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

On May 18, 2006, the District of Columbia's highest court let it be known to police that they sometimes can get away with unlawfully detaining suspects, so long as sufficient legal grounds intervene for detaining the suspect. The case is U.S. v. McMillian, 2006 D.C. App. LEXIS 215.  

Mr. McMillian was a passenger in a bus stopped by the Capitol Police (another example of the federal government running roughshod on independent governance of the District of Columbia) looking for robbery suspects (another example of police running roughshod over less powerful members of the public -- imagine the police doing the same thing to a limousine).  

As was his absolute right, Mr. McMillian walked away from the bus. As was not their right, as the Court of Appeals concedes, the police had  him returned the bus, and did the same when McMillian again walked away from the bus. During Mr. McMillian's unlawful detention, the police found his t-shirt tied to an alleged shooting, and a gun below where he originally sat. The Court found that this constituted a lawful detention, and that Mr. McMillian's confession to the shooting several hours later was too attenuated from the initial illegal detention to be suppressed as the fruit of the initially unlawful detention. 

Let me get this straight, even though Mr. McMillian would have gotten away from the bus (and probably gotten away from being identified) had he not been unlawfully detained in the first place, the police in this instance get a freebie, by not being prevented from offering his confession into evidence. This to me is a perversion of the Fourth Amendment's protections against unlawful searches and seizures. 

Around 2002, I made a similar argument before a Court of Appeals panel that included the judge who authored U.S. v. McMillian (a judge whom I respect very much, but I'll agree vigorously to disagree with her on this case); it was rejected in an unpublished opinion. This attenuation doctrine needs to be severely curtailed. By Jon Katz.

When I met then-retired Justice William Brennan, when awarded an NACDL award in 1995, the whole room cheered in ecstasy, including me. I cheered in thanks to this man who, although appointed by Republican Dwight Eisenhower, was one of the greatest protectors of individual rights on the Supreme Court. Many remembered practicing when Justice Brennan was part of the Supreme Court of Chief Justice Earl Warren (another Eisenhower appointee who was a critical protector of individual liberties (but, according to the Brethren, unfortunately ate at a racially-segregated lunch club)). 

As I waited to meet my hero, I wondered what to say. I spoke from my heart: "Thank you so much for being with us." Justice Brennan, a giant if I ever experienced one -- although sitting with his small frame in a wheel chair -- drew me close, saying in a soft yet gigantic voice in this loud hotel reception room, "The honor is really mine." Modest right into retirement, his words were sincere. The chills of experiencing a superstar went through my spine.

Fortunately, the Supreme Court still has some members who often champion justice, including Justice John Paul Stevens (a Ford appointee), Justice David Souter (a Bush I appointee), and Justice Ruth Bader Ginsburg (a Clinton appointee), whom I've met, ever so briefly, at a bar reception while she was still on the Court of Appeals, and at a neighbor's holiday party a few years later. When Justice Brennan was on the bench, though, those were the days. 

I hope those days return; meanwhile, and fortunately, even some of the justices whose nominations I most opposed sometimes champion individual rights to the hilt. However, with the departure of Justice Sandra Day O'Connor (a Reagan appointee), the Court has clearly shifted rightward, creating more of an uphill battle for individual rights, both in the criminal and civil arenas, as highlighted today in Garcetti, et al. v. Ceballos, ___ U.S. ___ (2006), No. 04-473. In Garcetti, the Supreme Court severely restricted the rights of government whistleblowers to expose government wrongdoing, and thereby turned government of, for, and by the people on its head. In the majority are the conservative justices Roberts (a Bush II appointee), Scalia (a Reagan appointee), Thomas (a Bush I appointee), and Alito (a Bush II appointee), together with the swing voter Justice Kennedy (a Reagan appointee). 

The whistleblower in Garcetti is a federal prosecutor who tried to expose the inaccuracy of a police application for a search warrant. So much for the claim I've often heard -- and rejected -- that a prosecutor somehow often can help criminal defendants more than a criminal defense lawyer. Kudos to him for having tried, though. By Jon Katz.

The media perhaps have given people a misimpression that a criminal jury may never go below twelve members. While that is generally true in federal court, a federal jury may be reduced below twelve by written stipulation of the parties, or may be reduced to eleven "if the court finds good cause to excuse a juror." Fed. R. Crim. Proc. 23. 

Fortunately, the United States Court of Appeals for the District of Columbia Circuit recently confirmed that "'when a district court decides, without the agreement of the parties, to permit an eleven-member jury to deliberate to a verdict, two distinct questions are presented: first, whether the court had [good] cause to excuse the twelfth juror, and second, whether the district court was correct in allowing the bobtailed jury to continue rather than declaring a mistrial.'" U.S. v. Ginyard, 444 F.3d 648 (D.C. Cir. 2006) (quoting U.S. Araujo, 62 F.3d 930, 933 (7th Cir. 1995)). In Ginyard, a juror who apparently was the sole holdout against convicting a drug felony defendant told the court that he risked losing a job opportunity if he was required to continue deliberating during the multi-day deliberations. The trial judge found this to have been good cause to release this juror and to permit an eleven-member jury -- over the objections of the defense. However, the Circuit Court, bless its heart, said the trial court did not go far enough to find such good cause. It is sad, of course, that Mr. Ginyard had to go through the injustice of a conviction and sentencing before being vindicated against having to endure an eleven-member jury, particularly where his case may very well have mistried with a hung jury (or turned around to an acquittal -- see Twelve Angry Men) absent the release of the apparent holdout juror. The appellate court ordered a retrial. 

