Jon's news & views

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.

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.

Today is the Jewish New Year/Rosh Hashanah 5769, which I celebrate every year. Therefore, our law firm will be closed today, and will reopen on October 1, 2008, to serve you. 

L'shana tova/happy new year. Jon Katz.

Sadly, David Wasserman died last Thursday.

Nine years ago, I was further exploring how to get paying, versus only pro bono, clients for First Amendment defense both for criminal and civil cases. This goal fit squarely with my obsession over and passionate work on free speech issues with Amnesty International in college and law school, and my service on the board of the local American Civil Liberties Union a few years before. I recognized that adult entertainment and libel defense were the key avenues to such paying clients.

On the adult entertainment front, I joined and became very active with the Free Speech Coalition, soon thereafter attended a conference of the Association of Club Executives, and later the same year spoke in favor of robust First Amendment protection before a federally-created committee that should never have existed, concerning obscenity laws.

Through the foregoing activities, I met fellow First Amendment lawyer David Wasserman. David believed, as I believe, in helping others rise as we rise. Already a very accomplished First Amendment advocate, David sponsored my application for membership in the First Amendment Lawyers Association. One year after meeting me, David took the time to co-counsel with and teach me in drafting and filing an amicus brief whose contents were referenced extensively in the Maryland Court of Appeals' overturning of Howard County's adult zoning ordinance.  Pack Shack v. Howard County, Maryland, 377 Md. 55, 832 A.2d 170 (2003).

In the same year that Howard County's adult zoning ordinance was overturned, David was arrested for growing marijuana at his home, when marijuana should be legalized in the first place. In 2004, with his law license suspended in relation to his marijuana conviction, David turned his attention to such pursuits as opening an adult video and lingerie store, and later running and owing an adult cabaret/strip club.

In late 2007 -- while embroiled in conflict with the local government and his landlord over keeping his cabaret operating -- David was shot in the chest as he returned home with the night's cabaret receipts. Last month, David filed a federal lawsuit against the local government, which describes the shooting as follows: David Wasserman "was robbed and then shot in the chest at point-blank range as he returned home late at night on or about December 9, 2007. He was hospitalized for some time and then convalesced at home for a short time after that. The robber asked for deposits for the club and when Plaintiff’s president said he would cooperate if the robber didn’t hurt him, the robber told him it didn’t matter because he was going to kill him. The robber immediately shot Plaintiff’s president; the bullet grazed his heart, aorta and esophagus and exited his body through his liver."  

As Adult Video News online recounts, David said the bullet "'grazed my heart, it grazed my aorta, it grazed my liver and it grazed my esophagus, and it came out and didn't do any damage at all.'" David said that the shooter "'stepped out of the shadows, put a 9mm to my chest, pulled the trigger and said, "I'm gonna kill you." I continued to struggle with him, and he asked where the deposits were, so I knew it was not just a robbery; it was a set-up from the club. I told him the deposits were in the trunk and let me bend over and press the button so he can get in, and he did, and as soon as he walked around to the trunk, I laid on the horn and having just had a gunshot fired and the horn honking, I'm sure he got worried about the noise and stuff, and he took off running without the deposits.'" (As an aside, in recounting the incident, David mentioned the race of his killer; doing so served no purpose, and I disagree with his having done so.) Last April, David talked with Adult Video News online about a then-recent police raid on his club.

Pictured here, David practiced shaolin kung fu. Whether or not this helped him the night he was shot, that was quick thinking to find a way to divert the shooter's attention and to blast his car's horn to get the shooter to run away.

Ironically, after saving his own life last December, last Thursday, David took his own life. As the Orlando Sentinel tells it, David was battling depression for a long time, and previously told of having attempted to kill himself. Adult Video News online provides further details on David's passing.

My brother lawyer Marc Randazza knew David, and gives his own take on David's life and passing here, including Marc's ultimately avoiding David in the interest of associating with happy and fortunate people. As explained below, the thought of avoiding David would not have crossed my mind, particularly when considering how much David helped me. Just as a lawyer needs not be sucked into his or her clients' deep problems, a person does not need to be sucked into a colleague's problems even when lending a helping hand when one is needed.

It goes without saying that I will miss David. The sad story of the ending of his life is a critical reminder to reach out to those around us who are depressed or in other psychological distress, when the help is wanted. Many sister and brother criminal defense lawyers, among many others, struggle with depression. Some people may be reluctant to reach out in order later to avoid feeling like a failure if the person still commits suicide. However, there is no reason to feel like a failure if the reaching out is to lend an empathetic ear and tongue.

Thanks, David, for you. Jon Katz.

