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

A BLOG FROM THE TRENCHES BY LAWYERS FIGHTING DAILY FOR JUSTICE

September 25:  Trouble in the empire state: Too many New York municipal "justice court" judges run roughshod over justice.

September 24:  More on Senator George Allen's macaca-gate.

September 22:  Overcover risk at the Supreme Court.

September 17:  The need for criminal defense lawyers to love their clients, listen to them, know them, build trust with them, walk in their shoes, and sit alongside them. 

Karen Fletcher allegedly posted disgusting fantasy stories on the Internet about pedophilia, torture of children, and murder of children. The federal prosecutor in Pittsburgh (part of George Bush's Justice Department) obtained a six-count obscenity indictment against Ms. Fletcher, on September 26. For added chill, the indictment seeks forfeiture of Ms. Fletcher's computer equipment. 

The last time I checked, the First Amendment robustly protects free speech, even such abhorrent speech as that alleged to have been posted by Ms. Fletcher. 

This obscenity prosecution, under 18 U.S.C. § 1462 goes forward in the same federal courthouse where last year First Amendment lawyers Lou Sirkin and Jennifer Kinsley won a smashing Constitutional victory against the obscenity laws. However, that victory was short-lived, when the Third Circuit reversed. U.S. v. Robert Zicari, 431 F.3d 150 (3rd Cir. 2005). 

With this prosecution, the Justice Department regresses to the old days of chilling obscenity prosecutions against mere words, even against such great literary works as Ulysses, Howl, and the Tropic of Cancer. In other words, do not trust that the Bush administration will stop at bringing to bring obscenity prosecutions even against brilliant literary works. Sadly, no guarantee exists that a Democratic Justice Department would have done any different. Tweedledee and Tweedeldumb. Jon Katz.

Today, I received Sunwolf's Jury Talk two-disc DVD in the mail. It is amazing, and I encourage everyone to buy it. 

Sunwolf teaches trial lawyers to see the trial from the jurors' perspective. Not a moment too soon, Windypundit's Mark Draughn recently posted a three-part view behind the scenes from his recent experience on a criminal jury in Chicago. Jon Katz.

"So, what's your relationship with the prosecutors?"

Potential criminal defense clients often ask me about my relationship with prosecutors. Some ask because they are interested in cutting a deal, and perhaps want a lawyer with the inside or even former-prosecutor's scoop on the prosecutors' negotiating (and exaggeration) strategy and approach. Some want to make sure the criminal defense lawyers will not be in bed with the prosecutor, the cops and the judge. Some are just apprehensive. 

I truthfully respond that I am disinclined to be too buddy-buddy with prosecutors, who are the same people trying to take my clients' liberty away, and with whom I repeatedly battle and sometimes vehemently disagree. This is not to say that I enter the courtroom growling at prosecutors. Even Nixon and Mao were able to smile at each other even though they likely held each other in the highest contempt, without looking or being any the weaker. Furthermore, if I growl at the prosecutor when the jury is not present, how do I turn that off when the jury returns? The jury generally will not reward such growlilng.

I strongly believe in keeping my opponents at arm's length. That is what t'ai chi battle is all about. Letting them get too close leaves me and my clients too unprotected. Letting my opponents get too far leaves me less able to sense the timing and approach of their next planned attack. I try finding common ground with opponents. It might be jazz music, whitewater rafting, Zippy the Pinhead, or something else. As with any persuasion efforts, I will fall on my face if I am not real and genuine with the person I am trying to persuade. This does not mean I have to show all my cards, but does mean that the cards I show must not be dealt from the bottom of the deck. I am always trustworthy with prosecutors and everybody else in life; I would have it no other way.

I do not seek for prosecutors or cops to like me, nor to dislike me. A public defender lawyer whom I generally respect once talked about the possible need to balance one client's interests against the other's in dealing with prosecutors, lest the prosecutor get too "pissed off" at the criminal defense lawyer to the detriment of that lawyers' clients. I tell my clients that I will not do such balancing. I fight for one client at a time, doing whatever it ethically takes to achieve victory. I do that not out of thirsting for competition, but because I truly believe that I am battling on the side of the angels, for what is right, and for what will bring more harmony for my clients in a criminal justice system that I believe overcriminalizes human activities, overconvicts the innocent, and does not sufficiently protect criminal defendants' rights to fair treatment, fair bond, fair trials, and fair sentencing. 

My goal, then in dealing with prosecutors is in staying faithful to the principals of t'ai chi battle, starting by emptying myself of any anger  for the prosecutor (and by being no more angry than I would be towards an attacking dog, meaning not angry at all), by achieving strength and fearlessness, and by doing whatever it ethically takes to harmonize the situation in my client's favor, by inflicting little damage if that will reach harmony, and by inflicting substantial damage to opposing lawyers and witnesses if that is the only option to harmonizing the situation for my client. Jon Katz.

This video -- which is either masterfully acted or as real as they come, and which includes salty language -- hits home how critical it is to skillfully prepare clients to testify. No matter how much a lawyer's gut says the client will testify well, and no matter how much the lawyer expects the client will remain silent under the Fifth Amendment, the lawyer risks getting caught with pants down to the client's detriment if s/he skips fully and sufficiently preparing the client's testimony. 

