Friday, June 29. 2007Don't let government surveillance interfere with joining the National Lawyers Guild. What made presidents so fearful of giving J. Edgar Hoover the axe? (Image from Library of Congress.)
In 1990, I took out a subscription to High Times magazine in protest over a federal prosecutor's subpoenaing the magazine's advertiser records -- as reported by Index on Censorship -- in an apparent effort to clamp down on hydroponic sellers and customers, and various other suspected marijuana-related vendors.
In 1988, I became a student member of the National Lawyers Guild, and renewed my membership a dozen years later when working with the group to defend anti-IMF/World Bank protesters. Had I not already joined back then, I would have joined today -- despite my fierce disagreements with the group (see here and here) -- in part over this week's New York Times report about how extensive was the FBI's undercover surveillance of the group under J. Edgar Hoover, to the tune of at least 400,000 pages of documents accumulated through the FBI's investigations and research. (How Hoover and his ilk kept track of so many pages before the age of the personal computer is beyond me).
In the meantime, I retain hope that I will find enough like-minded lawyers to start a new organization that will pursue the best traditions of the Guild, but will cut out its excess of knee-jerk and one-sided support of anti-Israel campaigns, its general reluctance to give First Amendment legal and demonstration support for anyone other than "progressives", and its willingness to curb free expression rights if that will serve the remainder of its "progressive" agenda (e.g.. with its siding against the First Amendment in the Supreme Court's case involving greater punishment for burning crosses than for burning other items).
Until such a new organization is created, the Guild fills a critical void with a nationwide stable of courageous -- and often very likeable and fascinating -- lawyers and legal workers who do not join the Guild to burnish their resumes, but join with a strong, and usually fierce, devotion to justice as they define it (even though my sense of justice is not going on a mission to North Korea without at least confirming to the North Korean government that the visitors still have strong reservations about the nation's human rights abuses).
Even now, long after J. Edgar Hoover is gone from the FBI's helm, Guild Executive Director Heidi Boghosian probably is not farfetched when saying: “We work with the assumption that everything we do is being monitored by the government... Unfortunately, we’ve become used to surveillance.” Such surveillance amounts to a waste of tax dollars and government resources, and government urination on the Constitution. Jon Katz. Thursday, June 28. 2007Speaking of Trane and finding Trane.John Coltrane Society, to the right of Trane's house in Philadelphia, where he lived, composed and played music in the 1950's after leaving the military. Copyright Jon Katz; taken May 2007.
Same place, different photographer. From the National Park Service's website.
In 1995, I spent over four weeks at the Trial Lawyers College with the amazing John Johnson, who was hugging personified. When John Johnson left the planet in early 1996, he hugged me in a dream the same evening I learned of his passing. The next evening, his belief in the power of hugging followed me as I accepted a homeless woman's requests for a couple of hugs on a snowy evening after I bought her dinner, when before I may not have accepted the hug request of any stranger. It carried into the next day, when for the first time I met my now close friend Trudy Morse when I went to pray for John. She is a hugging friend I met after the passing of another hugging friend.
Shortly afterward, I spoke with another Trial Lawyers College participant about how I had gone mainly from being a non-hugger to all this hugging after John Johnson passed; that is not to say that I have gone the opposite route, either. He suggested that all this might have happened because I finally had opened myself to receiving the hugs. So I had.
My Trial Lawyers College experience helped me take a much more realistically optimistic approach to my life and growth versus my previously much more bleak and cynical outlook on life that was heavily informed by the daily injustice I saw -- and still see -- inflicted on criminal defendants and on other people. I write more here about achieving a more harmonized approach to life, not out of embracing any new age concept, but out of necessity.
As I opened myself up to a more spiritual (but mostly non-religious) and harmonious life, I started paying more attention to those on a similar path, including jazz legend John Coltrane, whose life was cut short by cancer in 1967 at the age of forty.
During the last year, I have paid more attention to John Coltrane than ever, after first experiencing him thirty years ago when I became a certified jazz fanatic. I learned that my college music teacher Lewis Porter later wrote John Coltrane: His Life and Music. I have yet to experience the in-depth studies and transcriptions of Trane's music by Andrew White, an accomplished jazz saxophonist himself who lives in Washington, DC, and whom I met five years ago. Trane holds the fascination of many others, including this Trane blogger, this Trane researcher, and the members of Saint John Coltrane African Orthodox Church. (This Church is not such a farfetched concept when considering the deep spirituality of Trane, who wrote "A Love Supreme" out of that spirituality.)
