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Friday, December 5. 2008
Bill of Rights (From public domain.) Before getting disbarred over his role in the Watergate coverup, Richard Nixon was a lawyer. While president he was still a licensed lawyer. Litigating attorneys are generally prohibited under governing ethics rules from communicating ex parte with judges about their pending litigation. Nixon was the ultimate boss of all federal lawyers, so it would not have been kosher for him to talk with judges about litigation likely to come before them, including obscenity. Rules or no rules, it is an outrage against justice to learn from recently-released Nixon White House tapes that Nixon and then-Chief Justice Warren Burger (placed on the Supreme Court after Nixon nominated him) discussed and commiserated on the landmark Miller v. California obscenity case in a one-on-one phone call. Listen to the tape (which is the second segment on this Olbermann video) and retch. Thanks to a listserv member for this Olbermann link, which includes some additional Nixon tape footage. Jon Katz.
Thursday, December 4. 2008
Image from Library of Congress's website. Lately, several lawyers have pondered about my finding time to blog. My response is: Do you take time daily to eat, brush your teeth, and get dressed? Do you take the time to read court opinions, expand your persuasion abilities, and self-reflect? Can you write well and quickly directly onto the keyboard without needing to use a pen first? If so, there is time to blog, especially after eliminating wasted time on television, instant messaging, websurfing and listservs. My days start and end with a round of t'ai chi. In the middle come spending some morning moments with my family before heading out to fight for my clients, handling work at my office, and spending time with my family in the evening. I spend an average of fifteen to twenty minutes daily blogging. When I come across an idea or court case to blog about, I save the idea to my BlackBerry. By the time I start writing, the framework of the blog entry has already grown in my head, so it then just becomes a matter of putting my thoughts onto the keyboard. Sometimes I type a few blog entries in advance, and save them in draft form until I am ready to release them into cyberspace. My blog software lets me program blog entries to be released for a pre-designated day. This way, although my blog entries come out daily, I am not blogwriting daily. To some, like I, writing is as essential as breathing. The late great Pramoedya Ananta Toer was was deeply emotional when he said in 1999 that the Indonesian government's decades-long effort to ban his books was like trying to cut off his life. Writing was so vital to Pramoedya that he told his masterpiece Buru tetralogy orally through a chain of prisoners on Buru prison island during the time he was denied pen and paper. Past issues of Index on Censorship show the risks writers repeatedly have taken against censorious governments to keep their written voice going, including getting their writings smuggled to other countries, to be published and finally read. By now, Underdog gets several hundred visitors daily, on top of additional daily readers viewing archived Underdog entries. The world remains more unjust and brutal than the opposite. Accumulated feathers can sink the boat of injustice and inhumanity. At the very least, my blogging is hopefully part of those accumulated feathers. So I blog to get on a bully pulpit for justice, and to discuss court opinions and persuasion approaches from an angle of fighting for justice daily. My brother lawyer and blogger Marc Randazza has pointed out how quality bloggers often are among the busiest people, and says of his own blogging: "I have very little time on my hands. I make time to blog. It also helps that I am an insomniac." Whether or not Marc jests about insomnia, I blog without it. Asking me how I have time to blog is like asking how I have time to eat. Jon Katz
Wednesday, December 3. 2008
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
Continue reading "Googling jurors/Jurors FaceBooking."
Tuesday, December 2. 2008
18 U.S. Code § 2257 generally requires producers of sexually explicit material to prove the actors are not minors. Coming around the corner apparently will soon be updated § 2257 regulations from the Justice Department. More about this matter is here. Thanks to fellow listserv members for forwarding the above-displayed information. Jon Katz.
Tuesday, December 2. 2008
Winter professional holiday party invitations are coming from left and right. Some of the parties are interesting, but some are less exciting than the tax-deductible one Rick Moranis planned in Ghostbusters. One holiday party that will be both entertaining and good for social justice is the December 9 party in Baltimore by Civil Justice Network. Civil Justice Network is a public interest group that has found a way to involve small and solo law practitioners simultaneously to do good and well. The party will be in Baltimore City, which is a John Watersesque city of non-stop entertainment any time of year, including in such places as Hampden and Fells Point. As I have learned from CJ, everyone is invited to the party: Non-lawyers and lawyers; those litigating on our side and against us; and everyone else. Here is the invitation. I look forward to seeing you there. Jon Katz.
