Friday, July 25. 2008Why treat prosecutors for happy hour?
Bill of Rights. (From the public domain.)
When I joined the Maryland Public Defender's Office from a law firm serving financial institutions and transportation companies, something seemed very wrong: Conviviality was the game of the day in this particular county between a slew of prosecutors, criminal defense lawyers, and cops. It was similar to the conviviality that did not concern me so much, which was among courthouse personnel and many judges together with the lawyers making appearances there; that spilled into the conviviality among prosecutors, cops and criminal defense lawyers.
Who was missing from all this conviviality? My clients -- my clients whom too many prosecutors and cops and some judges and even some criminal defense lawyers would degrade, dehumanize, and disrespect. Most cops and prosecutors I speak with -- and probably plenty of judges -- assume my clients are guilty, and not just in the lawbook sense of guilty beyond a reasonable doubt, but guilty, period. I hear the frequent laughter of cops, prosecutors, and sometimes other criminal defense lawyers with defendants at the butt of their jokes. A late judge at a guilty plea settlement conference in his chambers (the conferences were only among lawyers; my client was waiting in the hallway) had a good belly laugh reading the criminal statement of charges: "Ha! He carried the crack rock under his tongue." The judge was talking as if my client was guilty as charged -- no chance the cops had it wrong -- and was having a good laugh at my client's expense; I concede that the judge then proceeded, as expected, to say there would need to be a sentence at the lower end of the sentencing guidelines if there were a guilty plea; under the circumstances, it would have been a fair sentence, all things considered.
On another day in court, after my client's case was finished, a courthouse deputy sheriff and the opposing prosecutor had a good chuckle as my bewildered client got handcuffed by the deputy for an alleged open warrant. Praised be the courtroom bailiff who later talked to me about it and decried turning such an arrest into an eagerly-awaited joke.
A fellow public defender lawyer once tried giving me an example of having good relations with prosecutors -- "Jon, we have to deal with these prosecutors every day" -- by praising a more experienced public defender lawyer for laughing with one of the most heartless-acting prosecutors about the bizarre happenings allegedly involved in a theft case that had just finished.
Suffice it to say, my bright-eyed and bushy-tailed idealism of joining the public defender's office did not have such conviviality in mind. I probably was better suited to join the District of Columbia Public Defender Service, where I doubt much if any joint lunchgoing happens between public defender lawyers and prosecutors, who are employed by the same federal Justice Department that has given us such "leaders" as Alberto Gonzales, Ed Meese, and George Mitchell.
Should I exclude prosecutors and cops from my time at lunch and after-hours activities? The prospect is tempting. How would I feel about a client seeing me breaking bread with the same prosecutor or cop who is trying to get my client locked up, particularly in instances where I feel the prosecution is based on false evidence, an effort to obtain a disproportionately severe sentence, or a law that I feel should be stricken or heavily decriminalized in the first place (e.g., I want the legalization of marijuana, prostitution, gambling, criminal libel and obscenity and the heavy decriminalization of all other drugs)?
It is essential to treat others on their own merits and not to stereotype. Certainly many of my favorite criminal defense lawyers have prosecuted, including Gerry Spence and my supreme trial law guru Steve Rench, who included prosecution work while in law school, who said he had no problem prosecuting unless it was the death penalty, and who once told me he prefers representing the underdog (see the name of this blog). Okay, then, how about if I tell prosecutors and cops who seem otherwise likeable and honorable that we can revisit whether to break bread together once they are no longer cops or prosecutors?
Last week, an email went out to local criminal defense lawyers inviting them to a happy hour this evening (when I will be indisposed no matter what, although I would make an exception for a happy hour tonight with the likes of SunWolf / La Loba, Tony Serra, or Charles Abourezk) with the county's prosecutors, and soliciting donations up to $50 each to cover the prosecutors' drinks, pointing out that the newer prosecutors do not earn much (well, at least in their suffering economically, they might be able to transfer that to understanding the suffering of my clients). My first reaction, and continued reaction (which I have only shared thus far with another local lawyer, but now this blog entry shares it with everyone), was that it sounds fishy to be buying anything for prosecutors. First, paying for prosecutors' happy hour refreshments creates dissonance in me as to my clients' role in the mix. That is right, no clients were invited to the happy hour. If I went to this shindig at a tapas restaurant two blocks from the county courthouse, I would think it a good idea to invite some of my clients, to humanize them (while assuring they do not discuss their cases), to respect them rather than having a private get-together with the opponents of them and me, and to highlight that the business as usual of marginalizing criminal defendants is unacceptable. Second. I wonder how such purchases jibe with bribery statutes, even though I do not believe such behavior should be made criminal.
