Entries by Jon Katz

When I started working as a public defender lawyer in 1991, I observed about fifteen minutes of a felony jury trial being presided over by a then-longtime sitting judge. I was astounded to see the judge -- in front of the jury -- silently and emphatically mouthing words, apparently to coach the prosecutor during the prosecutor's cross examination, without any objection from defense counsel. I could not tell what the judge was saying, so perhaps the jury could not, either. However, the judge's actions clearly could have made the jury thing the judge was on the prosecutor's side. This was an older courtroom where the proceedings were only recorded by a court reporter's stenographic machine; there was no videocamera to record the judge's improper and silent actions.

A few years later, I was questioning a witness in a civil litigation deposition when my opposing counsel entered several objections in a nasty tone of voice, and nearly screeched "GO AHEAD!" to try to cut me off from objecting to what I asserted was improper commentary to be presented by him in front of his deponent client. However, when I read the deposition transcript, none of the opposing lawyer's nastiness shined through; he seemed like a master of avoiding a record of his nastiness, although I make it a practice to insist that the court reporter save the audiotaped proceedings for me to prevent such an escape.

Thankfully, more courtrooms today are equipped with audiotaping to monitor judges' actions (although Virginia District Courts have no recordation of proceedings unless a party hires a court reporter). Sometimes judges' words alone show they have gone beyond the pale of providing a fair trial. Two such cases are last week's Antwan Derrell Smith v. Maryland case and the eternally shocking John Howard Johnson v. Maryland case from 1999.

In Antwan Derrell Smith v. Maryland, __ Md. App. _, 2008 Md. App. LEXIS 128(Oct. 6, 2008), the trial judge in a murder case interjected sua sponte with what the appellant counted to have been 125 questions of prosecution witnesses.  

Here is a prime example of the trial judge's interjections and his reply to objections thereto:

THE COURT: Wait. Sir, that's the time that's recorded as to an incident occurring and I suspect that this might have occurred later than that incident. Is there any way you can double check to make sure exactly what time you encountered the car? Like, for example, when you got your central complaint number from the Dispatcher? You may be giving me an earlier time, is what I'm suggesting. Can you look it up?

THE WITNESS:  I would have to go back to the police station and look at the CAD inform ation, but I think the time that was used is the time the actual complaint num ber was pulled, sir.

THE COURT: But if the complaint number was pulled because of something that happened earlier that evening, is there a way that you can reconstruct exactly what time it was that you stopped this vehicle?

THE WITNESS: No, sir.

 

[The defense objects to the trial judge's interjections as favoring sides and as removing the judge from the role of an impartial adjudicator.  The  judge replies:]

 

THE COURT: Thank you. I don't believe that clarifying this issue shows a preference for the State. I think it's mutual. My twenty years of experience tell me that if there's some ambiguity in the times, we're going to get peppered with notes from the jury long after the witnesses are capable of testifying, so we cannot create side issues or extend the length of the trial (inaudible) by having witness [sic] explain what's obvious to every lawyer and every policeman, but it's not obvious to the people that don't work in the field how dispatch numbers are obtained, in terms of timing. It will prevent the jury from going off on a tangent. Thank you.

 I would have to go back to the police station and look at the CAD information, but I think the time that was used is the time the actual complaint number was pulled, sir.

Maryland's intermediate appellate court reversed Mr. Smith's conviction, but insodoing confirmed that judges have wide latitude to interject questions to witnesses so long as it is not done with the appearance of bias for either side: 

FYI, our law firm will be open on Columbus Day, October 13.

The only reason thus far that I have identified to justify closing on Columbus Day is to give my staff a well-deserved day off. Other than that, I do not agree with the holiday, particularly when no federal holiday exists to remember the Native Americans who suffered tremendously from the lengthy brutal and unjust treatment that followed over the years and centuries after Columbus's arrival in the Western Hemisphere.  

As I understand it, Columbus was not even the first European explorer to find the Western Hemisphere. Perhaps all that was different about Columbus is that his arrival there led in rapid sequence to land grabs and domination in the hemisphere primarily by Great Britain, Spain, Portugal, and France. Jon Katz.

Today is Yom Kippur, the Jewish day of atonement, when I will continue my three decades-long practice of a completely dry fast from sundown last night to sundown tonight; focusing on harmony with others, nature, and myself; and focusing on continuing to improve daily in treating my fellow humans and other living things justly, caringly, and kindly, including a continuation of my two decades of strict vegetarianism.   

Our law firm will be closed today, and will reopen tomorrow on October 10, to serve you. Jon Katz.

 Photo from website of U.S. District Court (W.D. Mi.).

What is obscenity? Nobody knows until the jury rules, because obscenity cannot be sufficiently defined. A jury across the courthouse hallway might even reach an opposite conclusion. Therefore, the Supreme Court's obligatory Miller obscenity test gives little First Amendment protection. 

The Miller doctrine requires that, inter alia, the jury determine "whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. California, 413 U.S. 15 (1973). If one self-censors to avoid the personal and financial cost of defending against an obscenity prosecution, the First Amendment is dishonored and battered. If one does not self-censor and is prosecuted for obscenity, the First Amendment also is dishonored and battered. 

Do not think for a moment that obscenity prosecutions will be limited only to such over-the-edge videos as those from Extreme Associates and Max Hardcore, both having branded themselves for rough and often degrading sex. Prosecutors focus on such extreme sexual material to avoid acquittals from jurors seeing images found on hotel pay-per-view, and to fly under the radar of a larger public outcry against such prosecutions, as prosecutors move closer and closer to prosecute films that depict sex that is little different than the activities of millions of married couples.

Last week, Paul Little, who uses the stage name Max Hardcore, was sentenced to forty-six months in prison -- the bottom of the advisory federal sentencing guidelines (disclaimer: the links in this paragraph go to Adult Video News, which includes photos of suggestively-clad women) -- for his obscenity conviction after a jury trial last June 2008. I previously blogged about the case here (scroll down below the entry for today's blogpost). As defense team lawyer and class act Louis Sirkin told AVN, Max's previous drunk driving conviction bumped him from a level one criminal history to a level two criminal history, and thus increased his sentencing guidelines. This is among the reasons I warn my clients against jumping too quickly at pleading guilty to any crime.

Here are some documents related to Max Hardcore's conviction and sentencing:

The Chinese script for the character "mu," which means nothing. Why are so many intricate brush strokes needed to convey nothing? (The copyright was relinquished by this animated symbol's creator. The symbol also is available here.)

At first blush -- at least from a traditional Western perspective -- irony would be apparent in the concept that nothingness can be powerful.

However, I already know about the t'ai chi power of emptying one's mind, emptying one's leg as if a person is only standing on the remaining substantial leg, and not chasing the opponent's strength and energy. I also know about the power of being in trial with no baggage and to handle what is immediately at hand, in the now -- in the zone as my brother lawyer Mark Bennett calls it -- and being at once relaxed and powerful to take on any opportunity, apparent threat, or otherwise stressful situation. Furthermore, I know the power of overcoming fear by redefining life as being here now, with no coming nor going, no chasing nor being chased, no increase nor decrease, with a goal towards no fear even of injury and death, but instead being here now.

Around fifteen years ago in the video store, my attention was drawn to Wim Wenders' Tokyo-ga. Seven years earlier, I spent two weeks in Tokyo on business, at once fascinated by the Buddhist and Shinto aspects of the culture and at the same time very clueless about the two. I focused instead on arriving early each morning at the bank I was auditing with my small team from Wall Street's Irving Trust Company that owned the bank, and spending some evening and weekend free time taking in the sights and sounds of the country. Nine years ago, I returned to Japan, this time on vacation, having started grooving on Nichiren Buddhism, and finding a Nipponzan Myohoji  Nichiren temple in Osaka only after making several inquiries and finally being driven there by a man from the small market where I had bought some grapefruits for the temple, after having stayed for two days in Tokyo with a very kind and interesting family that follows the Nipponzan Myohoji path.

Tokyo-ga is Wenders' tribute to, search for, and immersion in giant filmmaker Yasujiro Ozu (see one of his clips.) How curious that as I unsuccessfully did a YouTube search for the Wenders film that includes a botched-from-the-beginning store robbery by a man who has just been forced out of his home, I instead found a scene from Tokyo-ga that visits Ozu's gravesite. Instead of saying Ozu's name, his headstone has the above-displayed symbol "mu" (see this photo of his headstone, too), which I understand can be defined -- perhaps very imperfectly defined -- as "nothing". Here are clips from Tokyo-ga, in serial order: one, two, three, four, five, six, seven, eight, nine, and ten.

