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

Hundreds of times I improvised haunting and sometimes sad versions of Gershwin's "Summertime" on the trumpet that for over twenty years has not touched my lips, and now sits in my garage. The song continues moving me as much today as ever.

"Summertime" comes from Gershwin's earth-moving Porgy and Bess, which premiered in 1935 after Gershwin spent several weeks on an island off Charleston, South Carolina, to hear and join in the rhythms of life, music and speaking that he would incorporate into this opera with signature Gershwin music, rather than the typical classical music that ordinarily accompanied operas at the time and usually still does.

First performed during the height of rabid and unabashed racism in the United States, the opera would be overwhelmingly cast with Black actors, as provided by Gershwin's brother Ira, who worked with George as lyricist. Among the many concerned about the opera's portrayal of Black people were Paul Robeson and Duke Ellington. Although the Socialist Worker is not ordinarily my preferred source for reliable information, the paper's likely decidedly anti-racist approach makes it particularly noteworthy that one of its writers wrote in 2005: "Some black artists criticised the work, believing it to portray black communities in too negative a light. Duke Ellington stated 'no Negro could possibly be fooled by Porgy and Bess'. Paul Robeson, who Gershwin asked to play the roll of Porgy, having written the part with his voice in mind, refused the role... In later years however both Ellington and Robeson recorded Gershwin’s music because he had played a role in putting black artists in the mainstream theatres."

A 2006 BBC article says Porgy and Bess "was revived after the war in the United States and attracted performers like Maya Angelou and Todd Duncan.   A filmed version starring Sidney Poitier (after Harry Belafonte turned it down because it demeaned black people) was produced by Samuel Goldwyn in 1959. After that the work encountered the civil rights and black power era." The rest of the brief article is worth a read. In any event, when local public radio covered the opera's current run at the Kennedy Center, I remained curious and concerned about such issues, starting with grammar errors in such song lines as "I loves you Porgy" and "Bess, you is my woman now." 

What prompted me to write today's blog was Gershwin's surprise that he had been able to reach such heights in creating the music to Porgy and Bess. What a wonderful way to exit the planet; he died two years after the opera's premiere.

Similarly, criminal defense lawyers are challenged every day to surmount the often seemingly insurmountable obstacles of reality and would-be reality. How many times do my fellow criminal defense lawyers and I say "Oh sh-t" in the face of apparently insurmountable odds to win a case and, if there is a conviction, to get the most favorable sentence rather than an utterly draconian one? The amazing SunWolf proclaims that "Reality is no obstacle," which at first blush might seem fanciful, but when examined more closely makes perfect sense when considering that many competing would-be realities are usually involved in a criminal case, and jurors and judges have various ways of deciding what is reality and how to handle that reality, sometimes including convicting the utterly innocent and acquitting the clearly guilty. It reminds me of a story from my trial law guru Steve Rench, about a woman he successfully defended in a theft trial. His client was arrested for allegedly pickpocketing a man she danced with in a bar; perhaps the jury got the idea that the would-be victim was there with unwholesome intentions. At one point while the jury was present but the proceedings were on hold, Steve went to a sheriff's deputy and pointed towards his client (held on bond during trial but in civilian clothes) during the conversation. Although his client was caught redhanded, the jury acquitted. Steve later saw one of the jurors at a bus stop, and asked the him if he had any comments about the trial. The juror merely said "Your client is okay," meaning to Steve that the jury disregarded the judges' jury instructions out of a belief that she had served enough time in the pokey while waiting for trial. In Steve's view, jurors are results-oriented, seeking to fix problems, which can put a real damper on the commands of jury instructions.

Again and again, I encounter staff members, clients, and witnesses (even an expert witness recently) who are fearful of doing something because it takes them out of their comfort or experience zone. Sometimes the fear is as basic as fearing to testify for the first time, or, with staffmembers, to tackle an assignment they have never done before. When I believe the person is capable of rising to the occasion, I encourage the person, sometimes by sharing some of my own trepidations along the path, including the fear of doing anything to let a client down and thus causing a conviction or a worse sentence than otherwise; it might be less fearful for me to draft wills and contracts, but certainly less meaningful and fulfilling. I remind them that it is okay to be fearful, but that the fear should not prevent them from proceeding forward. The idea is not to ignore the fear, but to know the fear and to send it on its way, similarly to the t'ai chi posture of embrace tiger/return [the tiger] to mountain.