Even the seemingly best-suited trial witness can get stuck with stagefright, stress, and fear, particularly if the person has never testified before. During cross examination, the opposing lawyer is permitted to hammer at the witness, but the witness is not permitted to hammer back. Good cross examiners know this. 

Tools for improving client testimony include full dress rehearsal of direct and cross examination, with well-suited people playing the roles of the opposing lawyers and judge; a well-selected, well-simulated, and sufficiently compensated focus group acting in the role of a jury; quality trial consultants (I said quality consultants, which can be hard to find), including excellent psychological counselors and psychodramatists (to work through the problems of the case through effective role-playing and reverse role-playing), and multi-angle video cameras to show the witness what s/he looks and sounds like from the perspective of the jury members and others in the courtroom. 

The ideal client testifies so well and so honestly -- willing to reveal warts and all, but never overanswering nor underanswering a question -- that I can feel confidence in taking the risk of asking some re-direct questions to which I do not fully know what the answer will be, to try to take some of the teeth away from the cross examination questions. 

In private practice and as my own boss, I am happy to be able to set sufficient time and resources aside to prepare my clients as witnesses. However, when I defended public defender clients in misdemeanor court, the conditions often were less ideal to achieve the sufficient level of preparation to prepare clients both to testify at trial and at sentencing, in the event of sentencing. As a public defender lawyer in misdemeanor court, sometimes I would not learn of a client until the day of trial, either because bureaucratic issues or clerical errors left me without files nor names of one or more clients in court that day (where I would defend all public defender clients in the particular courtroom), or because the person was in jail without having been interviewed for a public defender lawyer (but who was presumed indigent enough by being in jail to qualify for a public defender lawyer). Some public defender clients would not bother responding to my phone messages nor letters to call me before their court date; this is rare with my retained clients, who know my fees are not justified if they will not prepare with me. While seeking a postponement was always an option to have more time to prepare for trial as a public defender lawyer, that option often would bring more harm than benefit to clients being held on bond and with little chance of paying bond while waiting for a postponed court date. 

Particularly unique problems can arise in preparing clients to speak in court (and often not to speak in court) when they suffer from mental illness (diagnosing mental illness is certainly subjective) that interferes with their ability to present themselves well. Many such clients do not clearly fall within the category of people who are not mentally fit to stand trial, but instead fall in a grey area. Criminal defense lawyers need to know that the consequences of asking a court to order a mental fitness evaluation of a client can have a devastating impact for the client that is much worse than the worst potential outcome of a trial. Once a court accepts a psychological evaluation that a defendant -- whether or not convicted -- is a harm to himself or others, that may spell a one-way ticket to a state-run mental hospital until the judge is convinced that the problem no longer exists; convincing the judge that the client has become mentally fit can be like waiting for Godot.

In the end, aside from the client, the lawyer is the critical ingredient in preparing the client to present well in court. It starts with caring about the client throughout; putting in the necessary time preparing for victory; and sticking with the client through thick and thin as a team, both in and out of court. Jon Katz. 

As a former public defender lawyer who has met indigent defense lawyers from around the nation, I know that the best path to being a great criminal defense lawyer is ordinarily to start with a quality public defender office or prosecutor's office. Since I could not stomach prosecuting, I went the public defender route. 

Along the way, I learned of the staggering gaps in funding and resourcing of indigent criminal defense nationwide. An extreme example of poor resources, exacerbated by Hurricane Katrina, is found in New Orleans.  

Fortunately, the federal public defender system and numerous state-level public defender systems (including, but not limited to, the District of Columbia, Colorado, and Miami) are very well-funded, well-trained and well-resourced. For those public defender offices, the key is to continue in that direction, and to keep caseloads reasonable so as to continue to provide effective assistance of counsel. 

One of the challenges facing even the better-funded public defender systems is in maintaining their independence from political winds. For instance, in the 1990's, a chief federal public defender was not re-appointed to his position by the designated federal judges, after he distributed an internal memorandum that apparently frankly stated his opinion of one or more judges. Aside from the need to expect that any such comments may get leaked, the sequence of events raises the real possibility that this internal memorandum led to the unfair canning of this former federal public defender lawyer.  

Retaining and training quality indigent criminal defense counsel and staff is critical. Different indigent defense systems use different mixes of public defender lawyers and court-appointed private practice lawyers. At the extreme end, Virginia's court-appointed private practitioners are pathetically paid (but at least slow momentum is building towards improving the situation, but not quickly enough). Federal court-appointed pay may be among the best in the nation, but even that pay system historically has had problems keeping pace with the realistic expenses of running a private law practice. Unfortunately, court-appointed lawyers who pad their fee vouchers (hopefully they are few) do not help the honest lawyers who ask the courts to waive fee caps for more complex and time-consuming cases, and who see their requested hours cut as being excessive. 

At the state level, quality funding and resourcing for public defender offices does not automatically translate into sufficient funding or resourcing for court-appointed counsel. For instance, in the District of Columbia, where the Public Defender Service is among the best in the nation, pay has long been an issue in securing effective assistance of court-appointed (versus public defender) counsel. Fortunately, the ranks of court-appointed counsel in the District of Columbia include many excellent lawyers, and pay rates have increased over the years, but apparently not enough to keep up with inflation. Virginia public defender offices include some excellent lawyers; unfortunately, the pathetic pay in Virginia for court-appointed private practice counsel ordinarily requires a pro bono attitude for a lawyer to provide effective representation. 

