Thursday, July 31. 2008Wednesday, July 30. 2008A snitch's story.
Image from Library of Congress's website.
Los Angeles attorney Barry Tarlow refuses to assist clients with snitching. San Francisco legend Tony Serra also refuses such work , and advises criminal defense lawyers of the importance of such an approach even at serious financial cost. Suffice it to say, refusing snitch work will preclude a lawyer from obtaining trial work with a federal public defender office, and will make the lawyer lose many potential retained federal felony clients. For those lawyers, fortunately the option remains to include state-level criminal defense in the mix.
My standard retainer agreement provides for my potential clients to go to another lawyer if the potential client wants to pursue the snitch route. Each defendant has a right to try to minimize conviction and prison term risk by snitching, so long as no dishonesty is involved (therein lies the rub), just as I have the right to avoid taking on such a client.
The Washington City Paper does not come across to me as a pillar of journalistic excellence and reliability. When one adds an anonymous interviewee to the mix, my suspicions are raised all the more. Nevertheless, submitted for your perusal is this recent City Paper article claiming to summarize an interview with a snitch. Jon Katz. Tuesday, July 29. 2008Persuading in the first person.
Photo from website of U.S. District Court (W.D. Mi.).
The National Criminal Defense College and Trial Lawyers College focus on persuasion through storytelling. What to do, though, when a judge tries to stop the lawyer from first-person storytelling ("I was sitting there minding my own business, when he rushed at me with a meat cleaver. I had no choice but to shoot him, or else I would have been dead")?
A trial lawyer listerv recently discussed the foregoing matter. In addition to arguments to present to the judge (e.g., "Judge, we all know that lawyer arguments are not facts" and "my client will testify, anyway" (not all parties testify)) to keep doing first person storytelling, two related cases were mentioned:
In People v. Richmond, 341 Ill. App. 3d 39, 791 N.E.2d 1132, 1138 (2003), the prosecution "delivered its entire opening statement in the first-person from [the complainant's] perspective. The State began with, 'Hi. My name is RJ, and I'm 8 years old *** I'm going to tell you about something that happened a couple of years ago when I was just a little kid.' Not long into the opening statement, the State also said, still in the first-person and from R.J.'s perspective, 'Now, my State's Attorneys, Miss Roseanne McDonnell and Theo Jamison then, they're going to present this evidence to you today.'" The court found: "Although the use of a first-person delivery may not be error under other circumstances, in this case it improperly bolstered the credibility of the State's star witness, an eight-year old." Id. at 1139.
To what extent will a lawyer convince a judge to permit first-person opening and argument on the theory that it is no different than if a pro se party were giving the opening, of course, in the first person? Not, not all courts will give even pro se parties wide first person leeway, as confirmed by U.S. v. West, 877 F.2d 281, 286 (4th Cir. 1989), cert. denied, 493 U.S. 959 (1989), where the trial court found the pro se criminal defendant incompetent to represent himself, based on his following remarks in opening statement:
"Although I am not a professional, I will do the best that my ability will allow, and I hope you will bear with me. I hope you will believe in our country's motto, innocent until proven guilty, not the complete opposite of guilty until proven innocent, which both the Court and the Government appear to have forced upon me.
The Fourth Circuit upheld the trial court's ordering defendant West to have counsel represent him. Id.
Do you have caselaw and arguments to support giving first-person opening and closing? If so, please send the items my way, preferably by a comment to this blog entry.
ADDENDUM (August 20, 2008) Thanks to a fellow listserv member for the following case: Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, (Okla. Crim. App. 2000): "Malicoat first complains of the first stage closing argument in which the prosecutor delivered a two-page first-person account of Tessa Leadford's final hours. He made timely objection to this argument, preserving the issue for trial. While theatrical, we do not find this argument overly prejudicial. The prosecutor occasionally speculated as to Tessa's feelings and thoughts. The argument very nearly constitutes an improper solicitation of sympathy for the victim, but is largely based on the evidence presented. The medical examiner testified as to the type and severity of pain probably caused by Tessa's injuries and several witnesses testified about Malicoat's account of Tessa's abdominal injuries and death, including her screams of pain. Taken as a whole, the argument does not manipulate or misstate the evidence and we find no error." Jon Katz.Monday, July 28. 2008No means no, and "I want a lawyer" means I want a lawyer.
Bill of Rights. (From the public domain.)
Praised be the majority of en banc Virginia Court of Appeals judges who voted to put teeth into Miranda, by saying that the police generally (after looking at the overall circumstances) must stop trying to interview a suspect once the suspect communicates the suspect's wish for a lawyer. In this instance, the Defendant's statement "I think I should get a lawyer" was sufficient to prevent police from continuing efforts to get the defendant to communicate. The case is Ferguson v. Com. __ Va. App. _ (July 22, 2008). Jon Katz. Sunday, July 27. 2008Come visit my new digs.
On July 24, I wrote of the July 28, 2008, opening of my new law firm, Jon Katz, P.C.
The move was completed this weekend, and my new law firm's doors are open, at 8720 Georgia Avenue, Suite 703, Silver Spring, MD 20910, (301) 495-7755 and fax (301) 578-7733. My work will remain unchanged, except for now being solo -- with the same and expanded staff -- where before I partnered with Jay Marks, who primarily practices immigration law.
My new firm is just three blocks from my old one, in downtown Silver Spring. If you are in the neighborhood, I will be delighted if you stop by to say hello and to show you the office.
