UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

Halloween treats came before sundown today with the following favorable criminal rulings from Virginia's Supreme Court, which issues opinions around every six weeks:

- Virginia's Supreme Court reversed a rape conviction where not more than a scintilla of evidence supported a jury instruction that the jury could consider the defendant's departure from the alleged victim's home, where Defendant claimed consensual sexual activity and where the evidence showed the Defendant's departure complied with the complainant's telling him to leave. A retrial is required, because the erroneous jury instruction was not harmless error: "'[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand.' Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731 (2001) (omissions in original) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946))..."  Turman v. Virginia.

 - When cops ask if any drugs, weapons, guns, or nuclear devices are in the car, stay silent, or else ask if you are free to leave. If you do not follow that admonition, pursue a Miranda challenge. Here, Defendant Hasan drove a car matching a robbery lookout. In 2005 in Dixon, the Virginia Supreme Court said that handcuffing by itself does not automatically require Miranda warnings, nor does placing the suspect in a police car without anything more. In Mr. Hasan's case, the Supreme Court confirmed: "However, several factors not present in Dixon distinguish this case. For example, the defendant in Dixon did not face drawn weapons or a readily available K-9 unit, and at the time of the custodial interrogation, only one trooper was interacting with the defendant. See id. at 37-38, 613 S.E.2d at 399-400. In contrast, Hasan was confronted during questioning with both drawn guns and a K-9 unit close by, and was surrounded by a 'cone' consisting of multiple officers." With the foregoing factors present, Mr. Hasan confirmed the presence of a handgun in his car. The Virginia Supreme Court granted Mr. Hasan a retrial, where he had entered a guilty plea conditioned on his right to a retrial upon beating his suppression issue on appeal. Hasan v. Virginia.

- Mere presence in a drug-filled house does not automatically make one guilty of being a principal in the second degree. However, if the house is raided, you are likely to be dragnetted with everyone else, only possibly to benefit from the relief of this Brickhouse decision if the jury acquits you, but you may end up pleading guilty in advance to hedge  your bets, as so many innocent people do. Brickhouse v. Virginia.

- Judges cannot in 2006 interpret their words from 2005 any more harshly than they did in 2005. Consequently, probationer Valerie White's first-time drug offender disposition could not be revoked where her alleged violation of the general good behavior probation condition succeeded the time period that the judge had originally set for being of general good behavior, and where the judge never said otherwise on the record. White v. Virginia.

- You must remember this: A peeling inspection sticker without more is just a peeling inspection sticker. Thus, the traffic stop of Matthew Moore was unconstitutional, as was, by extension, the search that found drugs and a handgun in the car. Congratulations, Mr. Moore. Moore v. Virginia.

- Tipping the scales against an anonymous tipper.

The Virginia Supreme Court overturned the stop of Joseph Harris's car --which led to a drunk driving conviction -- on an anonymous tip, for the following primary grounds:

"In this case, the anonymous tip included the following information: Joseph Harris, described as wearing a striped shirt, was intoxicated and driving a green Altima with a partial license plate number of 'Y8066,' southward in the 3400 block of Meadowbridge Road. The informant in this case was not known to the police nor did he or she personally appear before a police officer. Thus, the informant was not subjecting himself or herself to possible arrest if the information provided to the dispatcher proved false. See Code § 18.2-461. In other words, the informant was not placing his or her credibility at risk and could 'lie with impunity.' J.L., 529 U.S. at 275 (Kennedy, J., concurring). The informant provided information available to any observer, whether a concerned citizen, prankster, or someone with a grudge against Harris. See Jackson, 267 Va. at 679, 594 S.E.2d at 602. The tip received by Officer Picard failed to include predictions about Harris' future behavior. Thus, the anonymous tip, in this case, lacked sufficient information to demonstrate the informant's credibility and basis of knowledge. Such an anonymous tip cannot, of itself, establish the requisite quantum of suspicion for an investigative stop.

"When viewed in the context of the anonymous tip, Harris’ act of slowing his car at an intersection, or of slowing before stopping at a red traffic signal, did not indicate that he was involved in the criminal act of operating a motor vehicle under the influence of alcohol. Driving to the side of the road and stopping may be subjectively viewed as unusual, but that conduct was insufficient to corroborate the criminal activity alleged in the anonymous tip. See Barrett, 250 Va. at 248, 462 S.E.2d at 112. Therefore, we hold that Officer Picard’s observations, when considered together with the anonymous tip, were not sufficient to create a reasonable suspicion of criminal activity, and that, therefore, Harris was stopped in violation of his rights under the Fourth Amendment. Thus, the circuit court erred in denying Harris’ motion to suppress." Harris v. Virginia.