On the other hand, maybe this gratis happy hour for prosecutors is a good idea, at least if all the defense lawyers drink near beer, virgin sangria and soda pop, while the opposition drinks scotch and Sams, ready to be arrested and prosecuted for drunk driving by the cops, who have a station just one quarter of a mile away. Do any fair trade laws or legal ethics rules prevent me from billing a premium for doing such defense, as a sort of fine for all the misery most prosecutors cause my clients? I doubt an arrested prosecutor would come to me instead of going to a former prosecutor. Then again, I have had ex-cops, military folks, political conservatives and other so-called law-and-order people hire me.
Certainly, it is important to know the opposition. However, I have no interest in paying for the opposition's drinks while getting to know the opposition, and I do my best to keep in mind how my clients would react to seeing me with a group of criminal defense lawyers and prosecutors at a happy hour. I would much more enjoy going hiking or canoeing with a client. Jon Katz. Thursday, July 24. 2008Joining forces with like-minded lawyers - Never being alone.
When I joined the National Association of Criminal Defense Lawyers seventeen years ago, I was drawn to the group's slogan "Never Be Alone." On the one hand, the phrase sounded abstract, having joined the NACDL when I was still at a 25-lawyer Washington, D.C., law firm primarily representing financial institutions and transportation companies. On the other hand, before being hired by the Maryland Public Defender's Office made it unnecessary, I was making alternative plans to hang my own shingle and to include court-appointed criminal cases; the prospect of opening a solo law firm just two years out of law school did raise the real specter of being alone in my own office.
In any event, one of the most important things a lawyer can do is to find allies and kindred spirits, not only because there is strength in numbers, but also because the successful practice of law demands exchanging ideas, brainstorming, and moral and time support with kindred lawyers. Of course, when a lawyer asks help or advice from another lawyer, the asking lawyer is showing his or her vulnerability, whether it be that the lawyer has not figured out the question on his or her own, that s/he does not have other established people to turn to first, and/or that the lawyer has dragged his or her feet longer than prudent for seeking the help. However, dust swept under the carpet is still there, and all lawyers have dust to resolve of one type or another.
As I embark with the opening of my solo law firm Jon Katz, P.C. this coming Monday (when my new office buildout, wiring and moving will be complete -- my new Silver Spring address will be posted on this blog) I think again of the benefit of not feeling alone by putting aside ego and any trepidation to call upon kindred lawyers and non-lawyers for help and brainstorming, and to give the same in return much more than has been received. I am blessed to be in a new building with another lawyer I already collaborate with, and numerous others I look forward to interacting with.
One of the biggest challenges facing a solo and small firm practitioner is the oppression of seemingly inflexible court calendaring in some places. Unless a lawyer only works in the same courthouse at all times, tensions are bound to happen when Judge A sees that the lawyer has frequently conflicting court dates in numerous other courts. In a big law firm, the problem often is resolved by having a substitute lawyer at the very least take over in seeking a postponement if the primary lawyer is booked up to even do that. Fortunately, I have always been able to resolve court calendaring conflicts, but sometimes through great toil (e.g., when a weaselly opposing counsel set a motions hearing in a court that does not require clearing the date with opposing counsel, and that has no automatic mechanism to request a date change in writing) and at the expense of paying another lawyer to appear for me at a procedural court date that becomes unchangeable. One reason I have been able to resolve calendaring conflicts is to avoid taking new clients who are so close to their trial date that the court may very well deny a continuance (or to have a colleague at the ready, with my client's consent, to take the case or to co-counsel, in the event I cannot get a continuance - but that only works for misdemeanors that can be handled without needing to meet a slew of procedural and case-specific deadlines), and to be straightforward with the client not only about the chances that I can change the court date, but also about any disadvantage for doing so (e.g., whether it is better to keep the current court date to preserve speedy trial rights and evidentiary issues, and whether rescheduling a preliminary hearing will make it more likely that an indictment will take place first and preclude the preliminary hearing).
