UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

Unusual judge heckled Mukasey the night he collapsed.

nospam@example.com (Jon Katz) — Mon, 01 Dec 2008 00:00:00 -0500

Eleven days ago, Washington state Supreme Court justice Richard Sanders shouted "Tyrant" to outgoing Attorney General Michael Mukasey after Mukasey allegedly drew laughter at a Federalist Society meeting when he underlined that the last time he checked, Al Queda was not a signatory to the Geneva Conventions. (The Federalist Society video does not appear to have picked up laughter, so either the laughter was just filtered out before the speech hit the Federalist Society's screen, it was not as loud as Justice Sanders asserts, or the truth lies somewhere in between.) Justice Sanders insists he left Mukasey's speech long before he collapsed, which is a curious assertion if the Federalist Society's video (omitting the collapse) is correct that the Geneva Conventions comments came at the last ten minutes of Mukasey's speech.

In any event, the story raises a few issues and facts, including the following:

- As much as I am not fond of Barack Obama's choice of Eric Holder to be attorney general, the video of Mukasey's speech shows him to be a key cheerleader for Bush II's disregard for affording basic legal protections to alleged terrorists. The nation will be better off when Mukasey leaves office along with Bush II on January 20, 2009.

- The Federalist Society is a very influential networking group for those wanting Republican presidents to appoint them to positions on the bench and in the Justice Department.

- Federalist Society gatherings draw numerous (if not many more) Supreme Court justices, lower federal court judges, and state court judges.

- By his presence at the November 20 Federalist Society meeting and apparent involvement with previous Federalist Society activities (through a Google search), Justice Sanders apparently is a Federalist Society member. Will the Federalist Society try to purge him over his heckling, or does the society wish to portray itself as welcoming such a range of differing thoughts?

- By his own account, Justice Sanders took the Washington state Supreme Court bench in 1995 by election and has gotten re-elected every six years since then.

- Justice Sanders is outspoken, and has his own website.

- Justice Sanders filed a cert. petition to the United States Supreme Court after having been disciplined after his visit with inmates at a prison for those convicted of sexual offenses. By silence in Scotus Blog and Google, it seems the petition was denied.

Do any of you have further information on Justice Sanders? Have you argued before him or otherwise met or observed him in action? Jon Katz

Page number one, number two, or number three?

nospam@example.com (Jon Katz) — Fri, 28 Nov 2008 00:00:00 -0500

Underdog readers, lend me an eye or two. I have found a webdesigner to update my clunky self-created static webdesign circa 1999.

After the designer sent me the first design, I asked about arranging for black typeface and putting in pictures of me and my staff, maybe with a slideshow, as well as automatic dropdown boxes. The sitehost working with the designer responded with this second design. The text and photographs in these two designs are just samples.

I have not before circulated the second design, which I like better than the first. Responses to the first design, have been generally positive. However, one person said the first design looks like most other lawyers' websites and lacks a focal point. Another person said the feel of the first design is so cold that she would not want to hire such a lawyer. As a counterpoint, another person said he'd want a criminal lawyer showing such an image. I like the idea of a focal point, as would Chagall, but what should be the focal point?

Enough of what I think. I seek your feedback, unvarnished and merciless. Thanks. Jon Katz

Thanksgiving is bloodied by turkey corpses.

nospam@example.com (Jon Katz) — Thu, 27 Nov 2008 00:00:00 -0500

Regardless of their party affiliation, presidents each year "pardon" a turkey, only to leave 48 millions more for "Thanksgiving" slaughter.

Does the title of this blog entry sound harsh? Would it sound harsh or even overexaggerated to turkeys? Would I prefer such harsh words to the massacre (should we read that as "murder"?) inflicted worldwide on billions of innocent mammals, birds, and fish each year, to satisfy the cravings of human diners?

Would you be eating meat today if you were shown and told in advance since infancy what you were really eating and how the animals are slaughtered, including the blood, guts, and untold suffering? Is it anything but advertising euphemism that meatsellers cloak animal corpses in such code words as hot dogs, hamburgers, pork, beef, bologna, sausage, bacon, ham, meatballs, and meatloaf?

