Friday, August 8. 2008Hamdan's lawyers, judge and jury as models for their counterparts.
Bill of Rights. (From the public domain.)
Salim Ahmed Hamdan has had an eventful ride through various tribunals. He won a critical Supreme Court challenge of the military commission system in 2006. He went to trial recently at the United States' military base in Guantanamo, Cuba, on terrorism charges. An all-military member jury acquitted him of terrorism conspiracy, and convicted him of the less serious charge of material support for terrorism.
Although Mr. Hamdan could still have been sentenced to up to life in prison, the jury decided on a sentence of five and one-half years incarceration, which has already been heavily eaten up by the sixty-one months credit for the time he has been detained to date.
Not only is the sentence stunning, but so is the New York Times report of the very amiable connection forged between Mr. Hamdan and his military trial judge: "During pretrial proceedings, Mr. Hamdan, a father of two daughters in Yemen, and the judge, a career Navy lawyer, had regularly exchanged smiles and, on occasion, chats. Before he left the bench, Judge Allred said a few parting words to the man he had gotten to know in a most unusual way. 'Mr. Hamdan,' Judge Allred said, “I hope the day comes that you are able to return to your wife and daughters and your country.' 'Inshallah,' Mr. Hamdan said in Arabic, before an interpreter gave the English translation of 'God willing.' 'Inshallah,' Judge Allred responded."
Why did the trial judge "hope" Mr. Hamdan would be reunited with his family in Yemen? Aside from any hassles that Yemen's government might give Mr. Hamdan if he returns, there is no telling whether the Bush Administration will try to manufacture a reason to keep Mr. Hamdan detained beyond his 5 1/2 year sentence.
Did Mr. Hamdan obtain such a relatively positive trial result because of fair written procedures for such trials, or despite such procedures? I expect the answer is the latter. I understand that his trial involved fewer protections than criminal defendants receive in civilian criminal courts in the United States. Aside from the prosecutors' problems trying to turn Mr. Hamdan into much more than a driver and bodyguard for Osama bin Laden, he appears to have had a very talented, dedicated, and caring defense team. which includes lawyers from the corporate law firm of Perkins Coie -- which defended Mr. Hamdan at the government's invitation -- and Hamdan's lawyer Charles D. Swift, who started with Mr. Hamdan when a military lawyer, was booted out of the military after winning for Hamdan in the Supreme Court, and now is an Emory law professor.
Mr. Hamdan also had a courageous jury and judge. Whether or not the jury was wise to convict at all, tens if not hundreds of millions of worldwide eyes were on this judge and jury, and they seemed to act independently of that, and independently of any fears of being sanctioned by their superiors one way or another, just as was Charles Swift for so successfully defending Mr. Hamdan.
May Mr. Hamdan's defense team, judge and jury be a beacon and inspiration to their counterparts in all other tribunals to do the right thing in criminal cases, no matter the personal, professional, or financial cost. Jon Katz. Thursday, August 7. 2008Prince George's police shoot dogs first; ask questions later.
Bill of Rights. (From the public domain.)
On July 29, the lives of Cheye Calvo and Trinity Tomsic were turned upside down and inside out. Their dogs fared worse, having been shot dead after Prince George's County, Maryland police stormed the couple's home without knocking, immediately shooting dead the apparently gentle-breed dogs.
Prince George's County is where I started my criminal defense career, with the county Public Defender's Office in 1991. It is a fascinating county that swallows up the northeast quadrant of the Capital Beltway. It has many wide-open and farmland spaces to the south, urban-type areas closer to the Washington, D.C., border, a very enjoyable new harborside convention center and entertainment complex across the Potomac from Alexandria, great kayaking and canoeing at Piscataway Creek, homes that are much more affordable than the neighboring Montgomery County where I live, apparently the state's second most active criminal court dockets just after Baltimore's, and a deep and painful history of racism in this county which today has a majority of African-American residents.
Do police have a tendency to mistreat more heavily those they think are disempowered? Does that help explain why members of the Prince George's County police stormed the home of the mayor of the tiny city of Berwyn Heights (not knowing he was the mayor, and not believing him when he told them as much), stormed the home without knocking even though their warrant was not of the no-knock variety, shot the couple's two dogs dead on the spot, and held the mayor in his underwear for two hours during the search?