Monday, December 1. 2008
Eleven days ago, Washington state Supreme Court justice Richard Sanders shouted "Tyrant" to outgoing Attorney General Michael Mukasey after Mukasey allegedly drew laughter at a Federalist Society meeting when he underlined that the last time he checked, Al Queda was not a signatory to the Geneva Conventions. (The Federalist Society video does not appear to have picked up laughter, so either the laughter was just filtered out before the speech hit the Federalist Society's screen, it was not as loud as Justice Sanders asserts, or the truth lies somewhere in between.) Justice Sanders insists he left Mukasey's speech long before he collapsed, which is a curious assertion if the Federalist Society's video (omitting the collapse) is correct that the Geneva Conventions comments came at the last ten minutes of Mukasey's speech. In any event, the story raises a few issues and facts, including the following: - As much as I am not fond of Barack Obama's choice of Eric Holder to be attorney general, the video of Mukasey's speech shows him to be a key cheerleader for Bush II's disregard for affording basic legal protections to alleged terrorists. The nation will be better off when Mukasey leaves office along with Bush II on January 20, 2009. - The Federalist Society is a very influential networking group for those wanting Republican presidents to appoint them to positions on the bench and in the Justice Department. - Federalist Society gatherings draw numerous (if not many more) Supreme Court justices, lower federal court judges, and state court judges. - By his presence at the November 20 Federalist Society meeting and apparent involvement with previous Federalist Society activities (through a Google search), Justice Sanders apparently is a Federalist Society member. Will the Federalist Society try to purge him over his heckling, or does the society wish to portray itself as welcoming such a range of differing thoughts? - By his own account, Justice Sanders took the Washington state Supreme Court bench in 1995 by election and has gotten re-elected every six years since then. - Justice Sanders is outspoken, and has his own website. - Justice Sanders filed a cert. petition to the United States Supreme Court after having been disciplined after his visit with inmates at a prison for those convicted of sexual offenses. By silence in Scotus Blog and Google, it seems the petition was denied. Do any of you have further information on Justice Sanders? Have you argued before him or otherwise met or observed him in action? Jon Katz
Friday, November 28. 2008
Underdog readers, lend me an eye or two. I have found a webdesigner to update my clunky self-created static webdesign circa 1999. After the designer sent me the first design, I asked about arranging for black typeface and putting in pictures of me and my staff, maybe with a slideshow, as well as automatic dropdown boxes. The sitehost working with the designer responded with this second design. The text and photographs in these two designs are just samples. I have not before circulated the second design, which I like better than the first. Responses to the first design, have been generally positive. However, one person said the first design looks like most other lawyers' websites and lacks a focal point. Another person said the feel of the first design is so cold that she would not want to hire such a lawyer. As a counterpoint, another person said he'd want a criminal lawyer showing such an image. I like the idea of a focal point, as would Chagall, but what should be the focal point? Enough of what I think. I seek your feedback, unvarnished and merciless. Thanks. Jon Katz
Thursday, November 27. 2008

Regardless of their party affiliation, presidents each year "pardon" a turkey, only to leave 48 millions more for "Thanksgiving" slaughter. Does the title of this blog entry sound harsh? Would it sound harsh or even overexaggerated to turkeys? Would I prefer such harsh words to the massacre (should we read that as "murder"?) inflicted worldwide on billions of innocent mammals, birds, and fish each year, to satisfy the cravings of human diners? Would you be eating meat today if you were shown and told in advance since infancy what you were really eating and how the animals are slaughtered, including the blood, guts, and untold suffering? Is it anything but advertising euphemism that meatsellers cloak animal corpses in such code words as hot dogs, hamburgers, pork, beef, bologna, sausage, bacon, ham, meatballs, and meatloaf? Soon after graduating college in 1985, I could no longer resolve all the toil I had spent advocating for human rights while chomping on burgers, chicken, and tuna fish. I responded modestly by cutting out all red meat, to distance myself further from my relatives in the so-called meat food chain. Three months later, I was at the Carnegie Deli, and ate a corned beef sandwich -- one of the most delicious meat items in the world for me of all time, and a scent that still made me swoon before retching on my last visit there this year -- figuring (rationalizing may be more like it) that I already came across as peculiar to many, so why add to the perception of peculiarity? I finished off the corpse in no time, with the most delicious rye