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

This is the main Justice Department building with security fencing; the image also is apt for how frequently the Justice Department keeps true justice away from the people. (Image listed here as available for republication without permission).

Like the multiple layers of a pungent onion, U.S. Attorney-firing-gate turns out to be just one layer of unseemly hiring and firing practices at the Justice Department, including the over-politicization -- in terms of liberals, conservatives, and those in between -- of hiring of (1) highly-paid (with annual pay exceeding $100,000) immigration administrative law judges and (2) law students and recent law school graduates.

In her immunized testimony last week to Congress, Attorney General Alberto Gonzales's former assistant Monica Goodling said she had "crossed the line" in trying to keep liberals from being hired as prosecutors and immigration administrative law judges. The Boston Globe reports that federal law bars taking "political affiliation into account when hiring career professionals."

As much as I decry the rampant injustices inflicted from the Justice Department (the Justice Department's policing activities (e.g. with the Federal Bureau of Investigation), alone, provide enough fodder for such criticism), I learned years ago that many of the department's career lawyers are very decent, capable, and well-meaning people, no matter how much I may disagree with many of the positions they advocate for their employer. Politicizing the department's career lawyer hiring process would change all that.

Now, the Justice Department's Inspector General and Professional Responsibility chief have informed those at the Justice Department that "Among the issues that we intend to investigate are allegations regarding Monica Goodling's and others' actions in DOJ hiring and personnel decisions; allegations concerning hiring for the DOJ Honors Program and Summer Law Intern Program; and allegations concerning hiring practices in the DOJ Civil Rights Division."

Now for the title of this blog entry: "Why did the Justice Department install an anti-pornography crusader on the immigration court?" It turns out, by the Justice Department's own admission, that from October 2004 to January 2006, at the very least, “the overwhelming majority” of immigration administrative law judges ("ALJ's") (they are Justice Department employees who are among the ranks of well over one thousand Executive Branch ALJ's) were hired without public competition. By April 2007, according to a Justice Department spokesperson, immigration ALJ vacancies are now publicly announced and the hiring process "places the initial vetting, evaluation, and interviewing function for all candidates in the Office of the Chief Immigration Judge and [the Executive Office for Immigration Review].”

During the Justice Department's non-competitive immigration judge hiring season, the department hired plenty of people who were short on immigration law experience and long on Republican connections. The politically-motivated (so it woudl seem) immigration judge appointee who stands out the most for me is anti-adult entertainment crusader Bruce Taylor (see a description here from Mr. Taylor's opposition, of which I am part). 

I certainly hope that what I find to have been Mr. Taylor's unjust interpretation of the First Amendment does not translate into unjust rulings from him as an immigration ALJ. The impact of his decisions as an ALJ are too important for that to happen.

In any event, immigration law is so complex and in-depth that it takes probably at least one to two full years of full-time immigration law practice to get a good handle on general immigration law issues, let alone on the many more in depth issues. Bypassing the competitive hiring process to appoint loyal Republicans overlooks the need to have immigration law judges who not only sufficiently understand immigration law, but who also have the necessary compassion and demeanor to be making decisions that often will have lasting and deep impacts on the lives of immigrants and their families, including decisions about deportation, setting pretrial bail, and approving or disapproving green cards and other critical visas. To be certain, federal District Court, Circuit Court, and Supreme Court judges ordinarily are nominated by the president with political considerations in mind, but at least those nominations are subject to in-depth Senate scrutiny, hearings, input from the American Bar Association and other organizations, and voting, and at least such judges serve lifetime appointments that give them more courage to follow the law; immigration judges remain employees of the Justice Department. Jon Katz.

Maryland's highest court ruled 5-2 that a house can be a public place for purposes of the indecent exposure law. Perhaps a mischievous law clerk replaced the judges' Webster's dictionary with Orwell's Goodspeak dictionary.

In 2002, Nelly, Pharrell Williams and Chad Hugo wrote a smash hit song "Hot in Here," which summed up the sexual themes that are so heavily intertwined with hip hop music, with the line "It's gettin' hot in here (so hot), So take off all your clothes."

Last month, Maryland's highest court let it be known under the indecent exposure common law that Maryland inherited from England through Maryland's constitution (to think the Revolution War did not make Americans as free from England as one might have thought) not to follow the foregoing song's advice unless the exposure is consented to or is in a private place. Wisnewski v. State, __ Md. _ (April 18, 2007). However, it is hard to conceive of how many public places are left now that the Maryland Court of Appeals has upheld last year's Court of Special Appeals ruling (which I discuss here) that even a house can be a public place if the exposer is a visitor and the home's occupants do not want to see the expsosure.

Five years ago, I argued to Maryland's highest court that, at the very least, a strip club is not a public place for which anti-public-nudity laws would apply. The court avoided answering the issue by giving us a smashing victory on double jeopardy grounds, alone.