Did this story come to light with such lightning speed and breadth only because a mayor was involved? Sadly -- apart from police entering without knocking on a no-knock warrant -- such actions are repeated daily by police who execute search warrants, often terrorizing the occupants with SWAT-team garb and tactics (right down to cuffing the occupants and pointing guns at them), leaving searched homes looking like tornadoes hit them, with drawers and trash cans removed and dumped out, and sometimes destroying front doors by entering with battering rams. So much for the land of the free and home of the brave; such searches require no more than a judge's signature on a warrant application that usually starts with several hackneyed pages detailing the police applicant's claimed qualifications for seeking a search warrant, and often followed by sleep-inducing minute details about the events leading up to the warrant application. In Maryland, judges are available twenty-four hours a day to sign such warrants. The quicker they sign the warrant, the sooner they can get back to sleep if it is after hours, and back to their other tasks if it is daylight. Do all judges always read and question such warrant applications as thoroughly as they should?
In this instance, the warrant was issued because of the discovery of a package of over thirty pounds of marijuana destined for the mayor's home, apparently as part of a scam by drug traffickers to choose innocent people's addresses for intercepting such packages in order to remove an investigative trail to the real culprits. As of August 8, even though two suspects were caught, the Prince George's County police still resisted ruling out Mr. Calvo and Ms. Tomsic as suspects.
Of course, if I had my way of marijuana legalization and heavy drug decriminalization, such wasteful and abusive use of police resources would not have taken place. Instead, members of the Prince George's County police rushed with such fury and force that they did not even bother to alert Berwyn Heights's own small police force of its pending search. On the one hand, no mayor or other government official should get more favorable police treatment than anybody else. On the other hand, dollars to donuts, the Prince George's police heads will now require more careful investigation of the backgrounds of those whose homes they search, and might even require alerting the local police in the county's numerous small and larger cities that have their own police forces.
If there is a silver lining here, it is that such common police tactics have been brought to the light of day, and that a small city's victim-mayor may become more sensitive to the need for his own police force to be extra careful in protecting not only people's Constitutional rights, but their dignity as well. Jon Katz.
Wednesday, August 6. 2008Calling the dogs means a detention.
Bill of Rights. (From the public domain.)
Praised be Virginia's intermediate appellate court for generally finding that a detention takes place once a police officer tells a person that s/he is having a drug dog come to search the suspect's vehicle.
In Middlebrooks v. Virginia, __ Va. App. _ (August 5, 2008), a police officer found Middlebrooks urinating in public, and searched him by consent and found nothing incriminating. Middlebrooks told the police that the nearby vehicle was his "people's car", but the police later learned through a motor vehicle records check that the car belonged to him. Armed with this so-called "lie" about the car's ownership, the frequent drug activity in the park area, and Middlebrooks's eventually hanging out in the car, a police officer returned and asked Middlebrooks for permission to search the car, which Middlebrooks refused. (It is curious that Middlebrooks consented to have his person searched and not his car. Was it because he knew that only his car would turn up contraband (a significant amount of marijuana) and not his person)? Kudos to the cop for at least being honest that Middlebrooks refused a search, at first. Kudos for Middlebrooks's knowing his right to refuse the search.)
When Middlebrooks refused the car search, the cop told him he would have the car sniffed by a drug dog. The cop then asked if he would find any drugs inside, and Middlebrooks admitted to the presence of marijuana in the car and its location.
Fortunately, the Virginia Court of Appeals determined that telling Mr. Middlebrooks of the coming of the drug dog amounted to a Terry stop, which requires reasonable articulable suspicion, since a reasonable person would not have felt free to leave at that point. The appellate court found no reasonable articulable suspicion, and found under the Exclusionary Rule that Mr. Middlebrooks's eventual admission to the presence and location of the marijuana (and the seizure of the marijuana) required suppression.
Life sometimes is fair, and sometimes more than fair. Unfortunately, so many court opinions run afoul of the Bill of Rights that Middlebrooks is a cause for celebration, particularly considering that the Virginia Court of Appeals is far from a bastion of wooly-headed liberals.
What will happen to Middlebrooks on appeal? Will a majority of the Virginia Supreme Court or United States Supreme Court find a way to say that no seizure took place in Middlebrooks? I expect that the prosecution will appeal this case and that the Virginia Supreme Court will grant an appeal of this case. However, is there any split among various courts to lead the United States Supreme Court even to grant certiorari review? Jon Katz. Tuesday, August 5. 2008Reality is no obstacle.
