Common mid-day traffic jams in the Washington, D.C., area sometimes double and triple what should be a thirty-minute drive back to the office from court.

On the one hand, it is good to be so fortunate to have a full complement of clients and many successes in court and beyond. On the other hand, all these demands coming in almost as fast as orders at fast food restaurants (with fast-food restaurants only dealing with food and recipes, whereas criminal defense lawyers deal with people's lives and liberty, constantly acting on instinct and not just on recipe). On the other hand, to remain the most persuasive and effective lawyer I can be for my clients, I need to keep centered with my own humanity and not get caught up in lawyerspeak and lawyerthink. Sometimes it takes reminding, including a trial workshop I recently arranged to prepare me and my client for trial.

Whenever there is a good chance that my client will testify at trial, it becomes all the more important for me to organize a workshop of lawyers -- and preferably non-lawyers, too -- to prepare me and to prepare my client to testify, and to stay grounded in court, and, in case, to speak for himself or herself at sentencing whether or not my client testifies at trial.

Recently, I was blessed with the participation of two excellent and very experienced criminal defense lawyers to help prepare me and my client for his trial, which ended up with an excellent resolution, all things considered. We met at my office on a late weekday afternoon. Both lawyers braved the annoying traffic from two counties away in opposite directions. Sometimes clients pay for a psychodramatist/trial consultant to prepare for a trial. For this workshop, we had no trial consultant.

All three lawyers at the workshop had attended the full-length summer Trial Lawyers College in Dubois, Wyoming, in separate years. All three had gone through the TLCs focus and stages of getting its participants back to the humanity zone and heart zone that law school, law practice, and the court system too often challenge law students and lawyers to dilute, diminish, and shed.

Early on in our gathering, one of the participants -- who attended the TLC this pasts summer -- asked what my goals for the workshop were. When I answered, she responded: "You are talking like a lawyer." And I was. I was so wrapped up in how to deal with some huge-seeming hurdles in this case that I had moved too far away from the human/non-lawyer component as a critical part of persuading. On the other hand, answering her question at first seemed to call out for the lawyer' answer about what I sought from the workshop, and I also felt I still faced big hurdles towards winning.

Then, I let go. I had spent so much time with my client over the last few months that I wanted to experience the fresh perspective of the two other lawyers. They immediately began engaging my client and me, each other, and the whole case. They were in the moment, despite their own immediate demands that night and the rest of the week on their schedules.

One of the lawyers had tried many bench trials, but not a jury trial yet. She could have fooled me. She seemed to know and understand my client at least as well as I. She spoke to him as human-to-human. My challenge as my client's lawyer is to talk in just-folks terms with my clients about such otherwise legalese matters as elements of the criminal charge, sentencing exposure, assembling evidence, and getting witnesses identified and subpoenaed to court.

As is often the case, I left the workshop a better lawyer than I had started. My batteries were recharged. My good relationship with my client had improved all the more. My client had a more realistic grasp on what we needed to do to win his case.

Then, the next day, in the car, I got closer than ever before -- much closer -- to visualize how we would win my client's case, as if the answer had been there all the time, but somehow shrouded in invisible paint, with our trial workshop having provided me more turpentine to strip away that invisible paint to reveal the answer. The answer came after I shed all my concerns about any uphill battles, evidentiary problems, and other hurdles, to focus on how to tell the most persuasive story to the jury, after having found the persuasive story. Getting to this point can be much harder when merely talking about my case with trusted colleagues over the phone, in the courthouse hallway, or through email. That hardly substitutes for assembling a workshop to last at least two hours if not the whole day or more, turning off the phone, and locking the door, on top of the many other hours working with the client, working with our witnesses, and working on my own.

I am eternally grateful to my many colleagues and to the non-lawyers who over the last nearly dozen years have joined me for many workshops to prepare me and my clients for trial, and to those who have invited me to do likewise. Jon Katz.

ADDENDUM: Here are some past blogpostings related to today's blogpost:

- Talking to everyone the same, and practicing non-attachment.

- Using scene-setting in preparing for trial.

- Visiting the scene.

- Anna Durbin on preparing clients to testify.

- It's not how you dress, but how you persuade.