In states that do not have rules requiring a twelve-member jury, the Supreme Court has ruled that it is unconstitutional for a criminal jury to have fewer than six members, after discussing in-depth the studies that show a jury is more likely to be fair the closer it reaches a total of twelve members. Ballew v. Georgia, 435 U.S. 223  (1978). Consequently, the United States Supreme Court likely would uphold the Constitutionality of Virginia's approach that provides for seven jurors for a misdemeanor trial, and twelve jurors for a felony trial. Va. Code § 19.2-262. By Jon Katz.

Last month, the Virginia Supreme Court illustrated that even when justice comes, it often comes slowly. For James Robert Welch, Jr., justice did not arrive until after he was arrested after being accused of having "carnal knowledge" with a fourteen-year-old girl; after being convicted of carnal knowledge at a bench trial (a risk of a jury trial in Virginia is that the jury recommends the sentence); after receiving a five-year prison sentence; after Virginia's intermediate appellate court affirmed his conviction, and until, finally, the Virginia Supreme Court reversed his conviction. The case is Welch v. Commonwealth, ___ Va. ___, 628 S.E.2d 340 (2006).

At trial, Mr. Welch's accuser said that she and Mr. Welch had engaged in "sexual relations" over twenty times. The trial judge refused to dismiss the case after the prosecutor rested, asserting that testimony of "sexual relations" was sufficient to permit a carnal knowledge conviction, but acknowledging that it probably would have been better to have more specific details in evidence than "sexual relations" The complaining witness never gave her understanding of the phrase, nor did any witness give any more specific details than the phrase "sexual relations". The Virginia Supreme Court reversed and dismissed the case, confirming that sexual penetration, however slight, must be proven beyond a reasonable doubt to sustain a prosecution for carnal knowledge, but that no sufficient evidence of penetration had been introduced in evidence. The Court confirmed that "vague terms, such as 'sexual relationship,' invite speculation that cannot suffice for proof beyond a reasonable doubt." It is distressing, to say the least, that Mr. Welch had to go as far as Virginia's Supreme Court -- which ordinarily has full discretion whether or not to take a case on appeal  -- to obtain justice. By Jon Katz.

The Yogyakarta (also known as Jokjakarta), Indonesia, earthquake, hits all the more home, in that I spent two days there while on vacation in Indonesia in 1988. After checking into and exiting my hotel, I was swarmed by pedal-cabdrivers anxious for a customer; anxious to eke out a subsistence living; they offered rides for very little money. This repeated itself on each departure from the hotel. I didn't want or need a peddle cab, and did not see it as much more humane than a rickshaw. I should have included some of the peddlecab drivers among the people to whom I gave donations in Yogyakarta; I forget if I did. 

This is the lot of millions of people in the world, certainly not only in Indonesia. This misery is exacerbated when such natural disasters as the tsunami and the earthquake strike. Sometimes the natural disasters and other misery bombard us so much that the initial reaction might be to look away, lest we be reminded what we all know about the precariousness of life. We cannot look away, and must be there to help each other. To help with the Yogyakarta earthquake recovery, one place is the Red Cross's online donations page for this disaster, at http://redcross.org/news/in/profiles/indonesia-earthquake.html .By Jon Katz.

Before studying marijuana himself around the early 1970's, now-emeritus Harvard Medical School Professor Lester Grinspoon accepted that marijuana was harmful. His studies and personal use of marijuana radically changed his mind. For decades, he has been a leading proponent of marijuana legalization. . 

This month, high praise goes to the honesty of UCLA pulmonologist Donald Tashkin, who expected to find that marijuana causes lung cancer, and instead found the opposite through an in-depth study. 

It is beyond reason why the United States government continues to outlaw marijuana even for medical use, when marijuana clearly is beneficial and necessary medicine, with much less risk of harm than the morphine, codeine, and cocaine that the federal government permits for medical use. Fortunately, numerous state and local laws counter the federal hypocrisy against medical marijuana. My further discussion of medical marijuana and the law is here. By Jon Katz.

Judge recognizes multiple injustices inflicted on defendants jailed for pending criminal cases.

Hurricane Katrina continues to inflict untold suffering and misery on countless people. Too little coverage has been given to the presumed-innocent accused who have languished in jail awaiting court dates for too long and without court-appointed counsel available to them ... until now. New Orleans Judge Arthur L. Hunter, Jr., is focusing on these problems, from releasing inmates who are waiting too long for trials and for competent court-appointed counsel, to overhauling a broken public defender system that has been financed with court fees -- including traffic fines -- which revenues took a heavy beating from Katrina. The public defender system is in a shambles, "without a computer system or files or even a list of clients," reports the New York Times.

As is the obligation of all judges, Judge Hunter does not appear to allow public outcries to get in the way of his following his sworn duty to uphold the Constitution and the law. He has been accused of "being too soft on defendants, and of having too high an acquittal rate in nonjury trials. New York Times. In other words, he does not trade. He says fairness is his motivation; let that be sung from the mountaintop. 

This New York Times article bears out the horror for those jailed during Hurricane Katrina, including one inmate's ordeal of four days without food as the water level rose. As re-emphasized in my May 24 blog posting, the jail and public defender system will improve tremendously once lawmakers get some sense finally to reduce court dockets by legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentences, legalizing prostitution and gambling, and expanding sensible diversion alternatives to receiving guilty verdicts. The time is now. By Jon Katz.