In this context, was it mere coincidence that last month I happened upon Trane's Philadelphia home? On the way back from a great re-adventure in Massachusetts and New Hampshire -- where, among other things, I visited Jack Kerouac's childhood town, Lowell, Massachusetts, for the first time -- my wife, son and I spent an afternoon in Philadelphia. This time, instead of visiting the usual downtown areas not far from Independence Hall, we varied our route.
After visiting the Philadelphia Museum of Art, for the first time, where Rocky made his famous run up the many steps, we drove further north, ultimately arriving at an unexpected jewel. Serendipitously, I had found John Coltrane's house -- pictured above -- where he lived, composed and played music in the 1950's after leaving the military. More details about the house are here. This was late on a Saturday afternoon, when I saw a man leave the Coltrane Cultural Society house, which appeared to be in the process of renovation. The man estimated that the Cultural Society building should be open soon to the public. Trane's house remains occupied by one or more family members, but I saw none that day. I soaked in the better picture this gave of Trane's persona, and took some pictures.
As I have blogged before, the significance of Trane to my law practice is the inspiration he gives me towards excellence through pouring my heart into what I do. Also, as I have said here: In the sterile, windowless, and often chilling surroundings of a courtroom, the imagination is needed to make the place come alive for justice. I like to replace the framed paintings of unsmiling judges and the appearance of armed police with the antics of R. Crumb, the juxtapositions of Joseph Kosuth, and the endless imagination of Santana Miyazaki. I like to replace the unsettling sound of clicking handcuffs and slamming celldoors with the sounds of Dizzy Gillespie's be-bop, John Coltrane's Love Supreme, Van Morrison's "Moondance", and Cecil Taylor being Cecil Taylor.
Finally, love played a big part in Trane's life, to the point that he entitled one of his greatest masterpieces A Love Supreme. Love is a very big theme at the Trial Lawyers College, too, including the importance of loving our clients, loving our loved ones, and loving ourselves. The concept often got watered down for me at the Trial Lawyers College as many people said "I love you" so often to so many people to the point that the phrase seemed to start losing its significance; on the other hand, universal brotherly and sisterly love certainly will make this world a much better place. It was particularly fitting that the two people I love the most were with me on this adventure. Jon Katz. Wednesday, June 27. 2007Supreme Court permits appellate courts to presume reasonableness of sentences within the Sentencing Guidelines.
Image from Bureau of Prisons' website.
On June 21, 2007, the Supreme Court permitted appellate courts to presume the reasonableness of federal sentences imposed within the Sentencing Guidelines. Rita v. U.S., __ U.S. _ (June 21, 2007). Although Rita still enables defendants to try to overcome such a presumption of a reasonable sentence, the opinion likely will make sentencing judges all the less likely to depart below the sentencing guidelines in circuits that prohibit "unreasonable" sentencing guidelines departures.
Concurring, Justice Scalia, joined by Justice Thomas, laments that Rita does not sufficiently resolve the interplay between U.S. v. Booker, 543 U.S. 220 (2005) (prohibiting a mandatory application of the federal sentencing guidelines) and the extent to which judges, rather than juries, may make their own factual findings in the sentencing process. Justice Scalia writes:
"The Court's decision today leaves unexplained why the mandatory Guidelines were unconstitutional, but the Court-created substantive-review system that contains the same potential for Sixth Amendment violation is not. It is irresponsible to leave this patent inconsistency hanging in
The sole dissenter, Justice Souter, rejects giving any presumption of reasonableness to a sentence imposed within the sentencing guidelines, in part because doing so will lead to a self-fulfilling prophesy of trial judges ordinarily taking the safe route by sentencing within the guidelines, rather than imposing a sentence outside the guidelines (whether below or above the guidelines) only to face the risk of being reversed on appeal, thus leading to the necessity of a new sentencing proceeding. Justice Souter offers Congress the opportunity to go back to the drawing board with sentencing guidelines: "If Congress has not had a change of heart about the value of a Guidelines system, it can reenact the Guidelines law to give it the same binding force it originally had, but with provision for jury, not judicial, determination of any fact necessary for a sentence within an upper Guidelines subrange."
