UNDERDOG - Criminal/Drunk Driving Defense in Maryland, Virginia, DC

Drug defenses and the opposition.

nospam@example.com (Jon Katz) — Tue, 08 Jul 2008 00:05:00 -0400

Bill of Rights. (From the public domain.)

Drug prosecutions consume a huge percentage of felony court dockets. (If I have my way with heavily decriminalizing drugs, clogged court dockets will be quickly unclogged.) Once suppression motions are lost in such cases, what defenses do defendants have left? They include the following:

- The defendant did not possess the drugs. Possession is generally defined as knowledge, dominion and control. Livingston v. State, 317 Md. 408 (1989).

- The defendant possessed the drugs, but only for personal use, and not with the intent to distribute.

- Somebody else committed the crime.

-- This defense is more common where the arresting police officer neither finds drugs on the defendant's person nor receives drugs from the defendant. For instance, an undercover cop might buy drugs from a suspect and then radio a description of the suspect to the arresting cops; this raises misidentification issues. Cops may try to weaken a misidentification issue by using pre-recorded or marked currency to buy the drugs; however, this does not eliminate the possibility that the arrestee has received the money from the seller in a legitimate way (e.g.. where the seller gives the suspect gas money for a ride by the suspect, or pays back a legitimate debt).

-- This defense also is available where cops dragnet several suspects into a mass arrest, where no drugs are found on the defendant but are found on other nearby suspects or in the nearby vicinity.

- The cop or undercover purchaser (often a criminal suspect himself or herself) are lying about the situation and/or are mistaken about the defendant's identity.

- The cop planted drugs on or near the defendant.

- The defendant received a package of drugs in the mail, but had no involvement with arranging the delivery nor receipt.

- The prosecutor has not proven that the alleged drugs are actually controlled dangerous substances, and has not proven chain of custody of the drugs. Challenging the chemist can be risky before the jury, unless it is done without presenting inconsistent case theories to the jury (e.g., the chemist might be cross examined to show that the analysis is consistent with simple possession, or to show that the analysis did not connect the drugs to the defendant).

What does the prosecution do when the defendant claims s/he only possessed the drugs for personal use? The prosecution sometimes presents the testimony of a police officer to testify as an expert in possession with intent to distribute drugs. It is junk science, but that does no automatically prevent the witnesses from testifying. An example of such junk testimony is found in Ricky Williams v. Com., __ Va. App. _ (June 24, 2008). Each jurisdiction's rules of evidence, statutory law and caselaw need to be consulted in moving to exclude such "experts".

What happens when the chemist only test-checks some of the alleged controlled dangerous substances? In Ricky Williams v. Com., __ Va. App. _ (June 24, 2008), the chemist only tested one of ten alleged methadone tablets and opined that the remaining nine tablets looked similar to the tablet that tested positive for methadone. Nevertheless, the appellate court permitted the factfinding judge (this was a bench trial) to reach a verdict beyond a reasonable doubt that the defendant had possessed the methadone with intent to distribute it. Id. Williams quoted favorably from the Fifth Circuit, which said that: "Random sampling [of controlled dangerous substances] is generally accepted as a method of identifying the entire substance whose quantity has been measured." U.S. v. Fitzgerald, 89 F.3d 218, 223 n.5 (5th Cir. 1996), cert. denied, 519 U.S. 987 (1996). The chemist had the alleged drugs available to test; it is not too much to insist that a possession with intent to distribute conviction for methadone be precluded without testing each pill, or at least over half the pills.

Further about Williams since when is a chemist permitted to testify that a pill looks like a methadone tablet? With a defendant's liberty on the line, the chemist should either test each tablet -- particularly when there are so few tablets -- or else should keep quiet about the untested tablets. Jon Katz.

Balancing Zappa and Norman Vincent Peale.

nospam@example.com (Jon Katz) — Mon, 07 Jul 2008 00:05:00 -0400

At first blush, a criminal defense colleague whom I admire very much comes across as laid back in a powerful and relaxed way. I remarked how I find this inspiring in my lifetime movement towards harmony and away from the imbalance of intensity and much disharmony. My friend quickly dispelled the notion that he always is fully laid back; it takes him much work to get there from many of the same frustrations I often feel when some clients remain in stratospheric left field just one day before trial, and when so much of the criminal justice system is so unjust.

Daily, I work to bridge the gap between the harmony that is essential to being powerful and feeling fulfilled on the one hand, and the turmoil that surrounds me in the form of war, inhumanity, indifference towards the plight of other humans and non-humans, an excessively unjust criminal justice system, and opposing lawyers and witnesses who would think nothing of stabbing me in the back if there were no countervailing repercussions for doing so.