When the prosecutor asks the defendant if a prosecution witness was lying.

nospam@example.com (Jon Katz) — Wed, 06 Jan 2010 00:00:00 -0500

When a prosecutor repeatedly asks a defendant -- on cross examintion -- if witnesses testifying opposite to the defendant were lying, that is grounds for reversal of a conviction. Parker v. Maryland, _ Md. App. _ (Dec. 29, 2009).

When a lawyer turns informant on an inmate, repeatedly wired.

nospam@example.com (Jon Katz) — Tue, 05 Jan 2010 00:00:00 -0500

Potential clients visiting my office often ask: "Is this meeting confidential?" I answer, "Of course."

Now, my honest assurances of confidentiality both for potential clients and retained clients might sometimes get scrutinized, after the horrific ordeal allegedly suffered by Shannon Williams, a jail inmate who claims he hired lawyer Terry L. Haddock -- whose current law firm does not even list criminal defense as one of its practice areas -- who reportedly acted as a government informant from the get-go, concerning allegedly ongoing drug deals and violent enforcement orders allegedly made by Mr. Williams through Mr. Haddock's cellphone.

Lead investigator John Stuck apparently confirmed in court recently that attorney Haddock had been acting as an informant on Shannon Williams, but insisted that in "the very first (jail) contact with Mr. Williams, Mr. Haddock explained that he is not his attorney and would not do any legal work for him at all ... Mr. Williams understood." How does it make sense that Mr. Haddock's multiple jail visits to Mr. Williams were meant to create any impression other than that Mr. Williams had an attorney-client relationship with Mr. Haddock?

This whole story is too shockingly bizarre -- and puts Mr. Haddock's reputation and law enforcement's integrity on the line -- for me to rely on just one newspaper account for its accuracy. I looked up Mr. Williams's pending federal prosecution on PACER (here is the current case docket), but found no documents available online there that might address Mr. Haddock's role in this case.

Thanks to a fellow listserv member for posting this news story. Jon Katz.

ADDENDUM: Thanks, Mark Bennett, for your comment to this blogposting. I visited Mark's January 4, 2010, blogposting on this case and listened to cross-examination -- linked in Mark's blog entry -- from Shannon Williams's detention hearing. Starting at around 48 minutes into the hearing, defense counsel begins cross-examining officer John Stuck by immediately addressing lawyer John Haddock. Officer Stuck confirms that law enforcement would have Mr. Haddock go into the jail wired up to record his conversation with Mr. Williams. This would suggest that the jail knew Mr. Haddock was coming in wired, unless this is a jail that does not require lawyers to clear a metal detector. Officer Stuck presided over a grossly sticky and fishy situation with Mr. Haddock.

Zacarias Moussaoui is denied appellate relief.

nospam@example.com (Jon Katz) — Mon, 04 Jan 2010 03:00:00 -0500

During jury selection in Zacarias Moussaoui's case, I was already in the same courthouse, so stopped by to observe.

Now, over three years later, the United States Court of Appeals has affirmed Mr. Moussaoui's conviction and sentence. U.S. v. Moussaoui, __ F.3d _ (4th Cir., Jan. 4, 2010). Some noteworthy items from this appeal include:

- Moussaoui refused to provide relief from the trial court's refusal to proceed pro se.

- Moussaoui upheld the trial court's requirement that all lawyers for Mr. Moussaoui pass a security clearance, and that a court order or agreement with the prosecution be reached for any access by Moussaoui to the discovery material provided to his lawyers and marked as classified by the prosecution.

- No plain error relief is available for defense counsel's not seeking a sentence better than life imprisonment, where a cornerstone of the defendant's argument to the jury was to let Mr. Moussaoui die in prison, rather than to give him martyrdom through the death penalty. At least five jurors considered that a mitigating factor in deciding whether to recommend a death sentence.

- In pro se court filings, Mr. Moussaoui, filed some very choice and unfriendly words about his lawyers and trial judge. He later explained that he ended up permitting contact with court-appointed counsel team member Alan Yamamoto because Mr. Yamamoto had been respectful to him. That mirrors my limited experiences dealing with Alan during the course of several years.

- The court decided that even if there had been a Brady/exculpatory evidence violation, that Mr. Moussaoui's guilty plea made such Brady issues irrelevant to Mr. Moussaoui's case.

