UNDERDOG - Criminal/Drunk Driving Defense in Maryland, Virginia, DC

Here is a video of Michael Richards' recent tirade where he repeatedly says the N-word after being heckled during his stand-up routine. Here is an account of Richards' televised discussion of the incident with David Letterman. Attached below is my August 20 blog entry about the importance of knowing others' views and comments on race relations and other issues of prejudice.

Michael Richards, as Kramer, was one of my favorites. I had no clue that he would say such words. Often we do not know what feelings and opinions truly lie within others, until they explode or put down their guard in some other fashion. 

Bigotry has obsessed me throughout my life. Racial and religious hatred and insensitivity have fueled countless massacres, lynchings, social misery, and the list goes on. I have gone through the portals over the years of being stunned, upset and frozen at hearing racist talk and not knowing how to react; then ranting and raving at the speaker of racist words; and, finally, dealing with it on a case-by-case basis, anywhere from calmly telling the person I think his or her words are dehumanizing or uncalled for, to going into more detail, including asking the speaker what s/he meant, to seeing if there's any way to turn around the person.

I am inspired by how a local labor organizer and social justice activist handled one particular racist incident quite awhile ago. He and his wife had just moved to a new Maryland town bordering Washington, DC, when one day some neighborhood children rode their bikes past the house calling out "white N's, white N's" to the man's interracial children. Instead of losing his cool at the children, which would have been my first inclination before I heard this story fourteen years ago, this man started talking to the children. He told them he coached a track team, and invited them to join the team. They joined the team, and eventually were fully enamored with him. 

This coach caught these children early, who perhaps were parroting back the words of their parents, but who ultimately turned their backs on such ugly words and thoughts. 

Lawyers -- including criminal defense lawyers -- need to be fully aware of issues of racism, including racism among jurors, judges, prosecutors, police, jailers, and lawyers' clients. Martin Luther King, Jr., talked of seeing the promised land where racism has been substantially eliminated, but we have a long way to go; too long. Jon Katz.

Here is a short description of three important recent Virginia Supreme Court decisions:

- A decedent's oral discussion is inadmissible at a criminal trial if it does not fall squarely within a hearsay exception. In this case, it was reversible error to admit such evidence. Hodges v. Com.

 - The issuance of a criminal summons does not permit a police search. Moore v. Virginia.

- A criminal defendant is permitted to impeach a defense witness who turns hostile on the witness stand. The failure of the trial court to grant this right was reversible error. Dupress v. Com. Jon Katz.

Recently I had a disturbing -- yet revealing -- conversation with a police officer who charged my client with possessing marijuana.

This case was in Virginia, where my client faced up to thirty days in jail for the marijuana possession charge. As I waited for our case to be called for trial, the arresting officer agreed to speak with me so long as the prosecutor was present. He proceeded to tell me that he stopped my client for speeding. He said he patted down my client down for his own safety, which he said he routinely does. Yow! The Supreme Court limits patdowns to situations where a police officer has reasonable, articulable suspicion to believe that the patdown will find contraband, ordinarily a weapon. This police officer was running afoul of this Terry decision.

Before I spoke with the cop and before the drug chemist arrived by my subpoena (Virginia law provides for the drug certificate of analysis to be admissible in evidence if the chemist is not subpoenaed to testify), the prosecutor refused my suggestion of a deferred disposition for marijuana (to dismiss the case in six months or a year, without any finding of guilt upon satisfaction of agreed conditions for the dismissal, but to permit the defendant to be found guilty and sentenced without necessitating a trial in the event of a violation of the dismissal conditions). Shortly after the cop left the room after telling me about his inclination to pat down people, the prosecutor offered a deferred disposition for drug paraphernalia. To this day, I do not know whether it had anything to do with what the police officer told me about the incident. On the other hand, this underlined how preparing a case to go to trial makes it more likely to settle, while preparing a case to settle makes it more likely to go to trial.

As an aside, as the police officer left the meeting room, he said "Thank you for being polite." I responded with my mini-achievement, "I can do it" (meaning being polite with my adversary). Another prosecutor chimed in "On the road to recovery."

