Monday, October 13. 2008When a judge stops being an impartial adjudicator.
Bill of Rights (From public domain.)
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:
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: Continue reading "When a judge stops being an impartial adjudicator. "Friday, October 10. 2008Why plead guilty when pleading innocent is not much more risky? Photo from website of U.S. District Court (W.D. Mi.).
Most people in my neck of the woods go to court without a lawyer for non-jailable criminal matters. However, even non-jailable convictions can come back to haunt people. For instance, a conviction for possessing a pot pipe is deportable for non-U.S. citizens, with no exceptions that I know of. Those with security clearances will also want to watch out. Moreover, today's non-jailable conviction can lead to harsher sentences for any future convictions.
This week, I had two trials for non-jailable criminal matters. The first trial was in Virginia, for making a loaded handgun recklessly available for the use of a minor under fourteen years old. We lost the trial, but my client has the option to appeal for a de novo Circuit Court bench trial. Consequently, the District Court trial was a dry run to be all the more prepared for what the prosecutor and cops will do at any retrial on appeal. The trial also gave me a chance to have my first trial against this particular county prosecutor.
My second non-jailable trial this week was a Maryland marijuana pot pipe prosecution. In Maryland, a first-time drug paraphernalia conviction is punishable only by a fine up to $500 and court costs of under $100. However, I had one judge several months ago who was convinced he had the authority to place my client on supervised probation for first-time drug paraphernalia possession, and to order drug treatment, in apparent consideration that he had not ordered my client to pay the full statutory maximum fine. The judge disregarded my insistence that my client refused to agree to probation and would pay the maximum fine instead. We successfully appealed.
In any event, a second-time drug paraphernalia possession in Maryland carries up to two years in jail. That is enough reason to hire counsel for one's first paraphernalia possession charge.
In this week's drug paraphernalia trial. I lost my motion to suppress the stop of my client's car. Over my objection, the stopping police officer claimed my client's speed was excessive and testified to the results of his speedometer pace of my client's car, even though the officer did not have his speedometer calibration documentation with him. I lost my motion to suppress the search of my client's car, even though the judge's basis for allowing the search seemed only to have been on testimony of a "faint" odor of marijuana coming from my client's car.
One officer testified that he found a pipe and cigarette butt in my client's car. The prosecutor then told the judge he had no further questions for his last of three witnesses, and moved into evidence a bag containing the pipe and cigarette butt, and a chemist's report saying the pipe had not been tested and a confirmation of marijuana in the cigarette butt.
As I always do, I went to the trouble of having the court and the prosecution receive my timely demand that no chemist report come into evidence without the testimony of the drug chemist. I was hired in the nick of time to meet the five-day filing deadline for such a demand. When the prosecutor showed me the consolidated exhibit, I told him: "Please follow the law by removing the chemist's report, because I filed the chemist demand on time, five days before trial." Instead, the prosecutor proceeded to tell the judge he thought my deadline for filing the chemist demand was fifteen days, under the prosecutor's reasoning that five days was not sufficient notice to the prosecutor to obtain the chemist's presence.
I replied: "Judge, here is the statutory provision showing a five-day filing deadline. The legislature has spoken.
The judge then agreed that the deadline was five days, and that he was granting my motion. I then said I was making a motion for judgment of acquittal. The judge replied that he had already granted it, which is curious, because he did not give the prosecutor a chance to argue against such a motion before acquitting my client. It was an acquittal nonetheless in a trial that had not been going my way until then. Jon Katz. Wednesday, October 8. 2008When indigent criminal defense funding dries up, shrink the criminal justice system.
Two weeks before I was born, the United States Supreme Court mandated that the states provide lawyers to indigent criminal defendants. Gideon V. Wainwright, 372 U.S. 335 (1963). (Listen to the later-to-be, short-lived Justice Abe Fortas -- when he was a name partner at one of Washington's still most highly-regarded huge corporate law firms -- arguing for inmate Clarence Gideon who beat all odds by obtaining the rare right to Supreme Court review after having filed a pro se petition for writ of certiorari. It is remarkable to hear the justices barely interrupt Mr. Fortas for a very long time, while still handing him a unanimous victory.)