I write more here about achieving a more harmonized approach to life, not out of embracing any new age concept, but out of necessity. Applying this approach to the practice of criminal defense, I think of the below-described imperfect parallel to Freud's id, ego, and superego, where the ego balances the id and superego. I call it the trio of Zappa, my above-described laidback friend, and the man with the flies.

Frank Zappa inspires me tremendously, not only as a creative genius, but also as an important example of how it is possible to be a caring and nurturing parent -- including requiring that a minor child's homework be finished before going to the movies with a friend -- without surrendering to mainstream society, American Idol, America's Top 40, and Barney. Zappa was passionate against the mediocrity that permeates society, said CNN confirmed the correctness of his not liking people very much, and told Alan Thicke he was ready to tell a bunch of academic composers to stop in their tracks and get real estate licenses. (See Zappa's Thicke interview covering his foregoing views, with his being civil with Casey Kasem, the very instigator of America's Top 40.)

As the great Daniel Schorr eulogized Zappa: "He was also contrary. Talk about his success, and he would say he was a failure. Talk about his popularity, and he said he was lonely. Maybe he was. Maybe the world around him was too crass, too mediocre, too homogenized. So he cursed it with dirty words, and went back to his music synthesizer, searching for new musical meanings. And ways of serving kids. His own, and the world's."

Zappa's very critical and cynical approach to life, music and art may have served him well as a musician, but does not serve me in shedding concerns about the extent of mediocrity and fallibility while trying to inspire, motivate and persuade a jury to my client's side, particularly when my jury might include fans of American Idol, America's Top 40, and Barney.

The other end of the Zappa spectrum is the above-displayed video of a meditating man battling flies with his sword, and somehow ultimately experiencing the flies as beautiful flower petals, where the video begins with Norman Vincent Peale's quote "Change your thoughts and you change your world."

For me, an important balance of Zappa's cynicism and intensity on the one hand and the above Norman Vincent Peale-inspired video is found in trial lawyer colleagues who -- like I -- know how unjustly brutal the criminal justice system is, but refuse to turn their backs on the system lest they are left to seek justice only from outside that system. My above-described laidback criminal defense lawyer friend is one of those inspirations. Gerry Spence is another. It goes without saying that SunWolf is on the top of that list.

I have not included my trial practice guru Steve Rench in the above list, because he seems to have transcended long ago feeling any tension with the injustices of the criminal justice system as he focuses on victory. Steve applies the basic, and effective, lesson of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more a reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion's sole and to pull it out, rather than trying to slay the lion. I aspire ultimately to reach Steve's level of optimism.

What do you do to reach power by balancing between healthy (and even unhealthy) cynicism and overoptimism? Jon Katz.

ADDENDUM I: Thanks to karmatube for posting the above-displayed video.

ADDENDUM II: Off topic: Who was Frank Zappa if he was willing, even momentarily, to trade places with the Monkees' Mike Nesmith?

Four cops, t'ai chi, and heebie-jeebies revisited.

nospam@example.com (Jon Katz) — Sun, 06 Jul 2008 00:05:00 -0400

T'ai chi is about being as still as a mountain and powerful as a rushing river. It is a peaceful counterpoint to cops packing heat.

On a national trial lawyer's listserv, I asked members what they would have done if faced with the same situation as mine -- about which I blogged on June 27 -- when a cop unlawfully Terry-detained me when an airport denizen allegedly got the heebie-jeebies seeing me practice t'ai chi at National Airport. (An irony of the stop is that t'ai chi is all about achieving relaxation, balance and harmony, which are the very things one would expect cops and the rest of society to value.)

One listserv member replied: "What would have been the problem with stepping out of the bathroom and saying 'oh yeah I was just doing some sweet tai chi moves because I hadn’t had a chance to work on that yet today'? Then cop no. 2 says 'that’s what I thought. No problem.' And everyone goes on their way."

Accepting his invitation to detail what would have been the problem by wagging my tongue at the outset, I replied:

Thanks. Answering your question: My problem with telling him is that I love the Fifth Amendment too much, believe I was unlawfully Terry-stopped, am wary of cops twisting suspects’ words to their detriment, too much dislike cops hassling people like this and in worse ways, bury my head in my hands everytime a client got screwed by not asserting his or her Fifth/Fourth Amendment rights, and probably would have given no explanation had I not been balancing my obligation to pickup two visitors coming directly from Japan and had I not intuited that cop number two (playing good cop) would likely help me when it was not so clear to know if cop number one would have detained me longer had I explained the situation to him (remember, he was the one who unlawfully imposed a Terry stop in the first place, saying I was not free to leave).