Recommending Baba Shambhala for employment.

nospam@example.com (Jon Katz) — Mon, 04 Jan 2010 00:00:00 -0500

A local kindred spirit seeks employment. Baba Shambhala is multitalented -- as his resume shows -- and has an infectuously optimistic approach to life.

Only a small number of people get their resumes posted to my blog, and it is my honor to do so with Baba Shambhala, who is at:

Baba Shambhala

28 Bryant Street N.E.

Washington, DC 20002

kundi54@gmail.com

(202) 518-4042.

His resume is at http://www.katzjustice.com/BabaResume.pdf . Feel free to contact me if you seek further information about Baba Shambhala.

''N-----, what are you doing out of your neighborhood?,'' the cop taunted.

nospam@example.com (Jon Katz) — Thu, 31 Dec 2009 00:00:00 -0500

Today, too many people still echo the quote listed in the title to this blog entry at least in their minds. Longer ago, many more people -- police included -- would openly verbalize such thoughts.

Born in 1920 to a former slave, at the age of thirteen Percy Sutton was handing out NAACP leaflets in an all-white neighborhood, apparently in his home state of Texas. The cop taunted Mr. Sutton: ''N-----, what are you doing out of your neighborhood?'' The cop then beat him up.

Flash forward to 1977 -- when I was close to the age that Mr. Sutton had reached when he was beaten by the cop -- during the heated New York Democratic primary race for mayor, when I was in the New York television viewing area, and when I had not yet gotten as cynical about politicians as I am today, having viewed Nixon more as an aberration than as the possibly logical conclusion about much of what goes wrong with politics and politicians. During that mayoral race, I heard the mellifluous tones (see and hear his tones) of Percy Sutton, one of the contenders for that race that was ultimately won by Ed Koch.

Sutton's was a voice to enthrall and captivate jurors. I did not pay much more mind to Mr. Sutton -- other than recalling his interesting-sounding name and captivating voice from time to time -- until I learned this past weekend that he had passed away. I still do not know much more about him, except for the contents of his obituaries, including:

- Mr. Sutton had already been a lawyer for a long time when I heard him on television in 1977. His clients included Malcolm X and other members of his family.

- His father, an educator, was a strong influence on his civil rights path.

- After his military service during World War II, he attended Columbia law school, but switched to and graduated from Brooklyn law school to work around his two jobs "at a post office from 4 p.m. until midnight, then as a subway conductor until 8:30 in the morning."

- He re-enlisted in the military after mistakenly thinking he had failed the bar exam, and served in the Korean War.

- As the New York Times reports, he was "arrested as a Freedom Rider in Mississippi and Alabama in the 1960s, yet once described himself as 'an evolutionist rather than a revolutionist' in matters of race. 'You ought always to keep the lines of communication open with those with whom you disagree,' he said."

- Mr. Sutton's law firm represented 200 civil rights marchers arrested in the South in 1963-64.

- Around 1965, he was elected to New York's state legislature. In 1966, he filled the interim vacancy of Manhattan borough president.

- He supported Charles Rangel to beat incumbent Adam Clayton Powell for the U.S. House of Representatives in 1970.

- During the 1977 Democratic mayoral primary, he stood strongly against crime. I wish to know more about those stands and the extent to which I agree or disagree with them.

- The New York Times reports that "Mr. Sutton blamed the news media as much as his opponents for his [1977 mayoral] defeat. 'It’s racism pure and simple,' he declared."

- He served as president of the New York NAACP.

- He purchased historic Apollo theater when it was threatened with oblivion.

- Mr. Sutton located in and devoted himself to the advancement of the Harlem section of Manhattan. My last visit to Harlem a few years ago, particularly around the 125th Street area, revealed an economically vibrant place that has kept some of its defining hallmarks -- including the Apollo Theater -- along with the many chainstores.

- He branched lucratively into broadcasting.

- Mr. Sutton's father told him: “Suffer the hurts, but don’t show the anger, because if you do, it will block you from being able to effectively do anything to remove the hurts.”

I wish I had met Mr. Sutton face-to-face. I send him good karma and pray Na-Mu-Myo-Ho-Ren-Ge-Kyo.

