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

Can lies be turned on and off?

nospam@example.com (Jon Katz) — Tue, 14 Oct 2008 00:00:00 -0400

Once a liar always a liar? How many jurors except cops from that maxim when the cop's lie is designed to elicit a confession to a crime?

Last week, the District of Columbia Court of Appeals affirmed a conviction following a most egregious police lie to obtain a confession, but warned that the police tactics presented a close call. Brisbon and Wonson v. U.S., _ A.2d. _ (D.C. Oct. 9, 2008). After a killing following shooter(s) firing into a crowd of people, police arrested Ronald Brisbon in neighboring Prince George's County, Maryland, obtained his agreement to be driven to the District of Columbia on his open arrest warrant for the case (rather than contesting extradition), and engaged in idle chatter while providing him a hamburger and driving him to the District of Columbia.

Police kept Mr. Brisbon for many hours. He ultimately waived his Miranda rights (do not do that). They told him some truthful information about evidence they found at his home. Then came the cops' lies, as the court relates:

"The detectives then began interrogating Brisbon, and, during the first fifteen minutes, Brisbon denied everything. Detective Irving told him that they had searched the house where Brisbon lived with his mother and grandmother and ¡°that the police recovered drugs and a shotgun out of his grandmother's house -- which was true -- and that his grandmother had got upset and was rushed to the hospital and that his mother was placed under arrest -- which was false. According to the detectives, Brisbon dropped his head and was quiet for a few seconds, then admitted that he ¡°did it,¡± saying that he did not ¡°want anyone else to get in trouble. Detectives Irving and Credle insisted that Brisbon give them all of the details of the crime, because a blanket confession would
not convince them that he had told the truth. The detectives denied promising Brisbon that confessing would aid his mother or grandmother. The interrogation continued for two hours, until, at around 9:30 p.m., Brisbon consented to a videotaped confession." Brisbon.

The Court avoided determining whether Brisbon's confession was voluntary by instead deciding that the admission of his confession into evidence was harmless as to Brisbon: "We recognize that the question of voluntariness in this case is a close one, however, and do not decide it, because we can conclude beyond a reasonable doubt that even if the confession should have been suppressed, its admission was harmless. See Arizona v. Fulminante, 499 U.S. 279, 285 (1990) (admission of involuntary confession is trial error subject to harmless error analysis)." Brisbon.

Brisbon proceeds to reverse the conviction against Brisbon's co-defendant, Wonson, where the trial court could easily have solved the problem by granting Wonson's rejected motion to sever his trial from Brisbon's. The D.C. Court of Appeals makes clear that Wonson's Constitutional rights were not violated by the playing of Brisbon's confession to the jury with redactions as to Wonson's criminal involvement, because Brisbon waived his Fifth Amendment right to remain silent and proceeded to testify that his confession was coerced and untruthful, and that Wonson had nothing to do with the crime. In making such a conclusion, the Court of Appeals quoted from the Supreme Court: "'[W]here a co-defendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.' Nelson v. O'Neil, 402 U.S. 622, 629 (1971)." Brisbon.

Over Wonson's objection, the prosecution responded by playing Brisbon's unredacted confession, which implicated Wonson, where otherwise the evidence against Wonson was circumstantial. Based on the playing of Brisbon's unredacted confession, the Court of Appeals reversed Wonson's conviction, unable to find harmless error from this Constitutional violation. The Court of Appeals affirmed Brisbon's conviction, though. Jon Katz.

When a judge stops being an impartial adjudicator.

nospam@example.com (Jon Katz) — Mon, 13 Oct 2008 00:00:00 -0400

Bill of Rights (From public domain.)

When I started working as a public defender lawyer in 1991, I observed about fifteen minutes of a felony jury trial being presided over by a then-longtime sitting judge. I was astounded to see the judge -- in front of the jury -- silently and emphatically mouthing words, apparently to coach the prosecutor during the prosecutor's cross examination, without any objection from defense counsel. I could not tell what the judge was saying, so perhaps the jury could not, either. However, the judge's actions clearly could have made the jury thing the judge was on the prosecutor's side. This was an older courtroom where the proceedings were only recorded by a court reporter's stenographic machine; there was no videocamera to record the judge's improper and silent actions.

A few years later, I was questioning a witness in a civil litigation deposition when my opposing counsel entered several objections in a nasty tone of voice, and nearly screeched "GO AHEAD!" to try to cut me off from objecting to what I asserted was improper commentary to be presented by him in front of his deponent client. However, when I read the deposition transcript, none of the opposing lawyer's nastiness shined through; he seemed like a master of avoiding a record of his nastiness, although I make it a practice to insist that the court reporter save the audiotaped proceedings for me to prevent such an escape.

Thankfully, more courtrooms today are equipped with audiotaping to monitor judges' actions (although Virginia District Courts have no recordation of proceedings unless a party hires a court reporter). Sometimes judges' words alone show they have gone beyond the pale of providing a fair trial. Two such cases are last week's Antwan Derrell Smith v. Maryland case and the eternally shocking John Howard Johnson v. Maryland case from 1999.

In Antwan Derrell Smith v. Maryland, __ Md. App. _, 2008 Md. App. LEXIS 128(Oct. 6, 2008), the trial judge in a murder case interjected sua sponte with what the appellant counted to have been 125 questions of prosecution witnesses.

Here is a prime example of the trial judge's interjections and his reply to objections thereto:

THE COURT: Wait. Sir, that's the time that's recorded as to an incident occurring and I suspect that this might have occurred later than that incident. Is there any way you can double check to make sure exactly what time you encountered the car? Like, for example, when you got your central complaint number from the Dispatcher? You may be giving me an earlier time, is what I'm suggesting. Can you look it up?

THE WITNESS: I would have to go back to the police station and look at the CAD inform ation, but I think the time that was used is the time the actual complaint num ber was pulled, sir.

THE COURT: But if the complaint number was pulled because of something that happened earlier that evening, is there a way that you can reconstruct exactly what time it was that you stopped this vehicle?

THE WITNESS: No, sir.

[The defense objects to the trial judge's interjections as favoring sides and as removing the judge from the role of an impartial adjudicator. The judge replies:]

THE COURT: Thank you. I don't believe that clarifying this issue shows a preference for the State. I think it's mutual. My twenty years of experience tell me that if there's some ambiguity in the times, we're going to get peppered with notes from the jury long after the witnesses are capable of testifying, so we cannot create side issues or extend the length of the trial (inaudible) by having witness [sic] explain what's obvious to every lawyer and every policeman, but it's not obvious to the people that don't work in the field how dispatch numbers are obtained, in terms of timing. It will prevent the jury from going off on a tangent. Thank you.
I would have to go back to the police station and look at the CAD information, but I think the time that was used is the time the actual complaint number was pulled, sir.

Maryland's intermediate appellate court reversed Mr. Smith's conviction, but insodoing confirmed that judges have wide latitude to interject questions to witnesses so long as it is not done with the appearance of bias for either side:

Continue reading "When a judge stops being an impartial adjudicator. "

We will be open Columbus Day

nospam@example.com (Jon Katz) — Sun, 12 Oct 2008 00:00:00 -0400

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.

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 stopping police officer 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