Bless the Maryland Court of Appeals -- Maryland's highest court -- once again for another on-the-money ruling benefiting criminal defendants. My personal experience with the Court of Appeals' affirmation of critical criminal defense rights came with my joint landmark double jeopardy victory with now-chief Public Defender Nancy Forster representing the joined appellant in State of Maryland v. Taylor, et al.      

On May 11, 2006, in Greenstreet v. State of Maryland,  ____ Md. ___, No. 55, Sept. Term 2005 (2006), the Court of Appeals ruled that a reviewing judge may not go outside the four corners of a search warrant affidavit to determine whether the affidavit contains a typographical error about the date of events relied upon (searching the defendant's trash) for seeking the warrant. In this instance, the affidavit contained a very apparent typographical error, alleging that the police found incriminating evidence in the defendant's trash on April 14 2003, with the warrant application date being April 15, 2004 (one year and a day after the alleged trash search; perhaps the affiant was preoccupied with the tax filing deadline). 

Typo or no typo in the year listed for the trash search, the Court of Appeal unanimously said no dice to letting the prosecutor try to show by testimony or otherwise that this was a typo. Consequently, a one-year-old trash search being too stale to support a search warrant, the Court of Appeals vindicated the Anne Arundel County Circuit Court judge who had originally reached the same result as the Court of Appeals, and reversed the Court of Special Appeals' reversal of the Circuit Court judge's quashing of the search warrant. 

This case raises some additional food for thought: (1) An appellate victory never substitutes for a trial victory. Appeals do not permit evaluating the credibility of the witnesses and evidence, but only permit review for errors in applying the law. The appeals process still leaves the convicted appellant in anguish over the pending guilty verdict and sentencing; and often gives no relief, if any, other than granting a retrial. (2) Maryland's Court of Appeals frequently reverses the Court of Special Appeals in criminal cases. It is often worth applying for Court of Appeals review of Court of Special Appeals ruling against a criminal defendant. (3) Warrants and their execution should be challenged and dissected with a fine-tooth comb. Beware warrants that say that knocking and announcing is not required (those should be invalidated absent a sufficient basis for not requiring a knock and announcement), and beware failure of the police to knock and announce their presence before trying to enter. An important principle behind the knock-and-announce rule is to minimize having the home's occupants start shooting at the entrants in the mistaken belief that they are burglars. (4) Your trash, and so much else about your life, gets no privacy protection in court. Oliver North and Fawn Hall knew that all too well two decades ago. By Jon Katz.

Because I believe in responding to distasteful speech with counterspeech, rather than with lawsuits, I do so here about the too many times that I see court personnel and lawyers guffawing unfairly over the misfortunes of scared criminal defendants. 

A world without laughter is certainly one I'd not be fond of. However, when a defendant is in court with his or her liberty on the line, that's no laughing matter, unless the court is willing to dismiss the charges in exchange. Sure, people often laugh to relieve their own tension and to escape their own fears; that does not justify making criminal defendants the butt of their jokes. 

Here is an experience that I do not wish to see repeated, for reasons going much further than the uncaring laughter that spurred the situation: : 

 A scared man who speaks only Spanish shows up for a crowded misdemeanor docket in Maryland District Court, accused of the non-jailable offense of possessing an open alcohol beverage container. (How in the world would Maryland be a safer state if it arrested and convicted everyone carrying an open beer can on the sidewalk or in a park? By the way, if you even wish to drive your favorite previously-opened cognac to share at a friend's home, you're violating the law if the bottle's in the car's passenger area. Md. Crim. Law Code Ann. § 10-123). This man has no lawyer. He is not offered the option to come back another day with a lawyer. He's not told of the rights he gives up by pleading guilty (including that some judges or parole commissioners might treat a guilty here as a probation or parole violation, particularly if the man is on probation for drunk driving with a special condition not to drink liquor). He is only asked if he pleads guilty or not guilty (more fair would be to ask the reverse: "Do you plead not guilty/innocent or guilty). He is scared. He does not know what to do. 

The court-hired Spanish interpreter is having a good time snickering over this man's not just admitting the accusation. The interpreter offers to help explain the situation to the defendant. (Persuade to plead guilty, sounds more like it). During a break later on, the interpreter and a criminal defense lawyer are having a good laugh about the situation -- being obvious to them that this man, in court alone, should plead guilty and get it over with for himself and for everyone else waiting for their cases to be called. IF the defendant's from Central or South America, there is a good chance that at one time or another, he has lived there when the courts were justifiably known to be seats of oppression, with some countries having judges who would dispense more justice depending on the size of the bribe. 

Well, wouldn't you know, when the man's case gets re-called, he enters a guilty plea, with the interpreter looking as proud as could be about his achievement. The judge finds him guilty, and orders a fine and court costs. 

Now, what would have happened if the gentleman had plead not guilty? That would be an assertion of his right to require the government to try to prove his guilt beyond a reasonable doubt. The prosecutor then would have had to present a witness or witnesses to show that they lawfully seized an open alcoholic beverage container from on or about the defendant's person, and that the defendant knowingly possessed that open container (with possession being defined as knowledge, dominion, and control). I would argue to the judge that a chemist would be needed to prove beyond a reasonable doubt that the bottle or can contained alcohol; as an example, unless the container is in a car's passenger area, I know of no law that prevents me from thoroughly washing and drying out a Bud bottle and drinking cola from it. If the defendant lost, he could still ask for a probation before judgment. He could appeal for a whole new trial in Circuit Court. 