Without enough clarity or detail, Rita discusses the province of the jury, under the Sixth Amendment, and the judge for finding facts that will inform the sentence ultimately reached in a criminal case. In that regard, Justice Souter's dissent provides a helpful and short overview of Supreme Court cases addressing the size and extent of unanimity required from a jury:
"A very general overview of the course of decisions over the past eight years may help to put today's holding in perspective. Members of a criminal jury are guaranteed to be impartial residents of the State and district of the crime, but the Sixth Amendment right to trial by jury otherwise relies on history for details, and the practical instincts of judges and legislators for implementation in the courts. Litigation has, for example, worked through issues of size, see Ballew v. Georgia, 435 U. S. 223 (1978) (prohibiting five person state juries but allowing juries of six), and unanimity, see Apodaca v. Oregon, 406 U. S. 404 (1972) (allowing nonunanimous juries in state criminal trials); Burch v. Louisiana, 441 U. S. 130 (1979) (prohibiting nonunanimous six-person juries). Such decisions go to what William James would have called the 'cash-value' of the Constitution's guarantee. See W. James, Pragmatism: A New Name for Some Old Ways of Thinking 200 (1st ed. 1907)."
In any event, sentencing requires as much aggressive battle by defendants as seeking acquittals. Perhaps some defendants will feel as if they are throwing in the trial towel to be prepared for sentencing, but to do otherwise is to throw in the towel for any sentencing battle. Jon Katz. Tuesday, June 26. 2007More set for execution in Iraq by hanging and in the U.S. by injection.
Death penalty: Always unjust
Iraq's government mimics Saddam Hussein's all too much in the capital punishment department, particularly in the swiftness of appellate rubber stamps and the swiftness of the execution thereafter. Today's Iraq continues Saddam Hussein's practice of hanging as the preferred execution method, with three high-level Hussein officials having received death sentences recently.
Last January, Hussein's half brother was decapitated when hanged. Last March, Saddam Hussein's former vice president -- Taha Yassin Ramadan -- was hanged even though his trial court ordered a life sentence. The appellate judges who reviewed the case ordered a resentencing, saying the original sentence was too lenient, and he was swiftly hanged thereafter.
Iraq can always try to deflect attention to its barbaric death penalty machine by looking eastward to China. For instance, here is a snippet of Congressional testimony by the Bush Administration -- far from a human rights stalwart -- about China's completely barbaric death penalty and organ harvesting practices:
"The Department of State is also aware of reports that it cannot independently confirm, of other, even more egregious practices, such as removing organs from still-living prisoners, and scheduling executions to accommodate the need for particular organs. In addition, there are compelling first-hand reports that doctors, in violation of medical ethics codes, have performed medical procedures to prepare condemned prisoners for execution and organ removal. As former Assistant Secretary John Shattuck testified before this committee in 1998, our concern about the abhorrent practice of removing organs from executed prisoners without consent is compounded by our concerns about the lack of due process. According to Amnesty International there were 1,263 confirmed executions in 1999; according to another report 800 prisoners were executed in May 2001 alone as the government conducted another "strike hard" campaign against crime. A high court nominally reviews all death sentences, but as our Country Report on Human Rights Practices points out, and as a recent New York Times article graphically described, the time between arrest and execution is often days or even hours. Some prisoners are taken directly from the courtroom to the execution grounds. Appeals of sentences consistently result in confirmation of sentence."
Last year, Stephen Wigmore of the British Transplantation Society said that: "The weight of evidence has accumulated to a point over the last few months where it's really incontrovertible in our opinion" that China continued to harvest the organs of executed people. .
The United States continues to be the only Western industrialized nation to execute people. Three executions are scheduled today, alone, in Texas, Oklahoma, and Georgia. These three people and the three above-listed condemned former Hussein officials were convicted of committing heinous murderous acts. To the extent they committed such horrendous crimes, their crimes should not be minimized. However, when people are sentenced to death, the focus gets shifted away from the defendant's criminal actions to the utter injustice and brutality of the death penalty, which amounts to state-sanctioned murder.
Texas continues taking the lead for executions, taking credit for all but one of June's executions thus far, as follows: June 6 Michael Griffith(Texas); 15 Michael Lambert (Indiana); 20 Lionell Rodriguez (Texas); 21 Gilberto Reyes (Texas); and 22 Calvin Shuler (S.C.).
As much as I did not want to live in Washington, DC, so as not to suffer no voting representation on Capitol Hill, at least D.C. is one of the jurisdictions that has no state-level death penalty. For those considering moving to non-death penalty states, they are: Alaska, Hawaii, Iowa Monday, June 25. 2007Pain in the pants plaintiff loses. Justice is served, but late. Image from public domain.