bread, pickles, and fries on the side. Meat-eating continued nagging at me. However, that did not stop me from increasing my array of meat and fish eating the following spring while on a dream business trip in Hong Kong and Japan, where for the first time in over six years I let pork and shellfish pass my lips, and indulged in sukiyaki made of prized Kobe beef. A year later, I finally swore off red meat for good. Cravings kept me with red meat that long. A year after that, I learned how disgustingly gelatin is made. Completely grossed out, I then cut off all land animals from my plate. Two months later, I went to the Baltimore aquarium, followed by a visit to Little Italy for dinner. I felt ill at the thought of ordering marinara and shrimp, after having spent time with so many amazing and feeling fish at the aquarium a mile away. I later learned that it is not only lobster, crabs and shrimp that face the most gruesome of boiled/steamed-alive fish deaths, as I watched a fish being scaled alive at a Chinese supermarket, to be told by its buyer that chicken also is more delicious by plucking the feathers when the chicken is alive. That was twenty years ago. I have never eaten meat fish or fowl again. Seven years ago, I cut eggs and milk from my diet. Egg-producing chickens and milk-producing cows get slaughtered for meat after they stop producing; their relatives who are not raised to produce eggs and milk get slaughtered earlier. Too many food-raised land animals are treated horrifically during their terribly short lives, including the calves who are slaughtered as babies for prized veal, after struggling in tiny cages in the dark without their mothers, iron or milk, to obtain the tender pink flesh prized by chefs and restaurant food critics. How does that bad karma not get transferred to the meat that is eaten? Human executions are excruciatingly painful, despite litigation geared to reduce the pain. No similar efforts are made to minimize the physical and psychological suffering of animals, as they are led to slaughter first seeing and hearing their brother and sister animals slaughtered before their very eyes. Unlike humans executed in American death chambers, food animals are methodically beheaded, stabbed, and killed otherwise. See this gruesome video giving a brief meeting of your meat. More videos are here. Even if most people are unwilling to become vegetarian, world hunger and food prices will still dramatically fall if people drastically reduce their consumption of meat, fowl, milk. milk products and eggs. There has never been an easier, more healthful, or more delicious time to live vegetarian; even supermarket aisles have infinitely more vegetarian choices than just five years ago. Restaurants have more vegetarian options than ever before, including Burger King and Subway with their veggie burgers (may not be vegan, though, but it is a start). See how you feel about your health, your annual physical exam, the environment, the animals around you, and world hunger after making such a change in your eating choices. You may never turn back. For many years I kept my vegetarianism mostly to myself, figuring that everyone should be able to do their own thing. They may, including my own thing to speak up for the animals who cannot speak up for themselves. Happy Thanksgiving? Happy for whom? Jon Katz.
Wednesday, November 26. 2008

Image from National Institute of Standards & Technology.
Perhaps Connecticut DWI defense lawyer James O. Ruane overstates the matter by calling the Intoxilyzer 5000 KKK in a box.Certainly, breath testing for blood alcohol content is an oppressive junk science system that is perpetuated by court rulings that stand logic, truth, and the Constitution on their heads.
Ruane makes the case for why the Intoxilyzer 5000 is more likely to give a falsely high BAC reading for black people. Ruane’s expert witness Dr. Michael Hlastala says the same problem affects women who take the test. Thanks to Gideon for posting on this issue. Jay Ruane graciously e-mailed me his memorandum of law in this case, giving the green light for me to upload the filing. His legal memorandum references an attachment containing testimony of expert witness Hlastala. I did not receive that attachment. The memorandum addresses Dr. Hlastala's previous testimony as follows: "Dr. Hlastala has testified in Connecticut that the Intoxilyzer 5000 is biased against African Americans in that the lung capacity of the African American male is approximately 3% smaller than the Caucasian. This testimony is attached hereto as Exhibit A. Because of the physiologically smaller capacity an African American arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3%. "Moreover, the issue of racial bias rises to the fore in the use of the Intoxilyzer 5000. Dr. Hlastala opined that the distorting effect based on race was 3%. (T2B, p37) While at first sight this might appear to be de minimis, State should not countenance racial discrimination in any degree whatsoever." The foregoing use of the phrase "de minimis" raises all sorts of questions, which hopefully will be answered in favor of the defense. Jon Katz.
Tuesday, November 25. 2008
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.
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