UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

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.

In Virginia and Washington, D.C., the law says that drivers in those states impliedly consent to have their blood alcohol levels tested if the police have sufficient grounds for seeking such tests.

In that regard, here are important relevant Virginia statutory provisions and appellate opinions:

- In Virginia, "Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense." Va. Code § 18.2-268.2 (A).

- The certificate of analysis for the blood alcohol test is inadmissible if the technician's certification was expired at the time of the analysis. However, that does not automatically prevent an erroneous certificate of analysis admission to rise to the level of harmless error. Brooks v. Newport News,. 224 Va. 311, 315, 295 S.E.2d 801(1982).

- The burden is on the prosecution to prove a defendant was intoxicated while he was operating his truck, not for the defendant to show that Defendant became intoxicated after leaving his or her parked vehicle. Overbee v. Commonwealth, 227 Va. 238, 244, 315 S.E.2d 242 (1984),

- In Virginia, the certificate for breath analysis is inadmissible at trial if the test was performed over three hours from the defendant's previous driving experience.  Overbee v. Commonwealth, Va. Code § 18.2-268.2 (A), 227 Va. 238, 243. Jon Katz.

T'ai chi is about being as still as a mountain and powerful as a rushing river, and not about karate kicks.

Perhaps someone(s) who has had enough of my t'ai chi blogposts is playing a joke on me. Yesterday, June 26, I drove to National Airport in Virginia (I refuse to use the former president's name in the title; it was National Airport long before he took his throne at 1600 Pennsylvania Avenue and installed people who would have had ketchup fulfill one of the vegetable servings in the daily school lunch program. My mission: To pickup a Nipponzan Myohoji nun and another activist arriving from Japan to join the Longest Walkers. Ordinary this mission was not.

The arriving flight was delayed forty minutes, so I decided to do what I often do to kill time in airports (and sometimes while waiting for the subway to return me from court in D.C. to my office), which was to practice t'ai chi. It made all the more sense to do so, because I had not practiced it yet that day, and it is more important to practice for a few minutes every day, than to skip two days and practice a full hour on the third day. Each day of t'ai chi practice is akin to inserting at least one page into an annual book that totals three hundred sixty-five pages by the end of the year.

I found a sparsely traveled section of the arrival area, and did two rounds of the thirty-seven posture t'ai chi chuan yang style short form, as developed by t'ai chi megamaster Cheng Man Ch'ing, and as demonstrated flawlessly here by the Professor.

Perhaps partly because I have a long way to go before doing t'ai chi even one percent as well as Cheng Man Ch'ing, and perhaps just because t'ai chi is very new to many people, I get reactions running from amusement and people lampooning my moves with pages from Karate Kid, to intrigued people -- often children -- who sometimes are willing to try practicing along with me. One day practicing in the beautiful park across from our office, a Chinese woman applauded as I did the t'ai chi form, and then showed me the results of years of her own practice of what looked like something similar to t'ai chi or another form.

Perhaps one of the amused or stunned people contributed to the police coming up to me as follows. After practicing t'ai chi, I go to the men's room, and as I am starting my standing relief, a cop is near the entrance and says, "I want to talk with you when you're done." My initial reaction to myself is "F--kin' cop. Hassling me even as I am going about such private business." Outwardly and then inwardly, though, I return to t'ai chi harmoniousness and balance.

After washing my hands, and leaving the men's room, the cop is standing right outside the exit, and offers his name and his hand to shake. Who in their right mind offers to shake the hand of a stranger who's just left the men's room? Poppy on Seinfeld is but one member of a huge fraternity of men who do not put their hands under the sink before leaving the men's room. The Japanese custom of bowing over handshaking begins sounding highly preferable, unless one has a bad back. Curiously, the other two, and then three, cops watching the potential t'ai chi terrorist do not offer to shake my hand, whether for hygienic, strategic or good-cop/bad-cop purposes.

The following transpires:

Cop: My name is officer H___________________. You match the description of someone reported doing karate kicks. I just want to hear your side of the story. (Pause.) Please stand over here, so you don't block people's way.