Chick Corea with Return to Forever's reunion concert, Columbia, Maryland (August 4, 2008). Copyright Jon Katz, P.C.
The amazing SunWolf proclaims that "Reality is no obstacle," which at first blush might seem fanciful, but when examined more closely makes perfect sense when considering that many competing would-be realities are usually involved in a criminal case, and jurors and judges have various ways of deciding what is reality and how to handle that reality, sometimes including convicting the utterly innocent and acquitting the clearly guilty.
At its worst, reality can be as stifling as a stench-filled outhouse in the boiling hot humidity, as depressing as a diner with rancid food and grimy walls, and as fatal as a plane crash. At its best, reality is an amazing thing.
The great thing about music and art is the ability to transcend, alter, and re-perceive reality. See how many times a person loses one's blues through great music or other performing arts, for instance. When a trial lawyer is in touch with the wonder of great music and other great performing arts, s/he can translate that into more dynamic and effective trial performance, rather than droning on and on and on and on and on and on in court.
No musician is more infectious to me in that spirit than Chick Corea. Chick Corea is the most infectious to me when performing with his 1970's Return to Forever lineup with Stanley Clarke, Al Di Meola and Lenny White. To say the quartet today is as magical as ever is an understatement. I am still wondering whether I was dreaming last night to have experienced the Maryland leg of their first reunion concert tour in a quarter century, at least starting into their third song, and lasting into their seventh or eighth and last (which might be akin to it usually being best to catch the second or third set of a jazz club performance), ending at the 11:00 hour when noise rules permit no more music-making at the open-air Merriweather Post Pavillion.
On the one hand, the band did not play any new compositions. On the other hand, the four delivered amazing interpretations and variations on their original themes. The band's most magical piece is the one that requires no wires: Romantic Warrior. Its song title most relevant to criminal defense is the "Duel of the Jester and the Tyrant." What an approach to defanging the tyrant.
The band picked up where it left off in the late seventies as if three decades had never intervened. Imagine working as closely, harmoniously, and compellingly as that with our own clients and witnesses. Imagine infecting our clients, witnesses, judges and juries with that magic. Then, imagine bridging that imagination into reality. Jon Katz. Monday, August 4. 2008Hard labor after penning "[Stalin-] Man with the mustache"
Image from Library of Congress's website. Indonesia had Pramoedya Ananta Toer courageously to write truth about the nation he so loved, despite the hounding, harassment, and lengthy total years of imprisonment from successive dictatorships.
Aleksandr Solzhenitsyn served a similar role in Russia, and I say Russia rather than the Soviet Union or Russian Empire, because Solzhenitsyn was very much the Russian nationalist.
Where Pramoedya was a soft-spoken, self-effacing man who got persecuted for his carefully-penned prose, Aleksandr Solzhenitsyn was blunt, opinionated and insistent, and a masterful writer. His eight-year prison sentence starting at the end of World War II followed his penning a letter to a friend referencing Stalin as the "man with a mustache." Stalin ruled, imprisoned, rang up Soviet-bloc dictators in the middle of the night, and shot people before the days of public relations advisors who urge leaders to gain some popularity by poking some fun at themselves.
Solzhenitsyn's imprisonment in the Gulag that is masterfully fictionalized in One Day in the Life of Ivan Denisovich followed his vocal dismissiveness towards a prison superior at a Club Fed sort of prison where scientific intellectuals worked in rather freewheeling think-tank style to develop ideas and inventions for the emerging Soviet superpower.
Solzhenitsyn lived a long life, finally realized his dream to return to and die in his homeland from which he was forcibly exiled by the Brezhnev regime, and passed away on August 3.
He was not big on democracy, decried the state of American society when in Vermont during his exile and said too few Americans are willing to die for their beliefs (and he certainly was willing to do so, himself), and believed the United States withdrew too quickly from Vietnam. In other words, he spoke his mind, as everyone should have the protected right to do, no matter how vehemently we agree or disagree with their views.
He was for me a critical face of the struggle against government censorship by white-out, confiscation of printing presses and copiers and newsprint, coercion, co-optation, imprisonment, torture, and execution, no matter the government, whether Communist, right-wing, or our very own United States (which censors in more sublte ways than the messiness of torture and execution).
