Thursday, February 28. 2008The Supremes on legal writing and advocacy. Bill of Rights. (From the public domain.)
Thanks, Scott Greenfield, for posting this link to interviews of eight Supreme Court justices talking about appellate writing and advocacy. Regardless of one's personal opinion about a particular judge, justice or court system, when a lawyer chooses to enter the courtroom arena, the lawyer must know the judge. This link assistas on that path for Supreme Court advocacy. Jon Katz. Thursday, February 28. 2008One percent of adults are behind bars in America.
Bill of Rights. (From the public domain.)
One percent of adults are behind bars in the United States (see the 2008 Pew Charitable Trust report here and a related news article here). Imagine the financial, psychological, and social drain illustrated by such a statistic.
As I have repeatedly said, I do not think we will achieve a fair and just criminal justice system -- including policing, prosecuting, judging, imprisoning, and releasing and supervising on probation and parole -- until people insist on and achieves a radical and positive overhaul of policing and police hiring, training, supervision, and discipline; and of the rest of the criminal justice system, including heavily decriminalizing drugs (and legalizing marijuana), eliminating mandatory minimum sentences, and eliminating criminal penalties for activities as minor as prostitution.
Certainly, if marijuana were legalized and other drugs heavily decriminalized, much less than one percent of the adult population would be behind bars in this country. One obstacle to achieving such needed drug law reform is the expected resistance from so many people who profit very handsomely from the nation's overgrown criminal justice system, including government contractors who build jails, prisons and courthouses; police prosecutors, judges, probation officers, and government-paid indigent defense counsel; and the many companies that operate privately- run jails.
Meanwhile, talk about the level of hyper-control the United States government and state governments are able to exert by having one percent of the adult population locked up. So much for the land of the free and the home of the brave. Jon Katz. Wednesday, February 27. 2008"Chicago 10" on screen.
Among my many influences from the Sixties are the Chicago Seven/Eight trial (the number of trial defendants went to seven after Bobby Seale was separated from the remaining defendants, but not before the trial judge ordered him bound and gagged); Ram Dass and his heavily influential Be Here Now; Bhagavan Das, who introduced Ram Dass to being here now; and Jack Kerouac, whose 1950's On the Road approach to life and writings heavily influenced the hippie movement.
Now in movie theaters is the Chicago 10 film from writer-director Brett Morgen, which I look forward to watching. The number ten in the film's title comes from adding criminal defense lawyers William Kunstler and Leonard Weinglass to the original eight defendants. Posted above is the movie preview. If you see the film, I look forward to seeing your comments posted here. Jon Katz Wednesday, February 27. 2008The real McCoyJon Katz(l) and the legendary McCoy Tyner (r) (Thanks to my brother Jeff Katz for digitally enhancing this photo from the underexposed cell camera original.)
One thing I love about digital photography is that it reduces the need for using gelatin (ordinarily from slaughtered animals), which is common in the printing of photographs from film.
Another thing I love about digital photography is the possibility of salvaging underexposed photos. Above, for instance, is my brother Jeff Katz's success in saving an underexposed cell camera picture of me and McCoy Tuner from February 24 (the extraordinary meeting is blogged here) through extrapolating digital information and making an artistic rendering.
Of course, this whole topic brings me back to the argument that child pornography possession cannot be proven beyond a reasonable doubt without expert testimony for the prosecution that virtual images are not actually being presented. For an idea of how far virtual digital imagery has come, see this virtual image. Jon Katz Tuesday, February 26. 2008May Ruark's prosecution make prosecutors more sensitive about collateral consequences.
Photo from website of U.S. District Court (W.D. Mi.).
Wicomico County, Maryland, chief prosecutor Davis Ruark risks losing his eighteen-year post if convicted for his February 22 arrest for drunk driving and possessing a handgun while under the influence of alcohol.
Mr. Ruark hopes he will be forgiven for this incident. Last Saturday he admitted to drinking alcohol in Salisbury -- where Perdue chicken is headquartered -- after working late that Friday night, and then driving to Ocean City in a government-owned vehicle. Ironically, his car had been government-seized through forfeiture from its previous owner after an arrest, with governments nationwide, unfortunately, reaping all sorts of treasures through successfully obtaining court-ordered forfeitures of property allegedly connected to drug crimes and certain other crimes. The distance Ruark drove from the bar to Ocean City was around thirty miles.