The most important time for lawyers to come to each others' support -- even when the lawyer in need is someone the other lawyer ordinarily might avoid even having lunch with -- is when judges and opponents intentionally or unintentionally come down hard and unfairly on the lawyer for doing nothing other than following the lawyer's ethical obligation to zealously represent the client. The stories are many about judges who show upset that a "clearly guilty" defendant gets acquitted by a jury, who get irritated at lawyers who do not simply "move along" the docket, who are intolerant of any challenges to the judge's authority (e.g.. in response to a lawyer telling a defendant at sentencing not to answer a particular question from the judge), and the list goes on.
Judges and opponents need to know that when they unfairly shoot towards a lawyer, the lawyer has a strike force of lawyers ready to defend the lawyer in such ways as entering an appearance to defend or to co-counsel with the lawyer and packing the courtroom when the judge sets a contempt or other hearing questioning the lawyer's reasonable and ethically zealous actions. Fortunately, such groups as the NACDL have lawyer strike forces that include some of the best of the best criminal defense lawyers giving their time and advocacy for free for what would otherwise amount to big dollar figures. Of course, lawyers receiving such task force benefits should give back many times over, through similar help to other lawyers, and, when the lawyer has it, extra donations to the lawyers' group and some nice favors and gifts to the representing lawyer.
As the years pass, I have a stronger network of allied and kindred lawyers and non-lawyers whom I can call and who will make the time for me even if that means their getting to sleep later that night. This sharing is particularly true among graduates of the Trial Lawyers College, even for those who never have met one another before; the connection perhaps is fostered all the more by having shared several weeks miles from the nearest paved road, showering and brushing teeth among the stink of the adjacent toilet stalls, and, most importantly, having committed to clearing court calendars for so many weeks to become better lawyers and better people. It is probably a similar connection to what frat members feel, aside from episodes of drinking mass quantities of beer and being obnoxious, although many drink beer and act like hyenas at the Trial Lawyers College, too, at least after hours. When a Trial Lawyers College grad calls me or I call them, invariably it is an instant human-to-human conversation, skipping the lawyer-to-lawyer-ese.
Lawyers: Before you end today, won't you reach out to at least one other kindred lawyer, whether it be as small a gesture as wishing him or her well on tomorrow's trial, or offering empathy over a trial loss or brainstorming or other support on a pending matter. Jon Katz. Monday, July 21. 2008DNA for exonerating and for convicting.
Bill of Rights. (From the public domain.)
A late, ordinarily likeable, often entertaining, and sometimes frustrating (for his overly informal manner that too often overlooked the law and procedural rules) judge was said to have pontificated about speed radar something along the lines that "Radar is spelled the same backwards and forwards, and helped keep me and my fellow sailors safe in wartime." In other words, Radar evidence was impenetrable to attack for him, even though radar and laser evidence is ripe for attack on such grounds as whether the radar and laser were correctly calibrated, whether such calibration evidence exists to come in under evidentiary rules, and whether the equipment was correctly handled by a certified operator.
Similarly, fingerprint technology is far from infallible.
Finally, DNA testing is far from infallible, as well, as highlighted in this July 19 Los Angeles Times article -- thanks to Scott Greenfield for posting the article -- concerning a state crime lab analyst's findings since 2001 that debunk the concept that no two people are likely to have similar DNA at nine of thirteen chromosomal markers. The article is lengthy, and I have just started reading it in further depth.
Of course, such DNA issues also might open a can of worms for trying to exonerate convicts through DNA evidence. Of course, such concerns do not merit doing anything but critically examining DNA evidence's reliability. Jon Katz. Tuesday, July 15. 2008When release is conditioned on drugging. Bill of Rights. (From the public domain.)
More commonly when I was a public defender lawyer, from time to time I would have clients who were at great risk of being ordered by the judge for a psychological evaluation -- e.g., for being seriously delusional, and, therefore, at risk for being found to be a harm to themselves or others, thus justifying involuntary commitment in a mental institution -- and then being warehoused in a psychiatric hospital through the duration of their case, if not longer.
Some criminal defense lawyers might feel tempted to seek court assistance with such clients by asking for a psychological evaluation or by seeking a finding of not criminally responsible. It is one thing to seek such a path for a first degree murder case, but something quite different to do the same for a misdemeanor charge carrying the risk of much less incarceration time than indefinite incarceration in a mental institution on a finding that the person is a harm to himself or others. In such instances, it is important for the criminal defense lawyer to get the advice of a qualified and independent mental health professional.