Had I kept my mouth shut, if there had been an arrest, aside from having strong ammo to dismiss the case for failure to state a claim, if the so-called witness was an out-of-towner and a no-show in court, there’d have been insufficient evidence. However, when a suspect wags the tongue, sometimes that’s the only witness needed (together with slight corroboration), in addition to the cop to whom he or she wags the tongue.

Silence is golden, sometimes even platinum.

ADDENDUM: After writing my original June 27 blog entry on this matter, I reviewed the Washington Airports Authorities regulations, and saw no basis there for detaining me, just as I saw no basis under federal or state law for doing the same.

Jon Katz.

July 4 is meaningless without an ongoing struggle for civil liberties.

nospam@example.com (Jon Katz) — Fri, 04 Jul 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

NOTE: While you enjoy the long weekend, here is a reprint of what I wrote last year on July 4.

Whenever I look around on July 4, the scene is long on fireworks, beer, and merrymaking, and too short on discussion of what Independence Day is all about.

The Declaration of Independence was hardly signed by a bunch of pacifists. The signers must have realized the bloodshed among the warring sides would lengthen and intensify with the Declaration of Independence, and it did. Violence begets violence, and the rampant violence that led to Britain's surrender did not take place in a vacuum; instead, it fed into all subsequent American wars and smaller military actions. The United States' repeated victories in wars (with the Vietnam war probably ending all the later to delay America's first war defeat) likely made the United States all the more militaristic and cocksure militarily.

By now, the United States government thrives on control backed by force, the threat of force, and punishment, not only through military might, but also through an overgrown and overbearing criminal "justice" system of police, laws, money, prosecutors, courts, and prisons; an overgrown national security system that leaves us little privacy, security, or sufficient liberty; and an overgrown spying and "intelligence" system.

Fortunately, a strong movement continues in favor of civil liberties and government by the governed rather than the reverse. The movement is led by the American Civil Liberties Union, fearless and skilled criminal defense and Constitutional lawyers, the drug legalization movement, and the list goes on.

July 4 is meaningless without an ongoing struggle for civil liberties. Now is the time to join that struggle. Jon Katz.

When a cop lies.

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

Bill of Rights (From public domain.)

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.

I go one step further to believe that lying permeates police culture more than in the general population. What is the motivation for police to lie? Peer pressure, any historical culture of lying in the ranks of the department, and groupthink are some motivations. Frustration with the exclusionary rule and Miranda are other motivations for cops to lie. An additional motivation is the rationalization that whether or not the suspect committed the crime at hand, certainly the suspect has already been committing and getting away with other crimes. Another motivation is just to get through another workday; sometimes it seems easier in the shortrun to cut corners around the truth than to invest the extra time to tell the truth. One more motivation can come from the feeling of pressure from higher-ups to increase arrest and conviction statistics to make the department look good, lest heads roll and budgets decline for "too few" arrests and convictions.

Police wield extraordinary power. They choose whether to arrest, whom to arrest, what accusations to make, and what recommendations to make to the prosecutor. With their guns, handcuffs and power of arrest, they are able to intimidate people to talk to them, and sometimes or many times people will lie to the cops to tell them what they think the cops want to hear, only to have the lies to the cops turned against innocent suspects. Unfortunately, power is corruptive on anyone who wields it, and, among other things, can lead to lying.

Why, then, is it so hard to convince too many judges not to accept police testimony as the truth any more than one would accept a civilian's testimony as the truth? Once a judge believes a cop at a suppression hearing, no appellate court will overturn that factual finding. How many judges conclude that police have no motivation to lie, particularly when compared to a defendant who might seem to have more to gain from lying than the cops do? No motivation to lie? What about the motivations listed above?

Praised be the inventors of video cameras and today's inexpensive ones to show how extensive is police misconduct, from lying to planting evidence to beating suspects (see also here and here). In that regard, Charm City (Baltimore) is not so charming these days, with video revelations of lying cops, even at the veteran cop level. In the instance of Detective Deryl Turner and Sgt. Allen Adkins -- both veteran police -- street video cameras impeached their claims of finding drugs in an abandoned bag on the street rather than in a home through a Fourth Amendment violation, and Baltimore's chief drug prosecutor, Antonio Gioia, took the seemingly unusual move of starting his own investigation of the matter rather than waiting for a police investigation. How many defendants were convicted on the testimony of these two police officers, and how many will file post conviction actions as a result? Thanks, Antonio for doing the right thing here, and to his boss and chief prosecutor Patricia Jessamy to the extent that she supported Gioia's investigation and termination of the prosecution that spurred the investigation.