 Image from Library of Congress's website.

Some blogs get more comments then other blogs. The Volokh Conspiracy, TalkLeft, WSJ, and Res Ipsa get constant dialogue among commenters throughout the day. My criminal defense lawyer brothers Scott Greenfield in particular, Gideon and Mark Bennett get their fair share of comments both quantity- and quality-wise, too; they post many blog entries that entice comments, and they participate with their commenters. Underdog often makes up in comment quality over comment quantity. I notice that the number of quality comments on my blog tends to increase when I address items of more widespread interest, which makes sense.

Of course, I keep blogging on such topics that get fewer comments as recent criminal law court opinions, the deaths of those important to me, and the intersection of music and art with my practice of law, because a raison d'être of my blog is to share a place where I organize and think through my thoughts, ready to be retrieved at any time, including when I realize I need access to a court opinion and a synopsis thereof that I have posted to my blog, and only have access to my Blackberry to obtain it. This is imperfectly akin to my t'ai chi teacher Len Kennedy, who yesterday told his t'ai chi class how he has kept over a hundred breast-pocket sized notepads to record his learning and experiences with t'ai chi. He does not keep such ideas in notepads and paperscraps to obtain blogpost comments -- he has no blog at all -- but because it helps his personal growth.

I blog to interact with my readers, so I encourage you to keep your blog comments coming, and to know that, conservatively (from reviewing my daily website statistical software), I receive at least three hundred to four hundred daily visits to Underdog's front page, even more visits to all pages at my katzjustice domain, and repeated volume visits for months and beyond to some particularly popular blogposts, so your comments are getting attention well beyond my eyes.

My current blog software does not enable me to register commenters, so I have the insufficient choice between permitting all comments without moderation and moderating them. Here is why I moderate comments. Since I started moderating seven months ago, I have only kept out two comments. One was a mere link with an address looking like an MLK-related site, but instead going straight to a very graphic video of two people having sex. (I advocate permitting people to upload such material to the Internet, but I have no obligation to keep such links on my blog, particularly when they purport to be about Martin Luther King, Jr.) The other comment was merely and inanely addressing some retail website that had nothing to do with my blog nor any of my blog entries.

Rarely does more than one business day pass for your comments to be approved on Underdog, with the exception of this past Wednesday through Saturday, when I had overlooked updating my blog software to use my new email address (jon[at]katzjustice[dot]com) to notify me of new comments, now that I have retired my old email address of jon[at]markskatz[dot]com, which was being redirected to the new one, but which also was the source of the huge amount of spam that I blissfully no longer receive. To reduce spam, do not enable email and webpage hyperlinks to your email address.

Some people tell me they are unsuccessful in posting comments. Our comment software only works by commenters' accepting cookies, and possibly only by using Internet Explorer.

Before closing, here are links to some of my more favorite recent comments:

- Glenn Graham on "You're not wanted in these parts." Thanks, also, to Jeffrey Raymond, for adding a comment inviting people to an "exhibit about the early life and career of Justice Marshall, which is being unveiled at 5:30 p.m. Friday, Sept. 19, at the Thurgood Marshall Law Library at the University of Maryland School of Law, 500 W. Baltimore St. in Baltimore." I regret that my above-detailed technical glitch caused me to miss Jeffrey's comment until after last Friday's unveiling, which included Justice Marshall's widow Cecilia as a presenter.

- William Garland, taking a zero tolerance view on "criminal conduct" by both law enforcers and demonstrators, as opposed to my view that cops repeatedly target suspected demonstrators near presidential conventions and beyond for unconstitutionally pre-emptive and censorious content-based search warrants and arrests, intimidation tactics, excessive force (including pepper spray), oppressive and overly lengthy pre-trial detention, dragnet sweeps that often include innocent bystanders, violation of journalistic freedom, and enforcement of unconstitutionally overbroad and oppressive demonstration-rein zones. While that is my reply to William's comment, I welcome all comments, and encourage hearing from those who disagree with me.

- Ron Sylvester's link to his website's discussion on the Busted video, about which I blogpost from time to time.

- Remy Orozco's addressing his roller coaster experience in integrating his recent time at the Trial Lawyers College into his life.

