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

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

August 17: Doing t'ai chi with my opponents. 

August 13: Car passengers can have standing to challenge car stop and search. 

August 10: Marks & Katz wins acquittal for client caught red-handed with a handgun at airport baggage scanning, using basic trial outline.  

August 9:  Gansler campaign signs come tumbling down.

August 9:  Identifying, selecting, preparing and presenting expert witnesses.

Fifteen years after starting my criminal defense career, what keeps the fight, zeal, and steam in me? Some of it comes from those around me, with my kindred spirits on one side, and, on the other side, those who perpetuate unfairness and injustice. 

Sometimes the inspiration comes from the selflessness of great lawyers. Recently, I sought the wisdom and brainstorming of one of the deans of federal criminal defense law for a critical sentencing matter. I'll give his name if he gives me the go-ahead. Deservedly so, he seems roundly liked and well-respected by other criminal defense lawyers. He probably gets all the more calls for advice, as a result. 

In my moment of need, he answered the phone on my first call. He quickly hit the nail on the head in response to my persuasion issues. He asked for nothing in return. As I understand it, he was working into the night, and had a significant court deadline in two days.

Talk about selflessness and commitment to helping other lawyers serve justice. Compare this to some lawyers (and non-lawyers) who mistakenly believe that the road to success is by stepping on the competition's heads. That is one of the roots of social injustice: stepping on others in a race to the top, rather than helping others rise as we rise. 

A big theme when I attended the National Criminal Defense College's Trial Practice Institute and Trial Lawyers College over a decade ago was our duty to share our knowledge and abilities with our sister and brother lawyers for justice. I totally subscribe to that. So many of my colleagues have given so much to me and my clients that I would not be able to give back to others what they gave to me even if I spend all my waking hours trying to do so. It is easy to get lost in the daily shuffle and grind of deadlines, days with too few hours in them, and occasional sleep deprivation to put off taking a call from a colleague in need. So many have taken my calls that I do my best to take such calls as soon as possible. 

When I later updated this lawyer on the substantial mini-sentencing victory I got in this case (reducing the RICO count from life to nine years imprisonment), he congratulated me and said "Never give up. Never give in." He is a true warrior for justice.

Additional inspiring words to keep fighting for justice came today from Peter Erlinder, who is a National Lawyers Guild activist (I support the Guild's many good human rights actions, but oppose many of its policies and pronouncements) -- and probably opposed that the law school where he teaches has named its law library after former chief justice Warren Burger. Responding to my message about the necessity of accepting personal risks when pursuing controversial fights for justice, Peter was reminded of Frederick Douglass, who said "power concedes nothing without demand, it never has and never will....those who want freedom without struggle are like those who want the crops to grow without the rain..."

Yesterday after leaving the criminal courthouse, my client remarked at the zeal for justice that I have maintained after all these years. (Wait a moment. I'm only 43. I was too young even to have been a hippie). I traced this zeal as far back as the age of nine (probably earlier) when the adjacent fourth grade teacher had the audacity to accuse me of trespassing on the apartment grounds across the street for no other reason than that a brown-haired boy around my age in a blue coat was allegedly seen there. In one of my earlier instances of self-advocacy, I retorted contemptuously: "Not only have I never been to that property, but I am angered that you have singled me out just because I have the same color of coat that most boys my age wear," and walked away from this precursor to the DARE soldiers. So this is what misidentification and J'accuse is all about. I want nothing of it. 

Near the time I completed law school, I was walking about four blocks from the White House where two or three cops were towering over a powerless-looking man -- apparently homeless -- bothering him for no apparent reason other than that he looked homeless. Each time the man tried to talk, the rookie-looking cop gleefully and sinisterly hissed "Shut up." I am ashamed that I only watched in disgust and naive surprise, rather than speaking up. I already knew that silence is the voice of conspiracy; I want none of that conspiracy, and by now have caught up for lost time. Jon Katz.

For many years, I have emphasized my total opposition to libel laws -- both criminal and civil -- as incompatible with the First Amendment and as more damaging than helpful. My previous writings on the topic are found on the foregoing links, and here, here, here.

I strongly agree with Voltaire, who said: "Monsieur l'abbé, I detest what you write, but I would give my life to make it possible for you to continue to write." Voltaire, letter to M. le Riche, February 6, 1770. In that regard, our law firm is defending the Westboro Baptist Church against a lawsuit alleging defamatory statements on the Internet and at a protest concerning Matthew Snyder -- an American soldier killed in Iraq -- and his funeral. 

Baltimore CBS affiliate WJZ TV interviewed me last night about this case. Click "play" here to see the broadcast. Print stories on this case are here.   

The foregoing WJZ news story hits it on the head that I am disgusted by the church’s messages that are the basis of this baseless libel action, but that I believe strongly in their right to express them.