I caught up with the cop as he left the courthouse, and asked him how he thought his routine patdown approach jibed with the Supreme Court's Terry decision. He told me he knew about Terry. He said that lawyers previously attacked his routine patting-down policy in court, and claimed that none had been successful in gaining any ground about that approach. He spoke of one factor being his age of forty and the need to check more spry eighteen-year-olds for weapons. For my case, I could have advised my client to go to trial, but I expected that the officer would have thrown in some specifics for having reasonable and articulable suspicion that my client was armed (which he was not), which included his alleged significant nervousness, and the nighttime roadside location. Suppressing this patdown -- which was followed by my client's allegedly fessing up that the hard object in his pocket was a pot pipe -- was no shoe-in.

I give credit to the cop for at least being willing to talk over our differences about patdown searches. As my political opponent Dick Thornburgh e-mailed to me earlier this year after I bumped into him on the street and e-mailed him about this blog entry I posted about him, it is preferable to disagree agreeably. However, with this cop, I'll feel more agreeable with him if he would start adhering to the Terry decision. Jon Katz.

The attached video from November 14, 2006, shows police in hyper-control and brutality mode -- tasing multiple times a UCLA student accused of nothing worse than being in the UCLA library without identification to permit him to be there and not leaving when asked by a university employee. Then the police tase him again when -- shocked and in pain over the first tase -- the gentleman does not leave the library quickly enough to the liking of the police. The university admits the student was tased multiple times.

Adding insult to injury, the victim of this police brutality was arrested and cited by campus police for resisting and obstructing a police officer.

Thanks to TalkLeft for covering this story. News about this brutality incident is here and here. An additional video, and news story, is here. Here is an interview with the student's lawyer. Here is an account from UCLA campus television. As of this time, the university has nothing but a lame response, rather than at least setting forth immediate orders severely curbing tasing, and to better hire, train, monitor, and fire campus police. My previous blog entry on tasing is here.

Amnesty International's exceptions about tasing are here, here and here. Here is a recent overview of taser dangers in In These Times. Here is a purported account by the student whom a police officer threatened with tasing after he asked for the officer's badge number. Here is a UCLA campus newspaper overview of the UCLA police history with obtaining and using tasers.

Everyone, please shine a bright light on police brutality and other police abuses. If this police behavior is taking place at a highly-ranked university, it likely is happening in many other places, too. Use your cellphones, videocameras and audio recorders to record police transgressions. (Know before you record; Eugene Volokh reports here about some states' unjust criminal laws regarding such recording). Report police abuse to the press, the American Civil Liberties Union and to all other organizations working to right such wrongs. Let the victims of the brutality know that you are an available witness. Jon Katz.

For those fearful of flying, hopefully they will not need to add fear of arrest to the list. In September, federal authorities arrested a couple after they allegedly engaged in very frisky sexual activity on a Southwest Airlines flight. The man's lawyer says he was feeling sick, not sexy, so had his head on his girlfriend's lap.

The couple allegedly intimidated one or more flight crew members after being told to stop their activity. Now, they have been indicted and accused of violating 49 U.S.C. § 46504, which carries up to twenty years imprisonment, and provides as follows:

"An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life."

For the law enforcement version of events, see the Complaint here. The indictment is here. The case is U.S. v. Carl Warren Persing, et al., Crim. No. 5:06-cr-00261-F (E.D. NC).

Even if the allegations against the defendants are true, it is very troubling that the potential maximum prison sentence is so high, twenty years. Also, if the crew and passengers were from a more sexually liberal background and/or had a better sense of humor, I imagine the whole situation might have been handled more gracefully by everyone, without any confrontation. (E.g.: Flight attendant: "We'll be delighted to get you a hotel room when we land, but please wait til then." Passenger: "I'm feeling ill, which is why my head is on my girlfriend's lap." End of story; everyone saves face, and a confrontation is averted.) I was about to say that I will think twice before flying Southwest Airlines, but do not know if the other airlines will be any better in this regard. Jon Katz.