Many years ago, a client charged with a misdemeanor was very uncommunicative. When asked a question, he would say something completely unrelated; for instance "One right shoe; one left shoe." His father complained that this happens when he stops taking his psychological medication. A year later, I had him as a client for a new misdemeanor case. He seemed very lucid. When I asked him what caused the change, he said he was back on his medications.
Since when do psychological medications not have significant side effects, whether it be sleeplessness, reduced libido, change in eating patterns, or anything else?
Recently, the Fourth Circuit affirmed a District Court's order that during supervised release a defendant be injected with antipsychotic drugs, after he was forced to take such drugs in prison after he threatened to kill himself and others, and did not voluntarily take his oral anti-psychotic medicines after his initial release. Between his initial release and being ordered to be injected while on supervised release, the defendant "was arrested several weeks [after his release], after he was found wandering aimlessly..." U.S. v. Holman, __ F.3d _ (4th Cir. July 7, 2008).
Holman laid out the Supreme Court's standard as follows for determining when a defendant may be forced to take anti-psychotic drugs:
The Supreme Court has made it clear that under the Due Process
U.S. v. Holman, __ F.3d _ (4th Cir. July 7, 2008).
The Fourth Circuit reasoned as follows in affirming the trial court's order for forced injection of anti-psychotic drugs:
The evidence establishing Holman’s dangerousness also establishes
Holman, __ F.3d _ .
Judges, of course, are not mental health experts, so they rely on mental health professionals in deciding questions of forced drugging and detention for psychological reasons. Trial judges ordinarily have very busy dockets, which probably creates all the more of a tendency for them to place heavy reliance on the opinions of such psychological professionals, even if those opinions are wrong, and even if those opinions are influenced by the professionals' own biases about whether or not the United States is too de-institutionalized when it comes to mentally ill people. (For those born after One Flew Over the Cuckoos Nest's 1962 publication, through the 1960's it was much easier to force people into mental hospitals in the United States. Of course, in the Soviet Union, many dissidents were wrongfully classified as mentally ill and forced to receive harmful psychological medicines.).
Mr. Holman's situation may have been extreme enough for the trial and appellate judges to feel comfortable with okaying his forced anti-psychotic medications. (At the end of his supervised release period, Mr. Holman will not be under court order to receive further forced injections. What happens then?) What happens with defendants whose situations are less extreme? The foregoing caselaw certainly does not solve that problem well enough. Trial judges wield extraordinary power over the matter. Jon Katz Wednesday, July 9. 2008"Beat the Heat" now online.
Bill of Rights. (From the public domain.)
In 2000, I met Katya Komisaruk, when I joined other National Lawyers Guild members in defending World Bank/IMF protestors. Katya took an interesting path from being imprisoned after a 1987 Plowshares action hammering on a computer mainframe and other property at an airforce base, to graduating from law school, and then defending activists (I assume activists of a "progressive" bent).
A few years ago, Katya wrote the very useful Beat the Heat manual on dealing with police. Thanks to a link from WindyPundit, I found the Just Cause Law Collective's website, which has links to much -- if not all -- of the same information available in Beat the Heat. The Just Cause Law Collective's online manual is an excellent supplement to the Busted video that I prominently display here. Also, check out material about dealing with the police at the Midnight Special Law Collective's website.
To switch gears from the above Beat the Heat topic, here is some more information about Katya and Plowshares actions:
For Katya's Plowshares action, she originally was prosecuted for sabotage and destruction of government property. Over a decade later, I joined the legal team defending Plowshares activists who hammered on warplanes in late 1999. Both sets of activists were originally charged with sabotage but later only prosecuted for property destruction; in my case, the judge granted my motion to dismiss the sabotage count, which is a move that may not have won after my shared victory in a landmark Maryland double jeopardy case three years later. In Katya's case, the prosecutor dismissed the sabotage count after her lawyers filed a motion concerning proof of that count.