Now, a trial, of course, would take the court's and prosecutors' time away from other cases. My point, exactly. The American criminal court system relies on guilty pleas. If every criminal defendant entered a plea of not guilty, the courts would grind to a halt, at least until the lawmakers got some sense finally to reduce the court dockets by legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentences, legalizing prostitution and gambling, expanding sensible diversion alternatives to receiving a guilty verdict, eliminating or reducing negative immigration consequences for convictions, letting people drink a cold one (but don't then drive) without fear of being hauled into court, and the list goes on.

Fortunately, many of the court interpreters are very respectful to everyone. Their interpreting abilities vary widely from excellent to much less than that, however, particularly for languages other than Spanish, but that is a topic for a separate blog entry. If I did not speak up to this interpreter, who would? So I did. 

During a break, I greeted this interpreter, whom I have known for years. Rather than discussing the laughing, I focused on the consequences of the man's guilty plea for having an open beer container. I told the interpreter that these cases are winnable, as discussed above. And, if they're lost, what's the big deal, seeing that the maximum applicable fine is $100. Md. Ann. Code art. 2B, §§ 19-104 and 19-204. Therefore, there should be little to no incentive to plead guilty to such charges. If this man is not a United States citizen, this conviction can be added to any other alcohol-related convictions; enough alcohol convictions can lead to the immigration authorities concluding he is a habitual drunkard, which involves negative immigration consequences. 

So I digress from the title of this blog entry. Or do I? Absent the interpreter's laughter, everyone may have taken this case more seriously. The man may have entered a plea of innocent. He may have won; if so, I would have had the last laugh. By Jon Katz.

Reliable research confirms that eyewitness identification is generally too unreliable to produce a criminal conviction. Nevertheless, courts repeatedly permit such testimony in criminal trials, and countless innocent defendants get sent to prison as a result. How many times do we mis-identify people we see on the street? In criminal cases, additional factors promote misidentification, including witnesses having never seen the suspect before, being traumatized by the event (who stares at an armed robber's face, rather than the gun pointed at one's face, or the nearest escape route?), feeling the need for someone to be caught, misapprehending that the perpetrator is present in the photo or live lineup, seeing the perpetrator for too short a time, having difficulty distinguishing among different people of the same race different from the witness's, and receiving pressure or coaching from the investigating police, Praised be Newsday and freelance journalist Curtis Stephen for highlighting this problem that must be fixed immediately. Thanks to the NACDL for posting this article. By Jon Katz.

Alleged corruption by politicians makes for juicy press, regardless of the target's political stripes. Saturday Night Live had a field day with Abscam -- a time when Congressman Richard Kelly claimed he took money in order to conduct his own investigation into the situation -- and now Democratic Congressman William Jefferson, is added to the historical string of allegedly corrupt New Orleans politicians. Kudos to House Speaker Dennis Hastert, from the other side of the aisle, for challenging the audacity of the Justice Department to invade separation of powers by searching Mr. Jefferson's Congressional office. Let us not be tempted to tear apart politicians' Constitutional rights out of zeal to clean house of bribetaking. When the Constitution is violated against anyone, those violations boomerang against us all. By Jon Katz.

Addendum I: See the New York Times's confirmation about Republicans opposed to the search of Mr. Jefferson's Congressional office. 

Addendum II: The FBI's search (lasting fifteen hours on a Saturday night) is unprecedented. By Jon Katz.

The power of peaceful persuasion / The deliciousness of fearlessness.

In 1997 and 2001, I published and re-published my article entitled Powerful Lawyering Through Fearlessness, Harmony And Peacefulness, about the extraordinary benefits I have derived from following an overlapping path of the benefits of t'ai chi, what I learned through the Trial Lawyers College, and the peaceful path exemplified by my teacher Jun Yasuda. The article can benefit from some concrete examples of how these benefits have applied, I throw in two here. 

Trial battle can get very intense, with the necessity of dealing with opposing counsel, their witnesses, the judge, one's client and witnesses, and the list goes on. About a week ago during a lunch break in a lengthy criminal trial, I found an outdoors place to do t'ai chi. As I started doing the t'ai chi form, and through the end, I felt like a visitor to the planet, connected with what was going on, but feeling dispassionate enough so as not to experience weakness from all the passion I feel for obtaining justice for my client. I had never heard t'ai chi described in this way; it is an extension of t'ai chi's focus on relaxing, even when it appears one is in the greatest danger. Because I feel so passionately for justice for my clients, this type of dispassion from t'ai chi is critical, because it does not reduce my passion, but helps keep me more fearless and powerful during the battle for my client. .

Today, my wife, son and I were enjoying the Awakening and the rest of Hains Point, as we passed by numerous fisherpeople at the easternmost tip of the park, which is alongside the Potomac River, looking at Virginia. An ethical vegetarian since 1988, I felt very uncomfortable seeing one fish not even flapping in a shallow water container, and another fish flapping around on the hook of the person who seemed to be with those maintaining the shallow water container. I looked straight at the fish, and chanted Jun-san's prayer for peace: Na Mu Myo Ho Ren Ge Kyo three times, bowing to the fish on the third repetition. Almost simultaneously, the fisherperson removed the fish from the hook and threw it back in, despite being with a pan to save caught fish. He had been speaking Mandarin with his friends, so I said "shyeh shyeh" (thank you), and walked off, wondering if I had anything to do with his returning the fish to the water. 