This is not the first time I have stood up for the Constitutional rights of people whose views I oppose. Earlier this year, I went on the O'Reilly Factor to oppose the retrial of Sami al-Arian, despite our very different views about Israel. More about this is here, and you can see the interview here. I defended right-winger Ben Wetmore -- who holds many political views that are abhorrent to me -- when he was hauled before a university kangaroo court after he videotaped Tipper Gore at his campus in full compliance with the warning not to use flash photography (Mr. Wetmore had a video camera without a light source). My representation of the Westboro Baptist Church will not be the first time I have represented a client whose views are diametrically opposed to mine. For instance, early on in my criminal defense career, I found myself assigned to defend a man with swastikas tattooed around his neck, where their purpose had nothing to do with their use before the nazi era. . 

I also represent people whose views I like or whose views do not bother me. I have defended Plowshares activists, animal rights demonstrators, demonstrators against the IMF/World Bank, and the local National Lawyers Guild as amicus appellate counsel where a woman was convicted for speaking out in a Senate hearing room. I represent a private citizen against the military's refusal to print his political ads in military base newspapers, and Wenyi Wang in a Freedom of Information Act matter.

Our firm also has spiritedly defended the First Amendment rights of the adult entertainment industry. See here, here, and here. 

Although we fight against the imprisonment of our clients, we served as local counsel to lawyer Larry Walters, championing the right of a prison officer to keep her job despite the online appearance of her pre-hire nude photos on a tattoo website. 

We obtained the dismissal of a libel suit against a taekwondo referee. I have spoken out against censorship of spam. On the opposite end of Westboro Baptist Church, I represent a group of divorced veterans challenging the law that permits courts to treat their retired pay as divisible marital property. 

The key is that our law firm is consistent in insisting that everyone be protected by the Bill of Rights, and we fight for the Bill of Rights daily. Jon Katz.

Much will be discussed about yesterday's news that prosecutors will not pursue John M. Karr in the JonBenet Ramsey case. Unfortunately, like so many blockbuster news epics about tragedies, this story seems to be another way for people to line their pockets with dollars from front page news and punditry. It is critical for people to let the tragedy of JonBenet Ramsey's death sink in, rather than for it to fill some sort of gossip vacuum. 

Beyond the tragedy, I have wondered whether this case would have gotten more than five minutes in the media if JonBenet had not been a white beauty queen from a well-to-do family. That is a microcosm of the underrepresentation in the media and elsewhere in society of minorities and so many others who have experienced unfair discrimination for ages. In any event, each media frenzy over a crime is an opportunity for criminal defense lawyers to show why criminal defendants' rights under the Bill of Rights and beyond must be protected so that all our rights are protected. 

John Karr's blabbermouthing with the police -- topped off with fine first class food and champagne on the flight from Thailand to Boulder -- followed by his release yesterday reads like an extreme warning not to try this at home. It is a true aberration for a person to confess a crime to the police and then to be released. The confession plus slight corroboration are sufficient ingredients to enable a conviction. Do not expect police and prosecutors to focus their energies on a fair outcome for criminal suspects; they are too busy trying to build a case. 

Keep your eyes on the prize of asserting your Constitutional rights with the police. Distribute the Busted video far and wide. This is not a matter of advocating crime, but an exercise in asserting our rights against police agents of local, state and federal governments that are obliged to serve us, but with too many employees who lose sight of that, or who never had sight of it in the first place. As people from all walks of life more frequently assert their Constitutional rights with the police, the police may start to act more justly through changes in policy, voting, laws, government administration, and personnel. Jon Katz.

Federal statutory law requires producers of material made after November 1, 1990, that visually depicts sexually explicit conduct (generally defined as penetration sex, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals) to maintain records showing that minors under eighteen years old are not shown, and to have. 18 U.S.C. § 2257. The same law also requires distributors of such material to assure that "a statement describing where the records required by this section may be located." 18 U.S.C. § 2257(f)(4).

In late 2005, the Free Speech Coalition (for two years I served as founding President of the Free Speech Coalition of DC, MD and VA) obtained a preliminary injunction in the Colorado federal trial court, whereby the plaintiffs and their members are not to be considered producers under this § 2257 law where such a party does not arrange for a performer to participate in sexually explicit material. The injunction also enjoins enforcement of the Justice Department's regulations (28 C.F.R. Part 75)  that implement 18 U.S.C. § 2257, against the plaintiffs and their members for websites they do not control. Further information on this issue is at the Free Speech Coalition's website here. 

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 question is not whether people agree with the production and distribution of sexually explicit material. First the First Amendment protects non-obscene sexually-explicit material that is not child pornography, as the Supreme Court has confirmed. Second, the First Amendment was not adopted to protect expression that everyone likes, but to protect expression that would bother some or many people. Plenty of sexually explicit material is sexist, degrading, racist, and the list goes on. The material still is protected by the First Amendment, and should continue having such protection. Jon Katz.

PERMALINK

August 27, 2006

Minor hauled to court for allegedly saying "meow".

In violation of the First Amendment, a Pennsylvania harassment prosecution proceeded to trial for a fourteen-year-old who allegedly said "meow" each time he saw his neighbor. The article is here. Pennsylvania's harassment statute is here. Jon Katz.