Here are some more details about Katya's Plowshares action:
- Here is the case summary from the Meiklejohn Civil Liberties Institute Archives:
"U.S. v. Katya Komisaruk 874 F2d 686 (9th Cir 1989). 6/2/87: Def entered Vandenberg AFB, wrote "international law" on obsolete computer, smashed what she thought was part of NAVSTAR 1st-strike guidance system, wrote "Nuremberg Principles" on antenna. 6/3/87: Def described acts at news conference in San Francisco; FBI arrested Def: destruction of Gov't property, sabotage (18 USC §§1361, 2155). U.S. Atty abandoned sabotage charge.
"Rea, DJ, granted Gov't motion in limine barring necessity defense, Nuremberg Principles, motive evidence, int'l law. 11/16/87: Jury convicted Def of destroying Gov't property. 1/11/88: DJ sentenced: 5 yrs prison; $500,000 restitution to come from book, movie deals; denied bail. 5/10/89: 9th Cir aff'd. Def served 25 mths; released. 1990: Def entered 1st yr Harvard Law School.
"Leonard Weinglass, 6 W 20th St, NY, NY 10011; Dan Williams [whom I know through the Trial Lawyers College], 600 Montgomery St, 94111; William Simpich Jr, 223 Precita, 94110; both San Francisco, CA; Benjamin Gibson."
- This link and this one further details Katya's action and her motivations for doing it.
- In true Plowshares fashion, Katya fully admitted what she did, as detailed at a Plowshares site:
"On June 2, l987 in the early morning, Katya Komisaruk, a peace activist from the San Francisco Bay area, walked through an unlocked gate leaving cookies and a bouquet of flowers for security guards and entered a satellite control facility named "NAVSTAR" at the Vandenberg AFB in Santa Barbara County, California. (’NAVSTAR’ is the U.S. global positioning system of satellites. When fully operational, this system will consist of 18 orbiting satellites which will be able to provide the navigational and guidance signals to Trident II and other nuclear missiles as well as the Star Wars system, for a first-strike nuclear attack.) Once inside, she used a hammer, crowbar and cordless electric drill to damage panels of an IBM mainframe computer and a satellite dish on top of the building. Using a crowbar she removed the computer's chip boards and danced on them. On the walls she spray- painted "Nuremberg," "International Law," and statements for disarmament. After being undetected for two hours, she left the base and hitchhiked to San Francisco. The next morning she held a press conference at the Federal Building in San Francisco to explain her action whereupon she was taken into custody by the FBI."
A Plowshares activist once invited me to cross over from defending them to joining them. I declined. First, I am not a total pacifist even though I lean in that direction. Second, Plowshares actions have religious motivations that I do not share (hammering swords into plowshares (that part I agree with generally) and pouring one's blood on armaments (symbolizing the blood of Jesus)). Third, such actions violate the criminal law, which raises questions about when one will risk violating the criminal law when lawful protest and activism does not work (e.g., working in the Underground railroad to free slaves was a very legitimate action, even if it was considered criminal under various state laws). Fourth, I do not believe that such actions are effective enough to merit the criminal exposure, even though the actions and sometimes the subsequent trials bring more media attention than a peace march (on the other hand, the huge numbers of anti-Vietnam protestors and opponents helped end the war, in large part through the very large numbers and wide cross section of protestors; Plowshares actions get a very small number of participants, seeing that a limited number of people are ready to put their liberty on the line like that). Jon Katz. Sunday, July 6. 2008Four cops, t'ai chi, and heebie-jeebies revisited.
T'ai chi is about being as still as a mountain and powerful as a rushing river. It is a peaceful counterpoint to cops packing heat.
On a national trial lawyer's listserv, I asked members what they would have done if faced with the same situation as mine -- about which I blogged on June 27 -- when a cop unlawfully Terry-detained me when an airport denizen allegedly got the heebie-jeebies seeing me practice t'ai chi at National Airport. (An irony of the stop is that t'ai chi is all about achieving relaxation, balance and harmony, which are the very things one would expect cops and the rest of society to value.)
One listserv member replied: "What would have been the problem with stepping out of the bathroom and saying 'oh yeah I was just doing some sweet tai chi moves because I hadn’t had a chance to work on that yet today'? Then cop no. 2 says 'that’s what I thought. No problem.' And everyone goes on their way."