T'ai chi teaches the necessity of being fully relaxed 24 hours daily, even in the most heated of battles. The key is to harmonize one's situation against disharmony, not with the purpose of harming anyone in the process, but being willing to do so if needed to reach that harmony. Therefore, if one can disarm one's physical opponent with minimal damage to the opponent, all the better, but t'ai chi can also inflict severe physical damage. At trial, if a collateral result of harmonizing the situation is to cause severe upset to the opposing witness, the key is for harmonization to be the goal, not to either reach or avoid upset to the opposing witness. 

As my Powerful Lawyering article recounts, t''ai chi master Cheng Man Ching spoke of overcoming our fears in terms of imagining that we are practicing t'ai chi while balanced atop a narrow pointed cliff. To not eliminate one's fears while atop the cliff is to guarantee certain death. Eliminating fear also calls for keeping and tempering the fearlessness of a child filled with wonder, and living in the moment, as wonderfully detailed in the following story of the man and the two tigers: A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and -- with his life hanging in the balance -- thinks of how delicious the strawberry tastes. By Jon Katz.

This is the first in a series of postings about my ambivalent feelings about whether to remain a member of the National Lawyers Guild, due to its many knee-jerk anti-Israel positions; its repeated failure to raise human rights issues with officials from Cuba, Venezuela, North Korea and other countries the U.S. government is trying to destabilize, for the overly simplistic reason that the Guild should not be adding salt to the wounds created by the U.S.; with its censored member listserve; and with its one-sided approach of providing its First Amendment defense only to "progressives".

With the National Lawyers Guild, sometimes I feel like Groucho Marx, that I would not want to belong to any club that would have me as a member. I first joined the Guild as a law student, attracted to its courage to stand up to all abuses of governmental power (however, I later learned that this stand does not extend consistently beyond United States borders); its having started as a fully integrated lawyers group when the American Bar Association -- cursed be its name as a result -- barred black members (that was just the tip of the racist and segregationist iceberg in the 1930's legal community); and its sincere mission "...to the end that human rights shall be regarded as more sacred than property interests." 

I let my Guild membership lapse more because of other expenses than anything else, and renewed my membership in 2000, when I felt strongly drawn to working with the DC Guild's demonstrations committee, and followed with spending an exhilarating weekend defending numerous April 16 IMF/World Bank protestors at their bond hearings, followed by getting one client's case dismissed for allegations that fit no listed crime (possessing lockboxes, which can be used for demonstrators to lock arms together so that the police cannot immediately disburse them), another client's squatting case negotiated to probation under the Youth Act for trespass, and the remaining clients' cases converted to small civil fines. This was my first of the rest of my continuing years defending political activists in criminal court, part of the very essence of who I am. 

The DC Guild's demonstrations committee, so ably led by my brother for justice Mark Goldstone, successfully convinced the Superior Court to put Guild-trained lawyers at the top of its court-appointed list for that demonstration weekend, after the Midnight Special Law Collective -- which represented many of the demonstrators' interests -- made clear that the demonstrators would be less willing to cooperate with having their cases "moved along" in court if not allowed the lawyers of their choice. On top of that, the Superior Court assured that the Guild lawyers would be paid if already on the court-appointments list.

Mass arrests were expected to start Saturday, the first day of the weekend demonstrations, but I was called in pro bono for Saturday for my client arrested for the lockboxes. Being arrested in DC involves the extremes of being held overnight in the depressing courthouse lockup -- often without food or drink I've been told numerous times -- until the next bond hearing session; but on the other hand with the vast majority of defendants then leaving the courthouse without even needing to sign out, once the judge announces the defendant's release conditions (often including staying away from within a certain number of blocks of the arrest location). 

Once finished with my Saturday bond hearing/initial appearance, I joined two other Guild members I had met, to figure out if another demonstrator's bond hearing was to be held in the neighboring federal court. While walking to the federal courthouse, we passed by black-garbed after black-garbed demonstration cop. I was convinced the black garb was intended to intimidate, and almost angrily challenged a cop to tell me if there was any other reason for it. I gave my compatriots some black humor over my passion against seeing my nation's capital reduced to looking like a martial law government awaiting a possible repeat of the previous rioting in Seattle against that city's economic globalization meeting. They pondered whether I'd be arrested and would be in need of their representation. 

In the Guild that weekend, I found a niche of like-minded lawyers who understood the venom I felt over the police intimidation by black garb, the passion I felt to fight back against the city's tyrannical pre-emptive arrests of demonstrators, and the delight I took in hanging out with the demonstrators at one of their convergence points, which included their creative street theater papier mache puppets. For the time being, I would stay a member of the Guild. By Jon Katz.

At first I hesitated to publicly discuss the August 2005 guilty plea and May 2006 conviction-based bar suspension of attorney Rex Wingerter, because I did not wish to validate criminal charges against a man I still presume to be innocent and whom I greatly admire. I ultimately recognized, however, that this is the very time to make sure that Rex gets his just praises, that his praises continue to be sung for a very long time, and that the federal prosecution system be indicted for its extraordinary unfairness, as detailed further below.  

When a review of the written law did not give me much of an idea about my clients' most probable risks -- or lack thereof -- of deportation or other adverse immigration consequences if convicted of a pending criminal charge, usually there was nobody better than Rex to get to the heart of the issue. During our law firm's first few years, I would call Rex once in awhile on such issues, without having ever met him face to face yet. When I reached him or received a return call, Rex always was gracious, on the money, and selfless; he's a great example to me for doing likewise for colleagues who seek my input. I bumped into Rex for the first time when visiting the Montgomery County jail; often there's time for lawyers to talk there, while waiting for their clients to arrive. In person, he was the same unassuming, caring person I met over the phone; clearly, he cares about justice. This unassuming characteristic is also a key characteristic of Steve Rench (until he begins his powerful oratory), one of my main trial law teachers, advisers, and sources of inspiration. 

