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RETURN TO UNDERDOG BLOG HOMEPAGE

INDEX OF APRIL 2006 UNDERDOG BLOG ENTRIES:

April 30: Mourning the passing of Bob Ritchie.

April 30: Under Attack - The Constitutional right to a vigorous criminal defense and to a jury trial.

April 28: Medical marijuana grower Ed Rosenthal gets retrial. 

April 27: Your double jeopardy rights - diminished by the unjust separate sovereign doctrine.

April 26: Increase pay for indigent criminal defendants' court-appointed counsel.

April 26: The New York ACLU goes to court against heavy-handed policing against teachers.

April 25: The Supreme Court Bars "Consent" Searches When a Co-Occupant Objects.

April 25: Austin police institute safeguards for "consent" searches.

April 24: Zacarias Moussaoui's Case - A bad basis for expanding the death penalty.

April 24: Wenyi Wang's prosecution is unconstitutional.  

April 22: Honoring Native American rights on the last day of the Sacred Run.

April 20: Supporting marijuana legalization on 4/20 and every day.

April 10: Ramiro Games's tragedy points to the critical need to better protect the accused. 

April 30, 2006

Mourning the passing of Bob Ritchie - an effective and respectful criminal defense lawyer.

On Friday, April 28, Bob Ritchie departed the planet after battling cancer. Bob was a criminal defense lawyer in Tennessee, and a past president of the National Association of Criminal Defense Lawyers. What struck me about Bob early on was that -- at least with me -- he appeared to follow the Dalai Lama's approach of talking to everyone the same; I saw no ego displayed. As a new criminal defense lawyer and NACDL member in 1992, it meant a lot to me that when I approached Bob, he'd give me his full attention and respect. I try hard to follow the same approach with everyone I meet. 

During one NACDL quarterly meeting, about twenty people were at the table at a restaurant, not having been invited by any particular person. When the check came, Bob cheerfully and without fanfare said "I'll pay." I was a public defender lawyer not yet able to do the same. I know Bob's kindness and generosity have infected many, including me. 

When you read his obituary, you'll see the praises heaped on Bob from judges and adversaries. I doubt Bob yielded an inch in aggressively defending his clients. Maybe fang-showing impresses some lawyers' clients in the short-run, but the fangs usually are best kept in the back pocket for when the other approaches don't work. It is critical to show thanks to people while they are still with us, and a mistake to wonder whether heartfelt words of thanks will mean much; they will. By Jon Katz.

April 30, 2006

Under Attack - The Constitutional right to a vigorous criminal defense and to a jury trial.

The federal prosecution system is fraught with injustice. It is a system that turns the presumption of innocence on its head by instead jailing legions of presumed-innocent defendants pending their trial dates; penalizing defendants for asserting their Constitutional right to a jury trial (unless the defendant is acquitted, but often only after substantial financial and personal expense); and encouraging criminal suspects and defendants to cooperate/snitch against other suspects and defendants in order to escape draconian mandatory minimum sentences and harsh sentencing guidelines (which system fosters more dishonesty than honesty by cooperators/snitches). 

Adding to that, the United States Justice Department encourages corporations not to help pay for their employees' legal counsel in criminal cases, as a factor in determining how leniently federal prosecutors will treat suspect corporations. This Justice Department policy is covered by the following provision of its Thompson memo: 

"Another factor to be weighed by the prosecutor is whether the corporation appears to be protecting its culpable employees and agents. Thus, while cases will differ depending on the circumstances, a corporation's promise of support to culpable employees and agents, either through the advancing of attorneys fees,⁴ through retaining the employees without sanction for their misconduct, or through providing information to the employees about the government's investigation pursuant to a joint defense agreement, may be considered by the prosecutor in weighing the extent and value of a corporation's cooperation. By the same token, the prosecutor should be wary of attempts to shield corporate officers and employees from liability by a willingness of the corporation to plead guilty."