Fortunately, through the beauty of technology, I will be as easy to find as ever. As provided in the partnership agreement for my former law firm, anybody calling the former firm's main phone number will receive a message telling of the whereabouts of me and my former law partner Jay Marks. By agreement, I have taken the website and Underdog blog with me. People emailing me at my old e-address will have their email forwarded to my new one. My web sitehost is in the process of getting my new email address up and running this weekend, and to have automatic edits updating my website to reflect my new law firm's name and address.
Recently I spoke with another local lawyer who, upon learning that my split with Jay is an amicable one, remarked at such fortune, and about the ugly partnership split he underwent a few years ago. In any event, it is critical that law partners enter a comprehensive and well-written partnership agreement. It is an essential pre-nuptial agreement, and Jay and I had one drafted by a get-things-done business lawyer that served us well in navigating an easy roadmap to our split.
Jay and I had ten very good years together. Early on, we each expected to be spending substantial time advocating for injury victims, but then, to our delight, found we could be successful doing what we love doing most in law practice, which is criminal defense for me and immigration for Jay. Jay and I go back to 1969, when we first met at a mutual friend's birthday party in Monroe, Connecticut. The bonds we forged do not simply disappear with the birth of our new law firms. Going into practice with Jay made it less scary than if I had started solo. Eventually we both learned that we each can do good and do well as solo practitioners. We have been encouraging each other on the road to ongoing success, and will continue doing so. 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. Wednesday, July 23. 2008Mukasey and racial profiling.
Bill of Rights. (From the public domain.)
The websites at such kindred organizations as the American Civil Liberties Union and the Alliance for Justice decry the United States Justice Department's purportedly proposed inclusion of racial considerations in investigating terrorism. However, other than news articles briefly addressing the matter, I have not found any details from Justice Department sources, including the department's website.
An article in the July 9, 2008, USA Today reports the following:
"[Attorney General] Mukasey said he is considering changes so FBI agents have 'clear and consistent rules for conducting investigations while maintaining vital civil liberties protections.' The proposed policy, first reported last week by the Associated Press, would let FBI agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious. Factors that could make a U.S. citizen or resident the subject of an investigation include travel to regions of the world known for terrorist activity, access to weapons or military training and someone's race or ethnicity.
"When questioned about whether or not someone's ethnicity is enough to put them under investigation, Mukasey gave an emphatic 'no.' However, when asked whether a U.S. citizen from Pakistan, whom [sic] makes frequent trips to Pakistan, would be subject to investigation, Mukasey said he was not prepared to discuss hypothetical questions. He added that 'this is part of an ongoing process.' Mukasey's tone often remained careful and sometimes ambivalent during his exchanges.
"When pressed by Sen. Russ Feingold, D-Wis., on whether people might be investigated based on their ethnicity, travel habits and whether they own a gun, Mukasey declined to answer directly. He said, 'the nature of evidence gathered and the way that it's gathered will be subject to review.'"
The following excerpt comes from a July 2, 2008, Associated Press article on the matter:
"The Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups. Law enforcement officials say the proposed policy would help them do exactly what Congress demanded after the Sept. 11, 2001, attacks: root out terrorists before they strike. Although President Bush has disavowed targeting suspects based on their race or ethnicity, the new rules would allow the FBI to consider those factors among a number of traits that could trigger a national security investigation.
"Currently, FBI agents need specific reasons — like evidence or allegations that a law probably has been violated — to investigate U.S. citizens and legal residents. The new policy, law enforcement officials told The Associated Press, would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious. Among the factors that could make someone subject of an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training, along with the person's race or ethnicity."
Fox News's July 2 article claims to add additional information to the foregoing Associated Press article.
Do any of you know where I can find primary sources on such "changes" being considered by Attorney General Mukasey? I have not found such information through searching the Federal Register. Nor have I found such information through a general Google search, nor through a search of the Justice Department's website, nor through reviewing some of the webpages discussing the issue. Jon Katz. Tuesday, July 22. 2008Of FCCENSORSHIP, Bono, and Janet Jackson's bared right breast.
Bill of Rights. (From the public domain.)
Welcome to the land of bland: A land where television is dumbed down to a child's level, where broadcasters furiously self-censor, and where most Americans keep returning for more and more and more. It is the land of broadcast television, where so-called oral and visual "indecency" is forbidden from 6:00 a.m. to 10:00 p.m.
When courts first permitted indecency bans on broadcast (versus cable and Internet) television and radio, the theory behind it apparently included reliance on the limited number of available space for broadcasters, who are required by law to include service to the so-called "public interest." That basis by now is archaic, when cable stations and satellite radio abound.
Americans ultimately have themselves to thank for this state of affairs, not only because the anti-censors have not spoken out enough and effectively enough (do too many of them fear television content that they do not like if they speak up against broadcast censorship?), but also because tens of millions of viewers daily return for more of such broadcast pablum.
Enter Janet Jackson and Justin Timberlake at the 2004 Super Bowl, challenging the land of bland during the halftime show, with Timberlake singing "gonna have you naked by the end of this song,” while, unscripted, ripping off part of Jackson's costume to reveal her right breast for nine-sixteenths of a second until CBS cut the image. Were this Europe, the reaction would have been no different than to the thousands of barebreasted women sunning themselves on beaches in France and Italy, exercising their right not to cover up any more than men are required.
This not being Europe, though, countless Americans fear bared breasts. Fortunately, women have won the right to breastfeed in public in most places, and in some locales publicly bared breasts are permitted, whether by legislative intention or oversight. For whatever reason, bared breasts are more eroticized overall in American society than the many places where it is commonplace for women to be barebreasted all the time in public, causing little more notice than if they were covered up.
No sooner does Janet Jackson get removed from the halftime stage than the complaints of her bared breast come flooding into t |
