Monday, October 6. 2008Mu: The power of nothingness. 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 brought 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", 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 wtih birth, sickness, old age and death? (See this essay on the person apparently instrumental in driving the foregoing updated 1971 translation of the threefold Lotus Sutra.)
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 Sunday, October 5. 2008Rock Lobster
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 Friday, October 3. 2008Poll the jury. Photo from website of U.S. District Court (W.D. Mi.).
Before going to trial with or without a jury, it is critical to have a good trial checklist. For jury trials, a critical part of that checklist is to have the jury polled in the event of an adverse jury verdict. Every criminal defendant has the right to require that s/he not be convicted unless his or her request is fulfilled to have each juror asked if the foreperson's verdict is the individual juror's verdict. See, e.g., Maloney v. Maryland, 17 Md. App. 609, 304 A.2d 260 (1973).
Last year, fellow Trial Lawyers College attendee Mark Bennett wrote of a mistrial that would have been missed without a polled jury: "This morning the Houston Chronicle had an article about a health care fraud jury trial in federal court in which, when the jury came back with a guilty verdict, defense lawyer Joel Androphy ... asked that the jury be polled. Judge Werlein polled the jury, and one woman said, 'That’s not my verdict.' Joel moved for a mistrial, which was granted. The accused will get another trial — not right away, probably, but, as Percy Foreman used to say, a continuance is as good as an acquittal, for as long as it lasts."
Commenting on Mark's posting, another fellow Trial Lawyers College attendee, David Tarrell, added this mini-victory from a jury polling: "[T]he lawyer asked for it, a juror hesitated and then said 'No, that’s not my verdict.' The defendant, who was obviously not cuffed during the trial, was now in handcuffs awaiting the verdict. The judge then sent the jury back and when they came back out, their verdict was unanimous to convict. The defense lawyer’s motion for a mistrial was overruled by the judge, but it was a 'slam dunk' on appeal, given the juror’s hesitation and the fact that she changed her mind only upon seeing the man cuffed between 2 deputies. It’s a lesson I’ll never forget, but I don’t think it’s requested often enough."
Why would a lawyer not have a jury polled in a criminal case? Yesterday, Maryland's intermediate appellate court affirmed a conviction where the defendant alleged inconsistent jury verdicts (the Court of Special Appeals found no inconsistency) where he was convicted of child abuse but acquitted on assault and fourth degree sex offense counts. At least from the way the appellate court recounts the entry of the jury verdict, no jury polling was requested (although the Deputy Clerk continued the practice of inserting archaic language into the proceeding: "Ladies and Gentlemen of the Jury, harken to your verdict as the Court hath recordeth it. Your Foreman sayeth..".): Continue reading "Poll the jury."Thursday, October 2. 2008"I want to refer to non-Latino Spanish-speaking lawyers."
Reality so often is more pathetic than fiction.
Yesterday, I was talking with a woman on the way down the courthouse elevator. She works in the courthouse, and we spoke in Spanish, her native tongue; I do not have as much of a throughout-the-day chance to speak Spanish now that I am no longer with my former law partner, whose Spanish is impeccable and whose practice heavily involves the language.
This woman said she was happy to meet an additional Spanish-speaking lawyer (my Spanish is intermediate, bolstered by a quarter century of practice), because some people sometimes ask her for names of such lawyers. Then came the often uncomfortable question: 'Where are you from?" Some just want to know where I grew up. Others actually want to know my ethnic and/or religious background. Once when asked that question, the follow-up was: "Are you American or Jewish?" as if the two are mutually exclusive. The questioner had sold me a bottle of water at a New Orleans airport newsstand, pre-Katrina, and I stormed out labeling her out load "Stupid! Stupid!", which was hardly in sync with my goal of a t'ai chi life twenty-four hours a day.
To this woman on the elevator, I answered "Connecticut, and now in the Washington area a long time." She replied: "So, you are not born abroad?" JK: "That's right." She responded: "Good. I don't want to refer people to lawyers from Latin America [yet she was born a Spanish speaker]. They take advantage of their own." JK: "I've heard enough. Your words make no sense. Have a nice day." (Moreover, who can speak Spanish better than a native-born Spanish speaker?)
