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

Dissidents suffer as Beijing Olympics dazzle.

nospam@example.com (Jon Katz) — Tue, 19 Aug 2008 00:10:00 -0400

Image from NASA's website.

And now we interrupt the Beijing Olympics with this important public service human rights message:

Life is not all fun and games for Chinese dissidents during the Olympics. For instance, within the last few days, blogger Zhou “Zola” Shuguang has been placed under town arrest.

As Reporters Without Borders reported on August 15, 2008: "Zola alerted his contacts via the microblogging service Twitter: '16:02 (Beijing time): They have forced me to get into their car. I want my family to be able to confirm what has happened today (...) I am all right, I am in their car and I have the impression that I am being kidnapped.' '17:31 (Beijing time): They have asked me to stay in Meitanba. If I go to Beijing, they will come and get me.' Aged 27, Zola keeps a blog in which he often writes about matters that have been hushed up by the authorities." More on this story also is at the Committee to Protect Bloggers' site.

Zhou Shuguang is having a cakewalk with the Chinese authorities, when compared to Beijing human rights activist and blogger Zeng Jinyan and her baby daughter, who, according to ABC online "have been missing since August 7th. Zeng has been under house arrest for months." More on this story is at the Committee to Protect Bloggers' site and in the Associated Press online.

That concludes this public service message. Will you now return to the Olympics as if all in China were the Disneyland that the Chinese government so desperately wishes to portray? Jon Katz

Plame and Wilson lose on appeal against Libby and company.

nospam@example.com (Jon Katz) — Tue, 19 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

For awhile, the Valerie Plame/JoeWilson/Scooter Libby story went on the backburner. Then, in late July 2008, Robert Novak -- whose column blowing Plame's CIA cover led to the prosecution and conviction of Libby -- hit a pedestrian and kept driving, followed by an announcement shortly thereafter of his malignant brain cancer and retirement.

Not long thereafter, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit voted 2-1 (Judges Sentelle and Henderson affirming and Judge Rodgers concurring in part and dissenting in part) to uphold the dismissal of Plame's and Wilson's lawsuit against Libby and company over damages allegedly caused by the revelation of Plame's covert CIA status. Wilson, et al., v. Libby, et al., __ F.3d _ (D.C. Cir., Aug. 12, 2008).

Plame and Wilson's suit seeks damages for Constitutional violations under Webster Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which is a case governing private party lawsuits against federal officials for Constitutional violations. In affirming the dismissal of Plame's and Wilson's lawsuit, the Court of Appeals stated: "We have discretion in some circumstances to create a remedy against federal officials for constitutional violations, but we must decline to exercise that discretion where 'special factors counsel[] hesitation' in doing so. See Bivens, 403 U.S. at 396; Spagnola v. Mathis, 859 F.2d 223, 226 (D.C. Cir. 1988) (en banc). In Bivens, the Court implied a remedy where there were no '"‘special factors counselling hesitation in the absence of affirmative action by Congress’"' that required 'the judiciary [to] decline to exercise its discretion in favor of creating damages remedies against federal officials." Spagnola, 859 F.2d at 226 (quoting Bivens, 403 U.S. at 396)." Here, the Court of Appeals found that the Privacy Act provided a remedial scheme for Plame and Wilson that precluded a Bivens action.

The D.C. Circuit further declared: "Litigation of the Wilsons’ allegations would inevitably require an inquiry into 'classified information that may undermine ongoing covert operations.' See Tenet, 544 U.S. at 11. The amended complaint alleges that the disclosure of Valerie Plame Wilson’s identity 'impaired . . . her ability to carry out her duties at the CIA,' Am. Compl. ¶ 43, increased therisk of violence to her and her family, id. at ¶ 42, and subjected her to treatment different from that given other similarly situated agents, id. at ¶¶ 51–52. We certainly must hesitate before we allow a judicial inquiry into these allegations that implicate the job risks and responsibilities of covert CIA agents. In cases involving covert espionage agreements, '[t]he state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection [the Court] found necessary in enunciating the Totten rule.' Tenet, 544 U.S. at 11. Here, although Totten does not bar the suit, the concerns justifying the Totten doctrine provide further support for our decision that a Bivens cause of action is not warranted."