On a related note, Maryland's indecent exposure law does not clarify what is indecent exposure in the first place, and does not appear to prevent arrests for female toplessness. To ban female toplessness in public but not male toplessness violates the Fourteenth Amendment's guarantee of equal protection of the laws. Fortunately, various jurisdictions, including Maryland, have expressly exempted public breastfeeding from the indecent exposure laws, and I have heard of various courts addressing the Constitutionality of banning topless sunbathing by women. One of them, the Fourth Circuit, disagreed with me in 1991. U.S. v. Biocic, 928 F.2d 112 (4th Cir. 1991). However, as concurring judge Murnaghan addressed, times they are a-changing, and governments hopefully will stop wasting their time trying to ban female toplessness. Id. at 116 (Murnaghan, J., concurring).

The failure of Maryland's indecent exposure law to define indecent exposure exposes the law to a challenge that the law is unconstitutionally void for vagueness, particularly as to exposure of anything other than one's genitals. Jon Katz.

Image from website of the White House Commission on the National Moment of Remembrance. 

Today is Memorial Day, which is a holiday for memorializing America's soldiers who died in wars. However, the bigger focus of the holiday seems to be long weekend vacations, parades, and retail sales.

I have said plenty about the military. Mainly, I believe the United States needs an effective military. However, I also believe that the military-industrial-government complex is dangerously overgrown; that the United States has been too trigger-happy with the military and that effective diplomacy needs to be given more opportunity; and that violence begets violence, and, even though I am not a full pacifist, that Gandhi and many other pacifists' messages are important to take to heart and are often very powerful and effective. I also believe that the United States military has been the source of too many severe abuses, atrocities, and imperialist expansion whether originating from the lower ranks, the highest echelons, or somewhere in between; and that the United States government repeatedly has used war -- and by now terrorism, as well -- as an excuse to stymie civil liberties,

Using effective diplomacy and hemming in military excess is not impossible. Although I take it that America's military, military budget, and nuclear arsenal continued growing under his watch, Jimmy Carter "was thankful that although my profession was that of a military man - commander in chief of the armed forces, prepared to defend my nation with maximum force if I had to - I was able to go through my entire term in office without firing a bullet, dropping a bomb or launching a missile." (Esquire, January 2005). (Many Americans at the time preferred the cowboy mentality of Ronald Reagan, who defeated Carter in an Electoral College landslide. Carter's full quote is: "The hostage crisis lasted almost a year. Most of my political advisers were urging me to launch an attack against Iran. I could have, in effect, destroyed Iran with one strike. And it would have been politically popular to do so. But in the process, I would have also killed thousands of innocent Iranians. And it would have undoubtedly resulted in the execution of our hostages... My family tied me back to the human element in the most important international, diplomatic and military decisions I had to make. And in the end, I was thankful that although my profession was that of a military man - commander in chief of the armed forces, prepared to defend my nation with maximum force if I had to - I was able to go through my entire term in office without firing a bullet, dropping a bomb or launching a missile.").

In short, Memorial Day should not be a day blindly to glorify the military, military service, or soldiers. Instead, it should be a time to humanize soldiers and to recognize the sacrifices they have made while maintaining a realistic and critical assessment of American militarism; recognizing the serious tradeoffs involved in using and threatening military force; and recognizing that soldiers are humans including those who will commit horrid atrocities and others who will try to stop the atrocities. Jon Katz. 

Image from the public domain.

Several times, I have discussed how great music and musicians inspire me as a trial lawyer. See here and here.

On the opposite end of the scale are musicians -- no matter how talented -- who do their public best to satisfy the elevator music/easy listening/Muzak set who want music that merely superficialy soothes and that is music in name only. Lawrence Welk firmly served that widespread demand for many years -- where I would see at least a few dancing audience members wearing sport jackets matching the design on their couches -- or so I thought until I saw this surreal video (thanks to Last One Speaks for posting the clip of Lawrence Welk's production team on acid), where Mr. Bubbles ultimately reassures everyone that he caters exclusively to the elevator music set.

The great musician and bandleader Sun Ra (great, yes, but what was with his claim to have come from another planet?) cautioned not to dismiss the music of Neil Sedaka, Barry Manilow or the King Family, in that all music has importance if it is important to somebody. Trial lawyers, of course, need to keep in mind that the juror whose year is complete only by a Neil Sedaka or Wayne Newton concert is as important as any other juror. However, does that mean I need to torture myself with a Wayne Newton Vegas extravaganza concert to relate to one particular (and hopefully very narrow, but probably wider than I wish) segment of my jury pool?

On the big and smaller band theme (Welk, Sun Ra, Dizzy), more to my intrigue is the surreal Happy Kyne and the Mirthmakers on Fernwood 2-Night. Jon Katz.

Image from EPA's site.

We regularly add to our extensive legal links page. Recently, I linked to the Justice Department's resource on Collateral Consequences of Convictions Under Federal Law. Even though the link comes from the dark side, this is an area of great importance to criminal defendants. We have written on this area in the immigration law context.

Of course, the Justice Department's work goes well beyond prosecuting people. In that regard, here is the link to the United States Attorneys' Manual, to know the opposition. What a difference since the pre-Internet days when this manual was only available in a multi-volume looseleaf set. Jon Katz.

Computer hard drive. (Image from Pacific Northwest Laboratory's website).

Before launching a blog or website, I recommend reading "12 Important U.S. Laws Every Blogger Needs to Know." Jon Katz.