Sadly, bigotry remains alive and thriving among too many people, even sometimes by people against their own ethnic group. Perhaps more sadly, too many people do not stand up to such attitudes.
What to do about it? When many years ago I complained to a very selfless and capable public interest lawyer/leader/giant about ongoing rampant bigotry, he replied: "That is why we pursue housing discrimination and employment discrimination lawsuits." However, successful discrimination lawsuits alone will not solve the problem. People who express bigoted attitudes need to be addressed one-by-one, if they have the capacity to listen to reasoning.
Addressing bigots can make waves. Make waves if that is the only way to address them. Do not just sit safely in the middle of a boat hoping it does not rock, only to hit a huge rock that tears apart your boat and sinks it anyway.
How do you handle such situations? Jon Katz. Wednesday, October 1. 2008The dragnet of drug arrests. DEA image in the public domain.
In college, on-campus drug use -- and sometimes drug sales, apparently -- ran rampant. I would sometimes be right in the room or in the dorm hallway as others smoked pot or, in one instance, snorted cocaine. If I did not want to be a hermit, it was hard to avoid being with people who smoked pot; this was the early Eighties, and both pot and beer were very popular (and also unlawful for those under twenty-one to purchase). This also having been the Eighties, for small quantities of drugs, drug enforcement, criminal penalties, and collateral consequences were less harsh.
Welcome to 2008, where few politicians and prosecutors have enough backbone to support legalizing marijuana, heavily decriminalizing all other drugs, and reducing the penalties for drugs, except that I credit those lawmakers and prosecutors who are at least willing to put some first-time drug cases (I only know of marijuana cases) into diversion to give a chance to avoid convictions, and to enable no convictions or less serious convictions for people who use marijuana for medical necessity.
Back to my college experience being around people smoking marijuana, By merely being next to these people -- not even touching nor ingesting the substances -- I was risking arrest, prosecution, and possible conviction, because a drug possession conviction requires nothing more than proof beyond a reasonable doubt that the defendant possessed (defined as knowledge, dominion and control over the drugs) drugs (the prosecutor has the burden to prove the substance was the alleged controlled dangerous substance, ordinarily by bringing in the chemist if any drugs are left and seized). I could have testified until I was blue in the face that I had nothing to do with the drugs, but if I was not believed by the judge or jury, I would have been convicted.
Fortunately, neither I nor the others around me were busted for drug possession. So-called controlled dangerous substances remain illegal, often with harsh penalties and tough collateral consequences for convictions, including risks to student financial aid, government security clearances, and risks to immigration status. If anyone needs a reminder about the risks of being a bystander when drugs are possessed, used or sold, just read this September 9, 2008, opinion from Virginia's Court of Appeals finding sufficient evidence to convict a woman for possessing methamphetamines and marijuana with the intent to distribute by having been present in the house where her fiance sold the items. Dunn v. Virginia, __ Va. App. _ (Sept. 9, 2008). The evidence may have been sufficient to prosecute Ms. Dunn for simple possession of the substances -- including where a small amount of methamphetamines was found in her jewelry or personal bag -- but the concept of allowing a conviction for intent to distribute just because she knows her fiance is distributing should be a sobering wake-up call to otherwise innocent people who hang around with people possessing or distributing drugs. Curiously, after a three-judge Virginia Court of Appeals panel ruled in Ms. Dunn's favor (by as little as a 2-1 vote), only one judge dissented in this en banc opinion. Query: What made the remaining judge(s) in Ms. Dunn's favor change their minds?
It will be a boring world if people choose to avoid arrests by only associating with people as bland as Neil Sedaka, Lawrence Welk, and Pat Sajak hosting Wheel of Fortune. That may be enough of a good reason for legalizing marijuana and heavily decriminalizing all other drugs. Jon Katz. Tuesday, September 30. 2008We are closed today, for the Jewish New Year.
Today is the Jewish New Year/Rosh Hashanah 5769, which I celebrate every year. Therefore, our law firm will be closed today, and will reopen on October 1, 2008, to serve you.
L'shana tova/happy new year. Jon Katz. Monday, September 29. 2008Herman Lee Taylor, Jr.: Meet Kumar Barve and Davis Ruark. Photo from website of U.S. District Court (W.D. Mi.).
The nation's drunk driving laws became out of whack by the time the states succumbed many years ago to federal legislation requiring drunk driving convictions for driving with a blood alcohol level of 0.08 or higher, under the penalty of losing valuable federal state highway funding. For one thing, such a per se guilty rule makes a mockery of the criminal law by failing to recognize that plenty of people can drive just fine at that blood alcohol level, and that plenty of people will not even recognize that they are over such a limit, because it is too low. For another thing, breath tests for blood alcohol content -- which tend to be cops' preferred testing methods because they are quicker, cheaper and less cumbersome than drawing blood, at least at the front end for cops -- are fraught with error based on such problems as machinery problems, errors by the people administering the tests, and fluctuations in the mouth temperature of the testing subjects, which temperature is often not measured by the people administering the tests.
Moreover, the drunk driving laws -- at least in the jurisdictions where I practice law -- are draconian for those who assert what I consider to be their Constitutional right to refuse breath or blood tests. (See here, too.). Continuing the injustice of the nation's drunk driving prosecution regime, without breath or blood test results, prosecutors rely heavily on the junk science of field sobriety tests.
Enough is enough. Let us go beyond Howard Beale (who advises to shout out your window "I'm as mad as hell, and I'm not going to take this anymore") and insist directly to our federal and state legislators and executives that they overturn the 0,08 drunk driving per se rule, eliminate the draconian penalties for refusing breath and blood tests in suspected drunk and drugged driving cases, and strengthen evidentiary rules against unreliable breath test, blood test, and field sobriety testing evidence. Let us also insist directly to our prosecutors to stop supporting such a draconian drunk driving regime.
In the meantime, what is good for the goose is good for the gander. If otherwise law-abiding people are going to get unfairly dragnetted into the drunk driving laws, let government officials responsible for passing and administering such laws get a taste of their own unjust medicine. Without that, we may see no positive reform of such laws.
In that regard, last May 2008, Maryland Delegate Herman L. Taylor, Jr., was arrested for driving under the influence of alcohol, and goes to trial on October 24, 2008, in Montgomery County, Maryland, District Court. (Thanks to Nobody's Business for blogging on this case.) According to the Washington Post, the police report in the case claims Mr. Taylor was found sleeping in his car with the engine running, that the "officer smelled alcohol and noted that Taylor was confused and disoriented and that his eyes 'were very red and watery.'" The police report also claims that Mr. Taylor displayed poor performance with field sobriety testing, which he ultimately refused to continue (which is his right). The Washington Post also reports that the police report says that after Mr. Taylor agreed to take a breath test for alcohol, he provided an insufficient breath sample which the police deemed a refusal, when in reality numerous innocent factors can cause someone to provide an insufficient breath sample, including the fatigue that Mr. Taylor's lawyer claims he was experiencing.
Ironically, or fittingly, Mr. Taylor is getting a taste of his own medicine, having sponsored a bill in 2006 to require a scarlet letter license plate emblazoned with "DUI" for those with over two drunk driving convictions. To my knowledge, the bill did not become law.
Mr. Taylor's drunk driving prosecution follows on the heels of this year's drunk driving prosecution, guilty plea and probation before judgment of Wicomico County, Maryland, chief prosecutor Davis Ruark and last July's drunk driving guilty plea and probation before judgment of Maryland house majority leader Kumar P. Barve in Montgomery County. As I said about Davis Ruark's case, hopefully Mr. Taylor's and Mr. Barve's ordeals with the police and in the criminal court system will make them more empathetic to the plight of everyone else facing such ordeals. Jon Katz Sunday, September 28. 2008David Wasserman leaves the planet
Sadly, David Wasserman died last Thursday.
Nine years ago, I was further exploring how to get paying, versus only pro bono, clients for First Amendment defense both for criminal and civil cases. This goal fit squarely with my obsession over and passionate work on free speech issues with Amnesty International in college and law school, and my service on the board of the local American Civil Liberties Union a few years before. I recognized that adult entertainment and libel defense were the key avenues to such paying clients.
On the adult entertainment front, I joined and became very active with the Free Speech Coalition, soon thereafter attended a conference of the Association of Club Executives, and later the same year spoke in favor of robust First Amendment protection before a federally-created committee that should never have existed, concerning obscenity laws.
Through the foregoing activities, I met fellow First Amendment lawyer David Wasserman. David believed, as I believe, in helping others rise as we rise. Already a very accomplished First Amendment advocate, David sponsored my application for membership in the First Amendment Lawyers Association. One year after meeting me, David took the time to co-counsel with and teach me in drafting and filing an amicus brief whose contents were referenced extensively in the Maryland Court of Appeals' overturning of Howard County's adult zoning ordinance. Pack Shack v. Howard County, Maryland, 377 Md. 55, 832 A.2d 170 (2003).
In the same year that Howard County's adult zoning ordinance was overturned, David was arrested for growing marijuana at his home, when marijuana should be legalized in the first place. In 2004, with his law license suspended in relation to his marijuana conviction, David turned his attention to such pursuits as opening an adult video and lingerie store, and later running and owing an adult cabaret/strip club.
In late 2007 -- while embroiled in conflict with the local government and his landlord over keeping his cabaret operating -- David was shot in the chest as he returned home with the night's cabaret receipts. Last month, David filed a federal lawsuit against the local government, which describes the shooting as follows: David Wasserman "was robbed and then shot in the chest at point-blank range as he returned home late at night on or about December 9, 2007. He was hospitalized for some time and then convalesced at home for a short time after that. The robber asked for deposits for the club and when Plaintiff’s president said he would cooperate if the robber didn’t hurt him, the robber told him it didn’t matter because he was going to kill him. The robber immediately shot Plaintiff’s president; the bullet grazed his heart, aorta and esophagus and exited his body through his liver."
As Adult Video News online recounts, David said the bullet "'grazed my heart, it grazed my aorta, it grazed my liver and it grazed my esophagus, and it came out and didn't do any damage at all.'" David said that the shooter "'stepped out of the shadows, put a 9mm to my chest, pulled the trigger and said, "I'm gonna kill you." I continued to struggle with him, and he asked where the deposits were, so I knew it was not just a robbery; it was a set-up from the club. I told him the deposits were in the trunk and let me bend over and press the button so he can get in, and he did, and as soon as he walked around to the trunk, I laid on the horn and having just had a gunshot fired and the horn honking, I'm sure he got worried about the noise and stuff, and he took off running without the deposits.'" (As an aside, in recounting the incident, David mentioned the race of his killer; doing so served no purpose, and I disagree with his having done so.) Last April, David talked with Adult Video News online about a then-recent police raid on his club.
Pictured here, David practiced shaolin kung fu. Whether or not this helped him the night he was shot, that was quick thinking to find a way to divert the shooter's attention and to blast his car's horn to get the shooter to run away.
Ironically, after saving his own life last December, last Thursday, David took his own life. As the Orlando Sentinel tells it, David was battling depression for a long time, and previously told of having attempted to kill himself. Adult Video News online provides further details on David's passing.
My brother lawyer Marc Randazza knew David, and gives his own take on David's life and passing here, including Marc's ultimately avoiding David in the interest of associating with happy and fortunate people. As explained below, the thought of avoiding David would not have crossed my mind, particularly when considering how much David helped me. Just as a lawyer needs not be sucked into his or her clients' deep problems, a person does not need to be sucked into a colleague's problems even when lending a helping hand when one is needed.
It goes without saying that I will miss David. The sad story of the ending of his life is a critical reminder to reach out to those around us who are depressed or in other psychological distress, when the help is wanted. Many sister and brother criminal defense lawyers, among many others, struggle with depression. Some people may be reluctant to reach out in order later to avoid feeling like a failure if the person still commits suicide. However, there is no reason to feel like a failure if the reaching out is to lend an empathetic ear and tongue.
Thanks, David, for you. Jon Katz. Friday, September 26. 2008Flatulent defendant; albatross of domestic military patrols
Bill of Rights (From public domain.)
Today I argued a felony criminal appeal before the Fourth Circuit in Richmond, Virginia where I stayed overnight, so today's blog entry is brief, but very important.
As George Carlin said on his Occupation: Fool album from the early 1970's, "farts are fun". That is to say, when they are your own farts. Ever since becoming a father two and one-half years ago, the words fart, poop and booger flow freely from my tongue. It is one of the many pleasures of having children.