The National Legal Aid and Defender Association asserts that: "The right to counsel is the most fundamental procedural safeguard to assure a fair trial in which the government and the accused stand equal before the law. Unfortunately, there is pervasive evidence that Gideon's constitutional promise is not being fulfilled in many states and counties around the country. Some fail to provide adequate funds, standards, training and staffing for public defender offices. Other areas do not have public defender offices and instead contract with the lowest bidder to provide representation for defendants who cannot afford lawyers. There are even jurisdictions where some defendants are not provided with lawyers, even though the Constitution requires it."
Two weeks ago, Maryland Public Defender Nancy Forster announced that her office will no longer provide funding for private lawyers to represent indigent defendants whom the Public Defender's Office cannot represent due to conflicts of interest arising from the office's representation of their co-defendants. This move follows a request from the state's budget office for the Public Defender's Office to find a way to cut $1.3 million from its already underfunded budget. (Of course, the legal system should insulate public defender offices from such pressure from the same executive branch that is involved in prosecuting public defender clients. Moreover, I am dumbfounded why the Maryland Public Defender's Office (and others around the country) have letterheads and, with Maryland, a website that prominently list the governor, no differently than any state agency. Of course, there is an entirely different issue about jurisdictions where chief public defenders run for their office (campaigning under the slogan "Vote for me, and I will save taxpayer money by underfunding my office"?)).
Beforehand in Maryland, all indigent defense funding flowed through the Public Defender's Office, where I worked from 1991 to 1996. I understand that one or more previous chief Maryland Public Defenders took the same approach of ceasing funding for private conflict attorneys due to underfunding, only to have the state government cough up more money, which is not to say that the new funding was always sufficient to effectively defend Maryland's indigent criminal defendants. I have previously handled a few such conflict cases, not for the money (which is low even at the now-increased $50 hourly rate, ordinarily with a low maximum fee cap), but because of the deep importance of continuing to help level the playing field for indigent criminal defendants versus those who can afford lawyers (but still leaving plenty of criminal defendants who do not qualify under the public defender guidelines but who are too poor to hire qualified private counsel.)
Last Friday, Robert M. Bell, who is the chief judge of Maryland's highest court, expressed his concern about this indigent funding crisis, in this letter to Maryland's governor and the heads of both chambers of its legislature.
Judge Bell and everyone else, I have an additional proposal for solving this indigent defense funding crisis: As I have said again and again, we will have a much less expensive and higher quality criminal justice system -- including on the indigent and non-indigent criminal defense side -- once we radically shrink and reform the criminal justice system into one that legalizes marijuana, prostitution, and gambling; that heavily decriminalizes all other drugs; and that sharpens the teeth of the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution. Until such radical reform takes place, we will continue to have a criminal justice system that is grossly unjust, antithetical to a free and democratic society, broken down, overly expensive, and overly socialistic. Jon Katz.Tuesday, October 7. 2008Max Hardcore sentenced for obscenity conviction.
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: Continue reading "Max Hardcore sentenced for obscenity conviction."Friday, October 3. 2008Poll the jury. Photo from website of U.S. District Court (W.D. Mi.).
Before going to trial with or without a jury, it is critical to have a good trial checklist. For jury trials, a critical part of that checklist is to have the jury polled in the event of an adverse jury verdict. Every criminal defendant has the right to require that s/he not be convicted unless his or her request is fulfilled to have each juror asked if the foreperson's verdict is the individual juror's verdict. See, e.g., Maloney v. Maryland, 17 Md. App. 609, 304 A.2d 260 (1973).
Last year, fellow Trial Lawyers College attendee Mark Bennett wrote of a mistrial that would have been missed without a polled jury: "This morning the Houston Chronicle had an article about a health care fraud jury trial in federal court in which, when the jury came back with a guilty verdict, defense lawyer Joel Androphy ... asked that the jury be polled. Judge Werlein polled the jury, and one woman said, 'That’s not my verdict.' Joel moved for a mistrial, which was granted. The accused will get another trial — not right away, probably, but, as Percy Foreman used to say, a continuance is as good as an acquittal, for as long as it lasts."
