UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer - Criminal Defense

Googling jurors/Jurors FaceBooking.

nospam@example.com (Jon Katz) — Wed, 03 Dec 2008 00:00:00 -0500

Prosecutors have easier access to the criminal records of potential jurors and witnesses than criminal defense lawyers. Both sides, however, have similar access to search non-password-protected Internet pages for information on them, from Google to FaceBook.

If available, it is essential to obtain the jury list in advance of a trial date and to seek the jurors' criminal records and online information at that time. This is not an exercise in paying respects to people's privacy -- although FaceBook is hardly private -- but in determining whether jurors will be fair to a criminal defendant, determining whether jurors will stay away from communications during trial that could get them and the defendant in hot water, and having more ammunition to respond to prosecutors' responses to challenges under Batson of racially motivated juror strikes.

Thanks to Gideon for referencing Anne Reed's article on this topic. Jon Katz

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Lying cops exist.

nospam@example.com (Jon Katz) — Tue, 25 Nov 2008 00:00:00 -0500

Bill of Rights (From public domain.)

To say that no cops lie is to say that people do not grow old or die. As I have asked before, how on earth does one lie less by wearing a police badge? Am I the only one who believes that the vast majority of people lie frequently, and go well beyond so-called white lies? If that is true, then there is no reason to believe that cops are any more honest than those in the general population.

Thanks to John Wesley Hall for posting a recent Chicago Tribune article that covers the testimony of former police officer Richard Doroniuk in a police corruptoin trial. The Tribune recounts Doroniuk testiifying, among other things, that "Officers carried a little crack cocaine to plant on suspects when searches came up empty and stole cash from drug dealers during raids and traffic stops. They also routinely paid informants, falsified reports, lied in court and even kicked back cash to a judge for pushing through a bogus warrant, Doroniuk testified Wednesday in federal court."

When a criminal defendant claims the cops planted drugs on him or her, do not be so quick to consider the defendant a liar. Jon Katz.

Waiting for Melendez: The Confrontation Clause Revisited.

nospam@example.com (Jon Katz) — Thu, 20 Nov 2008 00:00:00 -0500

Bill of Rights (From public domain.)

Sometimes the United States Supreme Court does true justice for criminal defendants. Miranda v. Arizona remains the best protection from the Court for suppressing coerced statements. U.S. v. Booker and its progeny led more judges to sentence below sentencing guidelines and prevented appellate courts from changing such departures. Crawford v. Washington put stronger teeth into the Sixth Amendment right to confront the witnesses against a criminal defendant, so long as testimonial evidence is involved.

Being only four years old, Crawford spells a radical overruling of the 1980 Ohio v. Roberts case that took an overly-crabbed view of the Confrontation Clause. Because Crawford is so relatively new, and because it departs so radically from what judges and the vast majority of lawyers learned in law school, judges must not only be educated about Crawford, but also divested of any temptation to do mental gymnastics to issue rulings more crabbed than Crawford dictates.

Crawford only gives cursory direction about the difference between testimonial evidence -- which receives Crawford's protection -- and non-testimonial evidence, which does not receive Crawford's protection. With oral arguments on November 10, 2008, the United States Supreme Court further visited the meaning of "testimonial evidence" in Melendez-Diaz v. Massachusetts (Supreme Court No. 07-591), which challenges a Massachusetts appellate decision that drug certificates of analysis "are akin to a business or official record, and therefore, would not be subject to the holding in the Crawford case."

Even pre-Crawford, I have obtained many successes defending against Maryland state drug prosecutions, based on Maryland's statutory law keeping drug certificates of analysis out of evidence if the defense files a demand for the chemist's testimony at least five days before trial and if the chemist does not appear at trial. The neighboring District of Columbia Court of Appeals views drug certificates of analysis as containing testimonial evidence under Crawford. The Virginia Supreme Court acknowledges the latter view in Thomas v. U.S., 914 A.2d 1, 20 (D.C. Cir. 2006), but rejects it. Magruder v. Virginia, 275 Va. 283 (2008). Nevertheless, the latter Magruder case gives the defendant the right to have the chemist testify, but does not seem to make clear whether such a right may be exercised merely by filing a demand for the chemist's presence at trial, versus requiring the defendant to take the responsibility of having the chemist subpoenaed to court.