In any event, a West Virginia cop purportedly refused to let a drunk driving suspect use the bathroom, which apparently led to the the expulsion of methane/flatus. The cop claims the suspect fanned the flatulent fumes towards the cop, and claims that to be assault. Curiously, of course, one apparently would have to be very talented to successfully re-direct flatus odor by merely using one's hand to do the fanning. Kudos to the Kanawha County prosecutor's office for deciding to pass on the gas-passing assault charge, although the drunk driving charge remains. Thanks to Jonathan Turley for reporting on this (where does he find all these bizarre stories?).
Meanwhile, I would almost prefer to suffer through the above-described suspect's flatus for a few seconds than to have the albatross of domestic Army patrols, compliments of lame duck George Bush, II. (Thanks to a fellow listserv member for posting on this.) Would McCain or Obama do any differently? Jon Katz. Thursday, September 25. 2008Do you order from my client's restaurant menu, too?
- "I don't care what the contract says, it's my money that paid for your work and I am going to know from you what's going on in the case." - "He's my family. Blood is thicker than water, and I'm going to be involved in your discussions with my brother." - "My son has the mentality of a grade schooler. I know what is best for him."
What criminal defense lawyer can avoid clients' overbearing family members? Sure, I can refuse the potential client's case at the outset -- and have -- if someone else is paying for my services and if that someone else seems like s/he will blatantly disregard my standard contractual provision that says the non-client paying party has no rights under the retainer agreement and case any more than if s/he had paid anonymously. What happens, though, if such handwriting only appears on the wall in the very middle of the case? What happens if the client will not stand up to the overbearing relative or friend?
I love my work. However, if asked what most annoys me about my work, it often is overbearing friends and family members of my clients. Certainly, criminal clients and their close ones often are worried about their cases, and clients sometimes feel more comfortable including them in discussions (good luck explaining how such discussions can lose attorney-client privilege protection when third parties are present). However, so long as the lawyer is doing a good job, what justifies perverting concern into being outright overbearing and abrasive?
How to handle such problems? One approach is to use "I" statements, rather than "you" statements, for instance:
- "Mr. ________; I will be delighted to defend you were it not my concern for your brother who's paying your bills. I need to be effective for your case, and your brother is already laying unnecessary obstacles in the way to effectively defending you" v. "You spineless wimp. Why can't you stand up to your family. Maybe if you had stood up to the cops the night of your arrest and remained silent, you would not have this criminal case against you in the first place?"
- "I need my evening family weekend time to be refreshed to do battle for the client" v. "You are are so selfish. What nerve you have to call my cellphone repeatedly late Saturday night, insisting that I should not wait until Monday to set the prosecutor straight through reciting the Magna Carta verbatim?"
- I understand your frustration that I am holding private conversations with your brother on this, his court date. I am sure we will have some additional breaks where you will also be involved" v. "You WILL get out of my way now, and you WILL exercise at least a sliver of self control."
- "You have the right to vent. The question is, though, whom to vent to, how politely to vent, and how long and intensively to vent. I already agree with points A, C, and D about your child's case, so might we move forward?" v. "You want to vent? Go find a psychologist to do that, while I do the real lifting in your relative's case."
- "In all seriousness, [client's parent], I am not sure I am willing to take your son's new case. Just last month your spouse was monologuing on and on and on about nothing, to me, about this case" v. "How do you put up with such a selfish f--k of a spouse? He seems to have a mouth but no ears." Response from the parent to my "I" statement: "My spouse is ADHD; that's why he talks on and on."
- "I am not so sure I want to take your son's new case." Parent: "Why?" JK: "You repeatedly drone on and on when you call me, without even asking if I have been interrupted" [Note: I take the case and the parent is no obstacle, after the parent explains that such droning is ingrained in him since elementary school] v. "The nerve of you to come back to me after all your abuse I deflected from you on the last case."
I can count on one hand the number of potential clients I have refused to sign up due to ominous handwriting on the wall of irreconcileable differences with client's family members plus a client who does not seem likely to put his foot down. Some honest "I" statements and reasonable reassurances about the lawyer's time to talk with the family member and to prepare the case defense, sometimes can make the whole problem go away. Also, some inward- and soul- searching and reflection can help the lawyer learn how much of such exasperation is internally-rooted rather than externally exacerbated.
What do you do in such situations? Jon Katz |