Thanks to the Virginia Supreme Court justices who voted with the majorities in the foregoing decisions from today.

In 1981, I started college a few miles outside of Boston. I very much enjoyed the subway system. Barely two stations were designed alike. Some stations had elevated platforms to get on the trains, and at least one other station had the opposite engineering. Some stretches of tracks went underground, and others aboveground. I always got a kick out of reading some of the station names, including Alewife, Mattapan, and Shawmut.

In 1985, I started a year of work in the belly of the capitalist beast. It was the first time in my life that I daily rubbed elbows with as vast a cross section of people, most of them running from fascinating to interesting on lesser levels. Fed up with over two months of train commuting from what seemed like my middle-of-nowhere hometown, I signed a lease for a shoebox single residence occupancy apartment at the corner of Lexington and 23rd Street. I think Paul Schaeffer lived there, or at least I saw he found an opportunity early one Saturday evening to eat a slice of cheesy pizza at Zips's on the ground floor of my eventual apartment building.

After signing my lease -- wondering why I had just agreed to pay over $500 for the privilege of having my knees almost touch the wall when sitting on the toilet in a kitchenless tiny dormsize apartment -- I went to catch a subway train uptown. A man calmly walked onto the tracks, and calmly waited for the next train to arrive, facing his impending suicide. I freaked. I told the tokenbooth clerk what was happening, and she barely acknowledged me, as if I had just escaped from one of Bellevue Hospital's padded rooms. I bolted out of the station, selfishly trying to avoid hearing this man's screams, feeling powerless to convince him to leave the rails. I saw a nearby cop car -- before I had become so cynical of cops -- and told them. They also looked at me like I was nuts, perhaps nuts that I cared enough to tell them, or nuts to think I could change anything, or nuts that I had not just minded my own business and stayed there to be in the midst of a man flattened out by a subway train. After a business trip took me away from the neighborhood for six weeks, I returned and asked a different tokenbooth clerk what happened to the man. She said he was taken to a hospital's psychiatric ward; or was that a subsequent man who had descended to the rails to await a gruesome death?

Seven months later, I was returning to my apartment during rush hour. Two or three people jammed themselves onto the subway car with a full-sized couch. That was preferable to what came two months thereafter, when my friend and I ran to the next subway car, after we realized that the reeking odor overcoming us was vomit saturating a standing rider's beard. Sophomorically insensitive, we laughed our heads off about it after our escape.

Then I came to Washington, D.C. in 1986 for law school. The subway cars were free of graffiti, had nobody standing by the door drenched in puke, and had nobody shoving large furniture items onto the subway, which would have been caught by the stationmanagers in the first place. Each subway station and subway car looked pretty much immaculately the same as the next one. Each underground stop choked its visitors in huge slabs of curved concrete. Whatever Washington's subway system's planners had in mind, the system then, as now, reflected the excessive facelessness and heartlessness of the surrounding overgrown government bureaucracy.

In October 1999 I was hopping on the subway in the shadow of the World Trade Center. Two years later, murderers decimated the towers. Earlier that year I met with a prosecutor in the Pentagon to review discovery pending a trial date; to this day, I do not know if the murderous September 11 plane hit that part of the Pentagon.

On my first post-September 11 trip to Manhattan, Grand Central Station had been transformed into a police state, with cops carrying the same sort of scary submachine guns that I thought were reserved for such other places as Singapore's Changi airport under that city-state's tyrannical government. Then, the New York City government added random searches of subway users. The Boston subway and bus lines did the same, at least during the 2004 Democratic national convention. Apparently not wanting to be on the sidelines, the Washington Area Metropolitan Transit Authority has gotten in on the act, not only on the subway line, but on busses, too. Such intrusions make the puke smell on a New York subway car in 1986 and the urine stench in a Boston subway walkway in 1983 seem like childsplay.