Hopefully the Supreme Court's decision in Melendez will breathe more expansive life into Crawford. Considering the 7-2 vote in Crawford, with the seven-justice majority still sitting on the Supreme Court and the remaining two gone from the Court -- the Court should be expected to give Crawford stare decisis effect. Further supporting that the Supreme Court will not retreat from Crawford is Davis v. Washington, 547 U.S. 813 (2006), where an 8-1 majority of the currently sitting justices reversed a conviction obtained after the introduction of evidence from a police interview of an alleged crime victim after the crime already had occurred (but also where all nine justices affirmed a conviction obtained after introduction of evidence of a 911 caller's identification of the defendant as committing the reported crime that was then in progress). However, the foregoing considerations do not answer whether the Court will reverse the Massachusetts appellate court's decision in Melendez that drug certificates of analysis do not constitute testimonial evidence, and, therefore, fall outside the protections of Crawford.

Massachusetts' attorney general's office wants the justices to worry that a Supreme Court victory for Melendez will cause drug chemists to spend more time traveling to and being in court than testing alleged drugs. However, such concerns should not trump the Confrontation Clause. Nothing in the Constitution mandates the insane drug war that drains cash-strapped governments' coffers, so the drug war cannot be permitted to trump the Constitution, even though too many judges permit that to happen with the Fourth Amendment. Besides, as I repeatedly have urged, we need to legalize marijuana now and heavily decriminalize all other drugs. Following such an approach will reduce the number of drug prosecutions, and will thusly reduce the need to have so many tax-paid drug chemists in the first place.

Here are some useful links in the Melendez case: SCOTUS Blog's links in the case; transcript of the Supreme Court oral argument; SCOTUS Blog's coverage of the Melendez oral arguments; including Justice Scalia's questions favoring Melendez's argument that certificates of drug analyses constitute testimonial evidence; Melendez's brief; and Massachusetts' brief. Jon Katz.

Applying t'ai chi to trial lawyering.

nospam@example.com (Jon Katz) — Fri, 14 Nov 2008 00:00:00 -0500

INTRODUCTION

When I told t'ai chi Master Ben Lo that, time permitting in the morning, I sometimes circle the courthouse where I am scheduled and conclude with t'ai chi, he asked if some people think I am crazy. I told him of my temporary police detention last June, when I was a suspected t'ai chi terrorist. He suggested that I not practice t'ai chi in airports. Of course, practicing t'ai chi is anything but crazy. It is the Supreme Ultimate.

The editor of a state criminal defense lawyers association newsletter recently solicited articles. In the ongoing spirit of my applying t'ai chi to criminal defense and everything else I do, I submitted the following article that incorporates material from my previous blog entries with some additional ideas and realizations:

MAINTAINING CALM IN THE EYE OF THE STORM

Consider being in trial against the most underhanded prosecutor you have ever battled against or, perhaps worse, a prosecutor with a reputation for fairness acting the complete opposite. Add to that a judge who merely wants to move the case along, even if that means only allowing the span of a lunch hour to review a mountain of Jencks material. Complete the picture with a bunch of lying witnesses fingering the wrong person, your client.

What is the most powerful way to approach such a state of injustice? Critical ingredients are calm, non-anger, and fearlessness. To go to battle in a state of mental and physical limpness will amount to a limp performance. To go to battle tense, stiff, or angry will give the opponent a huge area of the defense to push against and to topple, and will close off the channels of energy and strength. To be mindfully calm, on the other hand, gives the opponent nothing to push against, and gives one tremendous strength.

In the West, for too long the power of calmness has been underrated, perhaps as a hallmark of laziness, weakness, and the antithesis of non-stop capitalism. The transcendental meditation craze that particularly flourished in the 1970’s helped make calmness a normal goal. Today, yoga is widely embraced as a way to reach calm. Over a decade ago, I chose the t’ai chi path.

Soon after joining the Maryland Criminal Defense Attorneys Association in 1991, I met the late Victor Crawford, who had a law office in Rockville. By then, he had been practicing the Chinese internal martial art of t’ai chi for many years. Vic was no touchy-feely, wooly-headed new-ager, which intrigued me all the more about what drew him to t’ai chi. Curiously, one of Vic’s main teachers did not fit that mold either; he is Robert Smith, who, while working with the CIA in Taiwan in the 1950’s became the first Western student of a legendary t’ai chi master named Cheng Man Ch’ing. Eventually, at my request, Vic gave me the names of some local t’ai chi teachers, with a note that I was about to embark on a journey that would open amazing doors. The doors t’ai chi opened were many. For trial battle, t’ai chi has provided me the best anchor for powerful calmness that I have found.