Three cheers for today's victory of the Washington, DC, family-owned dry cleaner over the administrative law judge who pursued a frivolous pro se multimillion dollar lawsuit for his allegedly missing pair of pants. Click the following hyperlinks to find the Superior Court's detailed opinion and accompanying order, as well as today's Washington Post article.
Now left to be seen is whether (1) plaintiff Roy Pearson will have his expired high-paying judging job renewed and (2) the dry cleaner will prevail in its pending efforts to obtain monetary sanctions and attorney's fees against Mr. Pearson.
Congratulations to the dry cleaner and its lawyers. Jon Katz.
ADDENDUM I: Click here if you wish to donate to the dry cleaner's legal defense fund. If the dry cleaner's lawyers bill anything close to what their previous large corporate law firms billed hourly, the dry cleaners must have a hefty legal bill.
ADDENDUM II: While trying to google about the state of pants-gate plaintiff Roy Pearson's bid to continue as a D.C. administrative law judge, I came across this blog entry strongly supporting plaintiff Pearson. Consider the source of such a blogview; just last week the same blogger decided that if the dry cleaner's owners were not ethnic minorities, they would have given Mr. Pearson better service. At first I was reluctant to dignify such views by linking to them; however, if anybody holds such reprehensible views, perhaps it is better to shine the light of day on such views.
ADDENDUM III: According to the Examiner, plaintiff Pearson's boss did an about-face and recommended that Pearson not be returned to another administrative law judge term. The position pays well, at over $100,000 annually. As I blogged earlier this month, even with my First Amendment zealotry, I have difficulty seeing how the First Amendment precludes the D.C. government from considering this lawsuit as to his ALJ renewal bid, because the lawsuit directly relates to Mr. Pearson’s ability as an ALJ to exercise sound judicial temperament, discretion and fairness over decisions impacting litigants. ALJ work is no mere ministerial task, but instead requires careful, wise, and just adjudication. Mr. Pearson’s lawsuit and reported testimony and demeanor at his pants trial demonstrate that he is not fit to be an ALJ, and that any litigant appearing before him (should his ALJ position be renewed) should move for his recusal. Monday, June 25. 2007Bong Hits decision provides roadmap to silence student drug reform advocacy. The First Amendment and the rest of the Bill of Rights. (From the public domain.)
As I have repeatedly said, your vote for president will leave an indelible mark on the Supreme Court's composition and its protection or non-protection of individual liberties.
Today, in the Bong Hits 4 Jesus case (covered by my April 2, 2007, blog entry) the United States Supreme Court wrote public schools a roadmap to silence speech seen as advocating illegal drug use, even when the message is intended to advocate for drug policy reform. The case is Morse v. Frederick, __ U.S. _ (June 25, 2007). Morse's solid five-justice majority (Chief Justice Roberts joined by Justices Scalia, Kennedy, Thomas, and Alito) gives public schools an effective green light not only to exempt students from advocating drug use, but from expressing a whole host of messages deemed (deemed by whom?) to be disruptive to the academic mission
Considering the vagueness of the "Bong Hits 4 Jesus" banner at issue in this case (does it promote smoking from bongs, promote making marijuana legal, or promote vague banners?), public school principals likely will feel emboldened to silence pro-drug reform messages on and off school premises, even where the activities are as mild as wearing t-shirts and buttons for NORML and the Drug Policy Alliance, let alone to establish a school NORML chapter or to submit a pro-drug reform opinion article or letter to the school newspaper, and let alone to wear a t-shirt with a marijuana leaf, even though the marijuana plant has proven industrial uses that were advocated in the past by the United States government.
Will public schools go as far as banning Coca Cola/Coke machines and t-shirts -- and drinking Coke at school-sponsored events -- considering that this brand name was initiated when Coca Cola indeed included cocaine as a key ingredient, and when considering that "coke" remains the street name for cocaine?
Bad court decisions about students' rights, like this First Amendment-violative Morse decision, challenge my support of the public school system. Morse certainly fails to teach students the value and meaning of the First Amendment; rather Morse damages and undermines the First Amendment. Jon Katz.
ADDENDUM: Marty Lederman at ScotusBlog suggests that Morse "is a very limited holding -- essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling." As much as I wish Morse's reach will be strictly limited, I think the lower courts and public school officials will see Morse as confirming and even enabling the expansion of substantial authority of public schools to limit student speech going beyond advocacy of drug use, including when one considers the very vagueness of the "Bong Hits 4 Jesus" banner involved in this case. Sunday, June 24. 2007Military lawyer courageously reveals sham system for classifying enemy combatants in Guantanamo.
