JON KATZ, P.C.

UNDERDOG BLOG ARCHIVES - JULY 2006

 

Attorney at Law

LAWYER FOR JUSTICE

 

Practicing Law Throughout Maryland, Washington, D.C., and Virginia

Since 1998

 

 

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Jon Katz, P.C. advocates for justice often in the most heated of arenas, whether it be before initially-skeptical juries, judges firing off questions at a machine-gun clip, or such highly-charged settings as the O'Reilly Factor. For a taste of our advocating style, click our recent Fox News interview below (O'Reilly Factor, Jan. 25, 2006, and rebroadcast during Super Bowl Sunday halftime), and click here for more news appearances. 

 

          

                      

 

Click above, and view with Windows Media Player. Rebroadcast courtesy Fox News.

 

UNDERDOG BLOG ARCHIVES - JULY 2006

To the end that all lawyers, the courts, government, and everyone serve justice at every turn, at all times, and at all costs. 

 

INDEX OF JULY 2006 UNDERDOG BLOG ENTRIES:

July 31: Getting to "yes" with prosecutors

July 30: The drug wars: Just say know.

July 28: Pathetic juxtaposition: DC curfew law tightened after Second District Commander asserts " black people are unusual in Georgetown."

July 27: "But they didn't read me my rights" - When Ernesto Miranda applies little more than Carmen Miranda.

July 26: A prosecutor in our midst - Eschewing State's Attorney Gansler's presence in our building and on our landlord's lawn.

July 25: When is a federal judge more acquittal-prone than a jury?

July 24: Virginia -- The land that turned its back on Jencks.

July 23: Beyond the Underdog Blog - See katzjustice.com.

July 23: Integrating heart, preparation, technique and experience for trial victory.

July 21: Chilling interview with your friendly, neighborhood, death chamber nurse.

July 20: The National Lawyers Guild - Should I stay or should I go now? Part II.

July 19: Daniel Schorr and Frank Zappa - Inspirations for excellence, for standing up to abuse of power, and against complacency.

July 18: Tony Serra: Speeding past Porsche-driving lawyers.

July 17: MySpace.com: As confidential as the yellow pages.

July 16: Reasonable doubt: The bedrock of a criminal trial.

July 14: The Constitution is violated to criminalize female toplessness.

July 14: Indecent exposure: Prohibiting guests from exposing themselves in Maryland homes 

July 13: Let's shoot craps, and stop prohibition of online gambling. 

July 12: How to deal with difficult judges?

July 11: Sexually explicit PDA contents are not automatically admissible at trial for seeking sex with a minor.  

July 10: Turning the undefinable into a parole condition: Second Circuit upholds parole revocation for possessing pornography.

July 9Marijuana: Of opportunistic cops and misguided smokers.

July 7The amazing Sunwolf presents Jury Talk DVD.

July 6:   When the judge is your jury: Fighting for justice in misdemeanor court.

July 5:   St. Tammany Parish, LA, sheriff gives green light to harass people wearing dreadlocks, and advocates ejecting criminal defense lawyers on a rail.

July 3:   Rainbow Gathering defendants are being denied Sixth Amendment right to public trial.

July 2:   The garbage bags in your driveway: Fodder for vulture cops. 

 

July 31, 2006

Getting to "yes" with prosecutors

An often unpleasant part of representing criminal defendants is proceeding with guilty pleas, particularly when the defendant appears to be innocent. Many criminal defendants feel pressure to plead guilty to lesser charges or a recommendation of a particular sentence -- especially in the draconian federal prosecution system that penalizes people for going to trial if they are then found guilty -- when the risks look high of being found guilty, anyway, and being sentenced harshly for a not guilty plea versus a guilty plea.

 

When a criminal defendant has competent counsel, It is generally wise to plead not guilty when the sentence is unlikely to be more adverse whether the defendant is found guilty through a trial or through a guilty plea. When the criminal defense lawyer recommends a guilty plea to a client, it must be with the intent of reducing harm, and must come from a position of strength, including readiness to proceed to trial. 

 

Whenever plea negotiations proceed, the defense attorney should simultaneously be preparing for trial. A critical guide to effective negotiations for criminal clients is Fisher and Ury's Getting to Yes: Negotiating Agreement Without Giving In. (Although I first heard author Roger Fisher in 1981 lecture about this negotiating approach, it did not take on sufficient relevance until ten years later when I began representing criminal defendants).  

 

Vital to effective negotiating is to replace position negotiation with goal negotiation, as follows: "1) separate the people from the problem; 2) focus on interests rather than positions; 3) generate a variety of options before settling on an agreement; and 4) insist that the agreement be based on objective criteria." Tanya Glaser, Book Summary of Getting to Yes. 

 

Unfortunately, it appears that some line prosecutors are instructed by their superiors to proceed with take-it-or-leave it plea offers, rather than with real negotiations that consider the unique circumstances of the defendant's case. Some prosecutors sometimes get downright unpleasant and nasty in response to reasonable and credible counter-offers from the defense, even when the counter-offers are presented in a polite and professional fashion. Sometimes prosecutors do this to try to intimidate the defendant or defense counsel, sometimes to the point of being nasty in front of the represented defendant, which violates the ethical guidelines against attorneys communicating with opposing parties about the subject of the matter without opposing counsel's consent. I insist that a prosecutor not do a direct-run or end-run around this rule. Once I am out of my client's listening distance, I remind the prosecutor that we are best served by focusing on our goals, agreeing to disagree, and leaving our personalities out of it. 

 

Sometimes the line prosecutor does not believe s/he has authority to agree to a creative settlement proposal presented by me. In that situation, I ask how I can help move the negotiation along, including finding out the people the prosecutor and/or I might speak with to arrive at a settlement. Sometimes the complaining witness is exasperated with a prosecutor's intransigence or simple delay in moving along negotiations; when that happens, I try to offer the complainant assistance in achieving the overlapping goals of my client and the complainant. Sometimes all that is needed is for me to inform the complainant that the prosecutor might be more likely to be receptive to the complainant's recommendation of my settlement proposal rather than hearing me re-visit the proposal. 

 

Sometimes nothing will move negotiations further forward other than the ticking clock bringing the case closer to trial. As the trial approaches, one or both parties may better realize that a negotiation impasse does not serve their objectives. Sometimes the impasse never is overcome, which is why the criminal defense lawyer must always be ready to deliver a strong trial performance. 

 

Nothing beats true calmness in negotiating. When the opponent smells blood, s/he has less reason to help close the negotiation gap. When the negotiator is calm, respectful and effective, the opponent is less concerned about losing face in the negotiating process, and can become better empowered to reach a settlement. 

 

Following are a few examples of my past successful negotiations by being fully prepared for trial, by being calm, by maintaining credibility, and by focusing on goals rather than positions:

 

Felony burglary reduced to misdemeanor breaking and entering.

In one instance, my client was being prosecuted for felony burglary. The prosecutor thought my client would be delighted to agree to plead guilty to theft with the prosecutor's recommendation of no executed jail time. I explained that my client might still be a green card holder rather than a United States citizen, because it was unclear if his father's successful application for citizenship included the defendant, and that a theft conviction would jeopardize my client's immigration status. (Beware prosecutors who will rat such information to the immigration authorities; this particular prosecutor was known not to do so). To assist the prosecutor in agreeing to my counterproposal of a plea to simple breaking and entering (my client was not likely to beat a breaking and entering charge, and had a significant risk of a felony burglary conviction), our immigration law partner, Jay Marks, got on the speakerphone with me, and we convinced the prosecutor about my explanation of the immigration exposure. The prosecutor then agreed to my counterproposal, after I underlined my client's goal of minimizing adverse immigration consequences. 

 

Marijuana possession resolved with stet agreement. 

In another instance, one of my clients was charged in Maryland with possessing 0.9 grams of marijuana, which would have yielded no more than one marijuana cigarette. The prosecutor offered for my client to plead guilty to possessing drug paraphernalia, which would have exposed him to a fine in the first instance. However, through my advance homework, I knew that a pot pipe conviction was likely to lead to jail for a probation violation with the particular judge in a neighboring state just as much as a pot possession conviction. I explained to the prosecutor that I practice in the neighboring state, as well (the prosecutor has no experience in the neighboring state), and that my client's goal was to avoid a probation violation. I explained to the prosecutor that my client was consistently testing negative for drugs for his then-pending prosecution, and, therefore, recommended putting my client's case on the inactive stet docket. The prosecutor told me he would talk with the case's police officers, which was a signal he was about to accept my counter-proposal, which he did. 

 

Mandatory minimum removed on drunk driving charge.

For my final example, a client was charged with driving while intoxicated in Virginia with a blood alcohol level over 0.20 after having been previously charged with drunk driving in a neighboring county. My client faced a mandatory minimum of ten days in jail if convicted for a blood alcohol level over 0.20. Because his appeal in the neighboring county was pending, fortunately, he did not face any enhanced sentencing from that case. Va. Code Ann. § 18.2-270. 