At first glance, t'ai chi might look like overly-simple slow-moving calisthenics for those who do not want to, or cannot, break a sweat. In reality, this martial art involves slow movements, a soft body, and an emptied mind on the one hand, and mindfulness, strength, and quick reflexes on the other, which all are critical to effective trial battle. The physical movements of t’ai chi better prepare practitioners to be calm and powerful at all times. T’ai chi is suitable both to make strong people stronger and to reverse weakness in the unhealthy.

When applying t'ai chi to trial work, the practitioner neither chases an opponent's power nor hides from it. Instead, the practitioner uses the opponent's power and energy to the best advantage, while seeking to sense the opponent's strategy and planned attack, to give the opponent nothing to push against, to find the opponent's weaknesses, and to neutralize the opponent. This fighting aspect of t’ai chi is called pushing hands, or, better still, sensing hands, because the idea is to keep the opponent close enough to be able to sense the opponent’s strategy, next move, strengths and weaknesses. The phrase sensing hands also is more apt than pushing hands, because the most accomplished t’ai chi practitioner uses mind energy over physical energy to win a battle.

Continue reading "Applying t'ai chi to trial lawyering. "

To hell with annotations.

nospam@example.com (Jon Katz) — Mon, 10 Nov 2008 00:00:00 -0500

Photo from website of U.S. District Court (W.D. Mi.).

When I started law school in 1986. my legal research class included researching weighty tomes with such titles as Supreme Court Digest, F.2d Digest, and A.2d Digest, which used key numbers to find various categories and subcategories of the law. It was part of what made law school unpleasant, to say the least. Next the instructor showed us how Lexis online legal research could shorten the time and tomes for obtaining the same legal research answer. However, at the time, Lexis was only available by dialup hookup; Al Gore had not yet discovered the Internet for legal research purposes. Moreover, at the time, Lexis was an expensive drug to use at a private law firm, so the digests still came in handy. I learned from those digests, annotations to statutes, the American Jurisprudence encyclopedia and other legal encyclopedias (including Corpus Juris Secundum) that the summaries of court cases found therein often were incorrect, or else were not always very precise nor applicable to the legal issue at hand.

Most current judges probably learned to do legal research in a similar fashion, because flat-fee Internet-based legal research did not come into being until around ten years ago, and most judges probably began law school more than ten years ago. My legal research instructor -- a bit of an overly intense person, but overall a caring and good educator -- for good reason admonished to rely on case descriptions in legal digests and statutory annotations at one's own peril. He said to review the actual court opinion being referenced, and I have always taken that approach.

However, in the heat of trial battle, unless the judge has an online legal research terminal in front of him or her at the bench -- which is the case in federal courts and many state courts, but apparently not in the misdemeanor/District Courts in Maryland and Virginia where I often practice -- sometimes statutory annotations are all that is available to the lawyers and judge at trial, unless the judge affords the lawyers a break to get online themselves or to call their colleagues and assistants to do the research at the office.

In the above context, ten days ago, I experienced dark comedy as a prosecutor kept referring the trial judge to the state annotated code's explanatory note about the amendment to a statute that was a basis of one of my evidentiary objections. Here, (1) the statutory language was clear on its face to the issue being argued, (2) the explanatory note apparently was written by the publisher of the code and not by any entity legislative body, and (3) even if the explanatory note was written by an entity of a legislative body (e.g., the committee that drafted the update to the statute), plain language in a statute cannot be trumped by the interpretation of some legislative committee engaged in legislative history mental gymnastics. In any event, the judge rejected the prosecutor's arguments and we moved on.

Criminal pattern jury instructions where I practice include references to caselaw in explaining the language of the instruction, and in warning when to be cautious about using a particular instruction. In Maryland, appellate and trial judges generally seem to give tremendous respect to the drafters of the criminal and civil pattern jury instructions. On the one hand, the drafters seem to include some very capable minds and dedicated people, but they are only human, and their work cannot cover every single scenario that might arise at trial.