Ordinarily, a musician or composer might not be seen as having a fearful occupation. Then again, George Gershwin broke radically new ground and entered new frontiers without knowing how audiences and critics would receive Porgy and Bess -- or even how he might rise to the occasion in creating the opera -- when he easily could have rested on the laurels of such preceding masterpieces as "Rhapsody in Blue" and "An American in Paris".

Of course, storytelling is central to persuading jurors and judges. Gershwin was a masterful storyteller, even when only doing it to music, before adding any lyrics. At least with "Rhapsody in Blue", "An American in Paris" and Porgy and Bess, Gershwin's music takes the listener on a storied journey that takes unexpected turns and captures the five senses and deep feelings along the way.

I stopped playing the trumpet that brought forth my versions of "Summertime" in the fall of 1985, when I moved to a shoebox one-room/no-kitchen ten-foot by ten-foot single resident occupancy apartment in Manhattan when working in the belly of the capitalist beast. Rather than scout out a place to play that would not disturb my neighbors where before I would play at my college's music practice rooms and at my parents' home, I stopped playing, and that carried on to law school, even though I probably could have found music practice space at the university; I was not ready to re-learn to get my mouth muscles back to where they were needed to be to play the way I wanted to play.

Not playing a musical instrument has left a creative and musical void in me. It is time to pick the horn back up, regardless of the state of my lip muscles. As a quote on the door of my ethnomusicology professor Jeff Todd Titon said, loosely remembered: "Music does not expect excellence. It welcomes being surprised by it, but does not require it." Consequently, in writing this blog entry, Gershwin has not only continued to inspire me to treat reality as no obstacle in my law practice, but also to open my trumpet case, to see if the valves are not beyond repair to oil them to working function, to vaseline the slides to move them into tuned performance, and to play and play and play, lost in the sheer enjoyment of the music.  Jon Katz.

ADDENDUM:

Here are some additional excellent Gershwin links, in addition to those above, which include YouTube performances of "Summertime", "Rhapsody in Blue", and "An American in Paris":

- Dubose Heyward's Porgy, which led to Gershwin's opera.

- PBS on Porgy and Bess. Be bowled over by Maya Angelou's discussion of the opera and her role as Ruby in a mid-1950's European tour.

- Film excerpt from Porgy and Bess.

- 2006 NPR coverage of the first time Porgy and Bess's premiere version was re-presented.

- Sarah Vaughn singing "Summertime", and Janis Joplin substantially altering it.

- Claude Pierpont on "Why We Still Listen to Gershwin." 

My tireless blogging colleague Scott Greenfield has written repeatedly about (partly) consumer-driven lawyer ranking site AVVO (whose spelling can mistakenly be seen as "awo", depending on how closely one's computer screen places the vees in the word).

Having learned about AVVO from Scott's site, I answered the site's information questionnaire. Eventually, after my questionnaire information and a few client reviews, I was given a ranking of 9.4 out of ten, or "superb". Although I am happy to receive such recognition, the rankings system does not sound scientific.

On July 15, a Maryland Daily Record reporter called me for an article that appeared today, curious about her assertion that "Searching for a Maryland lawyer brings up Katz near the top of the list." If you do not want to be misquoted or distorted out of context, do not speak with a journalist; knowing this frequent risk, I still ordinarily speak freely with journalists about matters not involving my clients, with possibly the most stark example of unprofessional interviewing of me coming form the insensitivity of a reporter (and/or his news organization) engaging in what I thought was sensationalism by telling me on camera rather than off that Deborah Palfrey had killed herself, and then seeking comment -- without ever pausing the camera -- when I had nothing to do with the case.

The reporter's somewhat minor distortion in this AVVO article is in writing that I have "suggested that clients write positive reviews" on AVVO. In reality, I was answering her question about how people ended up writing the handful of AVVO reviews about me, by saying that in the past when clients thanked me deeply for my service, I would offer for them the option of sending me an anonymous testimonial for me to post to our website if they wished, and now add the option to post an AVVO review. The AVVO review is a convenient way for a client to eliminate me as the middleman in getting feedback posted.