Indigent defense funding and resourcing issues can take thousands of pages to discuss the most critical issues. Many of the issues are covered by the Spangenburg Group and the National Legal Aid and Defender Association. 

Often missing from the indigent defense discussion is how to provide effective defense to people who barely miss qualifying for indigent criminal defense counsel, but are too poor to hire a quality criminal defense lawyer. The fees often charged by quality lawyers are hard even for a solid salary earner to pay, let alone a person struggling from paycheck to paycheck. It will be helpful to know the extent to which this is taken sufficiently into account in setting the guidelines for who is too poor to pay for a lawyer, so that the Sixth Amendment will be sufficiently enforced. Where I practice, Virginia has the strictest, and probably most unreasonable, limits for qualifying for indigent defense counsel. Maryland is less strict. The District of Columbia is the least strict of these three jurisdictions; while an exaggeration, one colleague said the only requirement to so qualify in the District of Columbia is to be breathing. 

The Maryland Criminal Defense Attorneys Association for several years ran a gray panel program in cooperation with the Public Defender's Office, to make reduced-priced quality retained criminal defense counsel assistance available, at a significant discount. Unfortunately, around six years ago, the Public Defenders Office stopped its involvement with the gray panel. 

In the meantime, every criminal defense lawyer should set aside pro bono and low bono resources to minimize the price predicament faced by so many people rejected for indigent defense, while supporting first-rate funding and resourcing for tax-funded indigent criminal defense. Jon Katz. 

On August 30, I blogged about our defense of the Westboro Baptist Church against a defamation lawsuit filed by the father of a soldier  killed in Iraq. Our firm readily agreed to defend against this suit despite our vehement disagreement with many of the church's views, including, but certainly not limited to, views that the deity hates gays and that picketing at soldiers' funerals is justified. As I said to the reporter of this article that appeared yesterday about our motion to dismiss this defamation lawsuit:

Two decades before the First Amendment ever was adopted, Voltaire sensibly proclaimed that even if  “I detest what you write, [] I would give my life to make it possible for you to continue to write.” A defense victory in this lawsuit will continue the First Amendment’s role in protecting everybody’s free expression rights, whether or not that expression be as extreme and despicable as many of the views and statements ascribed to the defendants.

Because of the financial ruin that can face them from libel, defamation, and slander lawsuits -- all are phrases covering the same type of lawsuit -- too many individuals, newspapers, and other organizations self-censor to the point that the critical truth too often is suppressed. Witness, for instance, that it often takes the financial muscle of Oprah Winfrey and the New York Times for people and organizations to have the guts to risk the huge financial investment that can be required to defend a libel lawsuit, let alone to pay a possible jury verdict. 

Libel laws can easily get out of hand with excessive jury verdicts (fortunately, American trial and appellate courts will sometimes whittle down such jury verdicts), including criminal libel laws that still are on the books in the United States, Britain's gross hospitality to libel plaintiffs, Singapore's rulers' penchant for successfully prosecuting opposition politicians for criminal libel, Turkey's criminal libel law (Article 159 of the Criminal Code) that penalizes written insults to the military, the state, parliament and the judiciary, and the list goes on.

Libel suits should be stricken from the books as incompatible with the First Amendment and fundamental individual liberty. Jon Katz. 

Following up on my September 20 blog entry, unfortunately, the Senate passed a bill on alleged enemy combatants that continues to deny them the right to contest their detention as unlawful, even if indefinitely detained without a trial, through the habeas corpus process. I imagine I will find other unjust passages in the bill once I read the final version. 

It now is time to urge our House members to guarantee habeas corpus rights to all, including alleged enemy combatants. Jon Katz.

This story is even more egregious than the New York municipal "justice court" scandal. It is a story of the injustice of rendition by the United States of non-citizens to places where they will be interrogated and tortured as terrorist suspects. For every instance like Maher Arar's that sees the light of press coverage, many more such rendition cases probably stay secret, particularly if the rendered person is never released and has no family or friends with influence, power, or sufficient ability to publicize the rendition. Jon Katz.

Here is a shocking in-depth New York Times investigative story about repeated denials of basic Constitutional rights to criminal defendants and other litigants in New York's municipal justice courts. The judges often are part-time, underpaid, under-resourced, not lawyers, incompetent, and barely understanding of (nor given the funds to be sufficiently trained in) even the most basic requirements of judging (including assuring that indigent criminal defendants obtain court-appointed counsel, and avoiding communicating ex parte with any party). Some admit they rule from their gut -- with the written law be damned -- and that they got elected to the position because nobody else wanted the job. 

I grew up adjacent to New York state, lived in Manhattan for a year, and never before knew about this justice court scandal. If we do not know about injustices taking place under our very noses, imagine the injustices that might be taking place farther away. The light must be shined on injustice everywhere; otherwise, it cannot be rectified. Meanwhile, I recommend a boycott of every New York jurisdiction that maintains justice-violating justice courts. Jon Katz.

UPDATE: See parts two and three of this series. Part three addresses how entrenched is this unjust system, that New York's highest court refused in 1983 to dismantle or overhaul. 