This photo at Guantanamo's Camp Delta prison is the least whitewashed of those at this Defense Department Guantanamo photo webpage. Enlarge this photo only on an empty stomach.
One day, a public defender lawyer told me he wanted to keep his job rather than make waves. Much was available to speak out about, with the unreasonably high caseloads, insufficient support staff help, and numerous judges who felt public defender lawyers -- as opposed to private practitioners -- should be at their beck and call, and the list goes on, including issues affecting all retained and public defender criminal defense lawyers and their clients.
Every practicing lawyer faces the possibility one day -- sometimes at great personal, career and financial risk -- of choosing whether to blow the whistle pursuant to governing ethics rules, personal ethics rules, or both, or staying silent in contravention of such rules. Sadly, too many lawyers remain silent when it is time to speak out. Happily, the stories are many of public defender lawyers, private criminal defense lawyers, and even prosecutors who stick their necks out to do what is right.
Praised be military lawyer Stephen Abraham -- now a lieutenant colonel in the Army Reserves -- for risking his military career by courageously stepping forward and providing this affidavit revealing that the Guantanamo enemy combatant review process was a sham during the period he was involved with such reviews from September 11, 2004 to March 9, 2005. (To see the affidavit, scroll to page eight of this SCOTUSblog-posted Reply to Opposition to the Petition for a Rehearing filed by the petitioners in Khaled A.F. Al Odah, et al. v. U.S., U.S. Supreme Court Petition No. 06-1196.) At one point, Mr. Abraham was assigned to a Combatant Status Review Tribunal. However, after his panel refused to classify a Guantanamo inmate as an enemy combatant, he was not assigned to serve on another Combatant Status Review Tribunal; of course not, seeing that he previously refused to rubber-stamp an enemy combatant classification request. This story is covered by the Washington Post and ScotusBlog.
On the one hand, Mr. Abraham's affidavit only covers a time period that is now over two years old. On the other hand, it appears that most military lawyers are too fearful to step forward with information about the enemy combatant review process. They should step forward, now. Jon Katz. Friday, June 22. 2007"I like when you swear."
In the end, the best fight for and alongside the client comes from fighting to harmonize the client's situation.
Plenty of people think I am intense (I prefer to call it passionate), as much as I endeavor to be a t'ai chi peaceful warrior. I address this more here.
Sometimes a client will freak out when my honest answer -- I only give honest answers, or else no answer at all -- about my assessment of their case is not as rosy as they want to hear. In the instances where I then win their case or get a result within the framework they hoped for, sometimes I will heartily congratulate them and say "You have survived the roller coaster of Katz" or "Perhaps watching me at work is like watching sausages being made; the sausage may be delicious (if it's a vegetarian sausage, at least) but you don't want to witness the disgusting sausage-making process."
Recently, I obtained a dismissal -- on the trial date -- for a client who very much deserved a dismissal. The case made him very anxious. As we both relished the dismissal after leaving the courthouse, I complained about the "f---ing persecutor" (I've been calling many of them persecutors for years, although often less jocularly than a public defender lawyer using that moniker longer than I) for not bothering telling me our case, which was set for trial, would be dismissed when I asked how many witnesses he had (whereby he answered "one"), and then having him tell the judge just ten minutes later that our case was being dismissed.
I apologized to my client for swearing -- which I often have much fun doing with my law partner, Jay, after hours when we're the only ones left at the office, as part of keeping our humor engines running, from the sophomoric and buffoonish to the more ready for prime time. My client reminded me that he didn't mind, and that it put him at ease when I inadvertently did the same thing in my office the first time we met. In response to being told that in my office, I said: "I need to write a sticky note to figure out which visitors will be put at ease with four-letter words."
At my first law firm -- my favorite partner, from whom I learned much and who encouraged my path to success -- swore often, ordinarily getting a big laugh, and never directing it at or about anyone. I first heard legends of his swearing, but months passed without me hearing a swear from him, until we were talking about a case, and the four-letter words rolled off his tongue. I felt I had graduated to gain his confidence, on a much lesser level than Caine waiting seemingly forever to be invited into the Shaolin temple.
The idea is not to swear for the purpose of putting people at ease. The idea, for me, is to let my guard down with my allies and clients, because I like it when I can let my guard down safely, and because it can put others at ease and have them trust me better, at least when I do not go over the edge with it all. My guard is up more in court, where I have never sworn or said "persecutor" on the record (although I wonder if such a slip of the tongue is merely waiting to happen); however, the jury will trust a lawyer more who lets his or her guard down while being ready with sufficient firepower.