My law partner Jay Marks gives me great karma each day as we both battle for justice, and I repeatedly send him my good karma. We share this good karma in infinite forms, from support and brainstorming to reveling over our victories to breaking the intensity of a late night at the office with side-splitting humor, from attacking anti-dentites to welcoming the latest e-mails from conspiracy theorists. We support each other in the thrill of victory and the agony of defeat both in our professional and personal lives. During our eight years together, we often spend more time with each other than with our families, which have grown with our firstborns and Jay's secondborn subsequent to our firm's genesis. As I blogged on August 16, we fight together as a yin-yang harmonious whole. 

Jay has chalked up many victories for immigration clients and laborers -- for disclaimer purposes, that does not indicate our future results -- and I look forward to uploading details to our blog and website. 

It's a rush to have a law partner who gets as excited as I do about each victory, who toils away to get there, and who scratches his head as I scratch mine about lawyers skeptical how we continue to love what we do now that we are, respectively, seventeen and fifteen years out of law school. A key reason we love it is that we have stubbornly stuck to defending clients and causes we truly believe in, despite any naysayers who warned of the difficulty in making a living this way. We smile back at them with contentment and the last laugh. Jon Katz.

Early on in my criminal defense career, I learned of the necessity of being well-trained and re-trained, keeping my batteries charged and recharged, caring about my clients no matter how much caring they did or did not show to me, and keeping connected with kindred spirits, even if they were hundreds or thousands of miles from the courtroom, or years away.  

On this path, I met John Johnson in 1995. The late John Johnson of Friday Harbor, Washington, was a great man and a great jury trial consultant. He believed strongly in people's ability to derive great power from being real, feeling and expressing love, and finding inner peace. To deal with our pain, John said, we first must embrace the pain before sending it on its way; this sounds similar to the t'ai chi approach of embrace tiger and return to mountain. Like a great t'ai chi warrior, John exhibited his power not by brute force or by raising his voice, but through gentleness and empathy, with deep caring and love. 

John taught at the Trial Lawyers College in the College's first two years of 1994 and 1995. For four weeks in 1995 at the Trial Lawyers College, I experienced John's friendship, caring, and essence. John departed the planet in early 1996 after his conflict with cancer. John and I spoke later in 1995, when John emphasized how much peace was lacking where I live, in the Washington, DC, area, where he also once lived. My view is that conflict situations can be substantially harmonized, to a point, as in t'ai chi. 

John much preferred having a bucket of cow dung to a bucket of beautiful fake flowers, for at least the cow dung bucket holds something real, in a world where so many people run away from themselves and try to re-create themselves into something they are not. For John, the necessity and power of realness was underlined by the Velveteen Rabbit, which is indispensable for all to read. So important is the Velveteen Rabbit's message -- beyond its old-fashioned images and its appeal to children, on the first level -- that John read us the entire book one day, to the point that the story became his. By this time, like the story's skin horse, John's body had taken a beating, from cancer that caused him to speak with a whisper; his voice carried powerful words, messages, and lessons. He chose what turned out to be a whole month in the last six months of his life to be with four dozen lawyers devoted to becoming their best for their clients, at a ranch ten miles from the nearest paved road

.

One morning during the last week of the Trial Lawyers College -- which has key hallmarks of a cult (including physical isolation; a charismatic leader; lessons of a better way of life; and rituals of psychodrama, hugging, baring souls/warts/closet skeletons, and showing love) -- we awoke before sunrise, and were told to find a place in this mountainous region away from the sight or sound of anyone else, to reflect on our lives and the courses thereof, before returning to the hustle-bustle of our work and homes. My own life was at a critical crossroads. On the professional level, having learned that the Maryland Public Defender's Office, which I had joined four years before, was not the ideal job -- but instead a stepping stone to giving criminal defendants the best defense -- here I was alone in the Wyoming mountains knowing that my time at the Trial Lawyers College was a key catalyst for me to be a much better advocate for justice, and, inextricably intertwined with that, to be a much better person. 

After an hour or two -- I lost track -- I walked to the chow house, seeing the other attendees doing the same, in silence, almost as if we were auditioning for a Boris Karloff film. We continued the silence through breakfast and beyond. John Johnson, who had been through this Vision Quest the summer before, approached each of us, with his angelic smile, and handed each of us his following very applicable signed poem, "A Meeting With Mother Earth", which hangs in my office to remind me of John and of my place on the planet both personally and professionally. 

After breakfast, we walked to the big barn, still silently. I was a pile of emotions, from the changes I had gone through at the Trial Lawyers College, still trying to make sense of much of the experience, and knowing that I'd be returning home to people who had not gone through any of these changes during my absence. I saw people hugging. People came up to hug me; it's a Trial Lawyers College ritual that took awhile for me to accept, and still there's part of me that has not fully accepted the ritual. It was a way to stay connected, and not to feel so disconnected on our arrival home. John Johnson and I hugged. Eleven years later, he still has a powerful effect on me.  

A MEETING WITH MOTHER EARTH

    The life of lawyering is filled with noise and turmoil. Peace is hard to find - even in seeking after justice. Modern mankind runs amok in anxious pursuit of an elusive technological happiness.