Accepting his invitation to detail what would have been the problem by wagging my tongue at the outset, I replied:
Thanks. Answering your question: My problem with telling him is that I love the Fifth Amendment too much, believe I was unlawfully Terry-stopped, am wary of cops twisting suspects’ words to their detriment, too much dislike cops hassling people like this and in worse ways, bury my head in my hands everytime a client got screwed by not asserting his or her Fifth/Fourth Amendment rights, and probably would have given no explanation had I not been balancing my obligation to pickup two visitors coming directly from Japan and had I not intuited that cop number two (playing good cop) would likely help me when it was not so clear to know if cop number one would have detained me longer had I explained the situation to him (remember, he was the one who unlawfully imposed a Terry stop in the first place, saying I was not free to leave).
Had I kept my mouth shut, if there had been an arrest, aside from having strong ammo to dismiss the case for failure to state a claim, if the so-called witness was an out-of-towner and a no-show in court, there’d have been insufficient evidence. However, when a suspect wags the tongue, sometimes that’s the only witness needed (together with slight corroboration), in addition to the cop to whom he or she wags the tongue. Silence is golden, sometimes even platinum.
ADDENDUM: After writing my original June 27 blog entry on this matter, I reviewed the Washington Airports Authorities regulations, and saw no basis there for detaining me, just as I saw no basis under federal or state law for doing the same. Jon Katz.Thursday, July 3. 2008When a cop lies.
Bill of Rights (From public domain.)
How on earth does one lie less by wearing a police badge? Am I the only one who believes that the vast majority of people lie frequently, and go well beyond so-called white lies? If that is true, then there is no reason to believe that cops are any more honest than those in the general population.
I go one step further to believe that lying permeates police culture more than in the general population. What is the motivation for police to lie? Peer pressure, any historical culture of lying in the ranks of the department, and groupthink are some motivations. Frustration with the exclusionary rule and Miranda are other motivations for cops to lie. An additional motivation is the rationalization that whether or not the suspect committed the crime at hand, certainly the suspect has already been committing and getting away with other crimes. Another motivation is just to get through another workday; sometimes it seems easier in the shortrun to cut corners around the truth than to invest the extra time to tell the truth. One more motivation can come from the feeling of pressure from higher-ups to increase arrest and conviction statistics to make the department look good, lest heads roll and budgets decline for "too few" arrests and convictions.
Police wield extraordinary power. They choose whether to arrest, whom to arrest, what accusations to make, and what recommendations to make to the prosecutor. With their guns, handcuffs and power of arrest, they are able to intimidate people to talk to them, and sometimes or many times people will lie to the cops to tell them what they think the cops want to hear, only to have the lies to the cops turned against innocent suspects. Unfortunately, power is corruptive on anyone who wields it, and, among other things, can lead to lying.
Why, then, is it so hard to convince too many judges not to accept police testimony as the truth any more than one would accept a civilian's testimony as the truth? Once a judge believes a cop at a suppression hearing, no appellate court will overturn that factual finding. How many judges conclude that police have no motivation to lie, particularly when compared to a defendant who might seem to have more to gain from lying than the cops do? No motivation to lie? What about the motivations listed above?
Praised be the inventors of video cameras and today's inexpensive ones to show how extensive is police misconduct, from lying to planting evidence to beating suspects (see also here and here). In that regard, Charm City (Baltimore) is not so charming these days, with video revelations of lying cops, even at the veteran cop level. In the instance of Detective Deryl Turner and Sgt. Allen Adkins -- both veteran police -- street video cameras impeached their claims of finding drugs in an abandoned bag on the street rather than in a home through a Fourth Amendment violation, and Baltimore's chief drug prosecutor, Antonio Gioia, took the seemingly unusual move of starting his own investigation of the matter rather than waiting for a police investigation. How many defendants were convicted on the testimony of these two police officers, and how many will file post conviction actions as a result? Thanks, Antonio for doing the right thing here, and to his boss and chief prosecutor Patricia Jessamy to the extent that she supported Gioia's investigation and termination of the prosecution that spurred the investigation.
Elsewhere in Baltimore, security cameras at a bar showed police lied about how they found drugs on a bar patron.
A problem about lying is that the more it is done, the more it becomes second nature, like taking cookies out of the forbidden cookie jar. Prosecutors: Lying by police is too common just to decide to let the judge or jury sort out who is telling the truth, and to have the defendant feel pressure to plead guilty in the face of the risk that a prosecution witness's lies will be believed by a jury. Lives and liberty are at stake here. Jon Katz. Tuesday, July 1. 2008When my least favorite justices issue one of my favorite rulings.