His struggle to be free to speak his mind is a struggle that must constantly be fought and re-fought, and won and re-won. Solzhenitsyn may be physically dead, but his unyielding spirit, fight and drive for the freedom to dissent openly, directly, and without varnish must live on. Otherwise, everyone will suffer dearly. Jon Katz. Sunday, August 3. 2008Practicing non-anger.
Practicing non-anger is easier said than done, but is fully essential to being powerful (and healthy) as a person and persuasive trial lawyer.
One approach I try to use in staying consistently calm and not angry is in focusing on how everyone ultimately is interconnected. Those who reach such a view from a deeply-held religious perspective -- which I do not, still remaining an agnostic who is into Judaism and Buddhism nonetheless -- might have an easier time sticking to the view than I do.
In any event, the more we see that we are interconnected, the less we will be tempted to cause disharmony to others and the more we will want to help everyone rise as we rise, and not to try to pull them into a ditch even if we find ourselves in one.
Yesterday, I was leaving the Barnes & Noble with my two-year-old son. We were in a true state of bliss. For over an hour, he got his fill playing with Thomas trains (you try having children and avoiding America's crass commercialism and its many suburban, mindnumbing pockets), and then moving to dancing to the rhythms of books that play tunes to the touch of a button, while we interacted together alternatively with my reading Ernest Gaines's A Lesson Before Dying (not exactly light reading or viewing (see here, too), but among the many great books I have still yet to discover and read). We rode the elevator up and down, which is like a carnival ride for him. We left as we arrived, with him riding his tricycle.
As we drove off, a pedestrian was waiting to cross the parking lot where the law gave me the right of way, but where I waved him in front of me just as I appreciate others doing the same for me, and just as I believe strongly in returning manifold the kindnesses others have shown me over the decades. I then started thinking about how I could transfer that feeling of goodwill to every waking and sleeping hour and to everyone with whom I interact. I realized that if I could see a part of me in every other person, that would help me want to support their well-being all the more. If that is too abstract an approach for me, then I can also try to see a part of my loved ones and closest friends in every other person. If that still is too abstract to me, I can leave room for the possibility that this is a person who shares some of my deepest core beliefs, values, interests, feelings, and passions, and has done, is doing, or will do some great things to benefit many people. Alternatively, I need to leave room that this person might some day become a close friend or confidante to me, may already be a close friend or confidante to a person who already is close to me, or may be someone who has or will help me or someone close to me in profound ways, whether it be as a teacher, someone who helps others medically or psychologically or spiritually, or someone who helps in innumerable other ways. By turning to such a visualization, then I can step back in a more non-selfish way, to see the person as precious in and of himself or herself, no matter how much the person seems to be devoid of caring or feeling or unselfishness, and capable of doing immediate and serious harm.
Certainly, some of my criminal defense clients not only are accused of doing heinous and despicable acts, but some of them have in fact committed such acts. Consequently, I best be ready to care about everyone -- even my apparently worst enemy -- or how else will I be able to care about such clients, beyond the abstract concept of knowing that I protect everyone's Constitutional rights every time I successfully defend a criminal defense client? Moreover, I must find a way to care about each client, because if I do not, why will the judge, jury, or prosecutor care?
This is all easier to write about on a Sunday when I am not being bombarded with court battles, phone calls, humdinger arguments in opposing counsels' court filings, staff needs, and a slew of other demands on my time, and sometimes on my patience and calmness. This is easier to write about when I am not dealing with people who do not care -- or at least do not seem to care -- about truth, about covering each others' backs, or about true justice. As I do so many times, I can summon up the calming voice and caring of my friend and mentor Jun Yasuda when the day gets chaotic and when I deal with seemingly hostile and dangerous prosecutors, cops and opposing civilian witnesses, but she acknowledges that even she gets angry at times. Consequently, each day that passes with me staying calm in the face of challenges to my becoming angry, is an accomplishment, sort of like the accomplishment an alcoholic reaches upon finishing another day sober.
It is folly to believe one can act out in anger and then have that anger just disappear. If somebody sees me being angry and does not know the context of that anger, the person might think I am being a hothead, a nutball, a whackjob, or worse. If my son sees me acting out in anger, it does not give him harmony, and does not help him learn by example to achieve a life of non-anger. If I lose my cool, my client can suffer. Conversely, when I live with non-anger, even some of my opponents may wish to work more harmoniously with me, as some of them try to absorb the good karma of the non-anger and harmony.