The foregoing Justice Department policy is no less than a cynical attack on everyone's Sixth Amendment right to legal counsel in a criminal case. Hiring competent legal counsel can get very expensive very quickly for federal criminal suspects, who are protected by the Constitution to the right to be presumed innocent unless and until found guilty beyond a reasonable doubt. It is honorable for corporations to help finance the legal fees of employees being criminally investigated or prosecuted for alleged activities arising from their employment. The Thompson memo throws a huge boulder in the way of such honorable corporate practices. More on this and other aspects of the Thompson memo is covered here. By Jon Katz.

April 28, 2006

Medical marijuana grower Ed Rosenthal gets retrial. 

Marijuana is effective medicine, and should be legalized. Several states and municipalities have laws legalizing medical marijuana, with California being among the most well known. Even though his activities were lawful under California's medical marijuana laws, the federal government prosecuted marijuana cultivation expert Ed Rosenthal -- who wrote the "Ask Ed" cultivation column in High Times magazine -- for growing medical marijuana for the city of Oakland. Not only was it unjust to prosecute Mr. Rosenthal for growing marijuana to help sick people, but it was entirely unjust that the lower court deprived the jury of any evidence that he grew it for medicinal purposes. Fortunately, at sentencing, the trial judge recognized Mr. Rosenthal's honorable motivations in growing the medical marijuana, and sentenced him to no more than one day in jail. 

On appeal, the United States Court of Appeals for the Ninth Circuit on April 26 reversed Mr. Rosenthal's conviction, finding that he received an unfair trial following a juror's consulting with a lawyer on such matters as jury nullification; the lawyer advised that the juror must follow all the judge's instructions, and opined that hung juries only happen if the judge gives the jury some leeway in the judge's instructions. The Ninth Circuit ruled that such juror communications with a lawyer during jury deliberations involve extraneous information, and require a retrial if "'there is a reasonable possibility that the material could have affected the verdict.'" U.S. v. Edward Rosenthal, D.C. Nos. CR-02-00053-1-CRB and CR-02-00053-3-CRB (citation omitted). The court also ruled that the burden is usually placed "'on the party opposing a new trial to demonstrate the absence of prejudice.'" Id. (citation omitted). The Ninth Circuit agreed with the trial court's exclusion of evidence that Mr. Rosenthal grew the marijuana for medical reasons, which limits the sweetness of this appellate victory. Fortunately, even if Mr. Rosenthal is again found guilty at his retrial, the law generally prevents him from getting a sentence any worse than his original sentence. By Jon Katz.

April 27, 2006

Your double jeopardy rights - diminished by the unjust separate sovereign doctrine. 

A member of a different Indian tribe pleads guilty in a tribal court to violence to a policeman on an Indian reservation. The federal government subsequently prosecutes the man for assaulting a federal officer. The United States Court of Appeals for the Eighth Circuit agrees that the first prosecution bars the federal prosecution, under the United States Constitution's Fifth Amendment protections against twice putting one's life and liberty in jeopardy. Sadly, the United States Supreme Court reverses in a 7-2 decision, not only confirming that a criminal offense against a sovereign (or government) other than the federal government allows separate prosecution by each sovereign, but also deciding that Indian tribal courts have jurisdiction over members of all Indian tribes. The case is U.S. v. Lara, 541 U.S. 193 (2004). Because of this separate sovereign doctrine, caveat emptor is critical to criminal defendants, to consider the possibility of a separate federal criminal proceeding under this doctrine. By Jon Katz.

April 26, 2006

Increase pay for indigent criminal defendants' court-appointed counsel, say eleven former Virginia attorneys general.

Virginia has long underpaid private court-appointed criminal defense attorneys, in violation of the Constitutional guarantee of competent counsel to indigent criminal defendants. Momentum has been building to increase the unjust pay caps that do not pay sufficiently for a court-appointed lawyer to take a case to trial, thus having too many of the most able attorneys self-select themselves out of court appointments, and leaving the remaining lawyers to fear the financial outcome of doing anything other than urging a client to plead guilty, even though proper preparation of a criminal defense requires full preparation to go to the mat at trial, together with ongoing settlement negotiations and preparation for the possibility of a guilty finding and sentencing. 