When George Allen called his opponent's videographer "macaca", it was in the context of having a French-speaking mother from Tunisia, with "macaca" being a French slur for a dark-skinned person. His mother denies ever having used the word "macaca" before, but this is the same person who swore Mr. Allen to secrecy on his Jewish heritage. Jon Katz.

One of the fringe benefits of practicing criminal defense is that the trial court filing deadlines tend to be fewer than in civil cases of comparable complexity, and that the criminal defense lawyer generally does not need to kill as many trees for motions and discovery. 

However, deadlines for filing a properly-presented initial notice or request for appellate relief -- in both criminal and civil cases -- can be merciless, to the point where missing such a deadline -- no matter the reason -- can be considered to deprive the appellate court of jurisdiction over the case. It is little consolation to know that a missed appellate filing deadline might lead to post conviction relief for ineffective assistance of counsel in a criminal case. What good is that when the defendant sits in prison awaiting the outcome of such a post conviction proceeding?

In this area as in so many other areas of practicing law, it is critical to overcover risk. A recent case in point is the veteran Supreme Court litigator who mistakenly thought his ninety-day deadline for filing a certiorari petition with the court started April 17, 2006, so filed his cert. petition ninety days after April 17. Someone at the Supreme Court learned that April 13 was the date of the lower court's order that was the subject of the appeal, making the cert. petition four days late. 

Who would expect the Supreme Court to yield an inch on its ninety-day cert. petition filing deadline? Although Supreme Court Rule 13(5) enables a Justice to provide up to sixty days extra for filing a cert. petition for good cause shown, such an extension is only available if requested at least ten days before the petition is due; moreover, the applicable rule disfavors such an application. In this instance, no such advance extension application was filed. 

The Supreme Court already receives at least fifty cert. petitions for every case it decides to consider. If the court refuses to forgive the late filing in this case, the message will be loud and clear to file on time, or else; to show up at the court clerk's office on time, or else; and to appear on time for oral argument, or else. Fortunately, being so close to the Supreme Court, if I am close to a filing deadline, I can file a petition personally, to have no question at all that it was correctly filed. Then I can relax over a vegetarian Ethiopian feast just a few blocks away on my return drive, and look forward to having my persuasive day in the Supreme Court. Jon Katz.

At the 1991 Drug Policy Foundation conference, I met three of the handful of recipients of federally-provided medical marijuana, including Elvy Musikka and the late Robert Randall, both of whom benefited from marijuana's fending off blindness from glaucoma

According to Ethan Russo, M.D., a cannabis therapeutics researcher: 

The AIDS epidemic and it's subsequent involvement in the medical marijuana issue suddenly provided an unlimited supply of available patients for the [federal] Compassionate IND [Investigational New Drug] program, and Randall assisted them as well. Some succumbed before their supply was approved, or shortly there after. By 1991, 34 patients were enrolled in the program according to Randall (Randall an d O'Leary 1998), while other sources site the number as only 15. Facing an onslaught of new applications, the Public Health Service (PHS) in the Bush administration closed the program to new patients in March 1992. A significant number had received medical approval but were never supplied. Randall sought to ascertain who signed the ultimate termination order through the FOIA, but was never successful in his endeavor. At the time of this writing, seven patients survive in the program.. 

"Chronic Cannabis Use in the Compassionate Investigational New Drug Program: An Examination of Benefits and Adverse Effects of Legal Clinical Cannabis," Cannabis MD Reports, http://cannabismd.org/reports/russo2.php .

Click here for an answer to the following question: "Who are the 7 patients receiving medical marijuana and how has their health been affected by marijuana use?" 

Click here for information on the federal government's disingenuousness in refusing to reschedule marijuana to a category that permits doctors to prescribe it as medicine. Thus, doctors are permitted to prescribe cocaine and morphine (and rightfully so), but not to prescribe the much safer marijuana. Jon Katz.

Visit this video from the good old days when the federal government had little choice but to promote industrial hemp production during World War II, because a substantial percentage of supplies of similar fibers was cut off by Japanese occupation of Asian countries. Rather than being an evil weed, hemp has many beneficial industrial and medicinal uses. 

Post WWII, domestic industrial hemp-growing is again banned, lest a hemp farmer or intruder be so silly as to seek a high from the trace amount of THC found in hemp grown for industrial purposes. Consequently, Canada and China welcome the additional profits from exporting hemp fiber, paper, finished products and sterile seeds for such products as clothing, shoes, vegan lip balm, and food (check out the tasty hemp granola and hemp cheese at natural food stores). The multifaceted beneficial industrial uses of hemp are conceded even on the USDA's website. Jon Katz.

As the Senate considers guidelines for military commissions that try alleged enemy combatants, the two Senate bills will strip the alleged enemy combatants of their right to pursue a habeas corpus challenge alleging they are illegally detained. This would be an outrageous violation of their individual liberties, and could very well be used as a pretext for further eroding the habeas corpus rights of everyone else, after Congress severely limited habeas corpus rights ten years ago through the Antiterrorism and Effective Death Penalty Act. 

More is at Daily Kos and elsewhere on the Specter-Levin Amendment to preserve the habeas corpus right for alleged enemy combatants. The Center for Constitutional Rights supports the Specter-Levin Amendment here, and lists the most critical senators to contact. Even conservative commentator Bruce Fein supports preserving this habeas corpus right for alleged enemy combatants. 

