Criminal Defense

 Yin Yang

On a rainy September morning a dozen years ago, with a few days left between leaving my public defender post to return to private practice, I pondered which way to drive for a mini-vacation. "Where do I want to visit that I have not yet visited?", I asked. Then, I remembered Jun Yasuda's telling me five years before about being in the process of building a peace pagoda, and that her teacher said it is a mere structure if she asks for help. Jun-san has the magnetism for people to offer to drive her hundreds of miles, but somehow I was still made of copper when told of the monumental volunteer pagoda build.

Through divine coincidences, I tracked down Jun-san's phone number through the local temple of her Buddhist order, which I discovered in my midst for the first time that morning. Through another divine coincidence, she answered the phone, even though Jun-san spends months total each year in other states and countries spreading the message of peace. Early in our conversation, she told me it was Gandhi's birthday, and invited me to stay at the temple, where I ended up sleeping for two nights on a loft overlooking the altar, with my loftmates being wasps slowly tracing the window frame in the cold weather.

My full day there in upstate Grafton, New York, was occupied by waking at 5:00 a.m. for morning prayers chanting the Odaimoku and voicing excerpts from the Lotus Sutra, eating toast done atop the wood-burning stove, buying material to insulate the cabin-type temple for the winter, stacking wood, eating miso and rice for lunch, napping off a late night arrival, stapling insulation to the temple, taking an amazing wood-burning traditional Japanese bath after getting there in the frigid night, praying before dinner, eating more miso and rice for dinner, and going to bed early to start the next 5:00 a.m. with prayers.  

The next morning during breakfast, I was surprised to find myself eating alone with Jun-san, when the day before she had so many visitors, bringing breakfast items, helping build the new temple, and joining for evening prayers and dinner. It was as if Jun-san had asked them to give time for me to learn some lessons, but I doubt such deliberateness had taken hold.

Ever since I first met Jun-san during her one-month fast for peace across from the White House during Gulf War I, I was drawn to her peaceful essence, when I felt so much imbalance over world turmoil, rampant domestic and global human rights violations, and frustration with not feeling I was giving much of a net benefit to society while helping financial institutions and transportation companies line their pockets through litigation and federal regulatory work.

Now I had my chance to learn how she had reached such calm while focused daily on reducing people's suffering, through prayer, through peace walks, and through spreading her infectious peacefulness. I asked many questions, perhaps too many. I recognized front and center what I had already realized peripherally, that much of people's dissatisfaction with life comes from their desires, and that many of those desires, particularly expectations of others, can be shed. I recognized all the more how much my problems pale in comparison to those who struggle daily to provide their families enough nutrition, and to have them clothed and housed.

I learned about melting away so many of the layers of my then utter terror of my inevitable death. On the one hand, I could not automatically internalize Jun-san's view that life and death are artificial boundaries. Certainly life continues when others die, so in that respect it may be an artificial boundary. On the other hand, I recognized all the more how my fear of death was so closely connected with my being self-centered, my over-attachment to my body, and my lack of enough internal peace and balance.

Two hours later, it was time to depart. Jun-san bowed three times as I drove away, and her peaceful karma spread to me all the more.

Around one or two weekends later, I visited the local temple that is part of Jun-san's Nipponzan Myohoji order, bringing oranges for the altar. Brother Shiumi-san opened the door, and ultimately invited me inside, apparently while trying to figure out what made me tick. We prayed the Odaimoku for a few minutes. When I told him I had visited Jun-san and was wondering if I could visit sometimes for prayers, he permitted me one weekly weekend visit.

He then said he would be unable to teach me about Buddhism. When I last saw Jun-san this past June, she told me how her order is one of action, praying for peace, walking hundreds of miles spreading that message, and not spending years to get ordained. In fact, Jun-san was ordained when she had not even applied for that path. Her teacher "threw her a yellow robe, saying, 'Jun, hurry up.'"