Responding to the majority, Judge Rogers wrapped it up as follows: "In conclusion, the court’s decision is not the product of the application of the Bivens doctrine to appellants’ claims as Wilkie directs, 127 S. Ct. at 2598. It is rather the result of the refusal to acknowledge precedent that Bivens is a remedial doctrine and absent special factors applies where Congress created statutory protection for some persons in some circumstances but did not address the type of constitutional claims alleged by Mr. Wilson and in part by Ms. Wilson. The disclosure concerns identified by the court as counselling hesitation are either unfounded or premature because there has been no discovery or presentation by the Wilsons to the district court of how they will attempt to prove their claims. Contrary to separation of powers, then, the court effectively cedes to Congress the judiciary’s defined role to decide issues arising under the Constitution, despite the fact that the Privacy Act neither is nor purports to be a universal bar to all constitutional relief related to the release of agency records. Accordingly, I concur in Parts II and III.B of the court’s opinion, and in the judgment regarding Ms. Wilson’s equal protection and due process property claims, but I respectfully dissent from the affirmance of the dismissal of Mr. Wilson’s First and Fifth Amendment claims against each appellee and Ms. Wilson’s due process state-endangerment claims (except against appellee Armitage), and would leave to the district court to address in the first instance appellees’ defenses of immunity, see, e.g., Saucier v. Katz, 533 U.S. 194, 201 (2001); Davis, 442 U.S. at 249; Butera, 235 F.3d at 646."

Judge Rogers' partial dissent/partial concurrence provides very strong arguments to increase the chances of en banc review by the entire District of Columbia Circuit over the very critical issue of when to permit and not permit a Bivens action to proceed forward. Jon Katz.

The plight of pro se defendants.

nospam@example.com (Jon Katz) — Mon, 18 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

One day I asked a prosecutor if she feels any discomfort going against unrepresented criminal defendants, most of whom are not poor enough to qualify for court-appointed counsel but for whom the financial struggle is too great or impossible to hire a lawyer, and some of whom are dilatory in obtaining a court-appointed or private lawyer.

She said she feels no discomfort, because she offers all defendants the same guilty plea offers, whether or not represented by a lawyer. Assuming the truth of her assertion, for argument's sake, what happens after she conveys the initial guilty plea offer? A capable criminal defense lawyer will advise the client whether to reject the plea offer, accept it, or return with a counteroffer, and how to time and express any reply. How will the pro se defendant respond? If the case goes to trial, will the pro se defendant represent himself or herself anywhere near as capably as an experienced trial lawyer? Also, the pro se defendant effectively loses the right to remain silent throughout trial.

How do prosecutors respond to a counteroffer from a skilled trial lawyer versus from a pro se defendant (and, for that matter, versus a lawyer who is green or about whom the prosecutor knows nothing)? Negotiations are about hedgebetting. Prosecutors have fewer bets to hedge with unrepresented defendants, whom, by definition, are on weaker ground than if they had a qualified lawyer.

A case in point came recently when I walked into misdemeanor court, and the prosecutor cheerfully offered for my client to plead guilty to a lesser but still jailable and collateral-risk laden offense. I asked which witnesses were present, and none were. During the break, the prosecutor said the arresting officer in the case was on his way, and urged that his guilty plea offer was the way to go. Probably having had much more time to know my one case versus the prosecutor's two dozen cases, I told the prosecutor that even if the cop arrived, he still had a weak case because of A, B and C, and I said I would not recommend that my client plead guilty to any jailable offenses. The prosecutor ended up dismissing my case later in the day.

How would a pro se defendant have handled the foregoing scenario, and how would the prosecutor have responded? Would the pro se defendant have known whether this was a courthouse and case where ordinarily the defendant can get away with waiting for prosecution witnesses to show up before deciding whether to accept a guilty plea offer? Would the prosecutor have told the pro se defendant that the plea offer would be off the table upon the cop's arrival? Would the prosecutor have emphasized the jail risks faced by the pro se defendant by going to trial when the plea offer involved no executed jail request from the prosecutor? Would the prosecutor have argued that the pro se defendant was entering dangerous, uncharted territory to take a case to trial without a lawyer?

How do we ameliorate the plight of pro se defendants? One way is to assure that quality court-appointed/ public defender counsel is made available to indigent defendants, and that truly needy defendants are not barred by guidelines or unfair or uneven application thereof that misses them. What do about defendants who are not poor enough to obtain indigent defense counsel but will struggle mightily to pay for a lawyer -- after paying for rent, transportation, children's needs, groceries, and other essentials -- or will not be able to obtain the funds at all? As to the former category of criminal defendant, at least in the past, the Maryland criminal defense bar used to have members who agreed to be part of a "gray panel" that offered reduced rates to such people; such a practice needs to continue. Have indigent defense lawyer application guidelines kept up with today's economic realities of expensive rates for qualified criminal defense lawyers and high prices for gas, food, and other essentials? Should public funds be made available to provide partial subsidies to people who are borderline eligible to obtain indigent defense counsel but do not qualify? Awhile ago, I wrote this piece about the struggles that most ordinary-income people face in paying for quality legal representation.