JK: The criminal defense lawyer in me says not to answer. My other side says maybe to do so

Cop: It will be best for you to answer.

JK: Am I free to leave (as I fish my business card out of my pocket to try to get him off my back, which sometimes can backfire)?

Cop: No. You're being detained right now. Take your hands out of your pockets. You have a cellphone. (A non sequitur for fellow Zippy the Pinhead fans from a cop decidedly not wearing a muu-muu.)

Cop (continuing): Can I see some I.D.?

JK: No. (Fortunately, Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004), supports no requirement to show cops a photo identification if one is not stopped while driving.)

Cop: No? (Feigning surprise or in actual surprise.)

JK: Here (I hand him my business card that I already had fished out, but was not required to give. Giving a cop one's photo identification makes it easier for the cop to delay the person longer by running an open warrant check and not giving the identification back right away.)

Cop: What is your date of birth?

JK: April 1, 1963. (I give it to him. It is already on our Martindale-Hubbell listing linked to our website listed on our business card).

Cop No. 2 (playing the good cop role): Excuse me sir. Would you mind stepping over here? (Another choreography direction from the cops while I am not free to leave.) All we want to know is what you were doing if you are willing to tell us.

JK: (Do I stay silent, which I tell others to do when they are suspects, or do I wear the hybrid hat of a criminal defense lawyer who stands up to cops all the time for my clients, and someone wanting to be there when my visitors arrive at the gate (how often do cops try to divide and conquer like that?)? It's the Chinese martial art of t'ai chi. I hadn't gotten around to doing it yet today.

Cop No. 2: (Already nodding her head knowingly before I finish talking). I thought so.

JK: Am I free to leave? (One of the Busted video's most essential lines.)

Cop No. 2: Yes.

My visitors arrive four minutes later, before I even have a chance to fish out my welcome sign, a practice that is the stuff of so many comedy scenes.

Less than an hour later, I am in Lafayette Park across the street from the White House with my visitors, who want to chant the Odaimoku prayer for peace, and then include me for continued chanting clockwise around the president's palace. After that, I tell a veteran Lafayette Park peace demonstrator about the foregoing incident, and he seems to be looking at me like I have just fallen off the vegetable truck. I say: "You probably get hassled all the time by the Park Police like that." "All the time," he replies, regretting that this is the case.

What lawful right did cop no. 1 have to tell me I was being detained? None. This was not a valid Terry stop -- Terry v. Ohio, 392 US 1 (1968) -- even though the Terry abortion of justice only requires reasonable suspicion to believe that criminal activity is afoot to briefly detain a suspect to ask questions (which questions need not be answered, aside from questions about identity, as addressed in Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004)). What crime might be afoot? Disorderly conduct (the catchall darling of cops, and a part of the unholy arrest triumvirate of disorderly conduct, assault on a police officer, and resisting arrest)? Hardly, and if my actions might have been reasonably suspected as disorderly, what is the difference whether it was my "forgiven" t'ai chi or possibly unforgiven karate kicks (by the way, t'ai chi only involves one circular kick, and three slow extended kicks, as shown by Cheng Man Ch'ing here)?

Was there reasonable suspicion concerning the Virginia abortion of a law of intoxicated in public, which cops seem to think gives them a freebee to search incident to arrest for such a charge? My last tipple was but a sip many moons ago. 

Do the Airports Authority's regulations claim to permit cops to do Terry stops without satisfying Terry. I doubt it, but plan to check.