Please contact your senators now, to insist that this legislation fully preserve the habeas corpus right for all alleged enemy combatants. Jon Katz.

On September 19, the United States House of Representatives passed the euphemistic Student and Teacher Safety Act (H.R. 5295). Some commenters on TalkLeft assert that civil libertarians' cries against the bill is much ado about nothing, claiming that the bill just confirms existing Supreme Court caselaw that shreds students' rights against searches more than the rights of everyone else. However, the bill actually prohibits otherwise-enlightened school districts from prohibiting such fascist searches if the schools wish to keep receiving Safe School funds. Moreover, the Supreme Court often looks to legislatures' actions as a barometer of the democratic will as to whether to re-visit certain Constitutional issues; consequently, more enlightened legislation is good for leading to better Supreme Court rulings.   

Shamefully, House leaders managed to shove a vote down Congressmembers' throats, by fast-tracking the bill and avoiding any committee hearings. 

Kudos to the American Association of School Administrators, and the National School Boards Association for opposing this bill. Shame on the National Education Association for supporting this bill, due both to the bill's contents and its fast-tracking.

Too many public schools have become bastions of excessive government propaganda and control, from metal detectors to full-time police patrols to DARE programs, and the list goes on. It makes private schools (at least the ones that don't have such government propaganda and control and fascist searches) and home schooling look more attractive in many ways. Who gets most screwed by this state of affairs? The students and parents who cannot afford such alternatives to public schools. 

The full text of the bill is here. Please encourage your Senate members to oppose the version that goes to the Senate. Jon Katz. 

Criminal defense is about persuasion, strategy, and fighting in the trenches for our clients. This requires knowing our judge and jury, and finding out who they are. 

For Maryland and Virginia state criminal cases, judges usually are not specially assigned to a case. Depending on the case and the court, the assigned judge's name may not be disclosed until the evening before trial or the morning of trial. Even then, the judge lineup can change at a moment's notice. 

Our litigation arguments must be tailored to our decisionmaker, so it is critical to know about every judge who sits in a particular courthouse. Beyond knowing about the full-time judges, lawyers in Maryland District Court occasionally deal with visiting or retired judges, and adjunct judges sometimes sit in Fairfax County and other Virginia District Courts. Of course, when we file legal motions and arguments without knowing which judge will consider our filing (and judge's law clerks often will have substantial input into the disposition of those motions), we can only take our best educated guess at the lineup of judges who might be considering our motion. 

We must also know our juries, including obtaining the list of potential jurors once the list becomes available. In some courts, a list will be made available of all jurors assigned to the particular case. In other courts, only the entire jury list for a particular time period will be available. In other courts, no list will be available before the trial date, which makes it all the more important to arrive early enough to court to digest and analyze the jury list with the client, and to take care of all other matters that typically must be handled in court the morning of trial. 

Some official and personal ethical and fairness questions arise when the parties investigate the jurors on the list. Aside from issues of invasion of privacy in investigating potential jurors, how would it be fair for prosecutors to have more ready and accurate access than the defense to criminal histories of jurors and their friends and family? It is not fair. In the end, in investigating jurors, the criminal defense lawyer's full obligation is to the client, within the bounds of the governing law and rules. 

Some courthouses have so many judges, new judges, visiting retired judges, and visiting judges from other courthouses that it simply is not possible to have a scorecard and crystal ball about all of them. Often the public defender lawyers and court-appointed lawyers are the most knowledgeable about the lesser-known judges. As always, caveat emptor about the quality of such input when the public defender lawyer's eyes are focused, justifiably, on the day's clients more than having the luxury of giving enough details about the particular judge. Usually, different lawyers' crystal balls about judges are as varied as advice on the best way to choose a winning lottery number. 

I sometimes wonder whether some criminal defense lawyers warn against pleading innocent (warning of being punished for doing so if found guilty after a trial)  versus guilty before some judges handling bench trials, just to have a better chance at the judge's having time to try their case. Usually I have good experiences brainstorming with my brother and sister criminal defense lawyers, when I choose carefully for the quality of input I might receive. Jon Katz.

Yesterday's New York Times covers the story here. Jon Katz.

As I previously have blogged, I could not stomach prosecuting, never have prosecuted, and never will. Unfortunately, criminal defense lawyers frequently are faced with whether to help the prosecutorial function, including snitch testimony, snitching without the necessity of testifying, and assisting criminal cross complaints. 

Federal criminal defendants, in particular, often feel extraordinary pressure to disclose others' crimes, and to provide testimony to assist their convictions. They often see that as the only realistic possibility to avoid draconian mandatory minimum sentences and to minimize their sentencing exposure overall. It is a system of legalized bribes for snitch testimony that, by its very nature, produces testimony that is suspect for its veracity. The prospect of snitch testimony often leads criminal defendants to plead guilty (for plea deals that reduce the counts that will be prosecuted or to reduce sentencing guidelines that reward pleading guilty). 

Commonly, for federal prosecutors to ask the court to find that a defendant provided substantial assistance -- in order to depart below mandatory minimum sentences and sentencing guidelines -- prosecutors require a full debriefing by the defendant of all criminal activity by anyone the defendant knows, including himself. The debriefing ordinarily is covered by an agreement that debriefing information generally will not be used against the defendant at his trial, nor to bring new criminal charges against the defendant. However, if the defendant testifies at his trial, the prosecution is eligible to introduce debriefing information that the prosecutor establishes to be contrary to the debriefing information. Here, a snitch's criminal defense lawyer becomes a temporarily-deputized prosecutor, helping the snitch prepare the debriefing information negotiate a snitching plea deal, and helping the snitch prepare to testify. 