A person starts knowing who his real friends are -- or perhaps are not -- when those friends stick around through thick and thin, including when the government brings down its weight to declare "J'accuse!". Despite the Supreme Court's repeated confirmation that criminal defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt, the same Supreme Court (1) allows defendants to be caged without bond pretrial under a presumption of being too great a flight risk merely upon a probable cause finding that the defendant feloniously possessed at least fifty grams of rock cocaine (that's the weight of just 50 diner packets of sugar), (2) permits a defendant's ability to hire counsel of his choice to be wiped out by laws providing for the forfeiture and freezing of assets allegedly tied to ill-gotten gains, and (3) allows a federal prosecution system that rewards the abdication of one's right to plead not guilty, by permitting reduced sentencing guidelines for the euphemistic "acceptance of responsibility."

When our tax-paid prosecutors go around indicting lawyers for justice -- particularly in relation to their zealous defense of their clients -- that is a wake-up call to prevent the abuse of such prosecutions. Prosecutors should not be permitted to chill lawyers from zealously, persuasively, and ethically defending their clients, and lawyers should be intrepid not to give into any such chill. 

Unfortunately, the federal sentencing system is so draconian that it strikes tremendous fear in defendants against pleading not guilty and going to trial, even when they are innocent. As a result, it is hard to have faith in the factual reliability of a federal guilty plea. All I know about Rex's federal prosecution is that he was accused, and that he pled guilty to 18 U.S.C. § 4 (providing that "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both). This all took place in an incredibly unjust federal prosecution system. I continue presuming Rex's innocence, continue singing his praises, oppose his bar suspension that followed his guilty plea, and look forward to the reversal of that suspension. By Jon Katz.

May 17, 2006

Criminal defense in Virginia - much different than the Potomac's width

One of the wonderful parts of private law practice is going to numerous courthouses throughout Maryland, Virginia, and the District of Columbia. It keeps my mind and passion for justice exercised, often takes me to fascinating places on the road to the courthouse (from the most urban to the most rural, and everywhere in between), and keeps me on my toes for unique local court practices. When I drive over the Potomac River to the Virginia courts, the difference from Maryland's court practices are much wider than the Potomac's width. In Virginia, lawyers are permitted to conduct jury selection, including the question and answer phase; in Maryland, judges are permitted to ask all the questions, with the lawyers submitting proposed questions in writing. In Virginia, juries recommend a sentence (a good thing sometimes, but a scary proposition when the defendant is a minority and when the risk is too high of racists on the jury who refused to acknowledge their racism during jury selection); in Maryland, judges decide sentences except for death penalty cases, without juror input. For Virginia jury triable cases, the defendant cannot waive a jury trial unless all parties agree; in Maryland, it is the defendant's choice. In Virginia, despite Supreme Court rulings to the contrary, a vast number of misdemeanor District Court judges take guilty pleas without assuring the defendant has been advised of the rights s/he waives by pleading guilty; in Maryland, those rights are routinely given orally or on paper (although sometimes incorrectly, for which I have won retrial rights in the past). 

In Virginia, a prosecutor needs to obtain the court's permission to get a non-prejudicial dismissal, or nolle prosequi, of a criminal case, to allow the possibility of recharging the defendant later down the road. In Maryland, the prosecutor needs no such permission, and the Defendant then is left to argue speedy trial and other due process issues in the event that the prosecutor re-charges the same alleged crime. In Virginia, the prosecutor is permitted to get an automatic dismissal, which bars a re-prosecution. Last month, Virginia's Supreme Court drove this point home by reversing the conviction of a man whose case originally was dismissed on the prosecutor's motion, when the prosecutor failed to obtain a continuance when not prepared to go forward with a trial, failed to request a nolle prosequi (Latin for not prosecuting, and a form of relief that only may be granted for good cause shown), and instead successfully requested a dismissal. The case is Roe v. Commonwealth, __ Va. _____, Record No. 050905 (April 21, 2006). Court decisions upholding justice are beautiful to experience and to use in securing future justice. By Jon Katz.

May 16, 2006

Trial judges cannot exclude witnesses on mere anticipation of inadmissible testimony.

The heat of trial battle can be sizzling enough without a judge asking numerous questions to determine whether a criminal defendant's intended witness will present admissible testimony. For practical purposes alone, judges should let the defense witness be on the witness stand to rule on the admissibility of each question and answer, rather than demanding a proffer of the witness's expected testimony, particularly seeing that some witnesses do not make themselves sufficiently available in terms of time or candor for the defense lawyer to know in advance what the witness will say under oath. The Maryland Court of Appeals recently ruled that defense witnesses may not be excluded from testifying merely because the defense is unable to present a proffer of admissible testimony. The case is Kelly v. Maryland,   ____ Md. ___, No. 49, Sept. Term 2005 (2006).