    But we are sons and daughters of mother earth. She gives us an abundant house, made bright and glorious by sun, moon and stars and nurtured by the waters. She gives the wind upon which seeds blow and birds fly to us with their songs.

    Our mother earth speaks to us of peace and fulfillment and love. But we must listen to hear those gifts our mother holds for us. To hear we must let our souls be quiet; we must learn how to be still so that our mother earth can touch us with her wisdom and show us the way to peace.

    It is among us already. It is in the earth and sky and the water for all of us to share.

    Let us be still and quiet together and ask our mother to help us receive her gifts.

    When we find peace we can have power and courage and wisdom. We can go forth as true warriors in seeking after justice.

/s/ John C. Johnson, OFW*

Trial Lawyer's College

August 1994

Courtesy of Lenore Bayuk, John's widow..

*OFW - Old F----- Warrior (The Trial Lawyers College's trial masters who share their knowledge, their experience, and themselves with the YFW's/Young F----- Warriors)

Jon Katz.

At first blush, news of the weird might seem to be the category for the judge recently sentenced to four years in prison for repeatedly exposing himself from the bench while using a sexual organ pump. 

Too often, however, injustice is handed to criminal defendants merely because people marginalized them as a sicko, crackpot, or weirdo. The bigger issues are missed by laughing this story off as a judge gone wild, by insisting that what is good for the goose is good for the gander, or by dismissing the whole matter as the case of a sick man. 

The first critical consideration of the criminal side of this case is whether the judge intentionally -- rather than inadvertently -- exposed his genitals for others to see. In this instance, a court reporter claims to have seen the judge repeatedly using the pump during a multi-day murder trial. If she did see this, I wonder whether this judge's courtroom was configured differently from the ones where I appear, where the court reporters sit too far and too low to be able to have any idea what is going on at the judge's seat. Moreover, a police officer claimed that, during a murder trial, he saw part of a plastic tube going under the judge's robes. Once again, this suggests a courtroom configured differently from the ones where I appear. Additionally, investigators claimed they found semen after checking the carpet, the judge's robes, and the judge's chair. At this point, unless the substance was confirmed as semen in a lab and found to match the judge, I might be wondering whether the witnesses were orchestrating a vendetta against the judge; that is my criminal defense side talking. 

Particularly with such an outrageous story as this one -- including the righteous indignation that people may feel against a judge focused on pleasuring himself at the bench rather than focusing on making just rulings for the parties appearing before him -- people might lose sight of the need to assure that even this judge receive a fair trial, fair sentencing, and overall justice. All people, including this judge, are entitled to the full panoply of rights at a criminal trial, including the right to be presumed innocent until proven guilty beyond a reasonable doubt by a unanimous jury. 

Here, unanimous the jury was. Moreover, ironically, the judge got a taste of his own unjust medicine when his sentencing judge refused to reduce the four-year sentence recommended by the jury (one year per felony indecent exposure count). The judge's court reporter said she never saw him change a jury's verdict during the fifteen years she worked with him. 

This case raises larger questions about the fairness, and the lack thereof, of the criminal justice system. The jury probably recommended such a harsh sentence because the indecent exposure took place while the judge was acting in his courtroom capacity. However, I am inclined to think that the better approach would have been to focus on removing the judge from the bench in a non-criminal proceeding if the allegations were true. 

Meanwhile, I anticipate that some of the criminal defendants and civil litigants on the losing side before this judge are going to seek recourse for appearing before a judge who may not have been giving the necessary attention and judiciousness to their cases. Appellate courts tend to give trial judges broad discretion in making factual conclusions, fashioning sentences and other remedies, and ruling on procedural matters. How could a judge be exercising responsible discretion while both distracted with pleasuring himself on the bench and while presumably pre-occupied that he might be caught doing it? 

This case also should invite re-examination of the indecent exposure laws. At least where I practice law, people are fair game for indecent exposure arrest for being nudists on a secluded beach, for urinating on the roadside due to a bladder emergency, for sunbathing topless in the backyard if the neighbor can see, and wearing shorts that inadvertently expose the male genitals. I oppose prosecutions in any of these scenarios, and do not believe any prosecutions should ever be allowed against women exposing their breasts (particularly if men cannot be prosecuted for exposing their own chests). 

As to people who intentionally expose themselves, prosecution, conviction, and jail is not always the automatic answer. Some people who intentionally expose their genitals might have underlying psychological problems that are better addressed through their working out their underlying psychological problems. Others might be no worse off psychologically than people who went streaking once or twice in the seventies or who moon their friends in an adjacent car. 

Finally, if this judge actually committed the acts alleged, then he not only did not belong on the bench, but this reminds people that judges are drawn from the pool of fallible humans. No other type of human exists, but some litigants forget this, to their own disadvantage, and sometimes to their own peril. Jon Katz.

Tracking the outline of CrimLaw's recent overview -- covered below -- of what lies ahead for a felony criminal defendant in Virginia, following are some comparisons and contrasts regarding the criminal law systems in Maryland, Virginia, the District of Columbia, and federal courts (limiting my federal comments to the Maryland, DC, and Virginia federal courts where I am licensed to practice): 

1. Classes of crimes. Virginia designates most crimes into classes for designating the potential incarceration and fine range. Classes of crimes are not used in Maryland, DC, or the federal system. 