Of course, probably we always will also see a handful of pro se criminal defendants who would not obtain counsel even if they qualified for indigent defense counsel. All criminal defendants have the right to choose their own counsel, including to proceed with self-representation. Caveat emptor. Jon Katz.

Praised be the freedom of public photography.

nospam@example.com (Jon Katz) — Sun, 17 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

Congratulations to Philip-Lorca diCorcia for having obtained the dismissal last March of a lawsuit seeking damages for his having photographed the plaintiff when both were on Manhattan sidewalks. This New York Times article gives a detailed rundown. Jon Katz.

How can a proper Terry patdown find crack cocaine?

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

Bill of Rights. (From the public domain.)

Recently during a suppression hearing in a drug case, the police officer testified that controlled dangerous substances fell to the ground from my client's pants as the cop conducted a patdown for weapons, on the cop's claimed belief that this was a valid Terry stop.

During cross examination at the suppression hearing, I asked the cop to show how my client was frisked, by putting me into the role of the client, which gave the judge a good bellylaugh as he proclaimed that I would be responsible for any contraband found during the cop's patdown of me in court. This so-called patdown demonstration revealed the very manipulation that is prohibited with Terry patdowns. The judge later indicated he tended to agree with me that the cop had demonstrated an unlawful Terry patdown, but the judge had concluded that the officer had probable cause to search based on the alleged odor of unburnt marijuana (I join the argument here that unburnt marijuana ordinarily is too hard to distinguish from lawful substances). Probable cause does in fact permit squeezing and sliding of suspected contraband, but a Terry stop does not allow that.

About the limits of a Terry frisk, in Minnesota v. Dickerson, 508 U.S. 366, 378 (1993), the Supreme Court upheld the suppression of the drugs seized from Mr. Dickerson's pocket, the Supreme Court explained: "Where, as here, 'an officer who is executing a valid search for one item seizes a different item,' this Court rightly 'has been sensitive to the danger . . . that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.' Texas v. Brown, 460 U.S. at 748 (STEVENS, J., concurring in judgment). Here, the officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to 'the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby.' 392 U.S. at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, see id at 26, and that we have condemned in subsequent cases. See Michigan v. Long, 463 U.S. at 1049, n.14; Sibron, 392 U.S. at 65-66." Dickerson, 508 U.S. at 378.

How, then, can a proper Terry frisk -- which is not permitted to involve manipulation, sliding or squeezing -- determine the presence of crack cocaine in one's pocket? If the crack rock is the typical small one-dose size, it sounds particularly farfetched. Nevertheless, in one Virginia criminal case, a police officer claimed to have felt apparent crack cocaine in Mr. Dickerson's pocket during a Terry patdown. The trial judge refused to suppress, and so did Virginia's intermediate appellate court, the Court of Appeals. See Bandy v, Virginia, _ Va. App. _ (August 12, 2008). Something sounds seriously wrong here, and I hope the defense seeks appellate relief. Jon Katz.

Virginia inmate released on new non-biological evidence.

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

Bill of Rights. (From the public domain.)

A prison inmate's case does not become quiet merely because of a conviction and a lost appeal. Many inmates next seek post conviction relief, whether the term of art for such relief applications is habeas corpus, coram nobis, or any other phrase. Many inmates file their own post conviction petitions, sometimes drafted by other inmates, sometimes handwritten, and sometimes assembled with typewriters where computers are unavailable. Many inmates send letters to judges seeking relief. Some write for assistance to me and other lawyers they do not know, but few contact me back after I quote an hourly retainer fee for an initial visit to discuss their case, when it appears to be a matter I might be willing to defend.

A knee-jerk reaction of many judges and legislators focused on keeping down the cost of running the judicial branch -- rather than in dispensing true justice -- might be to clamp down on the avenues of post conviction relief. In fact, such clampdowns already exist in such terms as severely short federal deadlines for filing habeas corpus petitions, with numerous states imposing their own deadlines, as well.

Many inmates at the post conviction stage feel very desperate, seeing this stage as a final hope for freedom, after having lost at the trial court stage, and the appellate stage if an appeal has been filed (people who plead guilty often do not seek or obtain appellate relief). A criminal defense lawyer handling such a case should be ready for some of their clients to grasp at straws and anything else to try to pull themselves up from the often excruciating toll of prison on their freedom, dignity, and loss of time and life outside prison walls. Sometimes I wonder how many inmates file post conviction petitions partly as an effort to see the outside world for a few hours during the ride to and back from the courthouse hearing the case; it is a legitimate desire.