In any event, the article confirms that AVVO's name comes from avvocato, which is the Italian word for lawyer. Curiously, whether or not intentionally, the French word for lawyer, avocat, also is the word for avocado, which is one of my favorite foods. Early on when my law partner Jay Marks and I hosted a call-in Spanish radio show "Legally Speaking: Where your cause is our cause" I got the moniker "gato" for cat/Katz, which then led to the less frequent moniker of "abogato", blending abogado for lawyer and gato for cat. The equivalent in Italian would be avvogatto.

Finishing on this tangential discussion of the word lawyer, a very persuasive, dedicated, and intelligent longtime Amnesty International activist who spoke at the invitation of my law school's Amnesty International chapter started out by saying that the law is an ass, because, in his view, it is slow and plodding to achieve beneficial change. He then asked "If the law is an ass, what are lawyers?" I did not get around to asking him if he meant assh--les, but he had me in stitches nevertheless, even though I thought such a view was hyperbole taken from frustration with the legions of lawyers who to this day focus heavily on money and little on fairness and justice. (Only a few years ago, a colleague who includes criminal defense in his practice very seriously asked if I agreed with his view that the law practice is all about making money; I strenuously disagree with him.) My laughter in response to the Amnesty International activist came in the context of  having expected that part of my law studies would involve learning the language of the oppressive enemy, so that I could more successfully battle that enemy.

In any event, AVVO probably presents serious challenges to the once predominant Martindale-Hubbell legal directory, which is driven by rankings purportedly based on peer reviews, and expanded listings arising from payments for the inclusion. (Disclaimer: Our firm pays for such a listing.)Then again, the Internet has created substantial competition throughout the for-profit sector, including shaking the previous predominance of yellow page directories.  Jon Katz

Bill of Rights. (From the public domain.) 

More commonly when I was a public defender lawyer, from time to time I would have clients who were at great risk of being ordered by the judge for a psychological evaluation -- e.g., for being seriously delusional, and, therefore, at risk for being found to be a harm to themselves or others, thus justifying involuntary commitment in a mental institution -- and then being warehoused in a psychiatric hospital through the duration of their case, if not longer.

Some criminal defense lawyers might feel tempted to seek court assistance with such clients by asking for a psychological evaluation or by seeking a finding of not criminally responsible. It is one thing to seek such a path for a first degree murder case, but something quite different to do the same for a misdemeanor charge carrying the risk of much less incarceration time than indefinite incarceration in a mental institution on a finding that the person is a harm to himself or others. In such instances, it is important for the criminal defense lawyer to get the advice of a qualified and independent mental health professional.

Many years ago, a client charged with a misdemeanor was very uncommunicative. When asked a question, he would say something completely unrelated; for instance "One right shoe; one left shoe." His father complained that this happens when he stops taking his psychological medication. A year later, I had him as a client for a new misdemeanor case. He seemed very lucid. When I asked him what caused the change, he said he was back on his medications.

Since when do psychological medications not have significant side effects, whether it be sleeplessness, reduced libido, change in eating patterns, or anything else?

Recently, the Fourth Circuit affirmed a District Court's order that during supervised release a defendant be injected with antipsychotic drugs, after he was forced to take such drugs in prison after he threatened to kill himself and others, and did not voluntarily take his oral anti-psychotic medicines after his initial release. Between his initial release and being ordered to be injected while on supervised release, the defendant "was arrested several weeks [after his release], after he was found wandering aimlessly..." U.S. v. Holman, __ F.3d _ (4th Cir. July 7, 2008).