Many people stereotype lawyers as taking themselves too seriously, feeling too self important, and being aloof. Many lawyers are this way; or perhaps many law professors are the worst offenders. I remind people, though, that before I became a lawyer, I was a human being, and that I continue being so. I have no interest in being a self-important lawyer, but to be a lawyer to fight for what I believe to be right, including helping ordinary people against the uneven and too often abused power of government, police and prosecutors, and big corporations.
In Latin America, many refer to lawyers as "doctor" -- a law degree is a juris doctor -- but I am not so sure this always is meant as a sign of respect as much as for creating a distance from those lawyers perceived to have actively or passively contributed to the rampant historical human rights violations and judicial corruption in many Latin American countries. Fortunately, Jay and I took the opposite approach, by making ourselves very approachable to all people early on. For instance, on our 1998-2000 weekly Spanish-language radio show "Legalmente Hablando: Donde su causa es nuestra causa" ("Legally Speaking, where your cause is our cause"), I quickly became referred to as "gato" or "gatito", the Spanish word for cat, kitten, or Katz, my last name. It is easier to approach a little cat than a doctor. Jay has never needed a nickname, because people automatically see he is a teddy bear.
Recently on a trial lawyers listserv, some personal injury lawyers were bemoaning how some cheesy advertising lawyers were sucking clients away from them. Then, in the middle of this spirited discussion -- where I mainly responded with my views in this "don't touch that dial" blog entry -- someone pointed out that a reason many injury victims call advertising lawyers who act silly or even greedy while engaging the audience, is that such lawyers have demonstrated they do not take themselves too seriously. I understand that many people are scared to be contacting a lawyer for the first time; in their time of need, many may feel out of sorts knocking on a lawyer's proverbial mahogany doors.
Fortunately, a lawyer need not act like a buffoon to connect with clients and others. The lawyer just needs to be real, to shed his or her armor, and to give from the heart. In the lawyer's office, this is easier to do. It must also be done in the courtroom, where, instead of wearing a suit of armor, the lawyer should be ready to use the power of chi in battling to harmonize the situation for the client. Jon Katz. Thursday, June 21. 2007Unrepresented defendants: Beware of prosecutors and cops bearing tidings.
To deal with prosecutors without a lawyer is like dealing with wayang shadow puppets; all will remain shrouded in mystery. (Permission for image republication given by its creator).
This follows up on yesterday's blog entry to beware of prosecutors bearing gifts. To unrepresented defendants, I also say beware of prosecutors and cops bearing tidings.
Here is an example. Recently, I went to a nearby Virginia District Court for a hearing to schedule my client's trial, with the entire procedure taking ninety seconds at most. When I went in the hall to ask the prosecutor a question, he was speaking with an unrepresented defendant. I could not help myself from overhearing their conversation. From what I could tell, it appeared the defendant only was present for a scheduling hearing, as was I. If not, this certainly was not his trial date.
The defendant apparently was anxious to get his case "over with," which is a common sentiment by many of my clients of all different backgrounds. However, when a criminal defendant rushes to get things over with -- without sufficient preparation for battle -- sometimes the nightmare has just begun.
In this instance, the defendant looked anxious to receive a guilty plea deal, even while acknowledging a previous theft-related conviction. The prosecutor conveyed combined elements of honesty and smoothness. The prosecutor confirmed that he could not advise the defendant in the way a lawyer could. Yet, he seemed persuasive by his very appearance of being low-key, approachable, and listening. He added to the defendant: "I don't know if the same offer will be extended to you if you wait until the next court date." Fewer than one minute passed, when the defendant shook the prosecutor's hand, saying "We have a deal." I sincerely hope that, in the interim, the defendant refused, after all, to plead guilty without a lawyer.
One day, I asked a prosecutor about disparities between guilty plea and disposition deals offered to unrepresented defendants versus to represented defendants. She insisted they get the same thing. Her assertion may have been one percent true, at best. Perhaps she generally made the same initial guilty plea offer to both represented and unrepresented defendants. The missing piece of the puzzle is about the extent to which unrepresented defendants accept plea offers that are not wise to accept and would not be recommended by a qualified attorney; and the extent to which a skilled lawyer, as opposed to an unrepresented defendant, can convince the prosecutor to start softening the prosecutor's settlement offer.