 

My client had wisely invested significant funds to hire an expert witness to challenge the reliability of the breath test of my client. In advance of trial, I convinced a judge to issue a subpoena for the breath technician's file (such requests are not always granted in Virginia), got a subpoena issued for the breath technician's testimony (otherwise, the breath test results are deemed admissible into evidence without necessitating the breath technician's testimony), and obtained documentation about the breath testing equipment from the Virginia Department of Forensic Science. On the trial date, the breath technician was nowhere to be seen, nor was his subpoenaed file. The prosecutor asked me if there was anything unusual to need the breath technician's presence, and I told him the following with our expert witness present: (1) the breath testing equipment had previous repair work performed without recertifying the equipment, which rendered the breath test results inadmissible both based on our expected expert witness testimony and also based on governing statutes and regulations governing such testing equipment; (2) it was unusual that the two results of the person tested before my client were identical to the hundredths decimal place to my client's breath tests; and (3) even when such equipment is properly certified, a twenty percent margin of error exists (which is why the two Intoxylizer results of my client and so many arrestees do not match each other). 

 

The prosecutor likely would not have had a problem obtaining a postponement to have the breath technician re-subpoenaed to court had we not had an expert present, who would have had to be paid for another out-of-state court visit in the event of a trial continuance. I showed the prosecutor how my client had already paid his dues by having served a five-day mandatory minimum jail sentence in the neighboring county for a DWI conviction with over a 0.18 blood alcohol level, Va. Code Ann. § 18.2-270, and how he caused little problem to the police officer. Moreover, the officer was exhausted, having served a midnight policing shift. It did not hurt, either, that the sole courtroom was still bursting at its seams less than one hour from the ordinary lunch hour. 

 

I explained to the prosecutor that my client's goal was to avoid executed jail time. The prosecutor tried to compromise by offering a five-day executed sentence, without applying the statutory mandatory period, which was significant in that his offer would have kicked in the legal provision allowing my client to serve half of the executed jail time, whereas the statutory minimum would have had to been served day for day. With my client standing firm that he would not enter a plea agreement involving executed jail time, the prosecutor finally offered a settlement involving no executed jail time, but increasing the suspended sentence length. This overlapped the defendant's goal of no executed jail time with the prosecutor's goal not to make it look like he had merely slapped my client on the wrist.

 

The Getting to Yes negotiation approach works. I would like all my opponents to read this book. By Jon Katz.

PERMALINK

 

July 30, 2006

The drug wars: Just say know.

No matter how harmful drugs might be (both the illegal kind, and the legal kind, including alcohol, tobacco, over-the-counter drugs, and prescription drugs), the drug wars are more harmful. In Maryland, for instance, a second felony cocaine possession conviction carries a mandatory ten-year non-parolable sentence, even though many innocent people get wrongfully convicted of drugs and all other crimes due to such injustices as misidentification or guilt by association (e.g., being in a car with a friend without knowing the friend is carrying drugs). In the employment context, qualified workers are unfairly being terminated or not hired in the first place for nothing other than relaxing with joint on a Saturday night rather than with a beer. The nation has gone drug-testing mad, and many people under thirty do not even realize that this was not the situation before the 1980's. 

 

The just approach to drugs and other alleged societal ills is to focus on harm reduction, both for society as a whole and for the alleged drug users and wrongdoers. Why do people use drugs in the first place, both the legal and illegal kinds? If their lives were satisfying and trouble-free, drug use would be reduced substantially to relaxation and recreational purposes, rather than for escape and psychological medication purposes. American society has become so disconnected and uncaring that too few people pay attention to helping people with problems until they have been arrested, at which time punishment kicks in more often than real help.

 

Those who oppose the injustice of the drug wars need to speak up. One good source for talking points is the Drug Policy Alliance. Some additional resources are available on our links page. Additionally, see these two recent articles debunking marijuana as a gateway to more harmful drugs: here and here. Also, check out the DEA Targets America campaign:

 

Courtesy DrugWarRant.com by Peter Guither

 

Several years ago in a courthouse hallway, I was asking a prosecutor his thoughts about legalizing marijuana. He suggested that keeping marijuana illegal is good for criminal defense lawyers' business. He asked a passing private lawyer his thoughts on this, and the lawyer confirmed he wanted marijuana to stay illegal in that he made money from defending against such prosecutions. I certainly hope this lawyer was kidding, or that his view is isolated. In any event, drug defense is big business for criminal defense lawyers; drug prosecutions overload court dockets, the jails burst with defendants awaiting drug trials (particularly due to the draconian federal law that presumes no bail conditions will assure the court appearance of those facing up to ten years or more in prison for drug prosecutions), and the prisons teem with drug convicts. 

 

Legalizing and decriminalizing drugs is all the greater challenge, because the current drug prosecution system represents a huge chunk of income for so many people. If drugs were legalized today, budgets would be hugely slashed for police, prosecutors, jails, court-appointed lawyers, private lawyers, judges, probation and parole officers, drug lab chemists, the military, and the government contractors who support the drug war. Thousands of people would go looking for other lower-paying work, as a result. Governments would lose fat profits from seizing and selling houses, cars and cash allegedly related to drug crimes. With so many jobs and so much government income dependent on the drug war, the fight will be all the harder to decriminalize drugs. As Milton Friedman told the 1991 annual Drug Policy Foundation conference, the drug war is a huge socialist enterprise, which helps explain why so many economic conservatives want to downsize or eliminate the drug war 

 

Nevertheless, substantial inroads continue against the drug war. Many jurisdictions have made medical marijuana legal, and marijuana generally brings lower sentencing exposure than such drugs as cocaine, heroin and LSD. Such organizations as the Drug Policy Alliance present a reasoned counter-message of harm reduction, backed up by supporters from a wide-range of the social establishment, including such board members and honorary board members as former Federal Reserve Chair Paul Volcker, George Soros, former police chief Joseph McNamara, federal Judge Robert Sweet, Walter Cronkite, two medical doctors from prestigious institutions, and the list goes on. Please join their call against the drug war. By Jon Katz.

PERMALINK

July 28, 2006

Pathetic juxtaposition: DC curfew law tightened after Second District Commander asserts " black people are unusual in Georgetown."

A poor civics lesson has been brought to you by the District of Columbia mayor and city council and its police by the simultaneous tightening of the curfew and surveillance camera laws and the return of Andy Solberg to his command of the Metropolitan Police Second District, which is Washington's ritziest section. 

 

Here's the rundown. In early July 2006, political activist Alan Senitt is murdered in one of the city's wealthiest neighborhoods. This throat-slashing murder is horrific; I certainly hope that people and the media hold as much concern for murders in the city's less wealthy neighborhoods, but I have my doubts. 

 

Next, Second District police commander Andy Solberg, who is white, tells a meeting of hundreds of concerned Georgetown residents: "I would think that at 2 a.m. on the streets of Georgetown, a group of three people, one of whom is 15-years-old, one of whom is a bald chunky fat guy, are going to stand out. They were black. This is not a racial thing to say that black people are unusual in Georgetown. This is a fact of life." WTOP website (emphasis added). 

 

Racial redlining was supposed to have gone out the window in D.C. by the time the District of Columbia -- which has a majority African-American population -- ended (or supposedly ended) its shameful and widespread customary segregation by the late 1950's or early 1960's. 

 

Next, the District of Columbia police chief assigns Solberg to a desk job pending an investigation of his racist remarks. In response, "An upper Northwest advisory neighborhood [i.e., the city's wealthiest and whitest section] commission told the chief Solberg has the 'confidence and widespread support' of area residents.'"  WTOP website 

 

Next, on July 21, 2006, in response to fears of increased street crime, the District of Columbia city council passes emergency legislation supported by the mayor to permit the mayor to change curfew times to below 11:00 p.m. for people under seventeen years old. The emergency legislation also invites Big Brother to the table, permitting installation of street security cameras. WTOP website; see the law here. Kudos to Adrian Fenty for being the sole city council member voting against the law (whether or not he did it for pure reasons of justice or to get more visibility for his campaign for mayor). 

 

On the next business day, July 24, the police chief puts Andy Solberg back in charge of the Second District. On July 31, the new emergency curfew and spy camera legislation takes effect. 

 

WTOP radio's website reports that people arrested for curfew violations ordinarily will be taken to one of two Curfew Centers, at 2600 Douglass Place, Southeast, and Tenth and R Streets, Northwest. Both neighborhoods are far away geographically and economically from Second District commander Solberg's ritzy Second District. 

 

The juxtaposition of the return of Solberg and the imposition of the tightened curfew law is pathetic. They should not co-exist. The city's return of Solberg to his position is a too-clear signal to street police from the city government (or at least by the police chief) that they may feel free to target African-Americans and other minorities (of course, African-Americans are in the majority in D.C.) for alleged curfew violations, and more often leave alone white curfew violators. 