Praised be Steve Rench and his organization approach.

nospam@example.com (Jon Katz) — Tue, 29 Dec 2009 00:00:00 -0500

A friend told me he once saw Sting on a London street in the mid-1980's. Word traveled rapidly that he was there, and Sting slipped deftly away before he got mobbed. I, on the other hand, saw Roger Daltrey in a Vancouver hotel lobby in 2001, and left him to his peace and quiet. If James Finney Boylan could leave his hero Frank Zappa scarf up sesame noodles in peace post-concert, then at the very least I could have done the same with Mr. Daltry, whose music I enjoyed with the Who, but whom I have never idolized.

Steve Rench is one of the very few people in whose presence I must exercise tremendous self control so as not to knock the wind out of him in a big bear hug. I have written repeatedly about the great trial master and trial teacher Steve Rench, including my references to him in the blogposts here. The last time I saw Steve -- praised here along with others by trial teacher Terry McCarthy -- was in mid-2002 on a visit to him and his wife at their home in Denver, after departing a lawyers' conference and on the way to starting a vacation in the great open spaces of Colorado, Utah and Wyoming. Steve urges lawyers to dare to be great, and he knows that a critical ingredient of greatness is hard work and preparation. He believes there is a methodology(ies) that can be followed as a vehicle towards greatness, rather than being relegated merely to having been born or not born with the necessary ability to be a powerfully persuasive litigator. In fact, at first glance, Steve comes across as an unassuming and ordinary person ... until he opens his mouth, which then transforms his entire presence into a captivating one.

During our last visit, Steve talked about his interest in doing writing for publication on trial work, and also told me about his competing time interests to further prepare for his trials. That harks back to the words of a talented amateur jazz pianist: "What kind of question is it to ask a music great how many hours the musician practices daily? You practice til you're f'in great... Then you have a cup of coffee... Then you practice some more." And some more.

For each trial, Steve assembles an idea book in which he organizes his thoughts. Before the days of PDA's and Blackberries, he would assemble a small three-ring binder for his idea book. I tend to jot out my idea book thoughts and information right into my Blackberry and desktop computer, making it easy to cut and paste ideas along the way. Steve recommends dividing the idea notebook into the following tabbed sections: To Do/Planning; Law/Legal Theories; Facts/Factual Issues; Ideas; Discovery Planning; Attack Opposing Case; Strategy; Jurors' Perspective; Analysis; Theory of Case; Story; Arguments; Voir Dire; Opening Statements; Prosecution Witnesses; Defense Witnesses; and Closing Argument.

Adding to Steve's idea book for trial preparation, I always go to trial with a trial outline, as I discuss here.

As to practicing until your f'in great, having a cup of coffee and practicing some more, Steve reached greatness decades ago.

The continued stink of drug dog sniffs.

nospam@example.com (Jon Katz) — Mon, 28 Dec 2009 00:00:00 -0500

Image from the NIH's website.

In the past, I have blogged about drug dog sniffs, including the following items:

- "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Illinois v. Caballes, 543 U.S. 405, 410 (2005).

- Telling a person of the coming of a drug dog amounts to a Terry stop, which requires reasonable articulable suspicion, since a reasonable person would not feel free to leave at that point.

- Being animals -- humans, too are animals -- sniffing dogs are fully fallible.

Add this to the mix: New York is among the states whose courts give more state constitutional protection against dog sniffs than does the United States Constitution: "For the reasons that follow, we conclude that while the use of such dogs does not implicate the protections of the Fourth Amendment, our State Constitution requires that the police have at least a reasonable suspicion that a residence contains illicit contraband before this investigative technique may be employed." People v. Dunn, 77 N.Y.2d 19, 21, 564 N.E.2d 1054 (1990), cert. denied, 501 U.S. 1219 (1991) (referencing N.Y.S. Const. art I, § 12). (Thanks to fellow listserv members for having addressed this and other cases and ideas on the dog sniff search constitutionality issue).

My state of Maryland references the foregoing People v. Dunn opinion in continuing to steadfastly refuse to interpret Maryland's Fourth Amendment equivalent any more broadly than its federal counterpart. Fitzgerald v. Maryland, 384 Md. 484, 507, 864 A.2d 1006 (2004) ("Article 26 of the Maryland Declaration of Rights is to be interpreted in pari materia with the Fourth Amendment").

Thich Nhat Hanh's "You Are Here: Discovering the Magic of the Present Moment"

nospam@example.com (Jon Katz) — Sun, 20 Dec 2009 00:00:00 -0500

Recently, I started reading Thich Nhat Hanh's You Are Here: Discovering the Magic of the Present Moment. It apparently was first published in French in 2001, and not published in an English translation until this year.