Another benefit of this Kelly ruling is to encourage trial judges to keep an open mind about the admissibility of witness testimony, which, of course, does not guarantee that the witness's substantive testimony will be ruled admissible. For instance, in the Plowshares depleted uranium trial, the trial judge in advance of trial granted the prosecutor's motion to exclude our depleted uranium expert Douglas Rokke, our epidemiology expert Rosalie Bertell, and our international law expert Francis Boyle. The views of Dr. Bertell and international law professor Francis Boyle on this witness exclusion are here. We put Dr. Rokke on the witness stand, anyway, both in an effort to convince the judge to permit his expert testimony and to show the jury that we were making our best efforts to present expert testimony of the scourge of depleted uranium that led the defendants to hammer on two warplanes designed to fire depleted uranium bullets. No sooner did I put Dr. Rokke on the witness stand than the judge repeatedly sustained every objection other than his name and where he worked. I then said, "Because I keep hearing 'sustained', I have no more questions." Once Dr. Rokke left the courtroom, the four defendants stood up in opposition to the judge's refusal to allow Dr. Rokke's substantive testimony, defendant Susan Crane proclaimed that "We cannot put on a defense about the dangers of depleted uranium and our rights and duties under international law," and continued, concluding that "We will not participate in what amounts to a legal gag order." Defendant Stephen Kelly, S.J., recited the day's bible passage. The remaining two defendants turned their back to the judge. The many supporters in the courtroom stood and sang "Courage, brother, you are not alone. I will guide you on the way home." The judge cleared the courtroom, and the defendants refused to return. 

To conclude this digression, working with and defending the four Plowshares defendants, and interacting with their supporters to this very day, was one of the most fulfilling and meaningful experiences of my life and professional career. Whether or not I agree with all their views or their actions, they are guided by the courage of their convictions, motivated by pure caring for everyone (including opponents), and, even in jail, focus on achieving a just and peaceful world. All four of the Plowshares defendants are great people. It was also a true honor and wonderful experience working as co-counsel with Ramsey Clark. No matter the efforts of some (or many, perhaps) to marginalize his politics, Ramsey is a gentle and caring rock in any sea of turmoil. I never heard him say an unkind word about anybody, not even about J. Edgar Hoover, nor did I ever see his calm undone. In reply to my question about Mr. Hoover, Ramsey said he felt Mr. Hoover meant well, and did not have vicious purposes. Ramsey seems to follow the example of the Dalai Lama, who talks to everyone the same, regardless of their social or professional situation. By Jon Katz.

May 15, 2006

Detroit police to videotape interviews of suspects exposed to life without parole.

This blog's May 11 entry discusses Earl Washington's release from death row and eventual pardon, when forensic evidence supported that his murder confession was coerced. Some of Mr. Washington's lawyers subsequently succeeded in obtaining a settlement agreement in Detroit -- for the family of the late Eddie Joe Lloyd, a man wrongfully convicted of rape and murder with a coerced confession -- to include the requirement that the Detroit police videotape all interviews of suspects exposed to life without parole sentences. This is an excellent victory. Coerced confessions are so rampant -- and videocameras are very easy to use and are reasonably priced -- that no confession should be permitted in court without having been videotaped. The article is here. By Jon Katz.

May 14, 2006

Know before you go: Places where speeding can lead to jail.

An Alexandria, Virginia, federal magistrate judge recently sentenced a law student to twelve days in jail (with the option to serve the jail time on weekends) for reckless endangerment as a result of driving 126 miles per hour on the George Washington Memorial Parkway. I surmise the jail time would have been higher had this been during daylight hours than at 4:00 a.m. with few or no cars on the road.  The jail sentence may be particularly surprising to residents of Maryland and other states that do not ordinarily permit jail time for excessive speed. Moreover, even though this law student was sentenced for reckless endangerment rather than speeding, even if he were only charged with speeding, he still would have faced the possibility of more jail time than he received.

Any moving violation ticket on a federal highway can produce high anxiety, because a maximum six month sentence ordinarily applies to such charges, including speeding, having an open beer bottle in the car, having an expired vehicle registration, and the list goes on and on. On the one hand, judges ordinarily can be hoped to consider the accused violation, a defendant's driving record, and circumstances surrounding the alleged offense. On the other hand, facing potential jail for having an expired car registration is a bigger deal than having the option to pay the fine and be done with the matter. (Caveat emptor: Check out any car before you drive it, including a check for current registration stickers). 

In the District of Columbia metropolitan area, only Maryland does not provide for possible incarceration for excessive speed by itself. In Virginia, reckless driving is punishable up to one year in jail, with the possibility of suspended driving privileges up to six months. Va. Code § 46.2-868. Driving over eighty miles per hour in Virginia constitutes jailable reckless driving, as does driving as little as twenty miles per hour over the speed limit in other instances. Va. Code Ann. § 46.2-862. Fortunately, instead of entering a guilty verdict for reckless driving, where the degree of culpability is slight, Virginia judges have the option to enter a guilty verdict for improper driving, which falls in the least serious category of moving violations in Virginia. Va. Code § 46.2-869. 

In the District of Columbia, exceeding any speed limit by over thirty miles per hour carries up to ninety days in jail. D.C. Code § 50-2201.03; 18 DCMR § 2200.12. 

Ways to try to limit one's verdict and sentence for speed include completing a driver safety class and an aggressive driving class, producing as clean a driving record as possible, getting a certified test of one's speedometer, and providing proof of community service. For information on limiting the risks of exposure under the drunk driving laws, see here. By Jon Katz.

May 12, 2006

The Bush Administration: Giving the Fourth Amendment as much respect as toilet paper.

"Orwellian" barely begins to describe the Bush Administration's shredding of the Fourth Amendment, particularly after September 11 and with the revelation of its rampant spying on innocent people's phone activity. This shocker is all the more shocking with the participation of Ma Bell. 

