UNDERDOG - Criminal Defense/ DWI / DUI Defense in Maryland, Virginia, DC - Criminal Defense

Putting the brakes on disorderly conduct prosecutions.

nospam@example.com (Jon Katz) — Thu, 21 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

Too often, police arrest for disorderly conduct when they cannot think of any other crimes to charge. That is beyond unjust.

Fortunately, the Oregon Supreme Court recently put some strong limits on disorderly conduct prosecutions where a suspect allegedly tailgated another car, and called out some choice words to passersby, all over around a five-minute period. Oregon v. William Johnson, __ P.3d _ (Oregon August 14, 2008). Oregon's Supreme Court relied on Oregon's version of the First Amendment in reaching its decision, so it is not clear about the extent to which a similar victory can be achieved in other states. Jon Katz

ADDENDUM: Thanks to the person who sent me this Oregon v. William Johnson case.

Red lights, dogs and the Fourth Circuit.

nospam@example.com (Jon Katz) — Wed, 20 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

Police love when suspects drive cars. The driver is bound to violate one traffic law or another, thus justifying a police stop of the car, and an attempt to reveal criminal activity afoot.

Police also love to bring "drug" dogs to attempt a justification to search the vehicle. However, a drug dog sniff is only allowed during the time reasonably needed to issue a moving violation citation. If no dogs are available in such a short time, the cops need to manufacture, I mean try to find, reasonable suspicion to prolong the car stop to get a drug sniffing dog's presence.

What, however, justifies the cops to hold onto a red-light running violation suspect for thirty minutes? Read this Fourth Circuit opinion that allowed such a lengthy detention based on claimed reasonable articulable suspicion that the court said allowed the police to detain the defendant longer than needed to write a moving violation ticket (running a red light). U.S. v. Branch, __ F.3d. _ (Fourth Cir., August 20, 2008).

Fortunately, the dissent in U.S. v. Branch is strongly-worded enough in order to help make headway in getting an en banc reveiw of this case. Meanwhile, if in Virginia, caveat emptor, to say the least. Jon Katz.

There are no secrets?

nospam@example.com (Jon Katz) — Wed, 13 Aug 2008 00:15:00 -0400

Yin Yang

On a rainy September morning a dozen years ago, with a few days left between leaving my public defender post to return to private practice, I pondered which way to drive for a mini-vacation. "Where do I want to visit that I have not yet visited?", I asked. Then, I remembered Jun Yasuda's telling me five years before about being in the process of building a peace pagoda, and that her teacher said it is a mere structure if she asks for help. Jun-san has the magnetism for people to offer to drive her hundreds of miles, but somehow I was still made of copper when told of the monumental volunteer pagoda build.

Through divine coincidences, I tracked down Jun-san's phone number through the local temple of her Buddhist order, which I discovered in my midst for the first time that morning. Through another divine coincidence, she answered the phone, even though Jun-san spends months total each year in other states and countries spreading the message of peace. Early in our conversation, she told me it was Gandhi's birthday, and invited me to stay at the temple, where I ended up sleeping for two nights on a loft overlooking the altar, with my loftmates being wasps slowly tracing the window frame in the cold weather.

My full day there in upstate Grafton, New York, was occupied by waking at 5:00 a.m. for morning prayers chanting the Odaimoku and voicing excerpts from the Lotus Sutra, eating toast done atop the wood-burning stove, buying material to insulate the cabin-type temple for the winter, stacking wood, eating miso and rice for lunch, napping off a late night arrival, stapling insulation to the temple, taking an amazing wood-burning traditional Japanese bath after getting there in the frigid night, praying before dinner, eating more miso and rice for dinner, and going to bed early to start the next 5:00 a.m. with prayers.

The next morning during breakfast, I was surprised to find myself eating alone with Jun-san, when the day before she had so many visitors, bringing breakfast items, helping build the new temple, and joining for evening prayers and dinner. It was as if Jun-san had asked them to give time for me to learn some lessons, but I doubt such deliberateness had taken hold.

Ever since I first met Jun-san during her one-month fast for peace across from the White House during Gulf War I, I was drawn to her peaceful essence, when I felt so much imbalance over world turmoil, rampant domestic and global human rights violations, and frustration with not feeling I was giving much of a net benefit to society while helping financial institutions and transportation companies line their pockets through litigation and federal regulatory work.

Now I had my chance to learn how she had reached such calm while focused daily on reducing people's suffering, through prayer, through peace walks, and through spreading her infectious peacefulness. I asked many questions, perhaps too many. I recognized front and center what I had already realized peripherally, that much of people's dissatisfaction with life comes from their desires, and that many of those desires, particularly expectations of others, can be shed. I recognized all the more how much my problems pale in comparison to those who struggle daily to provide their families enough nutrition, and to have them clothed and housed.