Some of You are Here's key teachings include:

- "Compassion is not possible without pain and and suffering." Many of my criminal defense clients certainly experience much of both.

- "Compassion and love are you, but anger is, too." "All three are organic in nature." "You can transform them."

-The garbage of depression and anger can become flowers, just as flowers can become garbage, and flowers again.

More on shoveling sh*t on the way to obtaining justice.

nospam@example.com (Jon Katz) — Fri, 25 Dec 2009 00:00:00 -0500

On December 17, I blogged about the unglamorous side of fighting for justice. A civil rights lawyer in Conncecticut advised me early on in my legal career about the need often to shovel sh*t to do civil rights litigation. Larry Pozner -- a great cross-examination teacher, among other things -- emphasizes the huge percentage of preparation time needed to execute a powerful and persuasive defense in court. On top of the foregoing descriptions, I know of the frequent times that so many deadlines and obligations overlap all at once -- including deadlines imposed by court rules and court orders -- that the option does not exist that day, or for many days, for anything but a very long work day that begins long before sunrise. I also know the solitary feeling of researching, preparing, and typing out a court filing with no company other than some of my favorite jazz playing from the speakers, while my family has already gone to sleep or not yet awaken.

I was never under any delusions that the law practice would be any other way, and am certainly happy that I have no boss dictating my schedule to me. The stories are rampant of law firm bosses that heavily pile on work on their associate lawyers without much or any regard to their balancing their work lives with their private lives to the point that an associate at one law firm told me that an associate lawyer there would be setting a precedent to leave for his or her child's birthday if there was still a project ongoing into that night, even if the birthday obligation had been previouosly announced. While I was still a public defender lawyer, the owner of a small law firm where I interviewed -- which does civil litigation and federal regulatory work -- asked if I acknowledged that a lawyer needs to make some substantial personal life sacrifices to succeed as a lawyer (at least at his firm), whereas the yin-yang symbol displayed on every page of my blog underlines my view that one becomes a more powerful lawyer by having his or her entire life balanced, and not sacrificed, and that far from precluding hard work and long hours of work when needed, such balances enhances one's ability to work efficiently and hard and to be a powerful advocate. Needless to say, I did not pursue that law firm further.

Certainly, law firm associates and employees of all organizations should be realistic that to justify their income level they must produce a certain minimum amount of work and results, but employers should not just throw the employee into the ocean to fend for himself or herself without giving reasonable assistance to the employee. On the other hand, it appears that plenty of people in the workforce would be willing to receive reduced incomes -- at least when it comes to somewhat reducing the still very high first-year lawyer starting salaries at the most prestigious large corporate law firms -- in order to have a more sensible work-personal life balance, and to have more reasonable time and opportunities to work in pro bono work. How many employers are willing to create a two-tiered system between employees who are willing to do whatever it takes to earn the highest available pay, and those willing to sacrifice pay for more personal time?

Before recently filling our full-time legal assistant vacancy, I asked an interviewee -- as I always do -- what his ideal job was at this time. He answered that his ideal job is to shadow a trial lawyer as s/he goes about work during the day, including in court. He acknowledged that working for me is not like that, even though I work very closely with my staff. He possibly can get such work interning for a public defender or prosecutor's office or working there for low pay, or even for higher pay if the shadowed lawyer needs the in-court humanpower throughout the court day. Just as I accept doing much unglamorous work even if a lot of my courtroom work seems glamorous to some, that becomes the necessity for my staff, as well.

Many law student do not like law school, and some of the main reasons include: not enjoying the material being studied; not liking the studying; not liking the pressure they feel for the intensity of studying, reflection, practice and dedication needed to succeed; not liking the apparent coldness and harshness of many of the professors (starting with those using the Socratic method straight out of Paper Chase); not liking professors' grading approaches and policies, particularly if they grade on a curve that does not permit many high grades; stiff competition to get a high grade class rank and to get accepted onto law review and other scholarly journals, both of which many employers place heavy emphasis on for hiring right out of law school; stiff competition for jobs; and a lack of expectation that they will enjoy their legal career. To me, law school provides many essential doses of reality -- including unpleasant realities -- for dealing with the real world forever after, and blogger Scott Greenfield has addressed this, as well. Of course, it can be less pleasant learning such tough lessons while paying to learn them.