 

Unfortunately, this would not be an issue had the courts banned curfew laws. While the emergency legislation may be struck down as putting too much unbridled discretion in the mayor to reduce curfew times below 11:00 p.m., the pre-existing D.C. curfew law has been upheld in court as Constitutional, most unfortunately. Hutchins v. D.C., 188 F.3d 531 (D.C. Cir. 1999). Now, more then ever, is the time to donate to the American Civil Liberties Union of the National Capital Area ,which opposes this emergency curfew legislation, and which challenged the curfew law in the Hutchins case. By Jon Katz.

PERMALINK

July 27, 2006

"But they didn't read me my rights" - When Ernesto Miranda applies little more than Carmen Miranda.

Like pro-lifers who attack Roe v. Wade at the edges -- knowing that Roe is here to stay for quite some time (at least before Chief Justice Roberts and Justice Alito joined the Supreme Court), many police and appellate government lawyers attack and use Miranda v. Arizona with a similar approach. 

 

This state of affairs frustrates many of my clients, who see at the frontline the repeated advantage taken by police of the circumstances where Miranda rights need not be read. First and foremost, the police need not mention Miranda before the suspect is in custody. This is why cops repeatedly visit suspects, talk at length with them, and do not arrest them before giving the suspects a chance to spill the beans. Similarly, cops often will delay reading Miranda rights to an arrestee in the hope that the arrestee will blurt out incriminating words (e.g., "Hey, that's not the bag of cocaine I just sold; I sold a bag half its size"). A particularly common situation is the battery of questions cops ask people stopped for traffic violations ("How much did you have to drink? When? Where"). In the last instance, the courts have created a legal fiction, generally allowing such non-Mirandized questions and answers into evidence even when we all know the driver is not free to leave at the time such questions are posed. 

 

For criminal defendants thinking of testifying at their trials, they need to think hard. First, prosecutors generally are permitted to ask the testifying defendant to confirm his or her prior felony and theft-related convictions, because juries generally are permitted to take such prior convictions into account in judging a witness's credibility. Second, prosecutors generally are permitted on cross examination and through rebuttal testimony to impeach a defendant's testimony with any alleged factual proffers previously provided by the defendant in seeking a plea deal. (The proffer approach is particularly alive and well in the federal criminal system). 

 

Third, and perhaps less known to the public, non-Mirandized statements by the defendant that are not deemed coerced nor involuntary by the trial court also are admissible for impeachment purposes. Harris v. New York, 401 U.S. 222 (1971). Dissenting Justice Brennan succinctly pointed out the wrongheadedness of Harris:

 

The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot be used on the State's direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution.

 

Harris, 401 U.S. 222, 232. 

 

This Harris rule also is followed in Maryland, Virginia, and Washington, DC. See Brown v. Maryland, 373 Md. 234 (2003); Castellon v. U.S., 864 A.2d 141 (D.C. 2004); and Dixon v. Com., 270 Va. 34 (2005). 

 

For criminal suspects, this all adds up to knowing your rights, and repeating one of my favorite mantras: "I maintain my right to remain silent. I want a lawyer. I maintain my right to remain silent. I want a lawyer. I maintain my right to remain silent. I want a lawyer."  Practice this mantra again and again so that it effortlessly flows off the tongue when encountering the police. See the Busted video. Practice this mantra with your friends and acquaintances playing the roles of the slickest and meanest police. By Jon Katz.

PERMALINK

July 26, 2006

A prosecutor in our midst - Eschewing State's Attorney Gansler's presence in our building and on our landlord's lawn.

When we opened our firm eight years ago, it was paradise and remains so. We joined the world of being the masters of our own domain; the kings of our castle. Unfortunately, Montgomery County State's Attorney Doug Gansler recently moved too close to our domain, putting his state attorney general campaign headquarters just one floor below us. During the day, I see bright-eyed, bushy-tailed Gansler campaigners in red t-shirts akin to the green pods that transformed Democratic voters to Reaganauts in a Saturday Night Live skit. 

 

The body snatchers have apparently caught up with our office building's owners or managers, who have permitted the Gansler campaign to post four campaign signs on the front yard of our building, which is the first time I have seen any political signs on our building's property. I plan to ask building management equal time and space for political and social signs from all building tenants, including my installing ant-Gansler signs. 

 

Why these strong feelings about Gansler? For one thing, his campaign website turns my stomach. See his website's first paragraph about going against "common crooks" as state’s attorney; you know, people presumed innocent, many of whom are accused of such petty things as driving with a 0.12 BAC, shoplifting, possessing marijuana, urinating in public when a bathroom cannot be found, and having the audacity to yell the “F” word outside a bar and to have a “large crowd gather.” Many of them, if indigent, remain jailed pending trial, and still presumed innocent. Many of these convictions lead to immigration problems and probation violations. Many of these defendants are convicted of crimes they did not commit. 

 

For another thing, plenty of our firm's visitors are people who Gansler and his crew are trying to convict. I already got done a few years ago having our only police visitor walk out the door. The Gansler campaign's presence in our building is a distinction from that scenario without much of a difference, except that his campaign operates away from our suite and floor. 

 

Perhaps the bright side is that the venom I feel at seeing Gansler's propaganda and website that refers to "common crooks" gets me revved up even more while on the way to the Montgomery County courthouse. By Jon Katz.

PERMALINK

July 25, 2006

When is a federal judge more acquittal-prone than a jury?

I have complained here about the Supreme Court's permitting laws denying defendants jury trials for "petty offenses," even for defendants facing the prospect of multiple consecutive sentences for multiple criminal charges each of which carries no more than a maximum of six months of incarceration. Neither do I like that some jurisdictions do not give defendants the unilateral option to waive a jury trial. 

 

When a criminal defendant has the opportunity to waive a jury trial, this study may be useful in making the final decision: Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone? 83 Wash. U. Law Quart.151 (2005). This is a 76-page article, full of statistics; I expect to have more comments on the article after reading it more fully. On top of that, many comments on the article are found in the Volokh Conspiracy here, here, and here. An initial review of Professor Leipold's background suggests that he is committed to getting to the truth of this whole matter. In any event, each case presents its own variables about whether or not to seek a trial with or without a jury. 

 

Meanwhile, none of this matters before a defendant can waive a jury trial in the first place. In Maryland, fortunately, criminal defendants have carte blanche to waive a jury trial. Md. Rule 4-246. In the remaining jurisdictions where I practice (the federal courts, Virginia, and the District of Columbia), the prosecutor's agreement to the waiver generally is required. Fed. R. Crim. Proc. R 23(a), VA. Sup. Ct. R. 3A(b), and D.C. Sup. Ct. R. Crim. Proc. 23(a).

 

The United States Supreme Court has left open the possibility that extraordinary circumstances might permit a unilateral jury trial waiver by a criminal defendant. Singer v. U.S., 380 U.S. 24, 37-38. Indeed, this month a Denver federal judge allowed co-defendants in a bank fraud case to waive a jury trial -- without the prosecutor's consent -- after he dismissed the jury due to one of the defense lawyer's prostate cancer-related problems. The case is U.S. v. Mattar, Crim. No.1:03-cr-00232 (D. Co.). The judge is Richard P. Matsch, who presided over Terry Nichols's Oklahoma City bombing trial. Here is one of the defendants' responses to the prosecutor's failed motion for a stay of the proceedings for a possible interlocutory appeal of the Court's granting of the unilateral jury trial waiver. 

 

The more important issue here is that placing the jury trial waiver right in anybody's hands other than the criminal defendants' is antithetical to justice for so many reasons, including the Virginia scenario where the jury recommends a sentence that can be much worse than a judge might reach, the scenario where the judge is likely to be less biased towards the defendant (whether the bias is racial bias or other bias) than the jury would be, and the scenario where the judge can more easily overlook the heinousness of an alleged crime (for instance, from having heard more ugliness in the courtroom on a daily basis than would a jury). By Jon Katz.

PERMALINK

 

July 24, 2006

Virginia -- The land that turned its back on Jencks.

Compared to the other jurisdictions where I practice (Maryland, the District of Columbia, and federal courts), the governing Virginia criminal discovery rules are the thinnest. The Virginia District Court discovery rules are particularly razor-thin, while the Circuit Court discovery rules are a little less thin.

 

Unfortunately, Virginia has not joined the jurisdictions that require providing criminal defendants a prosecution witness's written statements and substance of oral statements after the witness testifies for the prosecution. This rule is known as the Jencks Act, 18 U.S.C. § 3500. All federal prosecutions are governed by the Jencks Act, which also governs prosecutions in the District of Columbia Superior Court. D.C. SCR-Crim. Rule 26.2. The Jencks Act also applies in Maryland. Carr v. State, 284 Md. 455 (1979). 