2.  Bond. Pretrial release (bond) is one of the first considerations when the defendant first appears in court in Virginia, Maryland, DC, and the federal courts. In Virginia, some judges will impose no bond -- rather than a high bond -- even for certain lower-level felonies. While Virginia enables quick decisions by successively higher courts for bond denials, the standard of review is abuse of discretion, which can require substantial creativity to overcome by the defense. Unfortunately, the Virginia system also permits bond appeals by the prosecution. Release on bond is conditioned on the amorphous "good behavior;" a judicial finding of "bad behavior" can lead to revocation of bond. The defendant ordinarily has an option to pay a percentage of the bond to a bail bondsperson; however, that payment is not recoverable by the defendant. 

In Maryland, judges are more likely to grant a bond -- of whatever amount -- rather than to deny bond outright, except for the most serious criminal charges. Defendants charged with less serious crimes and with minor or non-existent criminal conviction records may be released on personal recognizance or supervised release (which might involve visits to the pretrial release office and periodic drug tests). Defendants should seek maximum flexibility in paying bonds, including the option to pay a recoverable percentage of the bond directly to the court, paying a percentage to a bail bondsperson, and putting up real property for the bond.  

In Washington, DC, an arrested person -- unless released by the police -- ordinarily will wait in the very unattractive Superior Courthouse lockup until the next late morning's or afternoon's bond hearings. For less serious criminal charges (with such exceptions as no bond for certain handgun offenses) and minor criminal records, it is common for judges to release defendants without setting a bond, sometimes with supervised release, and often conditioned on the defendant's staying away from the location of the alleged criminal incident. The criminal defense lawyer needs to be vigilant to avoid an unnecessarily overbroad stay-away order, whether based on geography, time of day, or other considerations.

In federal court, various drug felony charges can require the defendant to overcome the statutory presumption that no bond conditions will assure the return of the defendant to court. Pat arguments against this presumption will not suffice. The criminal defense lawyer needs to be prepared with specifics about why the defendant is not leaving the area. 

3. Preliminary hearing. At the preliminary hearing, the judge determines whether probable cause exists to permit the case to proceed forward to indictment by a grand jury. Various factors may result in the holding of no preliminary hearing, including reducing the charges to a misdemeanor that does not require a preliminary hearing, an indictment that precedes the preliminary hearing, and a defendant's waiver of a preliminary hearing.  

In Virginia, depending on the county and circumstances, prosecutors may make a plea offer that the prosecutor claims will be taken off the table if the preliminary hearing is held. While some prosecutors' offices may generally not renew plea offers after the deadline given, exceptions ordinarily exist to any common practice. At the preliminary hearing, the defendant is permitted to present evidence, or not to do so. 

In Maryland, the defendant must demand a preliminary hearing in writing within ten days of appearing before a judicial officer. They must ordinarily be held within thirty days after the defendant demands such a hearing. Preliminary hearings are more common in some counties (e.g., they are usually held in Worcester County) than in others (they ordinarily do not go forward in Montgomery County). 

In the District of Columbia, such hearings are called preliminary examinations. D.C. SCR-Crim. Rule 5(d)(2). Unless a rescheduled hearing is granted, the hearing must be held within ten days following the initial court appearance if the defendant is detained and not later than 20 days if the defendant is not detained. 

In federal court, a preliminary hearing is not held if the prosecutor files an information under Fed. R. Crim. Proc. 7(b) charging the defendant with a felony; the government files an information charging the defendant with a misdemeanor; or the defendant is charged with a misdemeanor and consents to trial before a magistrate judge. Fed. R. Crim. Proc. 5.1. The hearing must be held within ten days following the initial court appearance if the defendant is detained and not later than 20 days if the defendant is not detained. Id.

5. Court reporters.

In Virginia, court reporters are not provided by the District Court, and must be hired by the party. Court reporters are provided in Circuit Court. 

Court reporters are provided in the remaining jurisdictions of Maryland, the District of Columbia, and the federal courts. Jon Katz.

Prosecutor blogs seem few and far between to find. This week, I have added links to four of them, in their own separate category, including CrimLaw, whose bloghost Ken Lammers has switched to the prosecution side. Please let me know of other prosecutor blogs in addition to the following: 

- Commonwealth Conservative - By Wise County, Virginia's elected chief prosecutor, Chad Dotson. He supports Senator George Allen, and tries to minimize Allen's macaca-gate.

- CrimLaw - Bloghost Ken Lammers has switched to the prosecution side, under Commonwealth Conservative Bloghost Chad Dotson in Wise County, Virginia.

- Prosecutor Post-Script - A former prosecutor, she and I call each other's side the dark side. Keep the opponent no further than arm's length.  

- Seeking [In]Justice - By Richmond prosecutor Tom McKenna. I almost did not post a link to this blog that nearly made me lose my lunch. However, let this opponent be revealed. Jon Katz.