Sometimes police join the act to try to convince defendants to take an imprudent guilty plea course of action. Sometimes it is as simple and harmful as a police officer promising to let the judge know the defendant was cooperative with the cop, and to estimate the judge will "just give probation." If not as many defendants were so "cooperative" with police, fewer of them would be criminally charged, convicted, or harshly sentenced in the first place. Jon Katz. Wednesday, June 20. 2007Diversion: Beware of prosecutors bearing gifts.
Photo from website of U.S. District Court (W.D. Mi.).
Many potential clients with no prior convictions ask me about diversion for numerous misdemeanor charges running from shoplifting to marijuana possession to soliciting prostitution. My response ordinarily is to beware prosecutors bearing gifts.
When a prosecutor and criminal defendant agree to do diversion, the defendant is "diverted" to satisfy certain conditions to get the defendant's case inactivated or dismissed. A whole host of conditions might be involved for obtaining diversion, which might include, but not be limited to, community service, general good behavior, paying restitution, not picking up new criminal charges, drug or alcohol education, and a series of negative drug tests (I oppose the nation's rampant drug testing madness).
Some potential clients tell me that other lawyers sometimes suggest they save their money and go to court on their own to go into diversion, or that other lawyers have mapped out a plan to enter diversion. I am curious about whether any lawyers make such a suggestion, as opposed to (1) responding to sticker shock at the lawyer's fee by saying that the defendant always has the option of representing himself or herself (which summonses the maxim that one who goes to court without a lawyer has a fool for a client) or (2) reducing such sticker shock by offering to charge a lower fee if the defendant decides in advance to seek diversion, seeing that less lawyer time might be needed to assist with diversion than to prepare for and go to trial.
In any event, I strongly believe that (1) a criminal defendant (other than for non-jailable traffic moving violations) always should go to court with a lawyer, lest, at the very least, the defendant get hoodwinked by the prosecutor, police or both about diversion or any other matter, and (2) diversion should not be accepted any earlier than need be, unless some risk exists that diversion might not be available the longer the defendant waits. (However, I often advise clients to take risks on when to accept or not accept this and other disposition offers.)
Here is an example of the risks of going to criminal court without a lawyer, even when diversion seems a shoe-in to the defendant. Recently, I obtained colleague Debra Saltz's permission (and very much appreciate the permission) to post her useful and practical article (originally appearing in the Maryland Criminal Defense Attorneys Association's newsletter in 2006) that addresses each Maryland county's diversion programs, as well as such programs in the District of Columbia. The list is outdated concerning drunk driving cases in the District of Columbia, where the diversion cutoff now ordinarily is a 0.15 blood alcohol test rather than 0.20. In that regard, recently I spoke with a District of Columbia assistant attorney general who prosecutes drunk driving cases all the time and seems very above board, even though I often disagree with her, as is common between me and all prosecutors. About drunk driving diversion, she told me that even where the blood alcohol test is below 0.15, sometimes, depending on the circumstances, diversion still will not be offered to defendants with a blood alcohol test result below 0.15. In the District of Columbia, diversion never seems to be a shoe-in.
Here are two examples of the risk of seeking or accepting diversion rather than seeking an outright acquittal or dismissal of one's case. First, in Maryland and Virginia District Court -- which courts handle misdemeanors and designated lower-level felonies -- settlement and plea offers often do not begin in earnest until the trial date. Consequently, and ordinarily, if the prosecutor does not have available the necessary witnesses and evidence (learn how to know whether to rely on a prosecutor's word on the availability of witnesses and evidence) on the trial date to prove the criminal charges, no reason ordinarily exists to accept diversion or any other disposition offer (other than an outright dismissal or inactivation of the case) absent a real risk that the prosecutor will obtain a postponement at which the witnesses and evidence likely will be present or a real risk that the necessary witnesses and evidence will come walking through the door, after all, on the trial date.
Second, even where a prosecutor optimistically packages an offered disposition as diversion, numerous unforseen direct and collateral risks can still be involved. For instance, diversion often means keeping the prosecution merely in a suspended pending status until the prosecutor or court agree that diversion has been successfully completed. Having a pending criminal charge might delay or harm certain immigration scenarios (e.g., delays in processing or granting immigration applications or delays, at the very least, being re-admitted to the United States when a non-United States citizen has a pending criminal charge). Those maintaining or seeking security clearances should also check the effect of diversion on their desired security clearance status or applications. Worse, sometimes a defendant thinks s/he merely is entering "diversion" when the disposition will be read by some or many as a finding of guilt or brings greater risk of a guilty finding if the defendant later is deemed to have failed the conditions for obtaining such a disposition. For instance, in Virginia, accepting the so-called first-time offender program for marijuana possession will be treated as a guilty finding by the immigration authorities, and the defendant's Virginia driver's license (and Virginia driving privileges for out-of-state drivers) will be suspended for six months whereby the defendant will need to petition the court for permission to drive with narrowly-defined restricted driving privileges.