Soon after graduating college in 1985, I could no longer resolve all the toil I had spent advocating for human rights while chomping on burgers, chicken, and tuna fish. I responded modestly by cutting out all red meat, to distance myself further from my relatives in the so-called meat food chain. Three months later, I was at the Carnegie Deli, and ate a corned beef sandwich -- one of the most delicious meat items in the world for me of all time, and a scent that still made me swoon before retching on my last visit there this year -- figuring (rationalizing may be more like it) that I already came across as peculiar to many, so why add to the perception of peculiarity? I finished off the corpse in no time, with the most delicious rye bread, pickles, and fries on the side.

Meat-eating continued nagging at me. However, that did not stop me from increasing my array of meat and fish eating the following spring while on a dream business trip in Hong Kong and Japan, where for the first time in over six years I let pork and shellfish pass my lips, and indulged in sukiyaki made of prized Kobe beef.

A year later, I finally swore off red meat for good. Cravings kept me with red meat that long. A year after that, I learned how disgustingly gelatin is made. Completely grossed out, I then cut off all land animals from my plate. Two months later, I went to the Baltimore aquarium, followed by a visit to Little Italy for dinner. I felt ill at the thought of ordering marinara and shrimp, after having spent time with so many amazing and feeling fish at the aquarium a mile away. I later learned that it is not only lobster, crabs and shrimp that face the most gruesome of boiled/steamed-alive fish deaths, as I watched a fish being scaled alive at a Chinese supermarket, to be told by its buyer that chicken also is more delicious by plucking the feathers when the chicken is alive. That was twenty years ago. I have never eaten meat fish or fowl again. Seven years ago, I cut eggs and milk from my diet. Egg-producing chickens and milk-producing cows get slaughtered for meat after they stop producing; their relatives who are not raised to produce eggs and milk get slaughtered earlier. Too many food-raised land animals are treated horrifically during their terribly short lives, including the calves who are slaughtered as babies for prized veal, after struggling in tiny cages in the dark without their mothers, iron or milk, to obtain the tender pink flesh prized by chefs and restaurant food critics. How does that bad karma not get transferred to the meat that is eaten?

Human executions are excruciatingly painful, despite litigation geared to reduce the pain. No similar efforts are made to minimize the physical and psychological suffering of animals, as they are led to slaughter first seeing and hearing their brother and sister animals slaughtered before their very eyes. Unlike humans executed in American death chambers, food animals are methodically beheaded, stabbed, and killed otherwise. See this gruesome video giving a brief meeting of your meat. More videos are here.

Even if most people are unwilling to become vegetarian, world hunger and food prices will still dramatically fall if people drastically reduce their consumption of meat, fowl, milk. milk products and eggs. There has never been an easier, more healthful, or more delicious time to live vegetarian; even supermarket aisles have infinitely more vegetarian choices than just five years ago. Restaurants have more vegetarian options than ever before, including Burger King and Subway with their veggie burgers (may not be vegan, though, but it is a start). See how you feel about your health, your annual physical exam, the environment, the animals around you, and world hunger after making such a change in your eating choices. You may never turn back.

For many years I kept my vegetarianism mostly to myself, figuring that everyone should be able to do their own thing. They may, including my own thing to speak up for the animals who cannot speak up for themselves.

Happy Thanksgiving? Happy for whom? Jon Katz.

The junk science of breath testing: All the more unfavorable to black people and women?

nospam@example.com (Jon Katz) — Wed, 26 Nov 2008 00:00:00 -0500

Image from National Institute of Standards & Technology.

Perhaps Connecticut DWI defense lawyer James O. Ruane overstates the matter by calling the Intoxilyzer 5000 KKK in a box.Certainly, breath testing for blood alcohol content is an oppressive junk science system that is perpetuated by court rulings that stand logic, truth, and the Constitution on their heads.

Ruane makes the case for why the Intoxilyzer 5000 is more likely to give a falsely high BAC reading for black people. Ruane’s expert witness Dr. Michael Hlastala says the same problem affects women who take the test. Thanks to Gideon for posting on this issue.