Commenting on Mark's posting, another fellow Trial Lawyers College attendee, David Tarrell, added this mini-victory from a jury polling: "[T]he lawyer asked for it, a juror hesitated and then said 'No, that’s not my verdict.' The defendant, who was obviously not cuffed during the trial, was now in handcuffs awaiting the verdict. The judge then sent the jury back and when they came back out, their verdict was unanimous to convict. The defense lawyer’s motion for a mistrial was overruled by the judge, but it was a 'slam dunk' on appeal, given the juror’s hesitation and the fact that she changed her mind only upon seeing the man cuffed between 2 deputies. It’s a lesson I’ll never forget, but I don’t think it’s requested often enough."
Why would a lawyer not have a jury polled in a criminal case? Yesterday, Maryland's intermediate appellate court affirmed a conviction where the defendant alleged inconsistent jury verdicts (the Court of Special Appeals found no inconsistency) where he was convicted of child abuse but acquitted on assault and fourth degree sex offense counts. At least from the way the appellate court recounts the entry of the jury verdict, no jury polling was requested (although the Deputy Clerk continued the practice of inserting archaic language into the proceeding: "Ladies and Gentlemen of the Jury, harken to your verdict as the Court hath recordeth it. Your Foreman sayeth..".): Continue reading "Poll the jury."Friday, September 26. 2008Flatulent defendant; albatross of domestic military patrols
Bill of Rights (From public domain.)
Today I argued a felony criminal appeal before the Fourth Circuit in Richmond, Virginia where I stayed overnight, so today's blog entry is brief, but very important.
As George Carlin said on his Occupation: Fool album from the early 1970's, "farts are fun". That is to say, when they are your own farts. Ever since becoming a father two and one-half years ago, the words fart, poop and booger flow freely from my tongue. It is one of the many pleasures of having children.
In any event, a West Virginia cop purportedly refused to let a drunk driving suspect use the bathroom, which apparently led to the the expulsion of methane/flatus. The cop claims the suspect fanned the flatulent fumes towards the cop, and claims that to be assault. Curiously, of course, one apparently would have to be very talented to successfully re-direct flatus odor by merely using one's hand to do the fanning. Kudos to the Kanawha County prosecutor's office for deciding to pass on the gas-passing assault charge, although the drunk driving charge remains. Thanks to Jonathan Turley for reporting on this (where does he find all these bizarre stories?).
Meanwhile, I would almost prefer to suffer through the above-described suspect's flatus for a few seconds than to have the albatross of domestic Army patrols, compliments of lame duck George Bush, II. (Thanks to a fellow listserv member for posting on this.) Would McCain or Obama do any differently? Jon Katz. Thursday, September 25. 2008Do you order from my client's restaurant menu, too?
- "I don't care what the contract says, it's my money that paid for your work and I am going to know from you what's going on in the case." - "He's my family. Blood is thicker than water, and I'm going to be involved in your discussions with my brother." - "My son has the mentality of a grade schooler. I know what is best for him."
What criminal defense lawyer can avoid clients' overbearing family members? Sure, I can refuse the potential client's case at the outset -- and have -- if someone else is paying for my services and if that someone else seems like s/he will blatantly disregard my standard contractual provision that says the non-client paying party has no rights under the retainer agreement and case any more than if s/he had paid anonymously. What happens, though, if such handwriting only appears on the wall in the very middle of the case? What happens if the client will not stand up to the overbearing relative or friend?
I love my work. However, if asked what most annoys me about my work, it often is overbearing friends and family members of my clients. Certainly, criminal clients and their close ones often are worried about their cases, and clients sometimes feel more comfortable including them in discussions (good luck explaining how such discussions can lose attorney-client privilege protection when third parties are present). However, so long as the lawyer is doing a good job, what justifies perverting concern into being outright overbearing and abrasive?
How to handle such problems? One approach is to use "I" statements, rather than "you" statements, for instance:
- "Mr. ________; I will be delighted to defend you were it not my concern for your brother who's paying your bills. I need to be effective for your case, and your brother is already laying unnecessary obstacles in the way to effectively defending you" v. "You spineless wimp. Why can't you stand up to your family. Maybe if you had stood up to the cops the night of your arrest and remained silent, you would not have this criminal case against you in the first place?"
- "I need my evening family weekend time to be refreshed to do battle for the client" v. "You are are so selfish. What nerve you have to call my cellphone repeatedly late Saturday night, insisting that I should not wait until Monday to set the prosecutor straight through reciting the Magna Carta verbatim?"