Elsewhere in Baltimore, security cameras at a bar showed police lied about how they found drugs on a bar patron.

A problem about lying is that the more it is done, the more it becomes second nature, like taking cookies out of the forbidden cookie jar. Prosecutors: Lying by police is too common just to decide to let the judge or jury sort out who is telling the truth, and to have the defendant feel pressure to plead guilty in the face of the risk that a prosecution witness's lies will be believed by a jury. Lives and liberty are at stake here. Jon Katz.

Supporting Native American Rights

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

Protect the right to use sacred medicines.

Recently, I further updated my Native American links and blog links involving both law and non-law topics. I wish to learn more about Native American law -- including issues concerning treaty rights, land rights, gambling, and sacred medicine -- and also about the past and current mistreatment of Native Americans and efforts and accomplishments to reverse such mistreatment.

Rather than taking the time, yet, to create a separate blogroll section for Native American blogs, I have inserted them into the More Law and Beyond the Law sections of the Underdog Blog. I welcome recommendations for links to additional Native American blogs and static webpages, including law blogs.

I took a particularly greater interest in Native American issues from reading Dennis Banks's Ojibwa Warrior (written with Richard Erdoes), and then meeting him in 2006 at the conclusion of the Sacred Run. We are both friends of Jun Yasuda, who joined Dennis from California when he went "underground to the Onondaga Reservation in New York" after California's Jerry Brown -- who refused to extradite Dennis to South Dakota concerning criminal charges over the Wounded Knee event -- left the governor's office.

Unless my court schedule changes, I very much look forward to spending some time next week with Dennis Banks, Jun Yasuda, and the other Longest Walkers when they arrive in Maryland early next week -- and hopefully on a leg of the walk -- including a signing ceremony of the Sovereignty Declaration of One Nation to be held July 9 at Greenbelt Park.

In Ojibwa Warrior, Dennis Banks details his life from childhood, to being ripped by the government from his family and forced into a faraway United States government school meant to take the Indian culture out of Native Americans, and to his ironic joining of the military defending the same government that had forced him to that boarding school.

Ojibwa Warrior continues with Dennis's learning about Jun Yasuda's Nipponzan Myohoji Buddhist order when some members of the order joined a protest against the building of an airport in Japan, and Dennis was sent there as part of his military duties:

"The Buddhist monks and nuns sitting still on the ground in front of us were chanting when the police rushed them and started cracking skulls with a terrible sound as if they were striking coconuts. The monks and nuns did not fight back. It was a terrible thing to witness. I saw elderly nuns with blood streaming down their faces... Sergeant Johnson suddenly grabbed his BAR and fired a round into the air. Then he hollered [in Japanese] 'Stop it! Stop it! Halt!'... Then all was quiet."

Ojibwa Warrior continues with Dennis Banks's return to the United States, the continued virulent racism against Native Americans, and his central participation in the founding of the American Indian Movement. He gives an insider's view of the 1973 Wounded Knee takeover, Leonard Peltier's plight, and AIM's fierce conflicts with Dick Wilson, who was the elected Pine Ridge tribal chair and whom Banks describes as running around with violent goons. Dennis also describes the movement's conflicts with William Janklow, who became South Dakota's attorney general in the early 1970's.

In 1978 came the Longest Walk for Native American rights. Now in progress is the Longest Walk II.

I have just a little knowledge about the law affecting and empowering Native Americans, and have much more to learn about that area of the law and about other Native American issues. My law school did not offer any Native American law classes. The University of Oklahoma law school seems to be a particularly good source for such study. If you share my interest in this area, please let me know. Jon Katz.

When my least favorite justices issue one of my favorite rulings.

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

Supreme Court spiral staircase.

Generally, it is critical to elect Barack Obama to have less damage done to the Constitution by new federal judicial appointees than the damage that will be wreaked by McCain appointees in such areas as the death penalty, criminal defendants' rights, immigrants' rights, reproductive rights, and free expression.

However, one area where McCain appointees likely will do no worse or possibly better than Obama appointees is in an area generally more near and dear to Republicans' hearts than Democrats': defining the reach of Second Amendment rights. In fact, four justices whom I have never wanted on the Supreme Court were in the majority in last Thursday's Heller decision confirming that the right to bear arms is an individual right rather than merely a collective right. Said justices all are appointees of Reagan, Bush I and Bush II: Justices Scalia, Thomas, Alito, and Roberts (C.J.). The fifth justice in the Heller majority is Reagan-appointed Justice Kennedy.