Living a life of non-anger is not a new-age, namby-pamby ideal for me. It is a necessity that I did not recognize sufficiently until I was well into adulthood. I have no other choice, nor do you. Jon Katz. Friday, August 1. 2008"The Execution Team will insert a large–bore intravenous channel into the appropriate vein."
1961 saw the last military execution in the United States. Now, George Bush, II, has broken that execution-free period in the military by approving the execution of Ronald A. Gray. Presidential approval is required to proceed with a military execution.
Mr. Gray entered a guilty plea in state court to several rapes and murders; the crimes to which he admitted make the stomach turn and heave for days. Although his state court sentence involved consecutive life sentences, the military nevertheless proceeded with a trial(s), apparently based on the same criminal conduct to which he pled in state court; this sounds like a variation on the theme or the actual theme of the separate sovereigns doctrine. He was convicted at the military trial and sentenced to death.
The above-listed title for this blog entry comes straight from the Army's 2006 procedures for military executions. Jumping off the pages of those guidelines is the disconnect between the dispassionate technocratic language and the state-run legalized murder that is the death penalty.
Thanks to the Courts Martial blog (here and here) for posting on this story, as well as the CAAF blog (here and here). Here is the Washington Post article on the case. Jon Katz. Thursday, July 31. 2008Wednesday, July 30. 2008A snitch's story.
Image from Library of Congress's website.
Los Angeles attorney Barry Tarlow refuses to assist clients with snitching. San Francisco legend Tony Serra also refuses such work , and advises criminal defense lawyers of the importance of such an approach even at serious financial cost. Suffice it to say, refusing snitch work will preclude a lawyer from obtaining trial work with a federal public defender office, and will make the lawyer lose many potential retained federal felony clients. For those lawyers, fortunately the option remains to include state-level criminal defense in the mix.
My standard retainer agreement provides for my potential clients to go to another lawyer if the potential client wants to pursue the snitch route. Each defendant has a right to try to minimize conviction and prison term risk by snitching, so long as no dishonesty is involved (therein lies the rub), just as I have the right to avoid taking on such a client.
The Washington City Paper does not come across to me as a pillar of journalistic excellence and reliability. When one adds an anonymous interviewee to the mix, my suspicions are raised all the more. Nevertheless, submitted for your perusal is this recent City Paper article claiming to summarize an interview with a snitch. Jon Katz. Tuesday, July 29. 2008Persuading in the first person.
Photo from website of U.S. District Court (W.D. Mi.).
The National Criminal Defense College and Trial Lawyers College focus on persuasion through storytelling. What to do, though, when a judge tries to stop the lawyer from first-person storytelling ("I was sitting there minding my own business, when he rushed at me with a meat cleaver. I had no choice but to shoot him, or else I would have been dead")?
A trial lawyer listerv recently discussed the foregoing matter. In addition to arguments to present to the judge (e.g., "Judge, we all know that lawyer arguments are not facts" and "my client will testify, anyway" (not all parties testify)) to keep doing first person storytelling, two related cases were mentioned:
In People v. Richmond, 341 Ill. App. 3d 39, 791 N.E.2d 1132, 1138 (2003), the prosecution "delivered its entire opening statement in the first-person from [the complainant's] perspective. The State began with, 'Hi. My name is RJ, and I'm 8 years old *** I'm going to tell you about something that happened a couple of years ago when I was just a little kid.' Not long into the opening statement, the State also said, still in the first-person and from R.J.'s perspective, 'Now, my State's Attorneys, Miss Roseanne McDonnell and Theo Jamison then, they're going to present this evidence to you today.'" The court found: "Although the use of a first-person delivery may not be error under other circumstances, in this case it improperly bolstered the credibility of the State's star witness, an eight-year old." Id. at 1139.
To what extent will a lawyer convince a judge to permit first-person opening and argument on the theory that it is no different than if a pro se party were giving the opening, of course, in the first person? Not, not all courts will give even pro se parties wide first person leeway, as confirmed by U.S. v. West, 877 F.2d 281, 286 (4th Cir. 1989), cert. denied, 493 U.S. 959 (1989), where the trial court found the |