Virginia criminal defendants: Know your rights / Reverse Virginia's pitiful pay for court-appointed counsel.

CrimLaw has presented an excellent overview of what lies ahead for a criminal defendant in Virginia. I plan this week to provide comparisons and contrasts between CrimLaw's Virginia overview and the criminal law and procedure system in Maryland, the District of Columbia, and the federal courts. 

CrimLaw's Ken Lammers has given his full candor on his financial difficulties in earning a living from court-appointed cases in the state that ranks at bottom for pay to court-appointed criminal defense lawyers. Starting around September 1, 2006, he will become an assistant prosecutor in Wise County, Virginia. 

We need to end the shameful Sixth Amendment violation that continues in Virginia with its pitiful pay to court-appointed lawyers. Some counties have public defender offices; some very good lawyers are at those offices, and I imagine they get better pay annually than most Virginia court-appointed lawyers. I will try to find out -- and report back here -- how Virginia public defender pay, resources, caseloads, and quality control compare to other states' public defender systems. Jon Katz.

We need to know public figures' views and comments on race relations and other issues of prejudice, so that we may make informed decisions at the polls and in our purchasing habits. Without going into further depth on my recent blogs on this issue (see here and here), this has been quite the month for public figures to stick their feet in their mouths on such issues. 

Now added to this list is Andrew Young, who spoke such a blunder that I wonder whether he applied to work for Wal-Mart as a plant of those opposing this corporate giant. ABC News's website reports: 

"Young told the Los Angeles Sentinel, a black community newspaper, that those small shops 'are the people who have been overcharging us, selling us stale bread and bad meat and wilted vegetables. … They've ripped off our communities enough. First it was Jews, then it was Koreans and now it's Arabs. Very few black folks own these stores.'"

"Wal-Mart Watch circulated and publicized Young's comments. By Thursday night, Young had apologized and resigned as chairman of Working Families for Wal-Mart. And Walmart began to distance itself from the man it thought would help it, saying in a statement that "'Young's comments do not represent our feelings. … We were outraged.'" See http://abcnews.go.com/US/story?id=2331545&page=1 .

Before this month, I did not know Senator Allen or Andrew Young had questionable views on race relations, and had not concluded from The Passion of Christ that Mel Gibson had anti-Jewish prejudices. People will draw their own conclusions of their recent comments, as they should. In any event, if people are going to hold such views, I much prefer that I know where they stand (and where I stand) than for it to be otherwise. 

Finally, regarding George Allen's macaca-gate, Wise County, Virginia, Commonwealth's Attorney Chad Dotson blogs in favor of George Allen, and claims that this picture of Mr. Sidarth shows a Mohawk haircut. However, this Washington Post picture looks quite different. Neither source provides the date that either photo was taken. Jon Katz.

During my first year of law school, I got more disenchanted than ever with the political and legal system. I got the impression that conformity ran rampant among most lawyers, law students, and law professors, and that the bottom line was earning a living and avoiding making waves that would get in the way of doing that. 

During this time, in the late 1980's, I would not be online for several years more to connect with like-minded lawyers and law students aside from those I knew locally and ultimately met at NACDL meetings and Macon .Fortunately, I got the message soon enough to transcend my disenchantment by focusing on achieving my goals for justice rather than lamenting the number of conformists who did not want to join me.  It started with Ralph Nader, when he spoke at my law school at the invitation of the Equal Justice Foundation. Whether or not Mr. Nader inherited or lived with a comfortable lifestyle, his advice remained true: work for justice today, even if that interferes with grades (a lawyer at Public Citizen -- which Nader helped found -- later told me that the group is grade-snobbish in hiring); powerful change can come from two people drafting a proposal at a kitchen table; and beware the seduction of abandoning our ideals in exchange for having hundred dollar bills stuffed in our pockets by corporate law firms and other corporate interests. 

Not having digested Mr. Nader's words yet, I asked how he felt about the loss of so many would-be do-gooders to the bottom-line capitalism camp, including the hippies-turned-yuppies. Instead of shaking me by the shoulders, calling me a dummy, and telling me his speech had already answered this, he reminded me that positive change can come from as little as those two people drafting a proposal from their kitchen table. 

My disenchantment, however, overabsorbed me. I asked myself how I could fully enjoy life while torture, imprisonment of prisoners of conscience, and all other sorts of human rights violations ran rampant. I felt overwhelmed by all the doom and gloom filling Amnesty International Reports (the same Amnesty International that counseled to light a candle rather than cursing the darkness), Index on Censorship, and the front page of the New York Times. Then, during my first summer in law school -- while seeing federal government workings at the then-named Federal Home Loan Bank Board in the middle of the Savings and Loan scandal -- I went to the Northern Virginia ACLU's annual meeting at the French Embassy, with the location striking me as somewhat odd, seeing that the ACLU has tended to keep at least an arms length from governments. 