In the District of Columbia, as well, it appears that a committee of lawyers puts substantial time into the criminal pattern jury instructions, and includes commentary with case references, However, when Maurice Lee went to trial for an alleged 2002 murder, the trial judge refused to give the jury an instruction on mitigating circumstances as to second degree murder where neither party had requested that the jury be afforded the option to convict Mr. Lee on the lesser offense of voluntary manslaughter. Last week, the D.C. Court of Appeals reversed Mr. Lee's second degree murder conviction, finding that the judge erred by refusing to instruct on mitigating circumstances. Lee v. U.S., __ A.2d _ (D.C., Nov. 6, 2008). Lee says that the trial judge was unintentionally hoodwinked by out-of-date commentary to the then-existing pattern jury instruction:

"Regrettably, the Bostick decision has never made its way into the lengthy Redbook commentary accompanying the standard instructions on murder and manslaughter. As a result, the trial judge was influenced here by language in the commentary that appears to condition the need to instruct on mitigating circumstances on the presence in the case of a lesser included offense instruction on manslaughter. But Bostick rejected that proposition and is indistinguishable from this case, because here, as there, the refusal to instruct on mitigating circumstances denied the defendant the proper legal framework within which to have the jury evaluate the evidence of heat of passion caused by adequate provocation. See Bostick, 605 A.2d at 918 n.8 (reversing because the jury had not been given “full instruction on provocation, including the requisite burden of proof on the government”)." Lee v. U.S.

Moral of the story: Annotations to legal codes and caselaw, and commentaries to jury instructions cannot meet the value of finding, reviewing, and Shepardizing court opinions. To do otherwise will place criminal defendants' liberty in unacceptable jeopardy. Jon Katz.

Same court; two actors; two different appeal bond results.

nospam@example.com (Jon Katz) — Mon, 03 Nov 2008 00:00:00 -0500

Photo from website of U.S. District Court (W.D. Mi.).

Wesley Snipes and Paul Little (a.k.a. Max Hardcore) both are actors -- very different actors, at that -- with pending federal criminal appeals from the Middle District of Florida. Their similarities end there both with the types of convictions involved (Snipes for a tax conviction and Hardcore for an obscenity conviction), the lengths of their sentences (Snipes possibly for a shorter period than the time to argue and decide his appeal, and Hardcore for nearly four years), and their abilities to make movies pending appeal (Snipes yes; Hardcore, no, because his appeal bond motion was denied).

Curiously, Wesley Snipes's judge granted him an appeal bond after determining that his appellate issues are not particularly strong, but are not frivolous. Conversely, in denying an appeal bond to Max Hardcore, his trial judge wrote: "The Court does not find it likely that this Circuit will afford Defendant relief based on the Court’s ruling here, as it is this Circuit’s precedent that necessitated it. In addition, even if the appeals Court were to grant relief on this ground, it would only affect Counts I–V, the sentence for which runs concurrent to the sentence imposed for Counts VI–X. Therefore, Defendant will be unable to obtain the relief listed in § 3143 required for a stay of his sentence on this matter."

Here are relevant documents concerning the appeal bond litigation in the cases of Snipes and Hardcore:

- Max Hardcore: Order denying appeal bond. Amended appeal bond motion.

Wesley Snipes: Order granting appeal bond. Appeal bond motion (a good motion for all practitioners' reference). Prosecution's opposition to an appeal bond. Snipes's reply to the prosecution's opposition to an appeal bond.

Also, see my previous blogpostings on Max Hardcore's case, and Ellen Podgor's recent listing of some white collar criminal appellants who have and have not been granted appeal bonds. Jon Katz.

Halloween treats galore today from Virginia's Supreme Court.

nospam@example.com (Jon Katz) — Fri, 31 Oct 2008 00:00:00 -0400

Image from Virginia Forestry Dept's website.

Halloween treats came before sundown today with the following favorable criminal rulings from Virginia's Supreme Court, which issues opinions around every six weeks:

- Virginia's Supreme Court reversed a rape conviction where not more than a scintilla of evidence supported a jury instruction that the jury could consider the defendant's departure from the alleged victim's home, where Defendant claimed consensual sexual activity and where the evidence showed the Defendant's departure complied with the complainant's telling him to leave. A retrial is required, because the erroneous jury instruction was not harmless error: "'[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand.' Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731 (2001) (omissions in original) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946))..." Turman v. Virginia.