For me, things that makes much of the difference between enjoying practicing law -- and persevering and succeeding in law school -- and not liking it are the people and causes that I serve and the great people from whom I learn each day (including from my clients) rather than the laws and rules that I deal with. I also continue getting a huge rush from winning, which enables me to transcend anything that otherwise seems unfair, unjust, dull, archaic, annoying or outdated about the practice of the law, and which better enables me to dust myself off from any losses along the way with the knowledge that new victories are ahead. It also helps to break out from any feeling of isolation by having a network of colleagues who give each other sufficient support, and also helps to have one's personal life in order.

When I first wrote my sh*t-shoveling blogpost, I had just bought and started reading Thich Nhat Hanh's essential You Are Here: Discovering the Magic of the Present Moment, which I blogged about on December 20. In different words, You Are Here emphasizes that without shoveling sh*t, there are no beautiful flowers or other plants to harvest from that sh*t. Consequently, if all else fails, as I shovel future sh*t, I will summon up the image of Thich Nhat Hanh doing the same, and transforming it wonderfully.

Is Ronald Machen the best available candidate to be the U.S. Attorney in D.C.?

nospam@example.com (Jon Katz) — Thu, 24 Dec 2009 10:20:00 -0500

Photo from website of U.S. District Court (W.D. Mi.).

A United States Attorney is the chief lawyer overseeing virtually all criminal and civil trial litigation in a federal trial court district in which the federal government is a party, as well as subsequent appeals. That is a tremendously powerful position. A United States Attorney's power carries a vast potential to cause much harm, and at least some possibility to do some good along the way.

The United States Attorney for the District of Columbia wields particularly immense power when considering that a vast number of national security and government agency cases are handled in the United States District Court for the District of Columbia, including the secret FISA court. The United States Attorney's Office in the District of Columbia also handles the vast majority of prosecutions in the District of Columbia Superior Court -- except for the drunk driving prosecutions and various low-level misdemeanor prosecutions handled by the D.C. Attorney General's Office -- with the District of Columbia still being treated heavily as a colony that does not choose its own trial and appellate judges, prosecutes only a very small list of criminal case types that get filed in Superior Court, cannot get its laws passed without the United States Congress first deciding whether to bar putting such laws into effect, and has no Congressional representation other than a non-voting representative in the House of Representatives who gets some voting authority only by the grace of the House members and not from the Constitution.

With the foregoing backdrop, today President Obama nominated the District of Columbia's new United States Attorney, as well as U.S. Attorneys to six other districts in various parts of the nation. President Obama's nominee for the District of Columbia's U.S. Attorney is Ronald C. Machen. On paper, Mr. Machen seems to have similar credentials to many a U.S. Attorney over the years. He graduated from some of most difficult schools to get admitted to: Stanford University undergraduate and from Harvard Law School. He held a coveted federal appellate clerkship. He is a partner with one of D.C.'s toughest law firms to get hired at. He has both prosecuted and defended criminal cases, although his defense work seems limited to the well-heeled corporate clientele that usually are able to afford a large law firm, unless he has engaged in any blue collar pro bono criminal defense, which is not addressed in his law firm biography. Would I have accepted the same opportunities if offered to me? Yes, except for the prosecutorial part, and with the hope that I still would have had the will to become my own boss despite the many advantages of working at a full-service large law firm, including having first-rate support staff and excellent attorneys available for teamwork. Therefore, I am not chiding Mr. Machen for his resume, but do wonder if he is the best available candidate, as I address further below.

Like many other large law firm partners who take political appointments in the federal government, Mr. Machen likely will return to his current law firm after leaving the U.S. Attorney position, ready to bring even more client dollars to his law firm through the clout and experience of being D.C.'s chief U.S. Attorney.

Mr. Machen has been out of law school for sixteen years, with two of those years clerking for a federal appellate judge. Like so many of history's United States Attorneys, his resume is long on government and large law firm ivory tower experience, and short on representing the average person, although I know many prosecutors claim that they represent crime victims. Of President Obama's thousands of choices for D.C.'s U.S. Attorney in a city heavily saturated by lawyers -- including many excellent lawyers who have successfully defended many blue collar criminal clients over the years -- was Mr. Machen really his best option? Apparently following former president Bill Clinton's approach, President Obama chose among a handful (three) of candidates submitted by D.C.'s Congressional Delegate Eleanor Holmes Norton, who acted on the advice of a seventeen-member commission.