I have defended many post conviction cases over the years, most of them in Maryland, and some in the District of Columbia, where post conviction matters ordinarily must be raised and resolved before the completion of the appellate stage. Fortunately, I have won many post conviction cases, but have lost more than I have won. Often the victories have come from insufficient advice of rights to the defendant at guilty plea hearings. In numerous other victories, the defense lawyer did not object to materially erroneous jury instructions. Some post conviction victories come in the form of getting an illegal sentence corrected, including where a court misapplies mandatory minimum sentencing calculations. In one instance, a victory came from my presenting a witness whom the trial lawyer did not contact nor present, whose testimony could have avoided my client's murder conviction through showing a self defense shooting against an armed decedent.

A post conviction victory does not automatically mean release from prison, where a retrial is the applicable relief. Nevertheless, prison release is the relief obtained by Darrell Copeland, under Virginia's somewhat new law that provides inmates the opportunity to present newly-discovered non-biological evidence of innocence, following on the heels of older laws that permit the presentation of DNA evidence to seek reversal of convictions.

Darrell Copeland was convicted in Virginia for a 2006 handgun possession offense, for which he received a five-year prison sentence. Later analysis of the alleged handgun revealed it to be a replica pistol that could not be operated as a firearm. Mr. Copeland is the first inmate to be released from prison under this law permitting the issuance of a Writ of Actual Innocence involving non-biological evidence. As reported by the Washington Post, "Virginia had long barred the introduction of new evidence more than three weeks after sentencing."

Although Maryland is no liberal cakewalk for criminal defendants, Virginia is even less so. In that context, it appears noteworthy that Virginia's attorney general supported the result. His spokesperson mentioned that when serving in Virginia's legislature, Attorney General Bob McDonnell supported the legislation that led to Mr. Copeland's release.

The law under which Mr. Copeland is being released reads as follows:

"§ 19.2-327.10. Issuance of writ of actual innocence based on nonbiological evidence. Notwithstanding any other provision of law or rule of court, upon a petition of a person who was convicted of a felony upon a plea of not guilty, the Court of Appeals shall have the authority to issue writs of actual innocence under this chapter. Only one such writ based upon such conviction may be filed by a petitioner. The writ shall lie to the court that entered the conviction; and that court shall have the authority to conduct hearings, as provided for in this chapter, on such a petition as directed by order from the Court of Appeals. In accordance with §§ 17.1-411 and 19.2-317, either party may appeal a final decision of the Court of Appeals to the Supreme Court of Virginia. Upon an appeal from the Court of Appeals, the Supreme Court of Virginia shall have the authority to issue writs in accordance with the provisions of this chapter."

Unfortunately for Mr. Copeland, his release will not be to fresh air, but instead will be to serve a pending federal sentence.

Congratulations and thanks to public defender lawyer Kathleen A. Ortiz for fighting for and obtaining this victory, and in such a relatively quick timeframe at that. 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."

Olympics at the price of human rights.

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

Image from NASA's website.

The Olympics always is political, ranging from nations wanting to shine a light on their Madison Avenue public relations face to nations wanting to whitewash unspeakable brutality.

The brutal and virulently racist nazi regime had its day in the sun with the 1936 Berlin Olympics, which at least was offset by the victorious track performance of Jesse Owens, an African American competitor who returned, ironically, to a deeply racist and segregationist United States, which during World War II -- during the fight against the racist nazi regime -- would continue with a racially segregated military.

Now with its day in the Olympics sun is China, whose government is extremely brutal, but not on the same level as Germany during the nazis, and apparently without the racism.

I have written several times about China's deliberate and rampant human rights violations and its efforts to carefully choreograph a Disney-ized Olympics. The real human rights face of China is not only gross human rights-violative business as usual, but also increased harassment of dissidents in order to try to present a Chinese Neverland, censorship of foreign journalists covering the Olympics, and the deep complicity of Google, Yahoo, and Microsoft in censoring the Internet in China and helping rat out dissidents to Chinese authorities, who then have their human-rights-violative ways with the dissidents. .

Have you been watching the Olympics? If so, how has your enjoyment of the Olympics been affected, or not, by the brutal reality of its government's ongoing and severe human rights violations? Jon Katz

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.

Isaac Hayes departs the planet.

nospam@example.com (Jon Katz) — Sun, 10 Aug 2008 00:15:00 -0400

Isaac Hayes conducting "Theme from Shaft."

Isaac Hayes's voice was commanding and well-suited to the theme from Shaft. I remember when the film's soundtrack was released in 1971, but only remember the title theme. Two decades later I saw the film itself, which hardly measured up to Hayes's theme song.

On August 10, Isaac Hayes departed the planet. As much as I prefer to pay tribute to people before they leave the planet, I am behind on doing so. Thanks, Isaac Hayes, for you. 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.