- When cops ask if any drugs, weapons, guns, or nuclear devices are in the car, stay silent, or else ask if you are free to leave. If you do not follow that admonition, pursue a Miranda challenge. Here, Defendant Hasan drove a car matching a robbery lookout. In 2005 in Dixon, the Virginia Supreme Court said that handcuffing by itself does not automatically require Miranda warnings, nor does placing the suspect in a police car without anything more. In Mr. Hasan's case, the Supreme Court confirmed: "However, several factors not present in Dixon distinguish this case. For example, the defendant in Dixon did not face drawn weapons or a readily available K-9 unit, and at the time of the custodial interrogation, only one trooper was interacting with the defendant. See id. at 37-38, 613 S.E.2d at 399-400. In contrast, Hasan was confronted during questioning with both drawn guns and a K-9 unit close by, and was surrounded by a 'cone' consisting of multiple officers." With the foregoing factors present, Mr. Hasan confirmed the presence of a handgun in his car. The Virginia Supreme Court granted Mr. Hasan a retrial, where he had entered a guilty plea conditioned on his right to a retrial upon beating his suppression issue on appeal. Hasan v. Virginia.

- Mere presence in a drug-filled house does not automatically make one guilty of being a principal in the second degree. However, if the house is raided, you are likely to be dragnetted with everyone else, only possibly to benefit from the relief of this Brickhouse decision if the jury acquits you, but you may end up pleading guilty in advance to hedge your bets, as so many innocent people do. Brickhouse v. Virginia.

- Judges cannot in 2006 interpret their words from 2005 any more harshly than they did in 2005. Consequently, probationer Valerie White's first-time drug offender disposition could not be revoked where her alleged violation of the general good behavior probation condition succeeded the time period that the judge had originally set for being of general good behavior, and where the judge never said otherwise on the record. White v. Virginia.

- You must remember this: A peeling inspection sticker without more is just a peeling inspection sticker. Thus, the traffic stop of Matthew Moore was unconstitutional, as was, by extension, the search that found drugs and a handgun in the car. Congratulations, Mr. Moore. Moore v. Virginia.

- Tipping the scales against an anonymous tipper.

The Virginia Supreme Court overturned the stop of Joseph Harris's car --which led to a drunk driving conviction -- on an anonymous tip, for the following primary grounds:

"In this case, the anonymous tip included the following information: Joseph Harris, described as wearing a striped shirt, was intoxicated and driving a green Altima with a partial license plate number of 'Y8066,' southward in the 3400 block of Meadowbridge Road. The informant in this case was not known to the police nor did he or she personally appear before a police officer. Thus, the informant was not subjecting himself or herself to possible arrest if the information provided to the dispatcher proved false. See Code § 18.2-461. In other words, the informant was not placing his or her credibility at risk and could 'lie with impunity.' J.L., 529 U.S. at 275 (Kennedy, J., concurring). The informant provided information available to any observer, whether a concerned citizen, prankster, or someone with a grudge against Harris. See Jackson, 267 Va. at 679, 594 S.E.2d at 602. The tip received by Officer Picard failed to include predictions about Harris' future behavior. Thus, the anonymous tip, in this case, lacked sufficient information to demonstrate the informant's credibility and basis of knowledge. Such an anonymous tip cannot, of itself, establish the requisite quantum of suspicion for an investigative stop.

"When viewed in the context of the anonymous tip, Harris’ act of slowing his car at an intersection, or of slowing before stopping at a red traffic signal, did not indicate that he was involved in the criminal act of operating a motor vehicle under the influence of alcohol. Driving to the side of the road and stopping may be subjectively viewed as unusual, but that conduct was insufficient to corroborate the criminal activity alleged in the anonymous tip. See Barrett, 250 Va. at 248, 462 S.E.2d at 112. Therefore, we hold that Officer Picard’s observations, when considered together with the anonymous tip, were not sufficient to create a reasonable suspicion of criminal activity, and that, therefore, Harris was stopped in violation of his rights under the Fourth Amendment. Thus, the circuit court erred in denying Harris’ motion to suppress." Harris v. Virginia.

Thanks to the Virginia Supreme Court justices who voted with the majorities in the foregoing decisions from today.