Criminal Defense

Bill of Rights (From public domain.)

Praised be Orlando federal judge Gregory Presnell for delineating the limits of federal jurisdiction in criminal prosecutions, in finding the federal sex offender statute unconstitutional when it comes to criminalizing the failure to register with a state agency as a sex offender. Thanks to a fellow listserv member for bringing this Powers opinion to my attention. Jon Katz

Bill of Rights (From public domain.)

Praised be the inventors of videocameras, right into today's generation of lightweight, small, inexpensive digital cameras. Without such cameras, more rogue cops would get away with lying that a suspect's face got rearranged merely because "he struggled with the cuffs, lost balance, and landed on the tip of my boot, then bounced off the tip of my boot onto my fist, and, by some strange happenstance, this got repeated seventy-three times until he finally landed nose-first on the pavement below. Having eaten some greasy finger food earlier, I was unable to catch him to break his fall. We then processed him and took him to the hospital."

Praised be the Fox news videographer who last Monday captured and released footage of Philadelphia cops beating three crime suspects who do not appear to be resisting nor fighting back. The story is here, and the video is here. This video joins the many other police beating videos I have posted on Underdog.

Are there good cops? Yes. Are there too many bad cops? Yes. How do we get more good cops and fewer bad cops? It will not happen until the criminal justice system is tremendously shrinked at all levels through reducing the number of cops, prosecutors, judges, jailers, probation and parole agents, and pretrial services staff. Then, the cream of the crop can be hired, and resources won't be overly-thinned to sufficiently train, supervise, pay, promote, and remove them as necessary. How best to shrink the criminal justice system? As I have said so many times, it is as simple as legalizing marijuana, prostitution, and gambling; heavily decriminalizing all other drugs; and focusing drug prosecutions more on drug treatment (not drug brainwashing, but helping people kick the habit) than on jailing. Of course, as the Washington Post reports, fiscal tightness can also shrink the criminal justice system, as seen by the early release of thousands of inmates nationwide to alleviate government budget crunches.

On a related note, as a criminal defense lawyer, it is particularly necessary for me to treat each cop -- and everyone else -- on his or her individual merits as a human, even if I strongly believe the cop is one who strays into beating suspects, planting drugs on suspects, and lying in court. For one thing, my suspicions may not be correct or may be exaggerated. For another thing, cops, being humans, are more willing to speak to a genuinely understanding, informal and open ear than to an accusatory finger. For a final thing, even the most atrocious humans -- within certain limits -- can become better people, and I wish to contribute to such a vital development.

The importance of holding out hope that even rogues will reverse their damaging ways is highlighted by the following Buddhist story, whether or not fable, and unfortunately with sexist themes: A holy man is minding his own business praying in nature when a prince arrives to conduct some business nearby and his several wives take a walk and find the holy man. The women are taken by this holy man and circle around him to try to learn from him; the holy many continues about his own business no different than when the women arrived. The prince returns, and in a rage seeing his wives with another man (no matter how innocent the scene), unsheathes his sword and cuts off one of the holy man's feet. The holy man starts praying for the prince, and proclaims that the prince has the capacity to become a buddha. The prince proceeds to cut off more of the holy man's limbs, and the holy many continues praying for the prince's capacity to become a buddha. The prince kills the holy man, and, sometime afterwards, becomes one of Buddha Shakyamuni's righthand people. I think I found this story in Ringu Tulku's Daring Steps Toward Fearlessness: The Three Vehicles of Buddhism (Snow Lion Publications, 2005).

I certainly would not have been praying for the foregoing prince if he were attacking me or someone nearby, but this also reminds me of my friend and mentor Jun Yasuda of Grafton, New York, who is a longtime peace activist and nun with the Nipponzan Myohoji Buddhists. She once told me about the day she joined a gathering supporting the land rights of native people in Canada. At some point, an opponent of the demonstration rushed towards Jun-san and some other demonstrators swinging a metal pipe. Jun-san expected she would die. Instead of protecting herself, Jun-san prayed for the attacker, because he and all human life are sacred to her. Jun-san did not flee or fight in fear, because she has resigned herself that she will die one day anyway, and she sees death as just another part of life. Somehow, the attacker's pipe never hurt anyone, and he was subdued (clearly not by Jun-san).