I learned about melting away so many of the layers of my then utter terror of my inevitable death. On the one hand, I could not automatically internalize Jun-san's view that life and death are artificial boundaries. Certainly life continues when others die, so in that respect it may be an artificial boundary. On the other hand, I recognized all the more how my fear of death was so closely connected with my being self-centered, my over-attachment to my body, and my lack of enough internal peace and balance.

Two hours later, it was time to depart. Jun-san bowed three times as I drove away, and her peaceful karma spread to me all the more.

Around one or two weekends later, I visited the local temple that is part of Jun-san's Nipponzan Myohoji order, bringing oranges for the altar. Brother Shiumi-san opened the door, and ultimately invited me inside, apparently while trying to figure out what made me tick. We prayed the Odaimoku for a few minutes. When I told him I had visited Jun-san and was wondering if I could visit sometimes for prayers, he permitted me one weekly weekend visit.

He then said he would be unable to teach me about Buddhism. When I last saw Jun-san this past June, she told me how her order is one of action, praying for peace, walking hundreds of miles spreading that message, and not spending years to get ordained. In fact, Jun-san was ordained when she had not even applied for that path. Her teacher "threw her a yellow robe, saying, 'Jun, hurry up.'"

I offered Shiumi-san to help cut the grass from time to time. During a gathering two years later to celebrate Shiumi-san's transition back to Japan, he looked at me and laughed, saying something in Japanese. Someone translated, saying he tried making sense of a lawyer offering to cut the grass. For me, it was the least I could have done to show my gratitude to Jun-san, and I do not see any honest work as beneath me.

What is the secret to winning trials, and what does any of this have to do with offering a septuagenarian priest to cut his temple's grass? Are there any secrets beyond finding, tapping into, and applying the vast reserves of strength and ability within each of us, supplemented by welcoming the teachings from everyone and everything around us? Are they really secrets, or is it more a matter of knowing the roadmap to winning, and finding a way to apply the roadmap and to improve upon it? Is it any different than my t'ai chi teacher Len Kennedy's view that the principles of t'ai chi are simple to learn but profound to apply. Is it any different from knowing how to slim down and actually doing it?

Wolfe Lowenthal's biography of t'ai chi legend Cheng Man Ch'ing is entitled There are No Secrets. Pete Gately aptly describes this concept: "Lowenthal tells how Professor Cheng maintained that there were no secrets in Tai Chi Chuan, but would then add, 'But if there were a secret it is [that the hands do not move when doing push hands].' Thus secrets are not really secret, but are readily available information, open things, but things that tend to pass unnoticed. Take the above example of the hands not moving. It seems, on the surface, to be an absurd statement; we all know that the hands move in Tai Chi. They move as we do, roll-back, push, press, single-whip. We may think the hands move in every move we make. Well, maybe - but we shouldn't make them move at all. All movement in Tai Chi should begin with the waist turning, all movement should start at the Dan-Tien. Nothing moves without being initiated by the movement of the waist; then, if the waist turns, the hands turn. The legs do not step unless the movement is initiated by the waist, so all movement comes from the Dan-Tien." "Secrets" by Bill Gately (emphasis added).

In the same vein, there probably are not any secrets to winning trials, but there are skill sets to learn, revelations to find, new levels of caring to attain for clients, more fearlessness to gain, more internal and external journeys to take, more joy to experience on the path, more ego to shed, more willingness to collaborate with other lawyers and non-lawyers in seeking the path to victory, and more of the tapping of the joy, fearlessness, and giggling of the child within.

My trio on this path is the overlapping lessons and practices from the Trial Lawyers College, t'ai chi, and the peace and harmony experienced even when walking into the eye of the storm as exemplified by Jun Yasuda. I am also helped along the path when imagining at various difficult times in court that I am accompanied by different combinations of SunWolf, Steve Rench, Jun Yasuda and Cheng Man Ch'ing. My path also is helped through my daily writing, when I often expect to go in one direction, and then often take a very different path and often reach a different destination, including with this blog entry, when I initially was going to comment more briefly than this in reply to Bobby Frederick's invitation to discuss the secrets to winning trials against all odds. Much self-revelation and self-discovery come my way through the writing process.

One thing is for sure. Do not waste time listening to how important to winning are the colors of your clothes, the model of your car, or the cut of your hairstyle. Tony Serra exemplifies that it's not how you dress, but how you persuade. Jon Katz

ADDENDUM I: Gerry Spence's recent blogging on winning trials sparked an interest in some other bloggers to cover the topic, including Gideon, Mark Bennett, and Scott Greenfield.

ADDENDUM II: Here is the full relevant excerpt from Wolfe Lowenthal's above-referenced discussion in Gateway to the Miraculous of Cheng Man Ching's assertion that t'ai chi involves no secrets:

"'There are no secrets in the Tai Chi Chuan that I am teaching you,' said Professor Cheng, 'but if there were a secret, it is that the mind moves the ch’i.' Sometimes he would say, 'There are no secrets in this Tai Chi Chuan, but if there was a secret, it is that the hands don’t move.' This was yet another one of those times when I initially thought he was contradicting himself, only to realize later that in both cases he was saying the same thing: 'The hands don’t move' and 'The mind moves the ch’i' are the same and the secret of our Tai Chi Chuan. 'The hands don’t move.' It is rather the mind, or more precisely the idea that directs the waist to produce the movement. The energy only emerges from the hands, which move from the waist like spokes on the hub of a wheel. 'The waist is the commander,' it says in the Tai Chi classics, and the hands should submit totally to the command of the waist – never moving independently."

How to get relief for an overly aggressive police home search?

nospam@example.com (Jon Katz) — Mon, 11 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

How does one obtain real relief against an overly aggressive police search?

On August 7, I blogged about such an extremely overaggressive police search in Berwyn, Maryland. However, attorney David Rocah of the American Civil Liberties Union says: "the damages are too low to make it worthwhile to spend the time in court" on a lawsuit against the police for such an overly aggressive search.

The same article from the Washington Examiner (apparently related to the San Francisco Examiner) quotes me about the frequency of guilty pleas versus innocent pleas leading to fewer court challenges against such searches. I intended to be speaking in terms of the higher percentage of guilty pleas over not-guilty pleas where the defendant is left to choose between one and the other, and not in terms of cases that get dismissed and consensually inactivated. In any event, fortunately this story continues to spread among members of the public. Jon Katz.

View "Busted" today.

nospam@example.com (Jon Katz) — Sun, 10 Aug 2008 00:00:00 -0400

For over two years, I have prominently featured the Busted video on every page of Underdog, while promoting donations to the film's non-profit producer, FlexYourRights.org.

Busted features prominently in my Know Your Rights admonition to everyone. Recently, I even found myself parroting one of Busted's key and very precious mantra's when briefly and unconstitutionally detained for being a suspected airport t'ai chi terrorist: "Officer, am I free to leave?"

Flex Your Rights has paid me the compliment of inviting and adding me to its advisory board. It remains a true honor to continue to collaborate with Flex Your Rights' Scott Morgan and Steve Silverman, with whom I have had the pleasure of appearing before audiences replacing fiction with fact about dealing with the police.

If you have not yet viewed Busted, I urge you to view it today. You can see it free on YouTube and can order a DVD to pass out. If you have already viewed Busted, clearly you know how groundbreaking and critical is this video; please share the Busted YouTube link with your friends -- and enemies -- today. Jon Katz.

Hamdan's lawyers, judge and jury as models for their counterparts.

nospam@example.com (Jon Katz) — Fri, 08 Aug 2008 00:00:00 -0400

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.

Prince George's police shoot dogs first; ask questions later.

nospam@example.com (Jon Katz) — Thu, 07 Aug 2008 00:00:00 -0400

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.

Calling the dogs means a detention.

nospam@example.com (Jon Katz) — Wed, 06 Aug 2008 00:00:00 -0400

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.

"The Execution Team will insert a large–bore intravenous channel into the appropriate vein."

nospam@example.com (Jon Katz) — Fri, 01 Aug 2008 00:00:00 -0400

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.

Pouring salt into the wounds of police abuse, with lies.

nospam@example.com (Jon Katz) — Thu, 31 Jul 2008 00:00:00 -0400

Why is lying so rampant n society? Does it start with people learning from their parents that "white lies" are okay, and then fester and spread from there like the Blob?

Are cops tempted to lie by thinking they can get away with wrongdoing by filing false police reports against people who are victims of police misconduct?

Praised be the ongoing power of inexpensive video cameras -- and praised be the people who bravely record footage of people abusing others and abusing their positions -- this time with the above-displayed footage of a New York cop butting a cycling protestor to the ground from his bicycle. What could the cyclist have been doing to have merited such abuse? If the cyclist was being stopped for an alleged crime (e.g. throwing a dangerous object into the crowd), it happened outside the view of the camera, and the cop could have called to cops ahead to tell the cyclist to stop and to arrest him, rather than for the cop to have butted him off his bike without telling him first to stop and dismount. .

Thank you to some lawyer listerv members who brought this story to my attention, about police lying about the incident shown in this video, in part through filing criminal charges against the victim of the police abuse. Thank you also to Jonathan Turley for blogging on the story, and linking to the above-displayed video. (How does professor Turley find time to teach, sleep, and be with his family, when considering the volume and depth of his daily blogs?)

I do not want to see more of these stories. I just want such abuse to stop. Jon Katz.