- Saving the best recent comment for last -- and exemplifying the benefits of my blogging and receiving comments -- is Susan Cartier Liebel's comment on "Practicing non-anger": "This is very poetic and even more revealing when playing with a toddler. When you take a moment to realize everyone you represent or interact with was once as innocent as a 2 year old it certainly gives you pause." One month after Susan posted her excellent comment, Gerry Spence wrote how Josh Karton -- acting and trial teacher extraordinaire -- had followed through with Susan's idea, apparently with neither Susan nor Josh's realizing what either one was up to:

"At [the Trial Lawyers College], Karton sought to remind the participants that judges are but humans, that they were lawyers as we, and, yes, before then they were once but little children.  He called upon a ex-marine, a former sergeant in the View Nam war to play the part of judge.  He dressed this judge up in a pair of little panties and put a teddy bear in his arms.  Then Karton called upon another participant to present his argument to the judge.  There was spontaneous laughter from the audience.  How silly, the judge, how ridiculous.  That we should be intimidated by such a man, was unthinkable.  But how was it that a tough Marine, by a few exterior accouterments of the child, was transformed in our vision from the fearsome jurist to the ridiculous child?"

That, then, is my final thought here. Why fear anyone who at one time wore diapers? Why, indeed? Jon Katz. 

Nobody can fully and sufficiently describe what it feels like and what the best responses are to being a lawyer being berated by a judge while the lawyer's client is standing right next to the lawyer, and when plenty of other eyes and ears -- and the court reporter's record -- are focused on the action. Even the greatest trial lawyers are not immune from such treatment, although they can be better at preventing (at least where preventing it will not harm the client), deflecting, and diffusing the berating in the first place. Being humans, all judges probably have berated in open court at one, more, many, or too many points, sometimes for good reasons, sometimes for bad ones, and often in between. Essential ingredients for a lawyer to know how to handle such treatment is life experience, constant practice in the heat of battle, and constant self improvement.

A lawyer must remain strong throughout court proceedings. This does not mean hiding his or her fears, warts, and awkwardness (although it is good to focus on reducing all three), but does mean keeping and returning to center as much as possible. One lawyer -- now a judge -- who did not seem to be one to unnecessarily get a judge's goat, spoke at an informal gathering on dealing with difficult judges, and spoke of the benefit of enshrouding oneself in Gandhi peacefulness when being berated by a judge, in that doing so can eliminate the problem and doing otherwise can help escalate the situation.

How, then, to reach the peacefulness of Gandhi when judges, prosecutors, opposing witnesses, and sometimes even court staffers are readying to sling bows and arrows at the lawyer from every direction? I have found no better answer than the practice of t'ai chi twenty-four hours a day, sixty minutes per hour, and sixty seconds per minute.

One day fourteen years ago, I was feeling the rush of the National Criminal Defense College's Trial Practice Institute, and looking to take forward leaps in the quality of service I deliver my clients, towards a return to private practice, and in my personal life. I knew that a local trial lawyer who seemed to have accomplished much in those areas was also a t'ai chi practitioner, Victor Crawford.

U.S. government photo. Napalm was one of the horrors of the Vietnam war. Here is the horrifying picture of Kim Phuc and other villagers after a napalm attack. Here are Kim Phuc's resulting physical scars.

A trial lawyers listserv member who opposes McCain nevertheless sees him as a war hero. I replied: 

I am curious why some or many think McCain was a war hero. I ask this for the following reasons:  

- On the one hand, he cannot be accused of selfishly avoiding wounds and death in war, because McCain went to war. He apparently never gave into his captors, and, whatever his motivation, he rejected POW release before those imprisoned longer than he. According to the AP, he was "instrumental in pushing for normal relations between" the U.S. and Vietnam. http://www.msnbc.msn.com/id/25418965 

- On the other hand, I ask these questions: 

-- Where did the United States military and its soldiers fall on the morality scale in the Vietnam War? Was it a just war? Does it make any difference that Congress never officially declared war? Where did McCain fall on this morality scale? Is it sufficient to say that it is not for a young soldier (McCain was already 29 when captured) to decide whether or not to go to war (never ever?)? 

-- Is it virtuous to avoid war if the purpose is altruistic? For instance, was it brave for World War II conscientious objectors to refuse to go to war, in order to avoid harming others? 

-- Is the pacifist movement irrelevant to the issue? 

-- The Vietnam War atrocities were deep and ugly, including by plenty of American soldiers: http://katzjustice.com/underdog/index.php?serendipity%5Baction%5D=search&serendipity%5BsearchTerm%5D=%22winter+soldier%22 

What if any role did McCain have in perpetuating, permitting, preventing, or vocally opposing atrocities by U.S. military members?  

-- When John McCain was captured in Hanoi, he had bailed out of his bomber aircraft. http://www.msnbc.msn.com/id/25418965 (who took this picture in the article showing his capture by civilians, I wonder?) What was his role on the aircraft? Pilot? Navigator? Medic? Bomber? Was it right to drop bombs on Hanoi? Did the bombing mission include civilians as targets? (This Nation Magazine ar