Delegate Norton last month submitted a proposed bill to create a D.C. District Attorney's Office, to take over many of the local court prosecution functions of the U.S. Attorney's office. Will Mr. Machen and President Obama support such a move? Jon Katz

The land of probations before judgment and suspended impositions of sentences.

nospam@example.com (Jon Katz) — Thu, 24 Dec 2009 00:00:00 -0500

Photo from website of U.S. District Court (W.D. Mi.).

No matter how out-of-balance I have found Maryland's criminal justice system -- as to the rights of the criminally accused -- Virginia is heavily an even less hospitable place.

Virginia is eminently worse than Maryland in the realm of discovery, alone. In Virginia District Court, mandatory criminal discovery is practically non-existent, and is limited to defendants' statements to law enforcement, the defendant's criminal record, and Brady/exculpatory evidence (except that the prosecutor ordinarily is the sole person to decide what evidence is exculpatory, which is like having the fox guard the henhouse). Va. Sup. Ct. Rule 7C:5. Moreover, the governing court rules require seeking, pretrial, a discovery order even to be able to obtain Rule 7C:5 discovery. Worse, in all Virginia courts, Jencks is non-existent.

Without giving an exhaustive list of how much Virginia law is unbalanced in favor of the prosecution, an area of critical note is drunk driving sentencing. Maryland generally has no mandatory minimum sentencing for drunk driving. Virginia provides for twenty days mandatory incarceration for those convicted of drunk driving a second time within five years, and ten days for a second conviction within ten years. Virginia mandates a minimum of five days in jail for having a blood alcohol level of 0.15 or higher at the time of testing, and ten days for having a blood alcohol level of 0.20 or higher at the time of testing. Certainly, even with a conviction, an aggressive defense in Virginia can argue whether the prior conviction has been proven and is a qualifying conviction, and can attack the admissibility and reliability of the breath and blood alcohol testing performed on the defendant.

In various Maryland counties, it is common to receive a probation before judgment -- whereby the judge imposes a probation period after a finding of guilt, and where the defendant can say s/he has never been convicted, but immigration authorities consider it a conviction --f or a guilty finding for DWI (which means losing no license points for a DWI guilty finding, with a PBJ) and a whole host of other misdemeanors, where the defendant's criminal record is otherwise clean and where the factual findings by the judge do not show an egregious crime. Md. Code, Crim. Proc. art. 6-220.

Virginia's equivalent of a probation before judgment is a suspended imposition of sentence, whereby after a finding of guilt, the case is usually rescheduled six or twelve months down the road, and the case is dismissed, absent any finding of a violation of probation conditions. I have not heard of any SIS's given for DWI cases, and many prosecutors like to urge that SIS's are only available under very limited circumstances.

Virginia's SIS statute appears to apply broadly to a wide range of crimes. Va. Code. § 19.2-303, no matter how much prosecutor's argue to the contrary. Although the granting of an SIS rests within a sentencing judge's sound discretion, part of the battle is to convince the judge that s/he has the authority to grant an SIS in the first place. Jon Katz

Limiting prejudice from prior convictions in trials for being a felon in possession of a firearm.

nospam@example.com (Jon Katz) — Wed, 23 Dec 2009 00:00:00 -0500

For trials of charges of being a felon in possession of a firearm, prosecutors would love nothing more than for the jury to hear all the details about the prior felony conviction.

The best way for the defense to avoid prejudicing the jury over the prior felony conviction is to hold severed trials of the firearm possession charge and the charge of being a felon in possession of a firearm. If such a motion is denied, the defense should consider reaching a stipulation or admission that the Defendant was convicted of a qualifying felony prior to the alleged possession of the firearm and should seek the most favorable jury instructions to minimize the collateral damage of the jury's knowing about a prior conviction.

The Supreme Court provides guidance on reducing such prejudice in Old Chief v. United States, 519 U.S. 172 (1997), which is a 5-4 decision, with two of the dissenters still on the Court (Justices Scalia and Thomas), and two off (Rehnquist and O'Connor, JJ).