I know from personal experience that people can change from rotten to good. I have done plenty of rotten things myself during my life, exemplified, perhaps, by my practice several times in summer camp at eight years old of throwing an annoying fellow camper's sandwiches into the woods. At the time I rationalized that I was doing a public service; I was just being rotten. Still a question mark for me is the extent to which my mistreatment of other people and animals (through eating the latter) did or did not draw me more quickly and closely to human rights and social justice work.

In any event, as much as I am better able now than ever before to compassionately approach cops, prosecutors, and other opponents to try to have them help my client in one way or another -- whether that be getting more from the cop on the witness stand, or a better disposition offer from a prosecutor, for instance -- this does not diminish whatsoever my insistence that too many rogue cops and prosecutors are out there, and they must be stopped in their tracks, now. Jon Katz.

Awaiting federal sentencing for her prostitution ring conviction, Deborah Jean Palfrey took her life this week.

On the one hand, Ms. Palfrey's suicide brings to mind how rampant is suicide in society, and how much desperation contributes to it. Ms. Palfrey previously said she would not do a day in prison; and her suicide ended up being likely the only way to avoid it.

How did I learn of Ms. Palfrey's suicide? Certainly not the way I wanted: Through an undiplomatic television camera and microphone sticking in my face. Having left the District of Columbia Superior Court yesterday afternoon, I was on the phone talking about a sex-related criminal case, minding my own business. I have not even closed my cellphone on my completed conversation when a local television reporter says something along the lines of "I heard you speaking about a sex case. I was wondering if I could ask you some questions." By now the camera is running, and I say I'm not ready to speak on the record, thinking he wants to talk about my own clients' sex-related cases. The camera still looks on, and the reporter is still holding the mike. The reporter persists, apparently wanting to ask about various aspects of criminal procedure at the Superior Court, and I say I will not be speaking on the record about that, either, because I do not go to Superior Court often enough -- versus Maryland and Virginia courts, as the District of Columbia courts have the hugest Beltway percentage of defendants obtaining court-appointed counsel  -- so he'll do better to speak to a lawyer who goes there more regularly. 

The camera still runs, and the reporter still holds the microphone, and says he wants to talk about Deborah Jean Palfrey, who he tells me killed herself. Ah, the First Amendment, before which I worship and for which I defend against government and court suppression and punishment of even the most vile and offensive speech. How close I came to telling the reporter "Ms. Palfrey's passing should not be a media feeding frenzy. Why should I be asked to be told on-camera about her death and be asked to comment on the spot after learning of this sad news?" Instead, already programmed through some of the most trying courtroom exchanges to do battle, I decide to take my battle for justice to the news camera once again.

The reporter asks my reaction to this sad news. I say something along the lines of: "This is sad, and never should have happened. Ms. Palfrey never should have been prosecuted, because prostitution needs to be legalized, as does marijuana and gambling. Only by doing that and by heavily decriminalizing drugs can we have a fair criminal justice system." The reporter keeps probing; probing for what? For me to say she had it coming to her (which she had not)? To see if any of my clients ever have committed suicide (none have)? To see if I would lash out at the prosecution, after the reporter mentioned the possibility that her prosecution cost over one million dollars?

THIS IS NOT AUTHENTIC JOURNALISM. Perhaps this is but a failed attempt at infotainment. This is pandering to try to get television ratings, and to charge advertisers more money based on those ratings. This is an effort to make the commercial television news merely an interval separating the commercials without which commercial television would never exist. Is this paragraph hyperbole? If it is, I still haven't come down from such feelings after yesterday's interview.

THIS INAUTHENTIC JOURNALISM DID NOT STOP THERE. The reporter then tells me he wants a shot of me as I go on my way, and the cameraperson asks me to wait as he changes positions to get a better angle. At this point, I don't have any other beef with the cameraperson, and I let him get his camera angle.