I spoke with the ACLU chapter president, and told him how overwhelmed I felt by the ongoing rampant civil liberties violations. He responded that he refused to stop being positive about the prospects for civil liberties. Then, the featured speaker took the microphone. I forget her name, but know she was a seasoned activist with the National Organization for Women. She was full of urine and vinegar, rallying the troops, and talking of being more accustomed to speaking through a bullhorn than into a microphone. She took issue with the ACLU if it were to support pro-lifers' rights to demonstrate right outside abortion clinics (I support that right, too, as clearly First Amendment-protected), saying that maybe her position would get more support if the demonstrations were outside a vasectomy center, where one slip by the doctor from the distraction of the protesters could cause the patient quite the pickle. When I asked her what she thought about working side-by-side with conservative feminists, she insisted that no such feminists exist. 

One day in my second or third year of law school, I ran into Natan Sharansky on the street. Regardless of my differences between my dovish Zionism and his apparently more hawkish Zionism, this was a very important, yet brief, meeting; I told him how inspired I was to see him finally out of prison, after working for the freedom of Soviet Jews and Ethiopian Jews in college. This man had reached the literal light at the end of the tunnel. I had never been in much of a tunnel; I'd be no good to help anybody if I let myself be overwhelmed by all the injustice around me rather than finding a way to carry on all the battles for justice that had already been waged and often won. 

Part of my getting back on track to optimistically fighting for justice was reconnecting with my deep sense of humor that was always there, but which I too often let lag behind somewhere. My inspirations for reconnecting with my humor included the great philosopher Bill Griffith, the world's brave methane lighters, Edith Prickley, and Johnny LaRue. It also helped to learn that Abbie Hoffman was quite the prankster, from his outrageous passages in Steal This Book to his antics at the Chicago Seven trial to the time that, unsolicited, he self-appointed himself a street barker inviting people into a Times Square strip club. 

I also learned that Bill Kunstler would bring coffee and donuts to the JDL members who would protest outside his office for his representation of El Sayyid Nosair. During summers in upstate New York, he sent his daughters to a summer camp run by conservative Christians, seeing that it did not seem to cause any problems for his daughters (who perhaps littered the camp with radical tracts and rants). Soon before Gulf War I started, I went to a pro-pot rally at Lafayette Park, and met more optimistic crusaders for justice, including the colorful Jack Herer and Lone Reefer. Not having been a member of the pot party -- but instead advocating marijuana legalization for civil liberties and medical marijuana reasons -- I needed something other than pot to loosen up while fighting the good fight. 

I kept trying to connect with kindred spirits. In 1990, I went to the NORML annual conference in Washington, DC, and recognized at once that I felt too isolated in my daily life from like-minded spirits, that such spirits were all around me, and that birds of a feather don't fly far if they just stick together without circulating among everyone else. Paul Krassner had me rolling in the aisle with laughter, his powerful weapon. Expected speaker Hunter Thompson, being Hunter Thompson, simply did not appear.  

I did not belong as an associate lawyer at a small corporate law firm, so I found a way to join the Maryland Public Defender's Office after overcoming my hesitation about doing criminal defense work where I previously questioned how I would feel defending people I knew were guilty of rape, murder, and other heinous offenses. As I learned more about the injustices of the criminal justice system, those hesitations rapidly became distant memories. 

To truly reach my potential for fighting justice, I needed to shed myself of bosses. I did that in 1998, along with my law partner Jay Marks. What keeps our batteries charged is fighting on the side of the angels; often winning, and reveling in each victory; and keeping our humor engines running, from the sophomoric and buffoonish to the more ready for prime time. In court, humor sometimes has its place, as when I cross-examined a cop at a preliminary hearing about how he knew in the first place what marijuana smelled like: "Did you receive marijuana joints to smoke, as in Serpico?" This entertained the judge, which perhaps made him more inclined to cut me some slack as I kept weaving in entertainment as I obtained important information to defend my client.  

My temptation to feel dread over all the ongoing injustice is strong, including the dread I often feel in the pit of my stomach as I enter a courthouse with the recognition of all the injustice that has happened there, but needing to remember all the justice that has been done there, too, and that will continue to be done there. Like the protagonists in M*A*S*H, I search out the often bent side of humor to maintain a sane balance. T'ai chi alone won't do it for me. Jon Katz.

The more I rant and rave against my political and ideological opponents, the more I seem to bump into them, almost as if my friends were playing a sick joke on me. In reality, though, it happens because I have chosen to be a criminal defense lawyer, which brings me in contact with my opponents all the time, and because I am within a mile of the Washington, DC, border.. However, state's attorney Gansler's move to our building for his state attorney general campaign headquarters did start me thinking whether someone I know had goaded him to move just one floor below our office. 

When I bump into my opponents, I try best to separate the sin from the sinner. Taking that approach, I have been able to feel full comfort at all times with my law partner Jay Marks, who is not a political opponent, but had been a big fan of my nemesis Ronald Reagan and was active with the Federalist Society set in law school. At all times, Jay and I, nevertheless, have pursued many critically important overlapping views on individual liberties.  