While George Bush & Company cannot be credited with originating governmental abuse of privacy, they've perfected it to a science. This scandal is an opportunity not only to oppose this governmental and phone company abuse, but also for people to learn about the many other ways that their lives are not private from the prying eyes of government, corporations, and others. For instance, in crime investigations, police routinely successfully subpoena phone records, bank records, and other critical personal data. Cellphone calls are the easiest to track, because every outgoing and incoming phone call is shown on monthly cellphone bills. With a subpoena for a pending court case, even I can obtain very personal information about other people, sometimes without their knowledge. 

These violations of privacy are extremely disturbing, and are another example of the way the government tramples on the privacy rights of criminal defendants and criminal suspects. 

Fortunately, we still have the same system that peacefully overthrew Richard Nixon. Please take action now -- lest the day arrives when one cannot even pick one's nose in private -- starting with petitioning the phone companies here:  https://secure.aclu.org/site/SPageServer?pagename=DTT_petition2&JServSessionIdr012=8br1erpmy2.app23a. By Jon Katz.

May 11, 2006

Earl Washington Jr's coerced confession and wrongful banishment to death row -- one of many examples of the huge gap between justice and reality in America's criminal courtrooms.

Ever since the Supreme Court resumed the green light for executions in the 1970's "Virginia has become the 2nd most active killing state." Virginians for Alternatives to the Death Penalty. 

Earl Washington, Jr., suffered the injustices of death row from a coerced confession as a man with an IQ of 69. Even the Virginia state-sanctioned killing machine could not leave him on death row after forensic testing first cast doubt on his guilt, and late DNA testing confirmed his innocence. Mr. Washington languished in jail for twelve years before his death sentence was commuted in 1994, and another six years until he was pardoned. 

Sadly, for every exoneration like Mr. Washington's, countless more wrongfully convicted people still languish in prison and death row. The powerful likes of Mr. Washington's post-conviction legal team of Barry Scheck and his Innocence Project -- backed by Frontline's reporting -- are too scarce. The criminal justice system, government coffers, and lawyers must close this gap. 

On May 5, 2006 -- represented again by a top-notch legal team -- Mr. Washington won further delayed justice with a $2.25 million jury verdict against the estate of the police officer who coerced Mr. Washington's confession. The Washington Post article is here. 

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

May 10, 2006

North Dakota welcomes industrial hemp production, if only the feds would back off.

A sad result of the federal and state governments' drug war is that domestic industrial hemp-growing is banned, lest a hemp farmer or intruder be so silly as to seek a high from the trace amount of THC found in hemp grown for industrial purposes. Consequently, Canada and China welcome the additional profits from exporting hemp fiber, paper, finished products and sterile seeds for such products as clothing, shoes, vegan lip balm, and food (check out the tasty hemp granola and hemp cheese at natural food stores). The multifaceted beneficial industrial uses of hemp are conceded even on the USDA's website. The North Dakota government wants to get in on the action that Canada and China enjoy, but that's not possible without the federal government's green light. The United States governments' ban on growing industrial hemp clashes severely with the nation's free enterprise tradition, and fails to recognize that industrial hemp's THC levels are too low to entice anybody to smoke it. You can weigh in on this issue to the United States Drug Enforcement Agency, which will hold a public hearing on the matter on June 15, 2006. See the details here. By Jon Katz.

May 7, 2006

The Bush administration's denial of basic trial rights to Guantanamo inmates reveals the government's charade in claiming to fight for freedom.

The United States war effort in Iraq and Afghanistan and against terrorism has led to thousands killed, even more wounded, and billions upon billions of dollars wasted. These losses are all the more for naught with the repeated denial of basic rights to hundreds of Guantanamo inmates who are not even formally charged with any offenses, and with the unconstitutional military commissions that they will face after being formally charged. One of the pathetic ironies of these military commissions is that they are ostensibly meant to hear accusations of violations of international law, but do not provide trial safeguards required by international law. 

All but one of the ten Guantanamo inmates currently facing military commissions have refused attorney representation, but a Pentagon order denies them the right to represent themselves that is guaranteed in United States civilian courts. Several military lawyers assigned to these inmates are showing backbone in challenging the denial of their clients' choice to represent themselves.    

Meanwhile, the Supreme Court recently heard an appeal of a federal Circuit Court's determination that federal courts have no jurisdiction over military commission cases before they are concluded, despite the argument that the military commissions do not satisfy the minimum procedural protections due to prisoners of war, and that the federal courts properly should consider challenges that a detainee is a prisoner of war. This Supreme Court case is Hamdan v. Rumsfeld, 415 F.3d 33 (DC Cir. 2005), cert granted, 126 S. Ct. 622 (2005). The March 28, 2006, oral argument transcript is here. By Jon Katz.

May 5, 2006

Some Moussaoui jurors questioned whether "the death penalty is really an appropriate punishment for lying,"

My April 24 blog entry rails against using Zacarias Moussaoui's prosecution as an excuse to expand the death penalty for lying and for any crimes other than pulling the trigger or being present as an accomplice with the trigger-puller, and utterly opposes capital punishment in the first place. Fortunately, some of Zacarias Moussaoui's jurors recognized that his lies to federal agents did not justify capital punishment. See the article here. 

Numerous opponents of the jury verdict shook their heads that the jury somehow gave more value to Mr. Moussaoui's life than to the lives of the thousands of September 11 victims. Perhaps some of the jurors initially held similar concerns. Fortunately, the jurors appear to have thrown themselves into being as fair as possible, taking their time deliberating for thirty-five hours, af