Jay Ruane graciously e-mailed me his memorandum of law in this case, giving the green light for me to upload the filing. His legal memorandum references an attachment containing testimony of expert witness Hlastala. I did not receive that attachment. The memorandum addresses Dr. Hlastala's previous testimony as follows:

"Dr. Hlastala has testified in Connecticut that the Intoxilyzer 5000 is biased against African Americans in that the lung capacity of the African American male is approximately 3% smaller than the Caucasian. This testimony is attached hereto as Exhibit A. Because of the physiologically smaller capacity an African American arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3%.

"Moreover, the issue of racial bias rises to the fore in the use of the Intoxilyzer 5000. Dr. Hlastala opined that the distorting effect based on race was 3%. (T2B, p37) While at first sight this might appear to be de minimis, State should not countenance racial discrimination in any degree whatsoever."

The foregoing use of the phrase "de minimis" raises all sorts of questions, which hopefully will be answered in favor of the defense. Jon Katz.

Lying cops exist.

nospam@example.com (Jon Katz) — Tue, 25 Nov 2008 00:00:00 -0500

Bill of Rights (From public domain.)

To say that no cops lie is to say that people do not grow old or die. As I have asked before, how on earth does one lie less by wearing a police badge? Am I the only one who believes that the vast majority of people lie frequently, and go well beyond so-called white lies? If that is true, then there is no reason to believe that cops are any more honest than those in the general population.

Thanks to John Wesley Hall for posting a recent Chicago Tribune article that covers the testimony of former police officer Richard Doroniuk in a police corruptoin trial. The Tribune recounts Doroniuk testiifying, among other things, that "Officers carried a little crack cocaine to plant on suspects when searches came up empty and stole cash from drug dealers during raids and traffic stops. They also routinely paid informants, falsified reports, lied in court and even kicked back cash to a judge for pushing through a bogus warrant, Doroniuk testified Wednesday in federal court."

When a criminal defendant claims the cops planted drugs on him or her, do not be so quick to consider the defendant a liar. Jon Katz.

Barack Obama as Samuel Beckett in "Waiting for the Change"

nospam@example.com (Jon Katz) — Mon, 24 Nov 2008 00:10:00 -0500

Bill of Rights (From public domain.)

Waiting for Godot is a masterpiece play by Samuel Beckett, about two men in inertia waiting for some being named Godot who has made no promise to arrive. The play is a precursor of sorts to Neil Young's "Wonderin", about a stalker -- I mean heartbroken man -- who is so heartbroken that he is in denial that the object of his love will never return to town.

It now seems that Barack Obama is not only a fan of Waiting for Godot, but that he also has tried to cast us as unwilling participants waiting for what will not arrive. Change at the Justice Department's helm? Then, why did Obama name Eric Holder, who with the Clinton administration took the easy approach to seek to lock up people, rather than to find a way out of a criminal justice system that by now overburdens cash-strapped governments and that apparently ensnares at least one percent of the American population?

Change in the State Department? Then why did Obama name Hillary Clinton, who has never distanced herself from the policies of Bill Clinton, which included bombing -- or clearly giving the green light to NATO forces to bomb -- the Serbian state television headquarters during the United States' fighting against Serbia, which did not create any warm and fuzzy feeling about how committed he was to protecting free speech and free press in the United States.

I have an idea, Mr. Obama. Just change your mind, and go back to the drawing board with your picks for Attorney General and Secretary of State. For Attorney General, I suggest considering Laurence Tribe, Nadine Strossen, and Arthur Spitzer. For Secretary of State, I suggest considering Jimmy Carter or Dennis Kucinich, despite their many flaws. Jon Katz.

When a corporation responds with silence to a racial slur.

nospam@example.com (Jon Katz) — Mon, 24 Nov 2008 00:00:00 -0500

Image from NASA's website.

As Johnny Cash sang, "bad news travels like wildfire, good news travels slow ."

The Journeys shoe retailer apparently disagrees with Mr. Cash's sage lyrics; or else has weak, incompetent, or non-existent public relations advisors; or else discovered that the following problem arose in higher corporate echelons than as merely an aberration at just one retail store unit. It seems beyond dispute that on October 17, 2008, at Journeys' store number 1166 in Overland Park, Kansas, an African-American man returned a pair of athletic shoes to Journeys for a refund after having found a better price, only to then receive, along with his refund, a return receipt saying "DUMB N----R" under the section for "CUST". The newscast on this incident is here, and the printed story is here.