 

However, the Virginia Supreme Court generally refuses to apply Jencks, having concluded that the Jencks rule "is not ordinarily of constitutional dimension but is a rule of evidence governing trials before federal tribunals." Bellfield v. Com., 215 Va. 303 (1974), cert. denied,  420 U.S. 965 (1975); see also U.S. v. Augenblick, 393 U.S. 348, 356 (1969) (the Supreme Court's "Jencks decision [353 U.S. 657 (1957)] and the Jencks Act were not cast in constitutional terms"). 

 

The wise approach for all prosecutors is to provide Jencks material, whether or not Jencks applies in their jurisdiction. Otherwise, the prosecution runs too great a risk of not releasing exculpatory/Brady material, 373 U.S. 83 (1963), which the prosecution always has the obligation to divulge to the defense. Letting prosecutors decide what is exculpatory evidence is like letting the fox guard the henhouse; even well-intentioned prosecutors are not all-knowing people who can tell whether material is the least bit exculpatory. 

 

In any event, even if Virginia adopts the Jencks rule, the rule is no picnic in terms of its making Jencks material available only after the prosecutions' direct examination of a witness concludes. Such material often is too voluminous to sufficiently review, digest, and address with such a short timespan. Judges should liberally order earlier release of Jencks material, to avoid an unfair trial. By Jon Katz.

PERMALINK

July 23, 2006

Beyond the Underdog Blog - See katzjustice.com.

In addition to the Underdog Blog, check out the rest Jon Katz, P.C.'s website. Launched in 1999, our website has a wealth of useful legal information, from on-point links to articles and more. By Jon Katz.

PERMALINK

July 23, 2006

Integrating heart, preparation, technique and experience for trial victory.

Last month came a personal injury jury verdict that is an important example both to criminal and civil trial lawyers for integrating caring; preparation, patience, and time; technique and skill; intuition; and experience for trial victory. The case is Marroquin v. Los Angeles Sheriff's Dept., et al., Los Angeles County Sup. Ct. Civ. No. MC-013260 (verdict entered June 22, 2006), and is more fully detailed in Lawyers USA (paid or temporary free online subscription needed for access).

 

A jury awarded $15 million to Amanda Marroquin, a recent high school graduate seriously injured by a deputy sheriff who U-turned across several traffic lanes without having an immediate emergency, and hit Ms. Marroquin's Civic.

 

Lancaster, California, lawyer R. Rex Parris skillfully represented Ms. Marroquin. I met Rex eleven years ago at the Trial Lawyers College. He 

exemplifies the truth that stellar transcripts are not essential for making an excellent trial lawyer, having previously flunked out of high school. The high-paying big corporate law firms may insist on stellar academics on paper for their new hires (at least if they perform poorly, the corporate firm can explain to the rich client that the associate at least shined on paper), but such firms suffer by being so rigid in their hiring practices that they lose out on great talent who do not meet such rigidity. The benefit to lawyers with less stellar paper academics is the lower pay differential involved in their risking opening their own law firms. 

 

In this case, Rex succeeded in bridging the gap between the persuasion and psychodrama methods so heavily emphasized at the Trial Lawyers College and the final stretch to winning with the jury. Rex spent substantial time and money preparing with focus groups, jury trial consultants, a psychodramatist, and visual presentations. In the end, the jury loved Ms. Marroquin, and had reason to dislike the opposition, or at least the defendant's psychiatrist, who claimed that Ms. Marroquin, who is Mexican-American, was below average compared to white middle-class people of her same age. 

 

The question often crops up about what to do when the client does not have the funds for experts and consultants. When that happens, it still is possible to put together jury focus groups whose participants do not require much or any pay, and to brainstorm with lawyers who have used such paid assistants. 

 

On June 14, I blogged about the importance of bridging the gap between excellent trial lawyer programs and winning in court. I welcome your experiences and stories about such gap-bridging. By Jon Katz.

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July 21, 2006

Chilling interview with your friendly, neighborhood, death chamber nurse.

Today's executioner is a health care professional who scrubs the "patient's" arm, lest the executioner be reminded that s/he's violating the Hippocratic oath. Meet "Karen," a nurse and executioner in Jackson, Georgia. 

 

"Karen," of course, is her pseudonym for a recent PBS interview with Maria Hinojosa. She does not want her non-death row "patients" to think of her as a killer, even though she is. She usually talks with her victims, and "they have always been very nice. A lot of times some of them would even make a comment 'that didn't hurt like I thought it was going to.'" 

 

Why does she do this work? For pay? Because she believes that supporters of the death penalty (which she claims to support) should put their money where their mouths are? Even "Karen" draws the line somewhere on her executioner activity; she feels comfortable finding the vein and inserting the needle for injecting the poisonous injected cocktail, but she leaves for someone else the final task of releasing the poisons into her victims' veins. It's a distinction without a difference that perhaps is the only boundary that enables "Karen" to sleep at night. 

 

The interview is chilling. Of course, there would be no "Karen" without the whole death penalty machinery, from the laws allowing executions, to the Supreme Court majorities that continue to find capital punishment Constitutional, to the politicians pushing for executions, to the prosecutors seeking executions, to judges willing to preside over death penalty trials, to jurors voting for death, to the voters who re-elect the death penalty supporters, to the makers of the equipment for executions. 

 

"Karen's" chilling interview likely will help bring more people to the death penalty abolition camp. I thank "Karen," at least for that. By Jon Katz.

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July 20, 2006

The National Lawyers Guild - Should I stay or should I go now? Part II.

On May 19, I posted the first in the series about my ambivalent feelings about whether to remain a member of the National Lawyers Guild

 

I renewed my Guild membership in 2000, when I felt strongly drawn to working with the DC Guild's demonstrations committee, having ventured into the land of defending demonstrators in criminal court, having learned the exhilaration of such work, and having continued being happier lighting a candle in the face of injustice rather than just cursing the darkness. I learned that the Guild fills a critical void for lawyers who believe human rights are more sacred than property rights, and that the Guild again and again fearlessly stands up to abuse of power by government, police, and the military, particularly in the current wartime climate when the Bush administration treats the Bill of Rights as no more sacred than toilet paper. 

 

I very much like that people do not join the Guild to burnish an application for a judgeship (although I know a former Guild member who now sits on the bench, after a nomination by a Republican governor, no less), nor to be accepted to an exclusive country club, nor to become members of the legal establishment. Plenty of such establishment-oriented people would fear having the Guild on their CV. People join the Guild because they care about justice (however they happen to define it), will stand up and stick their necks out for justice, and fear not the history of red-baiting against the Guild. 

 

Despite any red-baiting, the Guild clearly appeals to a much wider-range of members, including my anti-communist self. The Guild asserts that it was the nation's first racially-integrated bar association when founded in 1937. That, alone, would attract plenty of anti-segregationists in the day of a racially-segregated American Bar Association. The Guild further states that its members were among the founders of the Association of Trial Lawyers of America, which, by now is more establishment than ever, for better or worse. The Guild claims that it was the only organization among civil liberties groups and bar associations to refuse to require loyalty oaths from its members. The Guild fought to smash segregation in the South, continues to fight bigotry, and is a critical champion of immigrants' rights. 

 

Given my numerous remaining misgivings about the Guild, how I wish I could find a sufficient alternative to join. I have not found that yet. 

 

Highlighting the Guild's importance yesterday was a trial lawyers' listserve message about the recent apology of the Bar Association of the District of Columbia for staying racially segregated right into the late 1950's, when the Guild was already two-decades old, and always racially-integrated. That testament to the importance of the Guild was dampened by yesterday's Guild news release about Israel that was issued without notice and comment to the Guild's membership. Yesterday, I responded to this news release on the Guild's main listserve, as follows: 

 

The Top-Down Lawyers Guild    Jon Katz 

  July 19, 2006  

 

Once again, with its attached news release, the guild leaders ignore the guild membership by issuing such a statement without seeking or

offering notice and comment from members beforehand, even though notice and comment is easy to obtain in this listserv and e-mail age.

 

Clearly, there is a critical division in view on Israel by the membership at large versus the guild's leaders, as exemplified by the

referendum that overturned the previous Zionism as racism convention resolution. What do the guild's leaders do in response? They issue or

approve the attached statement without saying a peep in advance to the grassroots membership.

 

Guild leaders: Don't operate in the dark. Who drafted this statement? Who voted for and approved the attached statement? Who voted against it? Who abstained? How in-depth was the discussion among the leaders, and which leaders were included in the discussion? How hastily was this statement patched together and issued? Why was the membership at large not given a notice and comment period on this statement? Why didn't the statement say that it was issued without consulting the overall membership?

 

To borrow from a late politician I generally was not fond of: Guild leaders -- there you go again. 

 

Then, as I read two responsive listserve postings [and more members since then have taken issue with the news release] agreeing fully with my above listserve message -- from members whom I had never met or known of before -- I recognized once again that the Guild's leadership is too out of touch with its members. The views of the grassroots members gave me more of a reason to stay with the Guild -- for now. By Jon Katz.