In other circumstances, at least at the state level, prosecutors may condition a guilty plea offer on the defendant's providing more circumscribed snitch information --for instance, the source of the defendant's drugs in a drug prosecution, or information about a chop shop that buys cars stolen by a defendant car thief -- and may not even condition the plea on having the defendant testify against those people. Here, the criminal defense lawyer is assisting the prosecutorial function, perhaps having even been the first of the parties to raise the possibility of a guilty plea deal or case dismissal upon the defendant's divulging others' criminal activity. 

With assault cases, it is common in Maryland and Virginia for participants in a mutual or one-sided assault to swear out criminal cross complaints against one another. Sometimes a Maryland assault complainant will ask a lawyer to help draft the complaint. Sometimes a lawyer will advise a client to file an assault cross-complaint against an assault complainant, sometimes in the hope that this will encourage the original complainant to be willing to recommend that the prosecutor drop or inactivate both charges. The trials often are consolidated for the same trial date. Depending on the jurisdiction, the prosecutor may make an effort to determine which complaint is less credible; may decide to have both cases go to trial jointly (if the judge allows) one after the other, to let the judge or jury decide credibility; or may set one case to go to trial first, with the intention of deciding from that trial whether to proceed also with the case against the remaining complainant-defendant. With assault cross warrants, the criminal defense lawyer is assisting the prosecutorial function when trying to obtain a conviction against the defendant who is the complainant against the lawyer's client. 

In other instances, a criminal defendant provides prosecutors -- or the jury directly -- information to show that the defendant is being pinned with the crimes of the true perpetrator, and reveals the perpetrator's identity and criminal activity. In this instance, the lawyer who cannot stomach prosecuting is faced with the choice of helping with possibly the only real chance to vindicate an innocent defendant by helping get someone else convicted, or doing the opposite. 

Additionally, Maryland and Virginia both have procedures for seeking civil protective orders, where a violation of a protective order (e.g., to have no contact with the complainant or to stay away from the complainant's home, place of work, or school) amounts to a jailable criminal offense. Consequently, the lawyer who seeks such a protective order -- often the lawyer focuses on family law or other areas of civil litigation -- is assisting the prosecutorial function. 

Different criminal defense lawyers will have different discomfort levels handling the above-discussed type of work that assists the prosecution function. Those who would not be uncomfortable prosecuting will be less uncomfortable than I about handling such work. 

Over the years, I have learned that a substantial percentage of criminal defense lawyers share my discomfort about assisting snitching even if they would have little or no discomfort prosecuting numerous cases. Some absolutely refuse to assist snitching. As examples, Los Angeles attorney Barry Tarlow has been reported to refuse to assist clients with snitching. San Francisco legend Tony Serra has been reported to refuse such work, as well, and to have advised criminal defense lawyers of the importance of such an approach even at serious financial cost. Mr. Serra puts his money where his mouth is by closely following his conscience; he lives very spartanly, thus substantially reducing any financial pressures on his conscience. 

I prefer Tony Serra's approach against assisting with snitching. Fortunately, I have avoided all federal-style snitch assistance. Avoiding some of the other scenarios listed above (other than pursuing a protective order -- which I never have done nor will do) are more difficult to avoid, but I have been able to keep those to a minimum, as well. One way I keep this to a minimum is to insert an anti-snitch clause into my client contracts, which leads snitch-amenable suspects and defendants to seek other lawyers, or to switch to other lawyers if they decide only later on that they wish to snitch. Another way I keep this to a minimum is to refuse representation at the outset to a suspect or defendant who seems too much at risk to decide to snitch. 

Even with my contractual anti-snitching clause, I am bound to the governing lawyers professional conduct rules and court orders as to the extent to which I can avoid assisting snitching once my appearance is entered with the court. 

Public defender lawyers and court-appointed indigent defense counsel cannot easily avoid snitch representation. I suppose that if a public defender lawyer or court-appointed lawyer were outstanding in an area that did not often raise the possibility of snitch testimony (e.g., arson defense), the lawyer might be more successful in avoiding such work and keeping the public defender job.

Some might argue that refusing snitch assistance deprives defendants of an important weapon against a draconian conviction and sentence. That might be an issue if enough qualified criminal defense lawyers refused such assistance, but that day does not seem anywhere close.

I do not criticize criminal defense lawyers who assist snitching. I do applaud those who minimize or avoid participating in such work.  

Jon Katz.

In various cultures, people call lawyers "doctor" or "attorney". Sometimes I wonder how much of the motivation is strictly cultural, a desire to show respect, or a grudging honorific by people from countries with recent tyrannical and corrupt pasts or presents where lawyers in the form of prosecutors and judges perpetuate and promote the tyranny and corruption. Then there are the people who call lawyers "counselor", which does not seem like much of an honorific after Robert De Niro's Max Cady in Cape Fear said: "I'm Vergil, Counselor, and I've gotten you through the gates of hell."