Over a month after this incident, the video of the event was forwarded this past Friday to a national trial lawyers email listserv that I am on. Not knowing anything else about the matter at that time, I visited Journeys' website only to find absolute silence there on the matter. Consequently, this past Friday, I sent the following online message to Journeys: "To Journeys- I would have thought that your website would have had an immediate explanation for the "dumb N----r" receipt referenced in this story: http://www.kmbc.com/video/17768384/index.html." On November 23, I received the following canned reply from Journeys' owner Genesco (including the quotation marks, for inexplicable reasons):

From: Journeys Product [mailto:JourneysProduct@genesco.com]
Sent: Sunday, November 23, 2008 2:46 PM
To: jon@katzjustice.com
Subject: Re: Journeys User Comments

CORPORATE STATEMENT

"While we are continuing to investigate this incident, it now appears that an employee in one of our stores entered highly inappropriate statements in a form used to process a merchandise return. Needless to say, such an act was not authorized by Journeys, and will not be tolerated. This employee has been terminated. At Journeys, we pride ourselves on valuing and respecting every customer. We are shocked and sickened that a former associate could be responsible for an act so out of keeping with our culture and our values. We profoundly regret this incident."

Who is handling Journeys' public relations? Elmer Fudd? Who else could be the company's public relations people when the foregoing email reply parrots back the very same statement issued by Genesco over thirty days ago? At least ABC news online last month reported that the customer's mother "said they have gotten apologies from both the store's company and the mall managers. She also said that she knew of no other similar incidents but that she believes that most people never look at their receipts."

Apologies are easy to make. It takes more effort to explain how the snafu was not prevented in the first place, why the snafu completely violates the company's core values and training (or else why the company waited until now to fix the problem) implement effective safeguards for such incidents not to be repeated and to let the public know of those safeguards.

Have Genesco's lawyers mis-advised the company to remain silent on the matter beyond the foregoing by-now tired and rather empty written statement? That would sound like bad advice. The cat is out of the bag, and the company's ongoing silence is not going to re-bag the cat.

If Journeys is not going to try to get a handle on the story, the blogosphere has already stepped into the fray with a slew of blogposts on the scandal.

Never underestimate the influence of the blogosphere.

ADDENDUM: November 25, 2008. Did intention, inattention, poor judgment or a combination of the three lead Journeys' owner Genesco to bury its online apology on this matter? Journeys' website remains silent on the matter. Owner Genesco nested an apology into its media links, rather than including the matter on the news section of its frontpage or anywhere else in its front webpage. At least Genesco goes into further explanatory detail than the above-listed lame corporate statement.

The online apology says that, previous to this incident, an employee bypassed the company's computerized refund system by inputting a fictitious phone number and the racial slur. Genesco asserts said employee was terminated on other grounds before the current incident. The receipt that led to the above-described Internet onslaught, says Genesco, was generated by a different employee who input a ficititious phone number to generate the refund, thus automatically having the slur reprinted; that employee, says Genesco, was terminated for bypassing the company's refund rules.

Genesco claims it is working technologically to prevent employees from bypassing the computer system. However, technology does not teach racial sensitivity. At best, technology can only foreclose a technological route to communicate racist views.

Jon Katz.

When a new generation arises early Saturday to fight the drug war.

nospam@example.com (Jon Katz) — Sun, 23 Nov 2008 00:00:00 -0500

Bill of Rights (From public domain.)

A marijuana defense client one day suggested I not clump all frequent marijuana users as stereotypical laidback potheads. Knowing that frequent potsmokers come in all different shapes and flavors, I used the stereotype in an effort to figure out why my frequent-potsmoking client was so highstrung. Of course, he would have been more highstrung had he not been a marijuana smoker; this was his medicine.

