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 Wednesday, September 24. 2008D.C. Jail is on lockdown status.
(Image from Bureau of Prisons' website).
The District of Columbia jail is one of the most unpleasant of the over twenty or so jails and prisons I have visited. My experience would be a picnic compared to what the inmates must endure.
Thanks to a fellow listerv member for getting the word out that the jail is on lockdown until 6 October, and that all legal visits need to be made through the staff entrance. Jon Katz. Tuesday, September 23. 2008Unreasonable suspicion.
Bill of Rights (From public domain.)
What made me become so skeptical of cops? Certainly, plenty of socializers tried to keep me and my school classmates enamored of cops from the earliest age. I played with cop and fireman toys. I watched Dragnet, Adam-12, Hawaii Five-O, Baretta, Columbo, Police Woman, Kojak, and plenty of other entertaining police shows that shined a favorable light on cops. When, at age five, I passed by a man being led away in handcuffs near the bank, a man nearby counseled me that "crime does not pay." Cops spoke to students for assemblies, and convicts only came to the Scared Straight presentation telling us crime does not pay (but apparently this was an effort to get parole release). Fortunately, I missed the D.A.R.E. program.
Then, I saw Al Pacino in 1973's Serpico, which was based on a true-life New York cop who got shot by his own when he refused to join them in police corruption: being paid off by drug dealers and skimming off the top from seized cash. It all made sense: Cops are mere humans and not superhumans. The buttons proclaiming that my town's "Fairfield Cops are Tops" were propaganda pieces that should instead have proclaimed "Preserve and Protect the Bill of Rights."
Too many jurors, prosecutors, judges, and members of the public at large unfairly cloak cops in shrouds of honesty that they do not deserve. They are mere humans, and most humans lie, and lie again. Certainly, as one cop told me when I complained to the nearby Whole Foods grocery store about why this store had armed cops when the stores in ritzier neighborhoods do not, he would risk taking a bullet meant for me even if I kept my healthfully skeptical view of cops and all people. But that does not make him any more honest than if he would not take that bullet.
Again and again, judges issue search and arrest warrants; and refuse to suppress stops, searches, seizures, and interviews of defendants, without carefully enough considering whether the cops are telling the truth and whether their information is sufficiently reliable or sketchy. Praised be lawyers Andrew Ferguson of the District of Columbia Public Defender Service and Damien Bernache of the Nassau/Suffolk Law Services Committee for their recent article in the American University Law Review entitled: "The 'High-Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis." The title speaks for itself. Thanks to the American University Law Review for publishing an article with this level of pro-Fourth Amendment teeth. Jon Katz Monday, September 22. 2008Defending online copyright infringement.
Computer hard drive. (Image from Pacific Northwest Laboratory's website).
On May 23, 2008, I blogged about bucking the trend of 94% of federal criminal prosecutions resulting in guilty pleas, by proceeding to a jury trial in Alexandria, Virginia, federal court for alleged criminal copyright infringement. Wired's blog -- parroting the assertion of the Recording Industry Association of America's news release -- describes my trial as the first federal trial for online criminal copyright infringement that primarily involved music; that does not mean that others have not entered guilty pleas for such accusations, because they have.
On September 19, 2008, I went to sentencing with my client for this online copyright infringement case. Fortunately, the judge varied substantially below the sentencing guidelines, saying that they are excessive for my client's case, after having addressed such factors as the sentences of co-conspirators that were much lower than my client's sentencing guidelines (of course, those who plead guilty get the opportunity for a lower offense score due to acceptance of responsibility) and the below-guidelines sentence of a federal criminal defendant in another conspiracy case who was sentenced earlier this month for the same type of conspiracy as well as choate online copyright infringement.
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