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July 19, 2006

Daniel Schorr and Frank Zappa - Inspirations for excellence, for standing up to abuse of power, and against complacency.

Throughout my life, I have sought out people who have stood up and stuck their necks out for doing good. I found that all the more important when I joined the Maryland Public Defender's Office fifteen years ago, when some fellow public defenders seemed to think I was from Mars when I honestly answered why I left two years at a higher-paying corporate law job; because serving indigent criminal defendants was where my heart was. I learned that many of my co-workers had no preference for the defense or prosecution side; one warned me about wearing my heart on my sleeve; another said he didn't give a f--k if the jury convicted one of his clients so long as he put up a good fight. So, I sought out fellow idealistic criminal defense lawyers, often having to find them miles away at conferences of the National Association of Criminal Defense Lawyers, at the National Criminal Defense College, and at the Trial Lawyers College

 

I also looked outside the legal profession for inspiration for my continued idealism. Daniel Schorr and Frank Zappa provided some of that key inspiration. The lives of these two great men -- a courageous journalist fired by CBS by staying true to the highest standards of journalism, and a musician who stayed true to his music even if that meant having few top forty songs aside from "Valley Girl" -- came together in 1986, when Zappa called Schorr about "telling the news to rock fans turned off on current events," as Schorr told it. I finally experienced Zappa at a live 1984 concert, where he conducted a band -- himself saying nothing, singing nothing, and playing not a note; the night of instrumental music was his. I bumped into Schorr once at a Washington booksigning, and twice at the annual holiday parties of a neighbor plugged into the world of Watergate-era journalists and the ACLU, not yet having learned how much he had contributed to standing tough in the face of a Kremlin upset that he would not put up with its censors, in the face of his inclusion on Nixon's enemies list, and in the face of revealing a 1976 House intelligence investigating committee report that led to his suspension by CBS. 

 

Sadly, Zappa died from prostate cancer in 1993. Schorr then brilliantly conveyed the essence of Zappa, his commitment to human and musical excellence, his insistence on calling them as he saw them, and his taking on the audacity of Tipper Gore and Company to censor song lyrics through the back door (which today is a sad reality, with rated lyrics, video games, and television shows): "Talk about his popularity, and he said he was lonely. Maybe he was. Maybe the world around him was too crass, too mediocre, too homogenized. So he cursed it with dirty words, and went back to his music synthesizer, searching for new musical meanings. And ways of serving kids. His own, and the world's." This was a call against complacency and to stay true to human goodness and human excellence. By Jon Katz.

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July 18, 2006

Tony Serra: Speeding past Porsche-driving lawyers.

The best criminal defense lawyer in the courtroom may not be wearing a cashmere suit, Rolex watch and Hermes tie. One of the great trial lawyers is Tony Serra, who buys his suits used, charges little money and has little of it, and has reveled for four decades in fighting on the side of justice. 

 

Tony abhors the snitch system in criminal courts, as do I. He urges criminal defense lawyers not to represent snitches, even if at the risk of substantial financial loss. He urges lawyers to follow their conscience. 

 

Tony advocates marijuana smokers' rights, and smokes, himself. 

 

Recently convicted for the third time for not paying taxes, the last piece of information I have about him is that, as of early April 2006, he had obtained a postponement to start his ten-month jail sentence, pending his completion of a murder trial. If you have more updated information, please let me know. Please also let me know when he is released from jail, so that I may arrange to watch him in trial. By Jon Katz.

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July 17, 2006

MySpace.com: As confidential as the yellow pages.

Again and again, people come to me after getting snagged into a false lull of privacy from using the Internet -- anywhere from not knowing that their online messages are not as confidential as they had anticipated, to failing to recognize that images do not leave the hard drive merely by clicking the delete button, to not realizing that it is tough to keep a webpage completely confidential. 

 

A tip of the justice hat to Arbitrary and Capricious for pointing out how easily anybody can monitor myspace.com postings. Monitoring myspace postings is achievable by police, criminal defense lawyers, and anybody else wishing to monitor myspace. I previously registered for a free myspace password to understand and keep on top of the myspace technology; free registration is available at http://myspace.com . By Jon Katz.

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July 16, 2006

Reasonable doubt: The bedrock of a fair criminal trial.

Although on July 14 I dissented from the Maryland Court of Special Appeals' indecent exposure opinion, today I applaud the same court for its July 3 preservation of the right to require that all convictions be beyond a reasonable doubt. The case is State v. McClellan, Md. Ct. Spec. App. No. 1647, Sept. Term 2005 (July 3, 2006). In McClellan, the Court of Special Appeals affirmed that trial counsel was ineffective under the Sixth Amendment for failing to object to the following reasonable doubt instruction that reduced the reasonable doubt standard to the preponderance of the evidence standard: 

 

[T]he State has the burden of proving guilt beyond a reasonable doubt to your unanimous satisfaction. Defendants are always presumed innocent in all the courts of this country until that presumption is overcome, so to speak, by the State's proof beyond a reasonable doubt.

* * *
 
[W]e speak of this term 'reasonable doubt.' The State must convince you beyond a reasonable doubt. By that we do not mean absolutely [sic] certainty and we do not mean mathematical certainty and we do not mean moral certainty. We simply mean, again drawing on your everyday experience, if you feel there is enough evidence in this case to permit you to go forward with a decision, then go ahead and make the decision. It is that simple really.

By that we mean, further, that if you have a doubt, it should be a doubt to which you can ascribe a reason. There should be a reason for your doubt. Now when we speak of your everyday decision-making we mean it this way. That everyone of you here has made a decision of magnitude in your - - in your life - - not whether you will have coffee with sugar or without sugar or what your cereal will be, but whether you will marry or not marry, whether you will change jobs, whether you will have children and whether you will change the city - - your location - - go move to Indianapolis or something.

I mean, these are serious decisions - - or divorcing. These are serious decisions which I am sure all of you have made one or more of just by your existence on the earth and being over eighteen. And this, too, is a serious decision and that is what we mean by that concept of deciding something beyond a reasonable doubt.

Id.   

 

         At the time of Mr. McClellan's 1992 trial, his trial lawyer should already have been on notice that Maryland's Court of Appeals would not just turn the other way in the event of a defective reasonable doubt instruction. See, e.g., Lansdowne v. State, 287 Md. 232 (1980). Moreover, at the time of Mr. McClellan's trial, the Maryland Pattern Jury Instructions already defined reasonable doubt correctly, as follows: 

 

2:02 PRESUMPTION OF INNOCENCE AND REASONABLE DOUBT
 
The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty.

The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove [his] [her] innocence. However, the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence.

A reasonable doubt is a doubt founded upon reason. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. However, if you are not satisfied of the defendant's guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty.

 

MPJI-Crim 2:02.

 

    Criminal defense lawyers must assure that juries are correctly instructed on the law. Some trial lawyers may have a temptation to obsess over the closing argument as the judge instructs the jury. However, there is no adequate substitute for the trial lawyer relentlessly and effectively to participate in proposing and objecting to pattern and special jury instructions. 

 

    On a sad related note, the Fourth Circuit does not even require that federal trial judges give any reasonable doubt instruction. U.S. v. Walton, 207 F.3d 694, 696 (4th Cir. 1998), cert. denied, 531 U.S. 865 (2000).By Jon Katz.

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July 14, 2006

The Constitution is violated to criminalize female toplessness.

Relating to today's entry on indecent exposure, to ban female toplessness in public but not male toplessness violates the Fourteenth Amendment's guarantee of equal protection of the laws. Fortunately, various jurisdictions have expressly exempted public breastfeeding from the indecent exposure laws, and I have heard of various courts addressing the Constitutionality of banning topless sunbathing by women. One of them, the Fourth Circuit, disagreed with me in 1991. U.S. v. Biocic, 928 F.2d 112 (4th Cir. 1991). However, as concurring judge Murnaghan addresses, times they are a changing, and government hopefully will stop wasting its time trying to ban female toplessness. Id. at 116 (Murnaghan, J., concurring).

 

The problem with Maryland's indecent exposure is its failure to define indecent exposure, thus enabling a challenge that the statute is unconstitutionally void for vagueness, particularly as to exposure of anything other than one's genitals. By Jon Katz.

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July 14, 2006

Indecent exposure: Prohibiting guests from exposing themselves in Maryland homes 

Maryland's Court of Appeals never hesitates to overturn a bad decision by the intermediate Court of Special Appeals. I look forward to such a reversal of the Court of Special Appeals' affirming a conviction for indecent exposure for a man who exposed his genitals when a guest in the trailer home of a friend, to whom he was talking "sexual stuff." The case is Wisneski v. Md., Md. Ct. Spec. App. No. 222, Sept. Term 2005 (July 12, 2006).