I seek to eliminate any cultural, personal, or other wall between my clients and me, starting with inviting them to call me by my first name, and letting them know that Mr. Katz is my father, but my name's just Jon. I sometimes sit next to my clients in my office rather than across my desk's divide. I sit next to them in court unless doing so will deprive other non-lawyers of seats, when seats still remain in the lawyers-only area that I do not think should exist in the first place. I chew the fat with my clients. I like many of them very much. I want to know them all. At the very least, I owe them that, and, by doing so, I can more persuasively portray them to judges and juries and opponents. 

Criminal defense clients do not come to me for sport. They would love not to be in trouble and to spend their money on other things, or save it or not borrow it in the first place. Often they are scared of the unknown. I do my best to bring them in the direction of the fearless non-violent warrior working with me as a team to fight for justice. I do my best to work alongside them, and not to elevate me over them.  

Sometimes, I have benefited from the help and advice of great trial consultants, not the ones with flashy promotions with nothing behind it, but an amazing psychological counselor and psychodramatist who quickly gets to the heart of identifying the obstacles to winning and the solutions, and an acting teacher who quickly helps me live and best express why victory for my client is no less critical and urgent than saving my closest loved one from disaster. This psychodramatist helped me relate better to a criminal client whose testimony for his assault case we were preparing (because he was so introverted that this could have presented a real problem to his sounding honest and empathetic in his testimony), by helping me better understand the many hardships that led my client to this point in his life, and by helping both of us motivate each other to present the most persuasive testimony and presentation at trial. The acting teacher helped me look beyond another client's recurring obsessions about things unimportant to his case (but very important to him) by helping me refocus on how this man had successfully persevered to supporting himself and staying independent despite his mental and personal setbacks and physical ailments. With this same client, the psychodramatist pinpointed how isolated was the life of my client, and highlighted the importance of my spending time with him on a weekend afternoon, not even talking about his case. 

Ideally, I would want to spend non-lawyer time not only for an afternoon with my clients, but also with their families and friends, at their workplace, and at their homes. By the time my clients come to me, they have lived over fifteen thousand hours at the very least; spending this time together helps me catch up with all the living and experiencing my client has been going through. Setting this time aside is critical. 

When I started having my own clients for the first time, at my law school's immigration law clinic, I talked with the clinic instructor about some of the things I was interested in talking about with my first client, a political asylum applicant from Liberia. My instructor wisely stopped me in my tracks, and said it was better for me to start by letting my client start by teaching me about his experiences in Liberia. We must listen to our clients, not just to what they say, but to what they do not say, to their body language, and to so much more. How can we listen to and hear our clients if we do not focus on them, do not remove the barriers between the roles of lawyer and client, and sit in the courtroom's lawyers' row, chewing the fat with other lawyers, rather than sitting next to our clients, and standing up for them at every turn? 

Money must not get in the way of fully knowing our clients and fighting to the hilt for them. High-volume clientloads interfere with this; fortunately, as my own boss, I have full control over the number of clients I represent, unlike when I was a public defender lawyer. For court-appointed criminal defense work, fee caps and fee limitations may make this approach seem less financially profitable, but there is no other choice with clients, and, in the end, taking this approach makes the lawyer much richer, whether or not the payment is in dollars.  

When judges, juries, prosecutors, cops, and others in the criminal "system" see that the lawyer cares so much about the client (and, ideally, that the client trusts the lawyer and welcomes being in a team with the lawyer), the judges, juries, prosecutors and cops now are dealing with a united front of lawyer and defendant. That is strength; that is the path towards victory; that is the only way. Jon Katz.

The Girls Gone Wild prosecution news succeeded my August 28 blog against the 18 U.S.C. § 2257 law that requires producers of sexually explicit material to prove the actors are not minors. I said:

"The § 2257 legislation and regulations are backdoor First Amendment violations. It is one thing to prosecute child pornography (the Supreme Court already has permitted such prosecutions), but it clearly is a First Amendment violation to put the burden on producers of sexually explicit material to show that the performers are not minors, and to penalize distributors of such material if it omits a statement confirming compliance with § 2257. The penalties for violating § 2257 are stiff. A conviction for just one violation of this statute carries up to five years in prison; a conviction for multiple violations increases prison exposure." 

The United States Justice Department probably went after Girls Gone Wild with a vengeance, to send a widely-broadcast message that no producers of sexually explicit visual material are safe from enforcement of section 2257, including those who produce material more sexually explicit than Girls Gone Wild material, which ordinarily focuses on bare breasts, an activity that is not even covered by section 2257. 

In any event, lawmakers and the Oval Office will not do anything to remedy these First Amendment violations without knowing that enough constituents are irritated about them. Otherwise, they will continue saying they are merely protecting children, rather than admitting that damage to the First Amendment is neither warranted nor necessary in the process. Jon Katz.

An American prosecutor on sabbatical in China met another American who asked if he could be prosecuted in America for having had sex the previous night with an underage woman he thought was eighteen. Beyond the lack of wisdom of admitting a crime to a prosecutor, many Americans may not realize that Congress generally is empowered to permit prosecutions of Americans for crimes committed abroad so long as Congress has designated such extraterritorial crimes for prosecution. An in-depth explanation of this state of the law is found in U.S. v. Corey, 232 F.3d 1166 (9th Cir. 2000), cert. denied, 534 U.S. 887 (2001). 