Were Ruark just any old anonymous person, his prosecution would be rather unremarkable. Even if his breathalyzer test result accurately reflects his blood alcohol level at the time of driving -- breath testing machines obviously can only test for the alcohol level at the time of the test, alcohol levels can increase as time passes (through ongoing absorption of alcohol into the bloodstream), and the tests are ripe for flawed results -- the 0.15 blood alcohol result is a commonly seen BAC level for drunk driving cases, and does not automatically translate into significantly impaired driving. Mr. Ruark also is being charged with the misdemeanor of wearing, carrying, or transporting a handgun while under the influence of alcohol, under Md. Pub. Safety Code § 5-314; he had a handgun carrying permit, apparently after having received death threats related to prosecutions, so cannot be prosecuted for mere possession of the handgun. As sometimes happens in Maryland, the court docket has not yet recorded his drunk driving case online, but has recorded his handgun case here, showing that Mr. Ruark is being defended by Ocean City lawyer Richard Parolski.
Unfortunately, even unremarkable prosecutions can have devastating effects on convicted people, starting with the risk of jail, proceeding with suspended driving privileges for drunk driving cases, and going further to collateral risks to one's immigration status (but not for a drunk driving conviction that does not involve a collision), any security clearance, and any employment by the military (even for run-of-the-mill drunk driving convictions, as Mr. Ruark knows full well, in explaining one of the reasons that his son with military aspirations succeeded in getting his drunk driving case dismissed last December in the same Worcester County where State's Attorney Ruark is now being prosecuted). Too often when I try to persuade prosecutors to reach dispositions that avoid such devastating collateral consequences, I receive a rote or flip answer that my client only has himself or herself to blame for doing the act that exposed him or her to such collateral risks. Oh, yeah? What if my client is innocent (too many innocent people get convicted) and is facing such risks?
Wicomico County Executive Rick Pollitt said: "It's tragic if a whole career is thrown out the window for a very, very serious lapse in judgment." Similarly, all criminal defendants should be given the same consideration about the collateral consequences of convictions, by receiving more sensitivity about the situation from prosecutors and by changing the laws that put immigrants (and soldiers in the instance of certain petty crimes including unremarkable drunk driving offenses) at risk for a whole host of convictions.
This is also a time to re-think unjustly inflexible get-tough approaches to crime, including Mr. Ruark's own Project Exile program against handguns, where he himself now is being prosecuted for a handgun offense.
Davis Ruark's prosecution is not a time to gloat; it is a time to achieve more positive reform of the criminal justice system. Jon Katz
ADDENDUM: Thanks to the reader who corrected my previous mis-statement about where Mr. Ruark's son was prosecuted for drunk driving. The inaccuracy remained online for a few hours, and has been corrected. Tuesday, February 26. 2008Monday, February 25. 2008This week in D.C.: "Practicing Human Rights Law in America"
Bill of Rights. (From the public domain.)
Thanks to a listserv member for announcing this week's seminar on "Practicing Human Rights Law in America," which runs February 25-28 at the George Washington University Law School (from where I graduated) in Washington, D.C. The agenda is here.
The program starts at 4:30 p.m. each day. Today's two panels will cover the death penalty and "Helping Refugees and Victims of Human Trafficking." Included on the death penalty panel is Diane Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty. Diane has a special place in my heart; I first met her twenty years ago when she spoke at my law school on the death penalty along with Leigh Dingerson (then the NCADP executive director) when Diane was at the ACLU fighting the death penalty.
Wednesday and Thursday each have three panel discussions, plus a film screening of Rape Is...on Wednesday and a concluding reception on Thursday.
I did my best during law school to light a candle for justice while reading many distressing poorly-decided Constitutional opinions which often made me wonder whether anybody other than the late Justices Brennan and Marshall gave enough of a damn about giving true meaning and teeth to the Bill of Rights and the rest of the Constitution. In that regard, fellow student David Epstein and I started a law school Amnesty International chapter, and I ultimately turned my obsession over learning how deep and wide run human rights violations in the United States, into heavily positive energy which stays with me to this day.
Subsequent to my law school graduation, the clinical program there added the International Human Rights Clinic. The clinic has been supporting extraditing former Peruvian leader Alberto Fujimori to Peru. One thing that made me feel more distant from Amnesty International was its repeated calls -- after I finished law school -- for bringing human rights violators to "justice". I pointed out my reservations on this to an Amnesty member involved with one of these calls to "justice", not only because I have not yet found any prosecutorial system that I sufficiently trust, but because it is ironic to seek to have a human rights violator "brought to justice" by the same justice system that spreads injustice. I have similar reservations about the law school human rights clinic's support for extraditing Fujimori. This particular Amnesty member did his best to justify this "bring to justice" approach, and I continue having my reservations.
In any event, the immigration law clinic was among my favorite parts of law school, especially when I helped obtain political asylum for one of my clients (another asylum-seeking client was denied at his deportation hearing, when we were unable to overcome the high hurdle of his alleged shopping for a third country before arriving in the United States). It is great to see the human rights message being shouted loud and clear through this week's "Practicing Human Rights Law in America" program. Jon Katz. Monday, February 25. 2008When prosecutors get prosecuted.
The Bill of Rights.should apply no more nor more less to an arrested prosecutor than to anyone else. (Image from the public domain.)
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