 

By allowing a conviction for indecent exposure by a guest in a private home, the Court of Special Appeals stretches too far the Court of Appeals' key explanation of indecent exposure law, which is in Messina v. State, 212 Md. 602  (1957). Messina confirms that the crime of indecent exposure ordinarily must take place in public. Id. at 606. Messina approvingly states that "A number of cases have held that it is immaterial that the exposure is seen by only one person if it occurs at a place open or exposed to the view of the public and where anyone who happened to have been nearby could have seen if he had looked. Id. Although Messina does not limit "public place" to the roads, parks and schoolyards versus shopping malls, movie theaters, and train stations, extending indecent exposure prosecutions to guests in private homes is stretching the law too much. 

 

If the Maryland legislature truly wants to prohibit such behavior by guests in private homes, the legislature should introduce such legislation, but courts should not be making such stretches with the existing law. Currently, the Maryland Code does not define indecent exposure, but instead merely states: "A person convicted of indecent exposure is guilty of a misdemeanor and is subject to imprisonment not exceeding 3 years or a fine not exceeding $ 1,000 or both." Md. Crim. Code § 11-107. Under this month's Court of Special Appeals' Wisneski decision, Bill Clinton would have been exposed to criminal prosecution if his visit with Paula Jones and alleged indecent exposure were in her own hotel room in Maryland rather than by a visit to Clinton's hotel room. By Jon Katz.

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July 13, 2006

Let's shoot craps, and stop prohibition of online gambling. 

Now that Congress, thankfully, failed to ban flag burning, it has turned its attention to banning online gambling. House Bill 4411 penalizes online gambling civilly and criminally, providing up to five years in prison per violation. Previous legislative efforts against online gambling were stopped with the support of now-convicted lobbyist Jack Abramoff. Is this bill some sort of disingenuous way for Republican Congress members to try to distance themselves from the now-disgraced/once-darling Republican lobbyist Abramoff? 

 

Supporters of the online gambling ban apparently try to cloak their opposition not only with concern for gamblers who lose their shirts, but also for credit card companies whose customers do not have the money to cover their gambling debts with those companies. For the gamblers, I say caveat emptor. As to the credit card companies, they certainly can block payments on their own to online gambling companies. Perhaps credit card companies were not doing so before due to the lucrative dollars they could make from online gambling, both by serving online gamblers and online gambling companies. To the extent that Republicans are supporting the online gambling ban, this seems to clash with the Republicans' reputation of supporting free enterprise more than Democrats -- that's right, unless the free enterprise involves vice (drugs, prostitution, and gambling, which somehow are treated by Republicans as more harmful that cigarettes and alcohol). Then, again, maybe they also are trying distance themselves from Jack Abramoff. 

 

So long as the government continues to deviate from focusing on fairly and effectively prosecuting rape, robbery, and murder -- by instead adding too much focus on prosecuting gambling, prostitution, drug crimes, and a whole host of other less serious crimes -- I will continue to have less confidence in the criminal justice system than if it were otherwise. By Jon Katz.

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July 12, 2006

How to deal with difficult judges?

How to deal with difficult judges? This is a sub-theme of the how-to-deal-with difficult people challenge, which, in criminal defense, includes dealing with difficult prosecutors, cops, opposing witnesses, clients, and sometimes our own witnesses. 

 

As with many of life's conundrums, there is no easy answer to dealing with difficult judges. A critical starting point is for the lawyer to have a thick skin -- not an insensitive skin, but a thick skin, with a very caring heart. The lawyer is not in the courtroom for his or her own benefit, but to fight for justice for the client. 

 

Additionally, the lawyer does not belong in court in the first place if s/he is going to get constantly bent out of shape by a nasty-seeming judge; this will reduce the lawyer's ability effectively to represent the client. Some people are better -- and very effective -- pushing for justice outside the walls of the establishment than inside those walls. 

 

In the most general sense, at my best, I deal with difficult judges by remembering of the following lessons from three of my most influential teachers. Trial master Steve Rench applies the basic, and effective, lesson of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more a reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion's sole and to pull it out, rather than trying to slay the lion. T'ai chi master Cheng Man Ching saw conflicts in terms of the need to harmonize the situation, and to empty ourselves of any tension, anger, or fear, which all weaken us in any battle. I have found no better way to do this than the daily practice of t'ai chi -- physically AND mentally -- over the last dozen years. 

 

My friend Jun Yasuda, who inspires people to live a more peaceful and just life locally and globally, probably would tell me that we are all part of the Buddha, and that when we see an opponent, we are seeing part of ourselves. She once described dealing with angry people as follows: "You know, several times I have had somebody hitting me during a prayer. I do not hit back. That would just make him more angry, more hateful. My way, if somebody is trying to hurt me, is to bow to him and to pray. I try to ask why he is angry, and to listen to him. I want to know why is he wounded inside." Over the fifteen years I have known Jun-san, I have seen her magically exemplifying those words. 

 

The foregoing lessons from Steve Rench, Cheng Man Ching, and Jun Yasuda are a critical base in my dealing with any difficult situation, but they are not enough. Nothing beats experience, personal growth, and introspection in dealing with difficult situations. Sometimes, the lawyer misperceives why a judge appears to be impatient or angry. Sometimes a simple few words or a bit of self-effacing humor (I am not talking of sycophantic behavior, which should not be in the cards) can defuse the situation. Sometimes, the judge is irritated at a perception or misperception that the lawyer is disrespecting the judge or the court system, or is mis-representing the client (at least such a judge cares about effective criminal defense). Some judges give the benefit of the doubt to those lawyers s/he already knows ,and perhaps some judges will think twice before berating a lawyer who through age or otherwise seems to have critical relevant experience, which presents its own challenge to the lawyers who do not fit that category. (On the other hand, for me, I usually find that the first time I appear before a judge, the judge often is interested in having someone new in the courtroom, and that I rarely face a disadvantage appearing before a new judge).

 

Being human, some judges are unfair to certain lawyers due to sexism, racism, and the -isms list goes on. Sometimes, concerted action is needed by bar members, judicial disciplinary authorities, and, sometimes, impeachment authorities. Remember, of course, that any such effort at factfinding (unless it is clear on the record) can make erroneous findings of fact. Of course, it is particularly important that every judicial candidate get vetted as carefully as possible at the front end. 

 

This discussion of dealing with difficult judges and other difficult people can go on and on. Let it be remembered, though, that any such discussion requires looking deeply at ourselves in the process; looking at the situation from the other person's perspective is particularly necessary. The better we improve in dealing with others, the more we will inspire them to follow suit. By Jon Katz.

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July 11, 2006

Sexually explicit PDA contents are not automatically admissible at trial for seeking sex with a minor.  

Even when the cops arrest someone for crossing state lines with the intent to have sex with a minor, the rules of evidence must continue in full force. Consequently, whether or not the arrest of Kevin Eric Curtin looked like curtains to him, the Ninth Circuit partially reversed his conviction because the trial court erroneously admitted into evidence the sexually explicit stories on the palm pilot he carried when arrested in Las Vegas when looking for the child he met online who, unsurprisingly, turned out to be an undercover cop. (If only the cops would re-focus on investigating such crimes as rape, robbery and murder). The case is U.S. v. Curtin, 443 F.3d 1084 (9th Circ. 2006) 

 

In reaching its correct partial reversal -- for the admission of the sexually explicit stories (with one dissenter in the incorrect camp) -- the Ninth Circuit followed the following basic rule of evidence: "We use a four-part test to determine whether evidence is admissible under Rule 404(b). United States v. Spillone, 879 F.2d 514, 518 (9th Cir. 1989). First, 'there must be sufficient evidence to support the jury's finding that the defendant committed the other [act].' Id. Second, 'the other [act] must not be too remote [in time].' Id. at 519. Third, when admitted to prove intent, 'the prior act must be similar.' Id. Finally, 'the prior act must be introduced in order to prove a material element of the case.' Id. The main issue here lies in the third element: whether there is similarity between the possession of the stories and the crime with which Curtin is charged." Curtin, 443 F.3d at 1091. 

 

Jurors can be shocked enough knowing that a defendant is accused of crossing state lines for sex with a minor. It is critical to fight tooth and nail to exclude such evidence as the prejudicial sexual stories allegedly found on Mr. Curtin's palm pilot. By Jon Katz.

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July 10, 2006

Turning the undefinable into a parole condition: Second Circuit upholds parole revocation for possessing pornography.

Parole is not always everything it's cracked up to be. First, of the jurisdictions where I practice, parole no longer exists in the federal court system, the Virginia system, or in the District of Columbia. Second, in Maryland, receiving parole is not guaranteed, and is particularly difficult to obtain for a first degree murder conviction. Third, parole conditions can be very onerous. Fourth, the United States Supreme Court has permitted parole authorities to revoke parole, rather than judges, which increases the risk of erroneous application of the law governing parole revocation. 