Also, a spammer in Oshkosh sending spam to AOL subscribers is not free from anti-spam prosecution in Virginia, where AOL is headquartered, because Virginia is one of the places where the alleged spam harm results. Jaynes v. Virginia, 2006 Va. App. LEXIS 411 (Sept. 5, 2006). (When the defendant in this case appeals, I hope the defendant wins on First Amendment grounds whether or not victorious on jurisdictional grounds; Virginia's anti-spam criminal law, Va. Code § 18.2-152.3:1, is the essence of a First Amendment violation.) Jon Katz.

On a recent criminal defense listserv thread, some colleagues discussed the circumstances justifying waiving an opening argument (I mean opening statement) before the prosecution starts its case in chief. I agree with the view of many of the posters that it generally is too dangerous to wait until after the prosecution has rested to give an opening statement, because by that time the jurors have been processing the testimony and other evidence without the benefit of any roadmap whatsoever from the defense. 

As one listserv poster pointed out, a multiple defendant case may justify cooperation among the defense attorneys where some present an opening statement at the beginning of the trial, and others present an opening after the prosecution rests. This way, the jurors might not feel worn down by a slew of openings, and the defense lawyers can coordinate who will make which points when (which depends on being able to trust the other defense lawyers).

The foregoing approach made particular sense in the 2000 Plowshares depleted uranium trial, where all four peace activist defendants and all three counsel (including myself) were working closely as a team at all times. I opened first among the defendants, for my client Stephen M. Kelly, S.J, beginning with "Absence of malice. Absence of criminal intent. That is what this [property destruction] case is all about." Adding a fresh counterpoint to my opening, pro se defendant Phil Berrigan got up in the denim overalls he wore at the time of his arrest, and talked about such things as having been in the peacemaking business for a very long time, which helped underscore the theme of no criminal intent. Ramsey Clark, for defendant Susan Crane, then got up after the prosecution rested, and took his time -- underlying the very patience he lives, and quite different from the more passionate tone of voice in my opening -- humanizing Susan against the wrongheaded accusation of attempted assault against her (the attempted assault charge related to her hammering on a warplane, which she admitted doing in an effort to disarm this warplane outfitted to fire the depleted uranium bullets that the Plowshares asserted was behind inhumane injuries to soldiers and civilians). Ramsey illustrated to the jury the American military's irresponsible use of depleted uranium by talking about Gulf War I soldiers in t-shirts being sent to cleanup sites where depleted uranium had been fired. Following Ramsey, pro se defendant Elizabeth Walz told the jury that perhaps the panel viewed the Plowshares' activists' actions as strange as people dancing without music; she then invited the jury to hear their music and to dance with them. 

If jurors are more prone to acquit when the defense presents an opening statement early, what should criminal defense lawyers do at bench trials in jurisdictions where judges are accustomed to the parties' waiving openings? I think it remains generally advisable to present an opening at bench trials, as well, particularly to alert the judge to any issues that do not often present themselves in misdemeanor cases, to focus the judge on the strongest aspects of the defendant's case and to present a fresh and persuasive perspective to what the judge might expect will be a routine reprise. Also, presenting an opening helps keep the criminal defense lawyer focused on the strongest theory and theme of the case. 

In that spirit, in a recent assault trial that we won, in opening I focused the judge on the pathetic race to swear out criminal warrants -- at least in that Maryland county -- often as a false preemptive strike against being accused of assault or to get back at an opponent. While a jury would not be permitted to hear about such an accusation about what happens in other cases, the defense often can present matters in opening and closing in bench trials that would not be allowed before a jury (e.g., "Judge, it is like a rote mantra to hear police repeatedly come into this courthouse and allege with barely any deviation from the script that the drunk driving suspect had bloodshot and watery eyes, slurred speech, and a strong odor of alcohol, to the point that such assertions become meaningless.")

In a recent drunk driving case that I did not win (but which fit into my belief in pleading innocent where the likely outcome is no worse than pleading guilty), still I minimized the seriousness of my client's actions to the point that he received a favorable drunk driving sentence (two days in jail and a suspended sentence) when considering his prior criminal record. After the prosecutor opened by mainly reading straight from the police report, I focused the judge on this case being like the tale of two allegations, with the police trying to portray my client as extremely drunk, where the police report already admitted my client was sober enough to do the walk-and-turn test (albeit with a few mis-steps along the way) and where he was sitting upright when the police first approached him. Sure enough, in his testimony, the reporting cop tried to portray my client as extremely intoxicated and to minimize the favorable parts of his report. During cross examination, I focused the cop on how he (conveniently) omitted from his report that his assertion that my client had been slouching in his car (his report said my client was upright), and also conveniently minimized the positive parts of his report in his direct examination testimony. Consequently, in closing argument, I repeated that this was The Tale of Two Incidents and weaved the evidence into this re-assertion. 

Seeing that it generally is best to get our arguments to the factfinder early, I also think it sometimes is beneficial at bench trials to argue some of the key reasonable doubt issues to the judge during the motion to dismiss after the prosecution rests. Sometimes I preface some of my dismissal arguments with "Judge, perhaps my following argument will carry the day for closing. Nevertheless..." Then, in closing, I might include that I reincorporate by reference my arguments previously made in my dismissal motion.

In any even