Holman laid out the Supreme Court's standard as follows for determining when a defendant may be forced to take anti-psychotic drugs:

The Supreme Court has made it clear that under the Due Process
Clauses of the Fifth and Fourteenth Amendments, individuals (including
pre-trial detainees and convicted criminals) have "a constitutionally
protected liberty interest in avoiding involuntary administration
of antipsychotic drugs—an interest that only an essential or overriding
[governmental] interest might overcome." Sell v. United States,
539 U.S. 166, 178-79 (2003) (internal quotation marks omitted); see
also Washington v. Harper, 494 U.S. 210, 221-22 (1990) ("We have
no doubt that . . . respondent possesses a significant liberty interest
in avoiding the unwanted administration of antipsychotic drugs under
the Due Process Clause of the Fourteenth Amendment."). Among the
governmental interests that in a given case may be sufficiently important
to support an order for involuntary medication are the need to
protect the individual and others from the individual’s potentially
dangerous behavior, see Riggins v. Nevada, 504 U.S. 127, 134-35
(1992); Harper, 494 U.S. at 225-26; and the government’s interest in
rendering a criminal defendant competent to stand trial, see Sell, 539
U.S. at 179-80.

U.S. v. Holman, __ F.3d _ (4th Cir. July 7, 2008).

The Fourth Circuit reasoned as follows in affirming the trial court's order for forced injection of anti-psychotic drugs:

The evidence establishing Holman’s dangerousness also establishes
that the district court’s order was narrowly tailored to the circumstances
of this case. As the district court noted, Holman became a
danger to himself and others when he was off his medication, and
injections of long-lasting antipsychotic drugs provide the only means
of insuring that Holman takes his medication. The special condition
of supervised release thus significantly furthers and is clearly necessary
to further the government’s interests in protecting Holman and
the public. See Sell, 539 U.S. at 181 (explaining that an order to involuntarily
medicate an individual must "significantly further" overriding
governmental interests and must be "necessary to further those interests"
and that involuntary medication may be necessary if "any alternative,
less intrusive treatments are unlikely to achieve substantially
the same results").

Holman, __ F.3d _ .

Judges, of course, are not mental health experts, so they rely on mental health professionals in deciding questions of forced drugging and detention for psychological reasons. Trial judges ordinarily have very busy dockets, which probably creates all the more of a tendency for them to place heavy reliance on the opinions of such psychological professionals, even if those opinions are wrong, and even if those opinions are influenced by the professionals' own biases about whether or not the United States is too de-institutionalized when it comes to mentally ill people. (For those born after One Flew Over the Cuckoos Nest's 1962 publication, through the 1960's it was much easier to force people into mental hospitals in the United States. Of course, in the Soviet Union, many dissidents were wrongfully classified as mentally ill and forced to receive harmful psychological medicines.).

Mr. Holman's situation may have been extreme enough for the trial and appellate judges to feel comfortable with okaying his forced anti-psychotic medications. (At the end of his supervised release period, Mr. Holman will not be under court order to receive further forced injections. What happens then?) What happens with defendants whose situations are less extreme? The foregoing caselaw certainly does not solve that problem well enough. Trial judges wield extraordinary power over the matter. Jon Katz

In many ways, judges are antithetical to America's finest democratic ideals. Who else in American government gets cloaked in such enforceable majesty as judges? What other government official walks into and leaves a government chamber with commands to rise from everyone's seats, but ordinarily not rise in reciprocation? What other government official gets called your honor, but responds with "Mr." or "Ms." to the speaker? What other government official can find a person in contempt for disrespecting that official or his or her office, even if the disrespect is expressed in a calm tone of voice? What other government official gets a protected office of power for life at the federal level and for plenty of years in between elections and re-appointments in the states that do not have lifetime judicial seats?

Judges are humans, and humans err. The republic will not collapse if we democratize judges more, even if that is to commence no further than eliminating commanding the audience to rise when the judge enters and leaves the courtroom. I applaud the judges who opt to have the room advised to remain seated, and at least one federal court has a tradition of reciprocating the rising by coming down from the bench after oral argument to shake the hands of the arguing lawyers. I am not ready to say that judges' tenure should be subject to the political winds any more than what already affects such tenure. I am wondering, though, about the extent to which all this majesty with which judges are cloaked is more a holdover from the insufficiently democratic English tradition than an adaptation to the more democratic governing system that purportedly took hold in America despite the inclination of some even to turn General George Washington into a king.