Fortunately, more members of the Virginia establishment are listening to the cries against this unjust court-appointed system, to the point that  eleven former Virginia attorneys general have publicly supported abolishing the fee caps for indigent court-appointed criminal counsel. (See the article here (Virginia-Pilot, April 19, 2006)). To those who cringe at increasing taxpayer funding for the court defense of "those people", let it be remembered that many an innocent person gets wrongfully prosecuted for crimes, that the law presumes every criminal defendant innocent unless and until proven guilty beyond a reasonable doubt, and that the rights of everyone are strengthened when life is breathed into access to equal justice for all criminal defendants. Of course, an effective way of reducing the staggering cost of the criminal justice system (including police, prosecutors, judges, indigent defense counsel, jails and prisons, and probation and parole agents) is to institute such sensible reforms as legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentencing, eliminating capital punishment, increasing diversion programs for first-time alleged petty offenders, expanding sensible alternatives to prison (including halfway houses and home detention), and reducing the huge budgets often invested in new and opulent courthouses. By Jon Katz.

April 26, 2006

The New York ACLU goes to court against heavy-handed policing against teachers.

Although the image of an educator conjures up images of Draconian disciplinarians in many a student's mind, a New York Civil Liberties Union lawsuit fights back against the police for arresting, handcuffing and verbally abusing two high school teachers who questioned the handcuffing of two students who had been involved in a fight. The teachers were held at the police station for nearly two hours, charged with disorderly conduct, which, along with obstruction of justice, is a convenient catch-all charge that is all too often abused by too many police. In a free and democratic society, police are a necessary evil. When a police officer or anybody else is handed a badge, a gun, and the power to arrest and to enforce unjust laws (including laws criminalizing marijuana, prostitution, and gambling; and laws creating mandatory minimum jail sentences), abuse of power is inevitable. Bravo to the American Civil Liberties Union for its decades of being truly patriotic by standing up to the abuse of governmental power. See the ACLU's news release here. By Jon Katz.

April 25, 2006

The Supreme Court Bars "Consent" Searches When a Co-Occupant Objects.

While consent searches should be barred altogether (see the next entry entitled "Austin police institute safeguards for "consent" searches"), at least the Supreme Court recently ruled that the objection of one co-occupant to a consent search vetoes the consent of the remaining occupant. Georgia v. Randolph , ___ U.S. ___, 126 S. Ct. 1515 (March 22, 2006). Unfortunately, all the police need to do to get around this ruling is to wait for the absence of the occupant who is most likely to object. 

This Georgia v. Randolph case also is important as an overview of the law governing consent searches of houses, apartments and hotel rooms, which confirms that hotelkeepers and landlords do not have the general authority to consent to searches of rented hotel rooms and apartments even when the occupants are absent. Sadly, for those who feared a Chief Justice John G. Roberts, Jr., his dissent in this case confirms those fears were well-founded. By Jon Katz.

April 25, 2006

Austin police institute safeguards for "consent" searches.

Every day, too many police officers stop cars for traffic offenses with the actual intent of searching the cars or their occupants. Repeatedly, police officers claim that criminal defendants consented to a search, even when the suspect was not advised of the right to refuse the search, and even when it's twisting the English language to say that consent can result from an armed police officer firmly saying "Please open your trunk" (They probably do not say "Pretty please, would you be willing to consent to open your trunk?")). Because coercion accompanies such searches, they are not consensual, and should be outlawed. Until such searches are outlawed, bravo to the Austin Police for taking real steps to reduce the abuses of consent searches. The Austin Statesman story on this issue (March 3, 2006) says: 

"Last year, [police chief Stan] Knee said he wanted to reduce consent searches by 40 percent in the next two years after statistics showed officers stopped, searched and used force against minorities at higher rates than they did against whites. A 2003 study by the Steward Research Group in Austin showed that blacks are 2.3 times more likely to be searched than whites, and that Hispanics are 2.2 times more likely to be searched. Since then, Knee has revised the department's consent search policy to require officers to obtain written consent in addition to verbal permission. Officers also must document the reason for their suspicion. By Jon Katz.

April 24, 2006

Zacarias Moussaoui's Case - A bad basis for expanding the death penalty.

Why does the United States still have death rows and dozens of annual executions? The death penalty does not deter murder; the reliable data show that. The reliable data also show that too many innocent people are sent to death row; executing them makes their wrongful convictions irreversible. The death penalty must be abolished; this is hardly a radical idea, with the United States and Japan being the only wealthy industrialized nations that permit executions. 

Zacarias Moussaoui's testimony supporting terrorism is vile beyond words. That does not justify death penalty proponents using his case as an excuse to expand the death penalty into areas that have nothing to do with terrorism, and to seek executions for crimes other than on-the-spot murder. Since the 1970's, the only executions in the United States have been for on-the-spot murder; and not for such crimes as rape, robbery, or, as in Zacarias Moussaoui's case, lying to law enforcement about the then-coming September 11 attacks. It is impossible to execute Zacarias Moussaoui without keeping in place a capital punishment system that is racist in effect even when racism is not intended by prosecutors; that makes private lawyers too expensive for the vast majority of capital defendants due to the hundreds of hours needed to defend people accused of capital offenses; and that sends too many innocent people to death row.  By Jon Katz.

April 24, 2006

Wenyi Wang's prosecution is unconstitutional.  

Ms. Wang is the woman who shouted at Chinese president Hu Jintao as he spoke on the White House lawn. Her actions should be fully protected under the First Amendment. However, federal prosecutors (who ultimately are answerable to president Bush) are prosecuting her under a law against anyone who "intimidates, coerces, threatens, or harasses a foreign official or an official guest or obstructs a foreign official in the performance of his duties." To make matters worse, as part of Ms. Wang's conditions of release pretrial, she must stay away from Washington and the White House, other than to come to Washington to consult with her lawyers and to attend legal proceedings. As the Washington Post aptly said, we would expect to see such prosecutions in China, but not in the United States. By Jon Katz.

April 22, 2006

Honoring Native American rights on the last day of the Sacred Run.

Today, Jon Katz realized his goal of meeting Dennis Banks, a founder of the American Indian Movement. At the conclusion of the Sacred Run, which Dennis Banks has been organizing for many years, Jon had a chance to meet and speak with Mr. Banks at the Washington, DC, temple of Nipponzan Myohoji, a Buddhist order that Mr. Banks first encountered in Japan in the mid-1950's while in the military, when he witnessed police beating Nipponzan Myohoji nuns and monks over their heads, while peacefully praying against the development of a military runway there. One of the beaten monks was killed. Mr. Banks's autobiography Ojibwa Warrior raises critical issues about the treatment of Native Americans rights into the twentieth century, including the government's forcing Mr. Banks into a school for American Indians, located so far from his family that it was economically prohibitive for him to see his parents and grandparents for several years. Mr. Banks refuses to let injustices against Native Americans be forgotten, and is an inspiration in his fight for justice. By Jon Katz.

April 20, 2006

Supporting marijuana legalization on 4/20 and every day.

In celebration of the annual 4/20 marijuana legalization events, partner Jon Katz appeared on WOCM 98.1 FM (Ocean City, Maryland) to  promote the legalization of marijuana for medical, personal, and industrial use. The same evening, Jon spoke on the criminal defense of drug cases at the invitation of the University of Maryland chapter of the National Organization for the Reform of Marijuana Laws, after the screening of Busted. By Jon Katz.

April 10, 2006

Ramiro Games's tragedy points to the critical need to better protect the accused. 