Why, then, was I stopped by a cop with three onlooking cops focused on me rather than on less petty suspected crime (perhaps this was my inadvertent gift towards my goal of decriminalizing drugs by taking the cops away from looking out for possible drug dealers)? Was it just to mollify the so-called civilian complainant? Was it an effort to take control of someone not conforming to the usual bored approach to wating in airports? Was it a result of post-September 11 hysteria? Were some of the four cops receiving on the job training? Did it arise from the cops' failure to distinguish between the increase of people's rights as they proceed from awaiting clearance by customs and immigration authorities to going through security for arrival at the airport departing gates to being in the arrival area, as I was? Is it mimicry by cops of District of Columbia mayor Adrian Fenty's unconstitutional criminal checkpoints? Is it because cops do not want to see anybody displaying the hallmarks of lethal force (I have not come anywhere near making my t'ai chi lethal) and martial arts other than themselves? Is it a bunch of cops with too much time on their hands? Is it a bunch of cops out of touch with the truism that the police are a necessary evil that present the real risk of pulling us further into a police state rather than closer in the arms of the many civil libertarian goals championed in the Constitution and Declaration of Independence?

Will I continue practicing t'ai chi in airports, empty subway platforms, outside courts, in parks, and in my own backyard? Absolutely. Join me? Jon Katz.

The International Whaling Commission has been meeting in Chile, where apparently talk is the talk of the day, rather than much action, other than Chile's commendable declaration this week -- apparently a reaffirmation -- that the nation bans whale slaughter.  

Why stop at protecting whales against slaughter? Do people focus so much against whaling in order to prevent the extinction of at-risk whale species? Or, do people also oppose whaling based on whales being so highly intelligent and loveable? If the latter holds true, why draw the line at whales? Intelligence is witnessed in many other mammals, too, including the dolphins that get caught up fatally in tuna-catching nets. Why draw the line at mammals, then? Do birds not display high intelligence, for instance in finding their way to a specific warm location in the winter, and back to a specific location in the summer? Why draw the line at birds? Do fish not share many of the same qualities as humans? They have hearts, livers, kidneys, brains, and gonads. Is it okay, then, to eat shellfish, which do not flap around in desperation when removed from the water? The typical way to cook lobsters and crabs is to burn them alive; what did they do to deserve that?  

Many anti-vegetarians then ask: Why draw the line at land and sea animals? Why not just stop eating all plants and animals, thus leaving nothing else to eat? Few people are going to allow themselves to die for such a theory. Of course, I recognize that even if it is assumed that plants feel no pain nor awareness at being alive and being killed, insects are killed in the process of raising and harvesting plant food, and, as a vegetarian, I do not believe in eating insects, either. My best answer, then, is for food consumption to be focused on a harm reduction approach, so as to reduce the harm not only to the living things being killed for human food consumption, but also to reduce mistreatment of workers who ultimately bring food to the market, to reduce environmental degradation from food production (including fecal waste and methane/flatus pollution from livestock), to reduce the harm caused by pesticides and chemical fertilizers and genetic plant modification, and to reverse the elimination of  animal habitats that result from making way for livestock and growing fields. 

Protecting whales, then, is but an important start on the road to giving more protection to all land, air and water animals.

Justifiably, much has been said and written about the possibility of no painless method for executing humans, let alone the mental torture involved in awaiting an inevitable execution. Why stop there? Why think for a moment that a dinner of animals is not the product of suffering during the animal's short life, suffering while seeing and feeling and hearing fellow animals being slaughtered, and knowing that this will be the witnessing animal's fate in just a few moments, and suffering at the moment of slaughter?

I ask a favor to all meat eaters: Before you eat your next piece of meat, poultry or fish, please give a name to the animal from which this flesh came, whether it be Bob, Carole, Ted, Alice or anyone else. If you are eating a hamburger, sausage, or hot dog, it may be a good idea to give the meat several names, as hamburgers and sausages are a convenient way for the meat industry to gather up the scraps from the meatcutting machines. The more we give a name, face, heart, and soul to the humans and non-human animals upon whom we cause suffering, I am convinced we will reduce the suffering. Jon Katz.

ADDENDUM I: Back to whales, yesterday's Australian newspaper reports that "Japan says it is misunderstood, denies the 1000 whales it hunts each year for scientific purposes despite a 1986 moratorium are making it to the dinner table, and says it is also in favour of conservation." Either that is an untruth, or else the Japanese fish markets are obtaining whales for food some other way. As I wrote last January: