JON KATZ, P.C. - Criminal / Drunk Driving Lawyer for Maryland, Virginia, DC

Why plead guilty when pleading innocent is not much more risky?

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

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 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.

We are closed today for Yom Kippur.

nospam@example.com (Jon Katz) — Thu, 09 Oct 2008 00:00:00 -0400

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.

When indigent criminal defense funding dries up, shrink the criminal justice system.

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

Clarence Gideon.

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.

Max Hardcore sentenced for obscenity conviction.

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

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."

Mu: The power of nothingness.

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

The Chinese script for the character "mu," which means nothing. Why are so many intricate brush strokes needed to convey nothing? (The copyright was relinquished by this animated symbol's creator. The symbol also is available here.)

At first blush -- at least from a traditional Western perspective -- irony would be apparent in the concept that nothingness can be powerful.

However, I already know about the t'ai chi power of emptying one's mind, emptying one's leg as if a person is only standing on the remaining substantial leg, and not chasing the opponent's strength and energy. I also know about the power of being in trial with no baggage and to handle what is immediately at hand, in the now -- in the zone as my brother lawyer Mark Bennett calls it -- and being at once relaxed and powerful to take on any opportunity, apparent threat, or otherwise stressful situation. Furthermore, I know the power of overcoming fear by redefining life as being here now, with no coming nor going, no chasing nor being chased, no increase nor decrease, with a goal towards no fear even of injury and death, but instead being here now.

Around fifteen years ago in the video store, my attention was drawn to Wim Wenders' Tokyo-ga. Seven years earlier, I spent two weeks in Tokyo on business, at once fascinated by the Buddhist and Shinto aspects of the culture and at the same time very clueless about the two. I focused instead on arriving early each morning at the bank I was auditing with my small team from Wall Street's Irving Trust Company that owned the bank, and spending some evening and weekend free time taking in the sights and sounds of the country. Nine years ago, I returned to Japan, this time on vacation, having started grooving on Nichiren Buddhism, and finding a Nipponzan Myohoji Nichiren temple in Osaka only after making several inquiries and finally being driven there by a man from the small market where I had bought some grapefruits for the temple, after having stayed for two days in Tokyo with a very kind and interesting family that follows the Nipponzan Myohoji path.

Tokyo-ga is Wenders' tribute to, search for, and immersion in giant filmmaker Yasujiro Ozu (see one of his clips.) How curious that as I unsuccessfully did a YouTube search for the Wenders film that includes a botched-from-the-beginning store robbery by a man who has just been forced out of his home, I instead found a scene from Tokyo-ga that visits Ozu's gravesite. Instead of saying Ozu's name, his headstone has the above-displayed symbol "mu" (see this photo of his headstone, too), which I understand can be defined -- perhaps very imperfectly defined -- as "nothing". Here are clips from Tokyo-ga, in serial order: one, two, three, four, five, six, seven, eight, nine, and ten.

What did Ozu mean by having his headstone say "mu"? Was this how he viewed the afterlife? As nothing? Was it a stunt to keep people thinking even after he departed this world? Was he a Buddhist, seeing that at least the Lotus Sutra -- which is particularly followed by Nichiren Buddhists -- focuses heavily on nothingness, including no attachment to one's body or ego, and no attachment to the suffering inherent with birth, sickness, old age and death? (See this essay on one of the people who was apparently instrumental in driving the foregoing updated 1971 translation of the threefold Lotus Sutra.)

The senses of cinema webpage says: "Whilst in China during his war service, Ozu asked a Chinese monk to paint the character 'mu' for him (an abstract concept loosely meaning 'void' or 'nothingness'). Ozu died painfully on his sixtieth birthday in 1963 of cancer and his tombstone in the temple of Engaku in Kita-Kamakura bears the inscription 'mu' from the monk's painting that he had kept all his life."

Using "mu" on the Western side is Douglas Hofstadter, in Gödel, Escher, Bach. What to do with all this mu? We can learn much from it. Jon Katz

Rock Lobster

nospam@example.com (Jon Katz) — Sun, 05 Oct 2008 00:00:00 -0400

At the Trial Lawyers College, singing was encouraged and was everywhere, some of it good, some of it mediocre at best, and some of it drowning out the rest of the conversation too much. A good point was made that by doing more singing, we are better at getting our words and arguments not only past our lips, but in a full voice that carries the message where it needs to go. The passion of singing needs to translate into the passion of speaking in court.

One of my favorite songs is the B-52s "Rock Lobster". The song's words do not seem to have much of a meaning. However, the song very much captures the time period, the type of music that was emerging and continuing for several years, and a way of dancing that took little else than hopping around. It was a late Seventies remake of the late Fifties' "Shout" by the Isley Brothers, at least with the parallels to everyone getting down to the ground at the respective commands of "A little bit softer now" and "Down, down, down" followed by "A little bit louder now" and, with "Rock Lobster" an increase in the music volume. Each song moves very much ahead, rather than meandering about. Unlike most of the top music hits, I never got tired of "Rock Lobster".

"Rock Lobster" now is over thirty years old. For better or worse, the band went from a much more gritty and somewhat off-key early version (the off-key part possibly was intentional, considering that this was just a month before releasing their first album) followed by much tighter versions. Here are some video links to the song's performance: 1978 in Atlanta (where Fred Schneider reminds the crowd that servers work for tips); another early version; this polished version that looks made for MTV; and this version two decades after the first performance. Jon Katz

Poll the jury.

nospam@example.com (Jon Katz) — Fri, 03 Oct 2008 00:00:00 -0400

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."

"I want to refer to non-Latino Spanish-speaking lawyers."

nospam@example.com (Jon Katz) — Thu, 02 Oct 2008 00:00:00 -0400

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.

The dragnet of drug arrests.

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

DEA image in the public domain.

In college, on-campus drug use -- and sometimes drug sales, apparently -- ran rampant. I would sometimes be right in the room or in the dorm hallway as others smoked pot or, in one instance, snorted cocaine. If I did not want to be a hermit, it was hard to avoid being with people who smoked pot; this was the early Eighties, and both pot and beer were very popular (and also unlawful for those under twenty-one to purchase). This also having been the Eighties, for small quantities of drugs, drug enforcement, criminal penalties, and collateral consequences were less harsh.

Welcome to 2008, where few politicians and prosecutors have enough backbone to support legalizing marijuana, heavily decriminalizing all other drugs, and reducing the penalties for drugs, except that I credit those lawmakers and prosecutors who are at least willing to put some first-time drug cases (I only know of marijuana cases) into diversion to give a chance to avoid convictions, and to enable no convictions or less serious convictions for people who use marijuana for medical necessity.

Back to my college experience being around people smoking marijuana, By merely being next to these people -- not even touching nor ingesting the substances -- I was risking arrest, prosecution, and possible conviction, because a drug possession conviction requires nothing more than proof beyond a reasonable doubt that the defendant possessed (defined as knowledge, dominion and control over the drugs) drugs (the prosecutor has the burden to prove the substance was the alleged controlled dangerous substance, ordinarily by bringing in the chemist if any drugs are left and seized). I could have testified until I was blue in the face that I had nothing to do with the drugs, but if I was not believed by the judge or jury, I would have been convicted.

Fortunately, neither I nor the others around me were busted for drug possession. So-called controlled dangerous substances remain illegal, often with harsh penalties and tough collateral consequences for convictions, including risks to student financial aid, government security clearances, and risks to immigration status. If anyone needs a reminder about the risks of being a bystander when drugs are possessed, used or sold, just read this September 9, 2008, opinion from Virginia's Court of Appeals finding sufficient evidence to convict a woman for possessing methamphetamines and marijuana with the intent to distribute by having been present in the house where her fiance sold the items. Dunn v. Virginia, __ Va. App. _ (Sept. 9, 2008). The evidence may have been sufficient to prosecute Ms. Dunn for simple possession of the substances -- including where a small amount of methamphetamines was found in her jewelry or personal bag -- but the concept of allowing a conviction for intent to distribute just because she knows her fiance is distributing should be a sobering wake-up call to otherwise innocent people who hang around with people possessing or distributing drugs. Curiously, after a three-judge Virginia Court of Appeals panel ruled in Ms. Dunn's favor (by as little as a 2-1 vote), only one judge dissented in this en banc opinion. Query: What made the remaining judge(s) in Ms. Dunn's favor change their minds?

It will be a boring world if people choose to avoid arrests by only associating with people as bland as Neil Sedaka, Lawrence Welk, and Pat Sajak hosting Wheel of Fortune. That may be enough of a good reason for legalizing marijuana and heavily decriminalizing all other drugs. Jon Katz.

We are closed today, for the Jewish New Year.

nospam@example.com (Jon Katz) — Tue, 30 Sep 2008 00:00:00 -0400

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.