Shortly before Old Chief was decided, the D.C. Court of appeals dealt with the issue in Goodall v. United States, 686 A.2d 178 (D.C. 1996). Jon Katz

ADDENDUM. Thanks to a fellow listserv member for addressing both of the above-listed cases.

Old Chief is a captivating name for the above-discussed Supreme Court case. Consider how such criminal defendants as Gideon (a prophetic name) and Miranda (whose competing namesake entertained along with Bob Hope and Bing Crosby) get their names immortalized in landmark Supreme Court cases. What if Ernesto Miranda's last name had been MoxiePhish? That might have brought out suppression motion questions about whether the officer had MoxiePhished the defendant, rather than if s/he had Mirandized the defendant.

Don't bring a gun to a snowball fight, in Duke Ellington's neighborhood at that.

nospam@example.com (Jon Katz) — Mon, 21 Dec 2009 00:00:00 -0500

This past Saturday morning around 10:30, the snow got so heavy that I made a U-turn back to my home in the Washington, D.C., suburbs when visibility got too difficult through my ice-covered windshield wipers and rear window that kept getting covered despite my defroster, with many side streets still unplowed. In the meantime, a large snowball fight was arranged through social media in Duke Ellington's neighborhood, at Fourteenth & U Streets, Northwest, in Washington, around twenty blocks north of the White House.

I knew nothing about this snowball fight until it was long over. A District of Columbia detective got out of sorts so much from being hit by snowballs that he drew his gun, and he soon thereafter admitted to it.

Granted, snowballs should not be aimed at those not part of a snowball fight. At the same time, a police officer should not pull his or her gun for nothing more than what happened in this video of the incident.

This video goes beyond a police officer pulling his gun over snowballs, to show him pushing a man onto the sidewalk, to someone(s) exercising First Amendment rights by shouting "F*ck you, pig" after the officer drew his gun, to show solidarity among many of the civilians when they started chanting "Don't bring a gun to a snowball fight" and "Let him go" after a man was detained, and to show more police arriving after the gun-pulling detective and handling the situation with cooler heads to include being okay with the people returning to their snowball fight. The detective was so angry that he would have been wisest to have called other police to help, rather than to have taken any of the matter into his own hands.

Thanks to District of Columbia police chief Kathy Lanier for swiftly and clearly discrediting detective Michael Baylor for having drawn his gun.

ADDENDUM I: Although my blog does not tend towards safety talk ready for a public school auditorium, I do want to caution about throwing snowballs at cars, although I am not clear how much the above-discussed merrymakers were hitting cars, whether intentionally or not. In my elementary school days, my friend and I went to a main road to throw snowballs, making them big and slushy, and aiming ahead of the windshield to get a good impact. My first throw was a bullseye, but then the driver started driving after me and my friend; we were on our home turf and got away quickly through backyards, lying low, and zigzags before reconvening at his house, in the days before cellphones. I realized as I escaped, though, that the driver could have gotten into a collision from my snowball.

ADDENDUM II: Duke Ellington grew up in the general vicinity of this snowball fight. As I YouTubed for an Ellington video, some Cat Anderson videos came up, too. Cat Anderson used to play in Ellington bands, and had an amazing talent for playing stratospherically high trumpet notes without showing fatigue, two things that impress me all the more from my several years of playing the trumpet. Cat blew me away the first time I heard him -- and saw him -- live in 1978, which was three years before he left his body.

ADDENDUM III: To bring the musical tangent further, Cat Anderson produced a short book on how to reach high notes on the trumpet, available free here. One of his students is selling a somewhat larger book claiming to convey the method in a more learnable format.

Preserve speedy trial rights by objecting to continuances and other delays.

nospam@example.com (Jon Katz) — Tue, 22 Dec 2009 00:00:00 -0500

Trial lawyers are familiar with the general obligation to timely object at trial, in order to preserve an evidentiary issue for appeal.

To preserve speedy trial rights, it is critical not only to make timely speedy trial motions, but to object clearly on and in the record to trial date continuances and other trial delays. Virginia's intermediate appellate court today confirmed that objecting is the only way to preserve one's right under the state's speedy trial statute. "I object" is a critical mantra. Howard v. Virginia, __ Va. App. _ (Dec. 22, 2009).