 

In that context, the United States Court of Appeals for the Second Circuit upheld the revocation of Christopher Farrell's parole based on a parole hearing officer's determination that he had violated a special parole condition not to possess pornographic material while on parole for a sodomy conviction arising from his payment for sex to teenage boys. Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006). 

 

Farrell focused on whether Mr. Farrell was on sufficient notice not to possess Scum: True Homosexual Experiences, which included explicit sexual images. The court proceeded to uphold a parole violation for doing the undefinable of possessing pornography. The court confirmed that "Although a series of strongly-worded opinions by this Court and others suggest that the term 'pornography' is unconstitutionally vague, we hold that Scum falls within any reasonable definition of pornography and that the parole condition is therefore not unconstitutionally vague as applied to Farrell's conduct."

 

The Farrell court indicates it may have ruled differently had this been a pre-enforcement challenge (where the vagueness challenge would have been stronger) than this post-enforcement challenge that applied to a specific piece of alleged pornography: "We do not disagree with Farrell's argument that the term 'pornography' is inherently vague, nor do we in any way challenge the earlier cases from this Circuit and [the Third and Ninth Circuits] finding that the term is insufficient to give notice to a reasonable offender of what material sweeps within its prohibition. But to prevail on an as-applied challenge, Farrell must persuade us that he lacked notice that the particular materials that he was punished for possessing were proscribed. Whether or not the term 'pornography' is inherently vague, Scum fits within any reasonable understanding of the term."

 

Highlighting the undefinable nature of pornography is footnote 13 of Farrell: "It is conceivable, for example, that Farrell could have brought a successful First Amendment challenge had he been arrested for possession of a photograph of Michelangelo's David or a lingerie catalog-materials that fall within the broad definitions of 'pornographic' advanced by Parole Officer Burke in his testimony and the State on this appeal, respectively."

 

As a final note, some argue that the availability of sexually explicit material acts as a safety valve to reduce sexual assault. This may become a more important argument in the continuing First Amendment fight to abolish obscenity laws and other criminal and civil laws against sexually explicit material. By Jon Katz.

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July 9, 2006

Marijuana: Of opportunistic cops and misguided smokers.

Marijuana is at once a decriminalized drug and one of the easiest to detect. When smoked, it reeks. However, when unburnt, it is not as easy to detect as police and prosecutors would have us think.

 

Appellate courts repeatedly have given cops the green light to conduct warrantless searches for marijuana upon smelling it. Defending against such searches calls for attacking the totality of circumstances, including how strong was the odor, from where it emanated, and the officer's personal knowledge of marijuana smell (how on earth can a law-abiding police officer know whether s/he's smelling marijuana or another substance?). It is particularly time to pounce on the search and the officer's credibility when the cop claims to have searched due to marijuana smell but is unable to show any recovery of any remnants of marijuana or marijuana paraphernalia. 

 

Even though courts repeatedly permit searches based on marijuana odor, countless marijuana users make themselves easy targets for arrest by smoking in their cars (perhaps overlooking that a cop might smell the marijuana upon pulling the car over for speeding or another moving violation), smoking on the streets and in parks, and leaving rolling papers and pipes out in the open. This situation probably has not increased the popularity of hash brownies, cookies and cupcakes as an alternative, even though they carry no burnt marijuana smell. . 

 

When it comes to growing marijuana indoors, at least the Supreme Court requires a search warrant to use thermal imaging to try to detect the high heat associated with indoor marijuana growing. Kyllo v. U.S., 533 U.S. 27 (2001). Despite Kyllo's reaffirmation that our homes are more protected against searches than cars, legions of potsmokers continue smoking in their cars. 

 

Important larger points concerning Kyllo are: First, it reverses a Ninth Circuit opinion, which helps debunk outrageous efforts by government lawyers outside that Circuit to paint Ninth Circuit decisions as unreliably radically left (particularly when a substantial number of Ninth Circuit judges are Republican appointees). Second, the opinion is written by Justice Scalia, who is generally accurately seen as being on the Court's right wing (along with Chief Justice Roberts and Justices Thomas and Alito). Conservative Justice Thomas joins the Kyllo majority, along with Justices Souter, Ginsburg and Breyer. Whither Justice Stevens? Mistakenly penning the dissent, joined by the late Chief Justice Rehnquist, Justice Kennedy (now the Supreme Court's generally centrist swing voter), and then-Justice O'Connor. It is a reminder always to go to court knowing that it is possible to persuade anybody to our side. By Jon Katz.

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July 7, 2006

The amazing Sunwolf presents Jury Talk DVD.

Dr. Sunwolf -- the great storytelling lawyer who proclaims that "Reality is no obstacle" -- is one of my six most influential and beneficial trial teachers and inspirers. The others are Stephen Rench, who inspires trial lawyers to "Dare to be great;" Larry Pozner, who teams with Roger Dodd to make effective cross examination less a mystery and more an achievable goal; Don Clarkson, a Radar O'Reilly of sorts who gets right to the heart of the matter in helping lawyers prepare for trial; Josh Karton, an acting teacher par excellence who gets to the heart of the matter as quickly as  Don Clarkson; and Gerry Spence, who inspires to win for justice and in life by discovering and cultivating our unique magic, warts and all. 

 

I have been hooked on Sunwolf ever since she presented an amazing session on motions hearings at the 1994 National Criminal Defense College Trial Practice Institute. Sunwolf shows the power of persuading through storytelling. She is a past training director of the Colorado Public Defender's office, and  is now an associate professor of communication at Santa Clara University.

 

Sunwolf's two jury dynamic books are musts for trial lawyers: Practical Jury Dynamics. and Jury Thinking. Bridging the gap between reading Sunwolf's books and experiencing her live is her new Jury Talk DVD, which is due  out later this month, and available for pre-order here. Promoting Sunwolf's DVD for pre-order is my opportunity to give back in a small way to her for all she has shared with me. By Jon Katz.

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July 6, 2006

When the judge is your jury: Fighting for justice in misdemeanor court.

Despite my rants against denials of jury trial rights for so-called petty offenses, knowing how to try a case to a judge is critical where I practice. To insist only on trying major felony cases is to abandon the vast majority of criminal defendants, who are most often prosecuted for misdemeanors. In Maryland, misdemeanors and various lower-level felonies (including car theft) go to trial before judges sitting without juries in the District Court, where a jury trial only takes place if the matter is jailable over ninety days and if the defendant demands a jury trial on the trial date, or appeals a trial loss to Circuit Court for a de novo trial; on appeal to the Circuit Court from a District Court conviction, all jailable offenses are jury triable (Md. Code Ann. Cts. & Jud. Proc. art. § 12-401(g)).   

 

In Virginia, crimes punishable by up to one year must first be tried in District Court without a jury, and may only proceed to a jury upon appealing a loss to the Circuit Court, so long as the matter is jailable over six months. In the District of Columbia, in the 1990's the City Council cynically reduced the maximum possible penalty of a whole host of misdemeanors to six months, to deprive the right to a jury trial, since so many jury members in the District of Columbia know that police cannot be believed any more than civilians. In the federal courts, many misdemeanors carry no more than a six-month penalty, and are tried before magistrate justices, as opposed to District Court judges, who are appointed for life. 

 

In an assault trial last week, starting with my opening argument (I mean opening statement), I focused on how in Maryland (at least in the county where we tried the case), we have a culture of too many people racing to the courthouse to be the first in an altercation to swear out an assault warrant. It seems that too many court commissioners too often issue such warrants without inquiring in-depth into the credibility of the complainant. Moreover, it seems that in the county where this case was tried, prosecutors too often do not evaluate the complainants' credibility until the day of trial, which provides insufficient time to evaluate the case alongside the prosecutor's dozens of other cases docketed for the same morning or afternoon. Once the case goes to trial, most complainants feel wedded to their original allegations -- even if false -- lest they admit their lies and thus risk a perjury prosecution or civil lawsuit for false prosecution. 

 

In last week's assault trial, my client's former co-worker accused him of assaulting him to the point of leaving him scratched and bloodied. I enjoyed this contrast to his application for a warrant -- which I read into the record on cross -- which said my client harmed him no worse than knocking him down and spitting on him. I enjoyed the prosecutor's question whether the complainant sought medical treatment afterwards, to which he said he instead went to the court commissioner to swear out a warrant for assault against my client. Apparently there was never a medical visit, and the prosecutor showed no photos or live images of any injuries, despite the claims of scratches and blood. 

 

I took the risk of having my client testify, rather than asserting his Fifth Amendment right to remain silent. His denial of assaulting anyone was persuasive. Fortunately, he had witnesses who not only corroborated the same, but who also honored their subpoenas to come to court. The judge acquitted my client, confirming that innocence carries the day unless the allegations are proven beyond a reasonable doubt, and that he found the prosecutor's evidence no more credible than the defendant's. Victory came sweet, but only after my client had to pony up the money to pay my fee, and only after entering the unknown of whether he would win or lose that day. 