I still recommend Obama as the lesser of the evils as compared to McCain, including for juducual appointments, even though McCain's appointees are more likely to interpret Heller more ezpansively than Obama's appointees. For such prosecutions as possessing firearms in the course of a drug felony, though, Republican appointees are unlikely to be any more favorable to defendants than Democratic appointees. Jon Katz.

Heller's limited reach outside the home.

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

Image from the Government Printing Office's website.

As I walked to the District of Columbia Superior Court last Thursday, I felt a huge air of glee from a fellow criminal defense lawyer walking the opposite way. "Justice is coming at 10:00 a.m.," he exulted. Later that morning, in the courthouse, another colleague who defends many clients in handgun cases happily told me that the Supreme Court that morning had affirmed the United States Court of Appeals ruling invalidating the District of Columbia's virtual blanket ban on the possession of an operable handgun in one's home. Longtime Underdog readers know I agree with the result in the Supreme Court. District of Columbia v. Heller, __ U.S. _ (June 26, 2008).

As to Heller's effect beyond handgun possession in one's home, I posted my following view on a local criminal defense lawyer's listserv:

Several listserv members suggest that Heller invalidates D.C. Code § 22-4504 concerning possessing unregistered firearms and unregistered ammunition. I hope that would be the case. However, doesn't Heller only automatically invalidate prosecutions for possessing handguns in one's home, and give the most immediate ammunition to attack prosecutions for transporting handguns between the gun shop, the home, the repair shop, and the shooting range, when all such activities are for the purpose of having a safely and properly operated handgun in one's home?

After all, Heller’s majority opinion says ‘We affirm the judgment of the Court of Appeals’ after the court’s summation paragraph (three paragraphs from the end) proclaims:

"In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." D.C. v. Heller, _ U.S. _ (June 26, 2008) (emphasis added).

Because the Supreme Court affirms the judgment of the Court of Appeals, here is what the Court of Appeals concluded: "For the foregoing reasons, the judgment of the district court is reversed and the case is remanded. Since there are no material questions of fact in dispute, the district court is ordered to grant summary judgment to Heller consistent with the prayer for relief contained in appellants' complaint." Parker v. District of Columbia, 478 F.3d 370, 401 (D.C. Cir. 2007), affirmed sub nom District of Columbia v. Heller, __ U.S. _ (2008).

What, then, did the original summary judgment motion seek? "Appellants, six residents of the District, challenge D.C. Code § 7-2502.02(a)(4), which generally bars the registration of handguns (with an exception for retired D.C. police officers); D.C. Code § 22-4504, which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C. Code § 7-2507.02, requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device." Parker v. District of Columbia, 478 F.3d at 373 (emphasis added).

Consequently, although Heller provides language to support providing Second Amendment rights beyond the home, I think the case only automatically invalidates prosecutions for possessing handguns in one's home, and gives the most immediate ammunition to attack prosecutions for transporting handguns between the gun shop, the home, the repair shop, and the shooting range, when all such activities are for the purpose of having a safely and properly operated handgun in one's home. Jon Katz.

It's my client. I can cry if I want.

nospam@example.com (Jon Katz) — Mon, 30 Jun 2008 00:10:00 -0400

Photo from website of U.S. District Court (W.D. Mi.).

Many trial lawyers do their best to keep a stiff upper lip, to keep their hearts off their sleeves, and certainly to avoid getting misty-eyed in court even if that requires asking for a short recess to come back with dry eyes.

Sure, crying in the courtroom can be risky for a lawyer. By the same token, I agree with Gerry Spence, who says: "Real persons cry...It is all right, indeed, it is imperative, that we be who we are in or out of court." Gerry Spence, Win Your Case at 161.

When a lawyer's tears are genuine -- certainly that can be the case when a death penalty opponent argues in closing to spare his or herr client from execution -- how can a judge order the lawyer not to cry, not to be real?

A prosecutor in Ohio has asked a court to ban defense lawyer tears in the courtroom of a death penalty trial. I certainly disagree with the request, for the above-stated reasons. Moreover, what is good for the goose is good for the gander; if defense lawyers are banned from crying in the courtroom, then the ban should also apply to prosecutors, their witnesses, and murder victims' family members during the sentencing phase of capital cases.

Jon Katz.

ADDENDUM I: Thanks to a fellow listserv member for posting the article on this matter.

ADDENDUM II: The title of this blog entry is inspired by the 1965 Animals song.