Sometimes, I suggest that a client do his or her own diversion program, in the hopes of obtaining significant relief from the prosecutor or judge. For instance, on my advice before the trial date, a Virginia marijuana possession defendant who is not a citizen entered a drug education program together with providing weekly negative drug tests. His immigration status would have been severely harmed with a guilty finding or entry into Virginia's so-called first offender drug possession program. After going back and forth several times with the prosecutor, I convinced her that our mutual goals had been overlapped by my client's drug eduction and urine testing efforts. We obtained a mutual continuance of the trial date for my client to complete his drug education program (which he did) and then to dismiss the case.
Sometimes a criminal defense lawyer is wise to seek diversion, and sometimes must do a lot of convincing to obtain a diversion agreement from the prosecutor. In an instance where the prosecutor ordinarily would not have agreed to a dismissal for community service (where my client had a prior jailable conviction), I successfully upped the ante by offering for my client to complete one hundred hours of community service, where the norm was not to require more than twenty-five hours. In an instance of alleged employee theft in a county that does not offer diversion for employee theft, my client followed my advice, pretrial, to do substantial community service and to have cash available to pay restitution for the allegedly stolen goods. As anticipated, the prosecutor flat-out refused diversion. However, in taliking with the complainant retailer's loss prevention manager witness, I learned that he had pressing business elsewhere. With the loss prevention manager's agreement, I tried to convince the prosecutor to accommodate the witness's schedule, seeing that the courtroom was so packed that a trial likely would take a few hours to commence. My client's completed community service, cash in hand, or both, helped tip the scales in our favor. The prosecutor refused to call the disposition one of diversion, but instead said she was accommodating the prosecution witness; no matter what it was called, we walked out of court with a dismissal.
Moving across the Potomac to Virginia, prosecutors in the Old Dominion (although much has changed in Virginia for the better, it still remains a death penalty capital, the former cradle of the Confederacy, and a longtime perpetuator of Jim Crow) will sometimes offer a disposition of a stipulation to sufficient facts or a suspended imposition of sentence, and focus to the defendant about getting the case dismissed for successful completion of the conditions for such dispositions. However, immigration authorities consider a suspended imposition of sentence to be a guilty disposition. Also, a finding of facts sufficient for a guilty finding sometimes might appear on the record as an admission or finding of guilt, and, even if not, might risk the immigration authorities seeing it as a guilty disposition. Moreover, if a defendant is deemed not to have fulfilled the conditions for the foregoing dispositions, the defendant will be sentenced without a trial, and a guilty verdict will be on the defendant's permanent record, unless the defendant successfully appeals the conviction.
Beyond the foregoing discussion, sometimes defendants will have only one opportunity in a lifetime to complete a diversion program. This is another reason to seek an outright dismissal of charges rather than first running to the arms of a diversion disposition. Nothing guarantees that a defendant will not in the future be charged with a new crime, whether or not the prosecution involves the wrong suspect or a wrongheaded law (e.g., the marijuana prohibition laws).
Obtaining quality legal representation can pose a critical financial burden for a criminal defendant who does not qualify for public defender or court-appointed attorney assistance. At the same time, however, to go into court alone against an experienced prosecutor -- who sometimes double- and triple- teams defense lawyers and defendants with police and other prosecutors -- risks too much to lose, even if diversion might be available. Jon Katz. |
Underdog is presented by Marks & Katz, LLC, attorneys, Silver Spring, MD, 301-495-4300. Our law firm focuses on winning advocacy. We are AV-Rated. Criminal defense partner Jon Katz is listed in Washingtonian's Top 800 Lawyers and Maryland and DC Super Lawyers for criminal defense. We practice Criminal Defense and Drunk Driving/ Driving While Intoxicated / Drugged Driving / DUI/ DWI law throughout Maryland, Washington, D.C., and Virginia, including the counties of Montgomery, Fairfax County, Northern Virginia / North Virginia, Arlington, Prince George's, Baltimore, Alexandria, Howard, Frederick, Anne Arundel, Prince William, and Loudoun.  QuicksearchGoogle the Site
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