WHAT IS JOURNALISTIC ABOUT VIDEOTAPING ME WALKING TO THE SUBWAY? Not having any television at home other than a DVD player -- how sweet it is -- I do not know if the interview ran, nor whether -- as I suspect -- the walking segment was spliced before the interview segment; I have had it done before. This brand of television reporting is far from limited to this reporter and cameraperson.

It all reminds me of the sadly comical section from the great Joan Didion's essential White Album, where Ms. Didion recounts how the actress Nancy Reagan cooperated with a camera crew at the California governor's mansion the same way she would have done for a movie or theater director, along the lines of: "Would you like me to turn to the left after I come into the doorway, and check my phone messages?"

Ms. Palfrey's life, plight and death should not be trivialized, should not be made into the butt of late night television jokes or light water cooler chatter, and should not be swept under the rug. She died after being put through a trial that was unjust: unjust because prostitution should be legal (it does not need to be made illegal to address the socio-economic oppression that leads plenty, but certainly not all, people to choose such work; there are other effective ways to address such oppression); unjust because police and prosecutors have enough rape, robbery and murder cases to address, and should not be wasting tax dollars and resources on prostitution cases; unjust because so much money and court resources were so unjustly wasted on the case; and unjust because so many immunized prosecution witnesses were outed as former prostitutes allegedly serving Ms. Palfrey and her clients.

At the very least, praised be Ms. Palfrey's judge, James Robertson, who asked the prosecution: "You want to make public the names of all the employees? ... Is there no limit to the collateral damage?" Proceeding in this very human vein, Judge Robertson refused the prosecution's insistent request to revoke her bond, lest she flee pending sentencing (flee where, in this day and age where governments and police investigation agencies seem even to know when and where we go to the toilet, let alone where to find us if we miss a court date?). Thanks, judge, for giving Ms. Palfrey a chance to spend time with her mother after her guilty verdict, and to spend time away from the cameras and away from gawking eyes in the jail.

Yes, let us examine and discuss Ms. Palfrey's case, life and death, and why she killed herself. Let us do so with compassion for Ms. Palfrey, and with an eye to eliminate prostitution prosecutions and other unjust prosecutions once and for all. Jon Katz.

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

Ten years ago, lawyer Michael Tigar told the Washington Post that in interviewing to clerk for Justice William Brennan, Brennan asked Tigar "Did you attend a Communist Party training camp in Paterson, New Jersey?' " Tigar responded: "Sir, I have never been to Paterson, New Jersey."

On Tigar's cross-country drive to start his 1966 clerkship with Brennan, Brennan cancelled the deal over concerns about Tigar's leftist student activities. In 1990, Brennan admitted he may have overreacted. With only $10 to his name, instead of getting a useless consolation prize, Tigar got hired by legendary lawyer Edward Bennett Williams.

In the summer of 1987, before ever hearing of Michael Tigar, each day I passed by [Edward Bennett] Williams & Connolly, when Brendan Sullivan from that firm represented Oliver North before Congress in the Iran-Contra hearings, on my way to my summer clerkship at the then-named Federal Home Loan Bank Board, during the savings and loan crisis that caught up so many banks regulated by the FHLBB. Williams died the next year, at sixty-eight. 

Perhaps some of Williams's and Tigar's positive vibes emanating from that building had something to do with my becoming a public defender lawyer four years later and sticking to the criminal defense path today.

Although I have found no online videos of Michael Tigar, who is a captivating speaker, I did find this fascinating "how can you represent those people?" Mike Wallace interview of Williams in 1957. (See Wallace chain smoking and promoting filterless Philip Morris cigarettes during his Interview program from various other segments the same year; thanks to Boing Boing for the Wallace Interview archives link.)

Certainly it did not hurt Michael Tigar's career and 1966 initial financial straits that he graduated first in his class from Berkeley law school and was its law review's chief editor. That makes him no less of an inspiration to me to focus my career -- including arranging pro bono and low bono time -- on important social justice issues, no matter the cause's popularity or lack thereof. Thanks, Michael Tigar, for your inspiration for me to remain on that path. Jon Katz