 

We always had the option of going to a jury trial first. However, it often makes more sense with Maryland misdemeanors to try to win in District Court before proceeding to a jury trial in Circuit Court. By Jon Katz.

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July 5, 2006

St. Tammany Parish, LA, sheriff gives green light to harass people wearing dreadlocks, and advocates ejecting criminal defense lawyers on a rail.

On June 29, 2006, New Orleans' WDSU television news presented these televised statements of Sheriff Jack Strain, presenting barely-veiled bigotry about handling people coming from New Orleans to his parish, and disdaining the effective criminal defense guaranteed by the Sixth Amendment. Sadly, it is doubtful that Sheriff Strain is the only law enforcement leader with such vile views; the difference is that he aired those views publicly (hopefully not to gain points with voters), while most keep such views more private.  By Jon Katz.

PERMALINK

July 3, 2006

Rainbow Gathering defendants are being denied Sixth Amendment right to public trial.

Rainbow Gatherings are annual mid-year camping be-ins, with clothing optional; sharing food, hugs, and community; and no official leadership structure. These gatherings are mostly a harmless break from all the conformity, homogeneity, and complacency that so please the government and corporate America. 

 

Federal rules require permits for gatherings over seventy-four people in national forests, and law enforcement authorities have been issuing over two hundred criminal citations during the June-July 2006 rainbow gathering in Steamboat Springs, Colorado, for camping without a permit, and drug and alcohol violations. Despite the rainbow gatherers' claimed absence of a leadership structure, it appears that one or more camping permits have been sought and denied, where the professed denial reasons have included fire hazard concerns. Considering the critical First Amendment rights involved -- where the rainbow gatherers express themselves in ways much different than Ward and June Cleaver and Stepford society, and where the medium of the gathering is part of the rainbow family's very message -- denial of their opportunity to gather raises all the more concern. 

 

Of additional concern is that many, if not all, of the criminal citation cases are being handled in a nearby tiny farmhouse -- converted into a temporary courthouse -- that is only big enough to seat the parties, and with very little standing room for the public and the media. 

 

Attorney Adam Mayo -- who expects to represent some of the rainbow defendants -- along with one of the rainbow defendants, has filed suit to prevent the trials from proceeding in this tiny farmhouse, alleging that doing so violates the Sixth Amendment right to a public trial, and the First Amendment right to observe the trial. The case is Mayo et al v. Krogstel et al., U.S. Dist. Ct. Civ. No. 1:06-cv-01236-MSK (D. Co.). The suit claims that even attorney Mayo has not been allowed to observe the court proceedings, which would be critical to defending his clients. 

 

Thus far, the plaintiffs have been denied an emergency order to prevent the cases from proceeding in the farmhouse. However, the trial judge will enable the parties to argue whether a preliminary injunction should be issued to move the proceedings out of the farmhouse. The Complaint for injunctive relief is here, and the Motion for a temporary restraining order is here. By Jon Katz.

PERMALINK

July 2, 2006

The garbage bags in your driveway: Fodder for vulture cops. 

Various court decisions have enabled police to come onto people's land to seize and search their garbage, with few Fourth Amendment protections -- if any -- for the trash. 

 

The United States Supreme Court declared in 1988 that people have no reasonable expectation of privacy in garbage left outside their property for trash collection. California v. Greenwood, 486 U.S. 35 (1988). Greenwood, however, is silent about whether police may enter a person's land to seize trash. In 2000, Maryland's intermediate appellate court correctly decided that such entry is unconstitutional. Sampson v. State, 130 Md. App. 79 (2000), reversed, 362 Md. 438 2001). Unfortunately, a 4-3 majority of Maryland's highest court reversed, in State v. Sampson, 362 Md. 438, cert. denied, 532 U.S. 1056 (2001), but at least left open the possibility of Fourth Amendment protection when indicia of expectation of privacy are present (e.g., leaning the bags against the house, posting "no trespassing signs", and fencing in the land).  

 

Sadly, courts have used the "reasonable expectation of privacy" approach to deny a whole host of privacy rights, including weakening the ability of (1) a passenger in a car to challenge an unlawful stop of the car. (2) a homeowner to challenge police snooping through an open window, and (3) a drug defendant to challenge an unlawful search of a co-defendant that yields drugs that are allegedly co-owned by both defendants. 

 

Too many police are fond of trash searches, sometimes hoping to find remnants of drugs to form a basis to obtain a search warrant. Imagine, if even one marijuana butt is found in your garbage, even if a dinner guest left it there without your knowledge, a judge may authorize a search warrant. (Fortunately, absent information beyond the marijuana roach, there is a basis to invalidate the search warrant). Whether or not the search warrant turns up evidence that is used for a prosecution, house searches are very invasive, and usually result in the home being turned upside down after the police pull out everything they can from drawers, closets and containers. The police do not send in a housekeeper to clean up afterwards. By Jon Katz.

PERMALINK

 

 

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CRIMINAL BLOGS

- Arbitrary and Capricious - By an anonymous public defender. 

- Capital Defense Weekly - Capital punishment is unjust as a punishment and in its application. 

- CrimLaw - A prosecutor and former criminal defense lawyer as of September 2006. 

- CrimProf - Do they encourage all professors to give fair exams and to grade fairly (not easily, just fairly)?

- Defending Those People - "Those people" often are your friends, family members, co-workers, and neighbors. 

- Diary of a Criminal Solicitor - By a British criminal defense lawyer. There's no comfort being reminded that criminal defendants' rights are repeatedly abused in every nation.  

- DUI Blog - When it comes to drunk driving laws and enforcement, the nation's gone MADD in the worst way. See our drunk driving defense article here

- FourthAmendment.com - The site's author, John Wesley Hall, is a Little Rock, AK, attorney. Another Little Rock attorney, Bill Clinton, underlined that it's certainly not only Republican presidents who trample on the Bill of Rights. Were that not so, why did Clinton make sure to witness an execution during his 1992 presidential campaign?  

- Grits for Breakfast - By a writer and researcher whose blog primarily focuses on criminal defense. 

- Law Of Criminal Defense - Another blog from John Wesley Hall, who also presents FourthAmendment.com and co-presents TalkLeft.

- Magistrate's Blog - From an anonymous English judge. Please let us know of any equally frank blogs from any judges in the United States. 

- Sentencing Law and Policy - Plea bargaining was the most distasteful part of becoming a criminal defense lawyer. Sentencing ran a close second. 

- Truth About False Confessions - If the police assert a suspect confessed voluntarily, without coercion, and having fully waived the right to remain silent and to have the presence of counsel, see if the police can back it up with a reliable, unedited videotape of the discussion showing everything happening in the interview room, including how small the room is, how many police tower over the suspect wearing their guns and handcuffs, how booming their voice are, how often the suspect is permitted breaks/ food/drink,  and the extent to which the suspect has been given the opportunity for deep sleep in a comfortable bed after a home-cooked meal. In other words, the un-coerced confession is a rarity, and courts repeatedly do injustice by permitting coerced statements into evidence. 

- Underdog Blog - To the end that all lawyers, the courts, government, and everyone serve justice at every turn, at all times, and at all costs. 

- White Collar Crime Prof - Achieving justice demands aggressive defense of both blue collar and white collar criminal cases. 

 

 

ADDITIONAL BLOGS

- Abolish the Death Penalty - From the National Coalition to Abolish the Death Penalty

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- Becker-Posner Blog - Federal judge and University of Chicago economics professor discuss government and economics.  

- Cato-At-Liberty - Raising timely public policy issues, including the United States' shameful concentration camps for those of Japanese ancestry, legislation on online gambling, and farm subsidies. The Cato Institute (not from the Green Hornet) claims to be libertarian. 

- Criminal Waste of Space - Musings of a California appellate judge on such matters as Dick Cheney's marksmanship, lack of public confidence in American governors, and admitting his press overexposure.  

- Drug War Rant - In his 1980's Steal This Urine Test, Abbie Hoffman recommends crank calls to drug testing companies. By now, it could take decades to make a daily crank call to a different drug testing entity (including all the hospitals that are part of the action). 

- Judge Jones's Blog - Two Texas judges provide information on court procedure, including a clothing prohibition on football sweatshirts, rock band pictures, and Harley shirts, but allowing Ralph Lauren Polo shirts. How is this not content-based gagging? 

- Legal Reader - Notable legal newsbites. 

- Loose Robes - Its blogmaster says: "After twenty-four years in the criminal justice system -- as defense attorney, prosecutor, and judge -- I stepped away and looked back in dismay. My overall feeling was not one of accomplishment, of a job well done. My sense, rather, was one of relief that I was getting out of the pit. I had burned out."

- Sui Generis - Civil rights and other issues. 

- TalkLeft - Proclaiming to be the "Online Magazine with Liberal coverage of crime-related political and injustice news." As to liberalism on criminal justice, count me in. 

- Volokh Conspiracy - A bunch of professors and others discussing Constitutional, criminal and other legal issues. 

 

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