I offered Shiumi-san to help cut the grass from time to time. During a gathering two years later to celebrate Shiumi-san's transition back to Japan, he looked at me and laughed, saying something in Japanese. Someone translated, saying he tried making sense of a lawyer offering to cut the grass. For me, it was the least I could have done to show my gratitude to Jun-san, and I do not see any honest work as beneath me.

What is the secret to winning trials, and what does any of this have to do with offering a septuagenarian priest to cut his temple's grass? Are there any secrets beyond finding, tapping into, and applying the vast reserves of strength and ability within each of us, supplemented by welcoming the teachings from everyone and everything around us? Are they really secrets, or is it more a matter of knowing the roadmap to winning, and finding a way to apply the roadmap and to improve upon it? Is it any different than my t'ai chi teacher Len Kennedy's view that the principles of t'ai chi are simple to learn but profound to apply. Is it any different from knowing how to slim down and actually doing it?

Wolfe Lowenthal's biography of t'ai chi legend Cheng Man Ch'ing is entitled There are No Secrets. Pete Gately aptly describes this concept: "Lowenthal tells how Professor Cheng maintained that there were no secrets in Tai Chi Chuan, but would then add, 'But if there were a secret it is [that the hands do not move when doing push hands].' Thus secrets are not really secret, but are readily available information, open things, but things that tend to pass unnoticed. Take the above example of the hands not moving. It seems, on the surface, to be an absurd statement; we all know that the hands move in Tai Chi. They move as we do, roll-back, push, press, single-whip. We may think the hands move in every move we make. Well, maybe - but we shouldn't make them move at all. All movement in Tai Chi should begin with the waist turning, all movement should start at the Dan-Tien. Nothing moves without being initiated by the movement of the waist; then, if the waist turns, the hands turn. The legs do not step unless the movement is initiated by the waist, so all movement comes from the Dan-Tien." "Secrets" by Bill Gately (emphasis added).

In the same vein, there probably are not any secrets to winning trials, but there are skill sets to learn, revelations to find, new levels of caring to attain for clients, more fearlessness to gain, more internal and external journeys to take, more joy to experience on the path, more ego to shed, more willingness to collaborate with other lawyers and non-lawyers in seeking the path to victory, and more of the tapping of the joy, fearlessness, and giggling of the child within.

My trio on this path is the overlapping lessons and practices from the Trial Lawyers College, t'ai chi, and the peace and harmony experienced even when walking into the eye of the storm as exemplified by Jun Yasuda. I am also helped along the path when imagining at various difficult times in court that I am accompanied by different combinations of SunWolf, Steve Rench, Jun Yasuda and Cheng Man Ch'ing. My path also is helped through my daily writing, when I often expect to go in one direction, and then often take a very different path and often reach a different destination, including with this blog entry, when I initially was going to comment more briefly than this in reply to Bobby Frederick's invitation to discuss the secrets to winning trials against all odds. Much self-revelation and self-discovery come my way through the writing process.

One thing is for sure. Do not waste time listening to how important to winning are the colors of your clothes, the model of your car, or the cut of your hairstyle. Tony Serra exemplifies that it's not how you dress, but how you persuade. Jon Katz

ADDENDUM I: Gerry Spence's recent blogging on winning trials sparked an interest in some other bloggers to cover the topic, including Gideon, Mark Bennett, and Scott Greenfield.

ADDENDUM II: Here is the full relevant excerpt from Wolfe Lowenthal's above-referenced discussion in Gateway to the Miraculous of Cheng Man Ching's assertion that t'ai chi involves no secrets:

"'There are no secrets in the Tai Chi Chuan that I am teaching you,' said Professor Cheng, 'but if there were a secret, it is that the mind moves the ch’i.' Sometimes he would say, 'There are no secrets in this Tai Chi Chuan, but if there was a secret, it is that the hands don’t move.' This was yet another one of those times when I initially thought he was contradicting himself, only to realize later that in both cases he was saying the same thing: 'The hands don’t move' and 'The mind moves the ch’i' are the same and the secret of our Tai Chi Chuan. 'The hands don’t move.' It is rather the mind, or more precisely the idea that directs the waist to produce the movement. The energy only emerges from the hands, which move from the waist like spokes on the hub of a wheel. 'The waist is the commander,' it says in the Tai Chi classics, and the hands should submit totally to the command of the waist – never moving independently."