State and federal executive branches further get in on the act of the undemocratic nature of judging, through the administrative law judge system. Just walk into any immigration courtroom, for instance, where you will see administrative law judges cloaked in black robes, looking superficially like real judges, being called "your honor", and being analogized to a "court". Heck, they are not real judges; they are employees picked by the executive branch, never considered or confirmed by the legislative branch, consequently not sufficiently independent from the executive branch, but so often acting in an undemocratic manner. What a sleight of hand to follow a spirited contested election for president, governor or mayor, with the victor or his or her appointees selecting these administrative law judges who are not real judges and who serve in such undemocratic roles. I say to strip administrative law judges of the title of judge, to strip them of their black robes, and to call them what they really are: hearing examiners, hearing board members, adjudicators, tribunal presiders, or anything else other than words that smack of judge, your honor, or court.

Fortunately, many judges are folksy people who care about doing the right thing (as they define the right thing, of course) and who are unmoved by the trappings of the office and are motivated more by the best judicial traditions of Solomon. Fortunately, many judges do not get jaded through day-in and day-out visits to variations on the same often seemingly-whining/complaining themes, while battling often crushing dockets and insufficient resources to justly serve each litigant. Such judges continue to see each litigant as an individual on his or her merits, with real problems riding on the court case, and not as just another drunk driving case; just another divorce case; or just another fender bender. They continue to engage in conversation with laypeople and lawyers, without crossing over the line of ex parte communications and ex parte favoritism. Those are the judges who should be the role model for every new judge and for every judge at risk for being jaded or worse, or who already has crossed that line.

A lawyer I know who seems to be highly respected by judges and who is the age contemporary or older than most of them told me that many judges he knows very much dislike plenty of what they do. It seems that some of them started out with the goal of serving the public, but got jaded. If the jading does not go away, should the judge stay on the bench?

At a trial lawyers seminar several years ago, I got a chance to serve as a mock judge at a mock personal injury jury trial. I was surprised when one of the mock jurors told me afterwards that I would make an excellent non-mock judge. How would I be able to last as a judge without being impeached? Imagine my first bond hearing: Judge Katz: "I see you are charged with burglary after having been convicted of burglary three times already, I am reducing your bond to $5.00." Defendant: "Huh?" Judge Katz: "Okay, fifty cents, then, but not a penny lower." Imagine how I would be at sentencing; criminal defense lawyers would fight each other to be first on the path to my courtroom.

The best judges treat litigants, lawyers, witnesses, jurors and everyone else as if the judges were not wearing black robes in the first place, but who instead feel honored and humbled to have the opportunity to exercise such awesome power and who invest themselves fully to exercising that power fairly, justly, and according to the real meaning of the law. For them, the black robe is not something that elevates them over the courtroom's other visitors, but is a reminder to them of the extraordinary power that they weild. When judges take that approach, I do not get too concerned about their being called "your honor" or "the court" or entering and leaving the court after everyone else is told to rise.

Judges being human, judges wielding extraordinary power, and power being what it is, such horror stories as the following ordeal of Casey Price (see here, too) will continue to happen. The key is to make them as rare an occurrence as possible. In a nutshell, Casey Price proceeded to a jury trial for drunk driving. Judicial blunder number one: As the jury deliberated, the judge was already talking aloud about the type of sentence she might impose in the event of a guilty verdict.

Kudos to Ms. Price for being acquitted by the jury. But wait. The joyous aftermath does not happen for Ms. Price. Instead, in judicial blunder number two the judge orders Ms. Price to be drug tested, rather than releasing her from the courthouse on the spot. Next, a courthouse drug testing office blunder rears its ugly head as Ms. Price gets treated as if she is a criminal rather than as the innocent person the jury declared her to be. 

Some lawyers say wonderful things about this judge. Apparently this judge is mainly experienced with civil cases. If this judge is not removed from the bench, hopefully she will be removed from criminal cases. 

This week, Casey Price filed a criminal complaint against her judge. You heard that right, a criminal complaint, not a civil complaint. If Ms. Casey's complaint were only civil in nature, I would be patting her on the back all the way. However, I am not inclined to cross over from my criminal defense role to encouraging Ms. Price's criminal complaint; I will wait first for her to file a civil complaint.

In any event, an essential element to being a great judge is to follow the golden rule. Respect is a two-way street; no exceptions. Jon Katz.