Supreme Court spiral staircase.
Generally, it is critical to elect Barack Obama to have less damage done to the Constitution by new federal judicial appointees than the damage that will be wreaked by McCain appointees in such areas as the death penalty, criminal defendants' rights, immigrants' rights, reproductive rights, and free expression.
However, one area where McCain appointees likely will do no worse or possibly better than Obama appointees is in an area generally more near and dear to Republicans' hearts than Democrats': defining the reach of Second Amendment rights. In fact, four justices whom I have never wanted on the Supreme Court were in the majority in last Thursday's Heller decision confirming that the right to bear arms is an individual right rather than merely a collective right. Said justices all are appointees of Reagan, Bush I and Bush II: Justices Scalia, Thomas, Alito, and Roberts (C.J.). The fifth justice in the Heller majority is Reagan-appointed Justice Kennedy.
I still recommend Obama as the lesser of the evils as compared to McCain, including for juducual appointments, even though McCain's appointees are more likely to interpret Heller more ezpansively than Obama's appointees. For such prosecutions as possessing firearms in the course of a drug felony, though, Republican appointees are unlikely to be any more favorable to defendants than Democratic appointees. Jon Katz. Monday, June 30. 2008Heller's limited reach outside the home.
Image from the Government Printing Office's website.
As I walked to the District of Columbia Superior Court last Thursday, I felt a huge air of glee from a fellow criminal defense lawyer walking the opposite way. "Justice is coming at 10:00 a.m.," he exulted. Later that morning, in the courthouse, another colleague who defends many clients in handgun cases happily told me that the Supreme Court that morning had affirmed the United States Court of Appeals ruling invalidating the
As to Heller's effect beyond handgun possession in one's home, I posted my following view on a local criminal defense lawyer's listserv:
Several listserv members suggest that Heller invalidates D.C. Code § 22-4504 concerning possessing unregistered firearms and unregistered ammunition. I hope that would be the case. However, doesn't Heller only automatically invalidate prosecutions for possessing handguns in one's home, and give the most immediate ammunition to attack prosecutions for transporting handguns between the gun shop, the home, the repair shop, and the shooting range, when all such activities are for the purpose of having a safely and properly operated handgun in one's home?
After all, Heller’s majority opinion says ‘We affirm the judgment of the Court of Appeals’ after the court’s summation paragraph (three paragraphs from the end) proclaims:
"In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." D.C. v. Heller, _
Because the Supreme Court affirms the judgment of the Court of Appeals, here is what the Court of Appeals concluded: "For the foregoing reasons, the judgment of the district court is reversed and the case is remanded. Since there are no material questions of fact in dispute, the district court is ordered to grant summary judgment to Heller consistent with the prayer for relief contained in appellants' complaint." Parker v. District of Columbia, 478 F.3d 370, 401 (D.C. Cir. 2007), affirmed sub nom
What, then, did the original summary judgment motion seek? "Appellants, six residents of the District, challenge D.C. Code § 7-2502.02(a)(4), which generally bars the registration of handguns (with an exception for retired D.C. police officers); D.C. Code § 22-4504, which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C. Code § 7-2507.02, requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device."
Consequently, although Heller provides language to support providing Second Amendment rights beyond the home, I think the case only automatically invalidates prosecutions for possessing handguns in one's home, and gives the most immediate ammunition to attack prosecutions for transporting handguns between the gun shop, the home, the repair shop, and the shooting range, when all such activities are for the purpose of having a safely and properly operated handgun in one's home. Jon Katz. Monday, June 30. 2008It's my client. I can cry if I want.
Photo from website of U.S. District Court (W.D. Mi.).
Many trial lawyers do their best to keep a stiff upper lip, to keep their hearts off their sleeves, and certainly to avoid getting misty-eyed in court even if that requires asking for a short recess to come back with dry eyes.
Sure, crying in the courtroom can be risky for a lawyer. By the same token, I agree with Gerry Spence, who says: "Real persons cry...It is all right, indeed, it is imperative, that we be who we are in or out of court." Gerry Spence, Win Your Case at 161.
When a lawyer's tears are genuine -- certainly that can be the case when a death penalty opponent argues in closing to spare his or herr client from |