How does one obtain real relief against an overly aggressive police search?

On August 7, I blogged about such an extremely overaggressive police search in Berwyn, Maryland. However, attorney David Rocah of the American Civil Liberties Union says: "the damages are too low to make it worthwhile to spend the time in court" on a lawsuit against the police for such an overly aggressive search.

The same article from the Washington Examiner (apparently related to the San Francisco Examiner) quotes me about the frequency of guilty pleas versus innocent pleas leading to fewer court challenges against such searches. I intended to be speaking in terms of the higher percentage of guilty pleas over not-guilty pleas where the defendant is left to choose between one and the other, and not in terms of cases that get dismissed and consensually inactivated. In any event, fortunately this story continues to spread among members of the public. Jon Katz.

For over two years, I have prominently featured the Busted video on every page of Underdog, while promoting donations to the film's non-profit producer, FlexYourRights.org.

Busted features prominently in my Know Your Rights admonition to everyone. Recently, I even found myself parroting one of Busted's key and very precious mantra's when briefly and unconstitutionally detained for being a suspected airport t'ai chi terrorist: "Officer, am I free to leave?" 

Flex Your Rights has paid me the compliment of inviting and adding me to its advisory board. It remains a true honor to continue to collaborate with Flex Your Rights' Scott Morgan and Steve Silverman, with whom I have had the pleasure of appearing before audiences replacing fiction with fact about dealing with the police.

If you have not yet viewed Busted, I urge you to view it today. You can see it free on YouTube and can order a DVD to pass out. If you have already viewed Busted, clearly you know how groundbreaking and critical is this video; please share the Busted YouTube link with your friends -- and enemies -- today. Jon Katz.

1961 saw the last military execution in the United States. Now, George Bush, II, has broken that execution-free period in the military by approving the execution of Ronald A. Gray. Presidential approval is required to proceed with a military execution.

Mr. Gray entered a guilty plea in state court to several rapes and murders; the crimes to which he admitted make the stomach turn and heave for days. Although his state court sentence involved consecutive life sentences, the military nevertheless proceeded with a trial(s), apparently based on the same criminal conduct to which he pled in state court; this sounds like a variation on the theme or the actual theme of the separate sovereigns doctrine. He was convicted at the military trial and sentenced to death.

The above-listed title for this blog entry comes straight from the Army's 2006 procedures for military executions. Jumping off the pages of those guidelines is the disconnect between the dispassionate technocratic language and the state-run legalized murder that is the death penalty.

Thanks to the Courts Martial blog (here and here) for posting on this story, as well as the CAAF blog (here and here). Here is the Washington Post article on the case. Jon Katz.

Why is lying so rampant n society? Does it start with people learning from their parents that "white lies" are okay, and then fester and spread from there like the Blob?

Are cops tempted to lie by thinking they can get away with wrongdoing by filing false police reports against people who are victims of police misconduct?

Praised be the ongoing power of inexpensive video cameras -- and praised be the people who bravely record footage of people abusing others and abusing their positions --  this time with the above-displayed footage of a New York cop butting a cycling protestor to the ground from his bicycle. What could the cyclist have been doing to have merited such abuse? If the cyclist was being stopped for an alleged crime (e.g. throwing a dangerous object into the crowd), it happened outside the view of the camera, and the cop could have called to cops ahead to tell the cyclist to stop and to arrest him, rather than for the cop to have butted him off his bike without telling him first to stop and dismount. .

Thank you to some lawyer listerv members who brought this story to my attention, about police lying about the incident shown in this video, in part through filing criminal charges against the victim of the police abuse. Thank you also to Jonathan Turley for blogging on the story, and linking to the above-displayed video. (How does professor Turley find time to teach, sleep, and be with his family, when considering the volume and depth of his daily blogs?) 

I do not want to see more of these stories. I just want such abuse to stop. Jon Katz.