Are legalization efforts for medicinal and recreational marijuana moving more slowly because of stereotypes of potheads of the variety of Cheech and Chong in Up in Smoke? (What do you think of this clip?) I would hope not. For one thing plenty of medicinal and recreational potsmokers smash such stereotypes. For another thing, even if every potsmoker matched such a stereotype, that would be much preferable to the violence and other damage caused by so many people who abuse alcohol.

Helping further to smash such stereotypes were the approximately 150 to 200 people who appeared before 10:00 a.m. yesterday morning for the second day of the tenth national conference of Students for Sensible Drug Policy at the University of Maryland. When I was in college, it was tough to get me anywhere that early on a Saturday morning.

I only got to stay at the conference less than two hours, because I was with my young son. However, for a boy as active as he is, I was taken at how attentive he was to the events, for the first half hour. The speakers I heard addressed matters that I mainly had heard before, but these were important talking points for the attendees to know for spreading the word of drug policy reform.

At the conference, I met and re-mat the following folks:

I re-spoke with Kris Krane, who heads the SSDP. Catch Kris here, debunking any value in parents forcing drug tests on their children.

First and foremost, for the first time I met fellow blogger Pete Guither of DrugWarRant. Yesterday, Pete entered some blog entries about he SSDP conference as events unfolded. His drive from Illinois to Maryland was slowed by accidents and snow in western Maryland. but he made it. I would have liked to have talked to Pete longer than exchanging some pleasantries, but I was due back home. Speaking of blogs, check out the SSDP's Dare Generation Diary.

I met Drug Policy Alliance Executive Director Ethan Nadelman, who is a very good spokesperson for drug policy reform.

I again bumped into Kevin Zeese, who heads Common Sense for Drug Policy. Kevin co-founded the then-named Drug Policy Foundation.

I also again bumped into my business neighbor Eric Sterling, who heads the Criminal Justice Policy Foundation.

As an entertainment bonus, I met late-night infomercial huckster Matthew Lesko, who never leaves home without a custom-made suit laden with question marks. It seems that his son is involved in the SSDP. Jon Katz.

You must remember best; a breast is just a breast; the fine's a nasty fine.

nospam@example.com (Jon Katz) — Fri, 21 Nov 2008 00:00:00 -0500

If Virginia's Virtus can bare a breast on the state seal, why cannot Janet Jackson do the same, penalty-free, during the Super Bowl hafltime? See more here.

Friends, opponents, and Obama, lend me some justice. On the beaches of France, Italy and beyond, countless women exercise the same right that men have to bare their breasts. If women have to cover their breasts in public, then men should have the same obligation.

Why does such an obsession remain among so many Americans to suppress breasts? Perhaps there would be fewer people having sexual hangups and committing sexual assault if America's rampant official prudery were thrown out the window, including removal of anti-breast laws, obscenity laws, anti-prostitution laws, and laws suffocating the ability of strip clubs and adult video stores to operate.

As to a recent development in this arena, do not let the Federal Communications Commission get away with wasting our tax dollars, justice, and common sense to seek Supreme Court review of the Third Circuit's magnificent July 2008 reversal of a half million dollar FCC fine against CBS for Janet Jackson's exposure of her right breast for nine-sixteenths of a second during the Super Bowl until CBS cut the image. (Had she exposed both breasts, would the fine have been doubled?)

Barack Obama did not seem to speak much, if at all, about First Amendment protection during the campaign. However, he did talk repeatedly about change. Mr. Obama, it is time to change the decades long tradition of FCCensorship and prudery. Alternatively, if women were polled about the laws mandating covering their breasts in public and fining broadcasters for their exposure during times that children are awake, how would they vote?

Barack Obama's transition team is reviewing which executive orders from the Bush Administration (and from administrations previous to that, too?) to scrap. While the transition team is at it, time is beyond ripe for Obama to completely overhaul FCC censorship and to push to change statutes that enable such censorship in the first place. Now also is the time for Obama's team to push to eliminate the obscenity laws while they are at it.

Barack Obama: Let us see such good change. Jon Katz

ADDENDUM: Thanks to SCOTUS for blogging on the FCC's cert. petition in the Janet Jackson fine case. Thanks to Herman Hupfeld for inspiring the title of today's blog entry .