- I understand your frustration that I am holding private conversations with your brother on this, his court date. I am sure we will have some additional breaks where you will also be involved" v. "You WILL get out of my way now, and you WILL exercise at least a sliver of self control."
- "You have the right to vent. The question is, though, whom to vent to, how politely to vent, and how long and intensively to vent. I already agree with points A, C, and D about your child's case, so might we move forward?" v. "You want to vent? Go find a psychologist to do that, while I do the real lifting in your relative's case."
- "In all seriousness, [client's parent], I am not sure I am willing to take your son's new case. Just last month your spouse was monologuing on and on and on about nothing, to me, about this case" v. "How do you put up with such a selfish f--k of a spouse? He seems to have a mouth but no ears." Response from the parent to my "I" statement: "My spouse is ADHD; that's why he talks on and on."
- "I am not so sure I want to take your son's new case." Parent: "Why?" JK: "You repeatedly drone on and on when you call me, without even asking if I have been interrupted" [Note: I take the case and the parent is no obstacle, after the parent explains that such droning is ingrained in him since elementary school] v. "The nerve of you to come back to me after all your abuse I deflected from you on the last case."
I can count on one hand the number of potential clients I have refused to sign up due to ominous handwriting on the wall of irreconcileable differences with client's family members plus a client who does not seem likely to put his foot down. Some honest "I" statements and reasonable reassurances about the lawyer's time to talk with the family member and to prepare the case defense, sometimes can make the whole problem go away. Also, some inward- and soul- searching and reflection can help the lawyer learn how much of such exasperation is internally-rooted rather than externally exacerbated.
What do you do in such situations? Jon Katz Wednesday, September 24. 2008D.C. Jail is on lockdown status.
(Image from Bureau of Prisons' website).
The District of Columbia jail is one of the most unpleasant of the over twenty or so jails and prisons I have visited. My experience would be a picnic compared to what the inmates must endure.
Thanks to a fellow listerv member for getting the word out that the jail is on lockdown until 6 October, and that all legal visits need to be made through the staff entrance. Jon Katz. Tuesday, September 23. 2008Unreasonable suspicion.
Bill of Rights (From public domain.)
What made me become so skeptical of cops? Certainly, plenty of socializers tried to keep me and my school classmates enamored of cops from the earliest age. I played with cop and fireman toys. I watched Dragnet, Adam-12, Hawaii Five-O, Baretta, Columbo, Police Woman, Kojak, and plenty of other entertaining police shows that shined a favorable light on cops. When, at age five, I passed by a man being led away in handcuffs near the bank, a man nearby counseled me that "crime does not pay." Cops spoke to students for assemblies, and convicts only came to the Scared Straight presentation telling us crime does not pay (but apparently this was an effort to get parole release). Fortunately, I missed the D.A.R.E. program.
Then, I saw Al Pacino in 1973's Serpico, which was based on a true-life New York cop who got shot by his own when he refused to join them in police corruption: being paid off by drug dealers and skimming off the top from seized cash. It all made sense: Cops are mere humans and not superhumans. The buttons proclaiming that my town's "Fairfield Cops are Tops" were propaganda pieces that should instead have proclaimed "Preserve and Protect the Bill of Rights."
Too many jurors, prosecutors, judges, and members of the public at large unfairly cloak cops in shrouds of honesty that they do not deserve. They are mere humans, and most humans lie, and lie again. Certainly, as one cop told me when I complained to the nearby Whole Foods grocery store about why this store had armed cops when the stores in ritzier neighborhoods do not, he would risk taking a bullet meant for me even if I kept my healthfully skeptical view of cops and all people. But that does not make him any more honest than if he would not take that bullet.
Again and again, judges issue search and arrest warrants; and refuse to suppress stops, searches, seizures, and interviews of defendants, without carefully enough considering whether the cops are telling the truth and whether their information is sufficiently reliable or sketchy. Praised be lawyers Andrew Ferguson of the District of Columbia Public Defender Service and Damien Bernache of the Nassau/Suffolk Law Services Committee for their recent article in the American University Law Review entitled: "The 'High-Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis." The title speaks for itself. Thanks to the American University Law Review for publishing an article with this level of pro-Fourth Amendment teeth. Jon Katz Monday, September 22. 2008Defending online copyright infringement.
Computer hard drive. (Image from Pacific Northwest Laboratory's website).
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