What did Ozu mean by having his headstone say "mu"? Was this how he viewed the afterlife? As nothing? Was it a stunt to keep people thinking even after he departed this world? Was he a Buddhist, seeing that at least the Lotus Sutra -- which is particularly followed by Nichiren Buddhists -- focuses heavily on nothingness, including no attachment to one's body or ego, and no attachment to the suffering inherent with birth, sickness, old age and death? (See this essay on one of the people who was apparently instrumental in driving the foregoing updated 1971 translation of the threefold Lotus Sutra.)

The senses of cinema webpage says: "Whilst in China during his war service, Ozu asked a Chinese monk to paint the character 'mu' for him (an abstract concept loosely meaning 'void' or 'nothingness'). Ozu died painfully on his sixtieth birthday in 1963 of cancer and his tombstone in the temple of Engaku in Kita-Kamakura bears the inscription 'mu' from the monk's painting that he had kept all his life." 

Using "mu" on the Western side is Douglas Hofstadter, in Gödel, Escher, Bach. What to do with all this mu? We can learn much from it. Jon Katz 

At the Trial Lawyers College, singing was encouraged and was everywhere, some of it good, some of it mediocre at best, and some of it drowning out the rest of the conversation too much. A good point was made that by doing more singing, we are better at getting our words and arguments not only past our lips, but in a full voice that carries the message where it needs to go. The passion of singing needs to translate into the passion of speaking in court.

One of my favorite songs is the B-52s "Rock Lobster". The song's words do not seem to have much of a meaning. However, the song very much captures the time period, the type of music that was emerging and continuing for several years, and a way of dancing that took little else than hopping around. It was a late Seventies remake of the late Fifties' "Shout" by the Isley Brothers, at least with the parallels to everyone getting down to the ground at the respective commands of "A little bit softer now" and "Down, down, down" followed by "A little bit louder now" and, with "Rock Lobster" an increase in the music volume. Each song moves very much ahead, rather than meandering about. Unlike most of the top music hits, I never got tired of "Rock Lobster".

"Rock Lobster" now is over thirty years old. For better or worse, the band went from a much more gritty and somewhat off-key early version (the off-key part possibly was intentional, considering that this was just a month before releasing their first album) followed by much tighter versions. Here are some video links to the song's performance: 1978 in Atlanta (where Fred Schneider reminds the crowd that servers work for tips); another early version; this polished version that looks made for MTV; and this version two decades after the first performance. Jon Katz 

Reality so often is more pathetic than fiction.

Yesterday, I was talking with a woman on the way down the courthouse elevator. She works in the courthouse, and we spoke in Spanish, her native tongue; I do not have as much of a throughout-the-day chance to speak Spanish now that I am no longer with my former law partner, whose Spanish is impeccable and whose practice heavily involves the language.

This woman said she was happy to meet an additional Spanish-speaking lawyer (my Spanish is intermediate, bolstered by a quarter century of practice), because some people sometimes ask her for names of such lawyers. Then came the often uncomfortable question: 'Where are you from?" Some just want to know where I grew up. Others actually want to know my ethnic and/or religious background. Once when asked that question, the follow-up was: "Are you American or Jewish?" as if the two are mutually exclusive. The questioner had sold me a bottle of water at a New Orleans airport newsstand, pre-Katrina, and I stormed out labeling her out load "Stupid! Stupid!", which was hardly in sync with my goal of a t'ai chi life twenty-four hours a day.

To this woman on the elevator, I answered "Connecticut, and now in the Washington area a long time." She replied: "So, you are not born abroad?" JK: "That's right." She responded: "Good. I don't want to refer people to lawyers from Latin America [yet she was born a Spanish speaker]. They take advantage of their own." JK: "I've heard enough. Your words make no sense. Have a nice day." (Moreover, who can speak Spanish better than a native-born Spanish speaker?)

Sadly, bigotry remains alive and thriving among too many people, even sometimes by people against their own ethnic group. Perhaps more sadly, too many people do not stand up to such attitudes.

What to do about it? When many years ago I complained to a very selfless and capable public interest lawyer/leader/giant about ongoing rampant bigotry, he replied: "That is why we pursue housing discrimination and employment discrimination lawsuits." However, successful discrimination lawsuits alone will not solve the problem. People who express bigoted attitudes need to be addressed one-by-one, if they have the capacity to listen to reasoning.

Addressing bigots can make waves. Make waves if that is the only way to address them. Do not just sit safely in the middle of a boat hoping it does not rock, only to hit a huge rock that tears apart your boat and sinks it anyway. 

How do you handle such situations? Jon Katz.