In 1987, my law school legal research and writing instructor pulled me to reality when somehow we got on the topic of my overboiling anger at Ed Meese and crew's trampling on individual liberties. He opined that anything less than a diplomatic tone of voice in talking with him or other opponents would mark me as a loony toon whom nobody would take seriously. I finally remembered a WWII movie scene where a GI is calmly chomping on a cigar while gunning down Italian soldiers from a hidden location. His calmness is surreal with all the death and maiming his bullets would have been causing had this not been Hollywood. Several years later, I became a lifelong student of  t'ai chi, recognizing then more than ever before that to be the strongest fighter, I must empty myself of all anger and tension in dealing wtih an opponent -- while keeping the passion that drives me -- and that it is better to keep an opponent at arm's length where I can keep an eye on the opponent's strategizing and efforts at attack. 

It was not an easy transition going from seething over Reagan and his crew -- followed by Bush I -- wreaking havoc on civil liberties just four blocks from my law school, to now, when at my best I approach my opponents as a t'ai chi practitioner. An important example of my metamorphosis is in my dealings with Dick Thornburgh. 

Two months before graduating law school in 1989, I learned that then-attorney general Dick Thornburgh would be honored as the keynote speaker. To me, Thornburgh's Justice Department continued where the Meese Justice Department left off, with rampant disrespect for immigrants' rights, a First Amendment-trampling anti-obscenity campaign, advocating drug-testing of its employees, and, of course, continued assault on women's right to choose abortion. Sadly, regime change did not result in a Clinton Administration that championed civil liberties nearly as much as I hoped it would (and the notion of a drug-testing-free society has become a quaint one for now), although Clinton certainly was pro choice, and his administration withdrew from obscenity prosecutions in favor of child pornography prosecutions.  

My close law school friend Lou Manuta and I identified and weighed our options: boycott the graduation; tape protest messages to our graduation caps; or proceed with the graduation but leaflet the attendees. We arrived at the third option after concluding that a small-scale boycott would not be a message to anybody, and that there's not much of a persuasive message to put on a graduation cap. Consequently, we put together a simple leaflet saying: "George Washington Law School welcomes Dick Thornburgh as keynote speaker.... But," and continuing on the inner pages to detail our above-listed concerns. With some fellow graduates joining our cause, we called ourselves Law Students for Justice, suggested that people contact Mr. Thornburgh directly with their concerns, and recruited a few people to hand out the leaflets as attendees filed in. 

As it turned out, Mr. Thornburgh's speech was very unpolitical. He spoke of this being a country of laws rather than a country of men. He went on in that vein. At the end of his mercifully brief and lackluster presentation, he got a standing ovation; I do not know if my leafleting friend and I were the only ones remaining seated. Over time, I recognized that Thornburgh was not the raging idealogue that personified his predecessor Ed Meese, although I do not think he was a mere technocrat, either. 

I later bumped into Mr. Thornburgh, twice. Our first meeting was in 2000, when I spoke on behalf of robust free expression rights before his Orwellian ad hoc committee called, in true Washington-ese: Tools and Strategies for Protecting Children from Pornography on the Internet and Their Applicability to Other Inappropriate Internet Content. My published article on this committee is here. Before my panel got started in the Holiday Inn conference room not far from the famous Exorcist scene with the steep Georgetown steps, I told him of my leafleting campaign against him. To his credit, he smiled and cheerfully said that he had been leafleted by the best of them. Sometimes I wish that my opponents were more unlikable as individuals; some are likeable by nature, whereas others lay it on thick. 

Then, last Friday night, I bumped into Mr. Thornburgh in downtown Bethesda, as I walked with my wife and baby boy to the bookstore. I said hello to him, and reminded him of my First Amendment defense activities. He told me he remembered me; had he been hanging out with Harry Lorayne, or perhaps he'd caught me on television? His wife and he showed great delight in our son; now that he doesn't seem to be aiming for any more political positions or a Supreme Court justiceship, I figure that was genuine. Because he does not seem to have much or any political clout left, there wasn't much political for me to say, other than to tell my son right there and then that he's been my political opponent. 

It's curious how amiable some opponents can be with each other. Among the most striking examples is the time that radically progressive lawyer Arthur Kinoy bumped into late Supreme Court chief justice William Rehnquist on the street. They both warmly greeted each other, apparently with neither concerned that showing such mutual warmth would detract from their images of the radical progressive and the right-wing justice.

Sometimes it is easy to overlook that our opponents also are humans, until we meet them. Jon Katz.

Thanks to my law partner Jay Marks, our staff, clients and kindred spirits for our amazing eight years together, where each morning, I proclaim, as did Mel Brooks,  "It's good to be the king." 

Who would have known that the seeds of our law firm were in the making when Jay and I first met in 1969 at a six-year-old birthday party in Monroe, Connecticut? From there, until we finished law school, we traveled mainly in different yet sometimes parallel circles. We both ultimately landed in the D.C. area, and started bumping into each other, on the street, in the courthouse, at Lexington Market. We renewed our friendship. 

Then one day eight years ago -- on two separate occasions, actually -- a lawyer opposing Jay and me, when we represented co-plaintiffs while we were with separate law firms, got same-day trial postponements over our vociferous objections. Each time, having time to talk, with our calendars cleared for trial, we discussed where our careers were headed. We were ready to tak