A Spanish-speaker unjustly slipped through the cracks in relation to a long delay in prosecuting him for cocaine possession in Prince George's County, Maryland. Read the story here. Unfortunately, as the result of a judge's efforts to get Mr. Games released from pretrial detention through a guilty plea carrying no further jail time (but where no Spanish interpreter nor lawyer was present to assist Mr. Games), Mr. Games now is at risk of deportation, which is the risk to all non-U.S. citizens convicted of cocaine possession and a whole host of other crimes. This tragedy results more from systemic problems that need to be fixed than from any aberration. By Jon Katz.

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See also our other legal links, articles, and homepage. 

CRIMINAL BLOGS

- Arbitrary and Capricious - By an anonymous public defender. 

- Capital Defense Weekly - Capital punishment is unjust as a punishment and in its application. 

- CrimLaw - A prosecutor and former criminal defense lawyer as of September 2006. 

- CrimProf - Do they encourage all professors to give fair exams and to grade fairly (not easily, just fairly)?

- Defending Those People - "Those people" often are your friends, family members, co-workers, and neighbors. 

- Diary of a Criminal Solicitor - By a British criminal defense lawyer. There's no comfort being reminded that criminal defendants' rights are repeatedly abused in every nation.  

- DUI Blog - When it comes to drunk driving laws and enforcement, the nation's gone MADD in the worst way. See our drunk driving defense article here. 

- FourthAmendment.com - The site's author, John Wesley Hall, is a Little Rock, AK, attorney. Another Little Rock attorney, Bill Clinton, underlined that it's certainly not only Republican presidents who trample on the Bill of Rights. Were that not so, why did Clinton make sure to witness an execution during his 1992 presidential campaign?  

- Grits for Breakfast - By a writer and researcher whose blog primarily focuses on criminal defense. 

- Law Of Criminal Defense - Another blog from John Wesley Hall, who also presents FourthAmendment.com and co-presents TalkLeft.

- Magistrate's Blog - From an anonymous English judge. Please let us know of any equally frank blogs from any judges in the United States. 

- Sentencing Law and Policy - Plea bargaining was the most distasteful part of becoming a criminal defense lawyer. Sentencing ran a close second. 

- Truth About False 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. 

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

- White Collar Crime Prof - Achieving justice demands aggressive defense of both blue collar and white collar criminal cases. 

ADDITIONAL BLOGS

- Abolish the Death Penalty - From the National Coalition to Abolish the Death Penalty

- Appellate Law and Practice - Rare is the jury trial conviction that should not be appealed. 

- Becker-Posner Blog - Federal judge and University of Chicago economics professor discuss government and economics.  

- Cato-At-Liberty - Raising timely public policy issues, including the United States' shameful concentration camps for those of Japanese ancestry, legislation on online gambling, and farm subsidies. The Cato Institute (not from the Green Hornet) claims to be libertarian. 

- Criminal Waste of Space - Musings of a California appellate judge on such matters as Dick Cheney's marksmanship, lack of public confidence in American governors, and admitting his press overexposure.  

- Drug War Rant - In his 1980's Steal This Urine Test, Abbie Hoffman recommends crank calls to drug testing companies. By now, it could take decades to make a daily crank call to a different drug testing entity (including all the hospitals that are part of the action). 

- Judge Jones's Blog - Two Texas judges provide information on court procedure, including a clothing prohibition on football sweatshirts, rock band pictures, and Harley shirts, but allowing Ralph Lauren Polo shirts. How is this not content-based gagging? 

- Legal Reader - Notable legal newsbites. 

- Loose Robes - Its blogmaster says: "After twenty-four years in the criminal justice system -- as defense attorney, prosecutor, and judge -- I stepped away and looked back in dismay. My overall feeling was not one of accomplishment, of a job well done. My sense, rather, was one of relief that I was getting out of the pit. I had burned out."

- Sui Generis - Civil rights and other issues. 

- TalkLeft - Proclaiming to be the "Online Magazine with Liberal coverage of crime-related political and injustice news." As to liberalism on criminal justice, count me in. 

- Volokh Conspiracy - A bunch of professors and others discussing Constitutional, criminal and other legal issues. 

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- Blawg - Includes link to our Underdog Blog. 

- DMOZ Criminal Blog Directory

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