And what about my two-year-old boy, who loves the subway and all other trains, and who darts towards the nearest subway elevator and escalator to take a ride? What kind of lesson to him is the garrison state that the subway system has become, other than a lesson of fear? How can I expect not to upset him tremendously if I explain that if we do not exercise our right to privacy we will lose it, and then refuse to enter the subway system? Were mine a life lived alone, it would be very easy to avoid the subway and buses. Many will find little financial choice to avoid the Metro system, considering how much less expensive it is to ride Metro than to own or drive a car.

What nerve does the WMATA have to impose such a drastic change as random subway and bus searches, apparently with no notice or comment period for the public to put in its two cents in advance? Now that the public knows of this privacy-violating development, who will stand up against it?

Thanks certainly go to my friends at Flex Your Rights -- the producers of the Busted video visually linked to every page of this blog -- who yesterday afternoon were involved in pursuing a demonstration in Dupont Circle against the random searches (see the flyers they ask people to help hand out concerning the searches). Thanks also to Flex Your Rights for posting a webpage on your rights in refusing D.C. Metro random searches, which looks right on target, except that as to FYR's recommendation about not giving one's name or identity to the cops, the Supreme Court's Hiibel case makes clear the Catch-22 of refusing at least to give the cops one's name, in the event a court later determines the cops had reasonable suspicion to suspect the person was committing a crime. However, one would hope that no court will find the existence of reasonable police suspicion when the person merely leaves to avoid a random subway or bus search.

My search of Metro's website and Google indicates that Metro never instituted a public notice and comment period before announcing the random search program. That is foul in a society that purportedly has government governing at the consent of the governed, and where Congress, federal agencies, and the states where Metro runs (D.C., Maryland and Virginia) ordinarily provide the public notice and comment opportunities for proposed legislation. Billions of tax dollars get poured into the Metro system. Why should my tax dollars go into a system that blatantly violates the Fourth Amendment and privacy with random searches?

Metro's website has an overly brief FAQ page (and just about nothing else on its website) about the random search approach, which claims the program is Constitutional based on the Second Circuit's denial in MacWade v. Kelly, 460 F.3d 260 (2006), of a challenge to the New York City subway's random search program and an unreported ruling from the U.S. District Court in Massachusetts, on a challenge to Boston's subway and bus search program during the 2004 Democratic presidential convention (did the bad karma of the failure of John Kerry and his campaign to stand up against such searches feed into his electoral loss?). American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth., 2004 U.S. Dist. LEXIS 14345 (D. Mass. July 28, 2004) (unreported). However, the foregoing rulings are from outside jurisdictions, and are therefore not controlling on the courts where the D.C.-area Metro runs. Finally, the D.C.-area Metro search program includes buses,which MacWade does not involve, and which American-Arab Anti-Discrimination Comm. v. Mass. Bay Transp. Auth. only involved during the few days of a presidential convention. Such a distinction might at least lead to a court victory against random Metro bus searches, and hopefully a wider victory than that. I have offered assistance to my local ACLU for a court challenge. The ACLU probably will find no shortage of qualified pro bono attorneys for such a lawsuit, and the local affiliate already has an excellent crop of in-house lawyers. Jon Katz

On October 8, 2008, I blogged about the Maryland Public Defender's Office's cessation of funding for private lawyers to represent indigent defendants who have to be defended by non-public defender lawyers due to conflicts of interest with the office's existing clients.

No matter how bad the foregoing situation sounds, I just learned that countless indigent criminal defendants in Native American tribal courts are not provided lawyers, due to lack of funding -- except that more funding can be found in areas with wealthier tribes -- and a claim that the partial sovereignty granted to such courts means that somehow criminal defendants in tribal courts cannot benefit from the full panoply of rights established by the United States Supreme Court to protect criminal defendants. .  

Of course, as I frequently have said in other contexts, the foregoing indigent defense problems in Native American tribal courts can be heavily ameliorated, by legalizing marijuana, heavily decriminalizing all other drugs, legalizing gambling, and legalizing prostitution. Jon Katz

Today, October 28, a split Virginia Court of Appeals put firm limits on criminal defendants' possiblity of obainining judicial relief where a preliminary hearing has not been held. Wright v. Virginia (Oct. 18, 2008). Jon Katz.

When googling for some further information on t'ai chi master Cheng Man Ch'ing, I happened upon an intriguing blog entitled Native American Taoist. The site's blogmaster is Thunderhands, who answered a blog comment about his Cheng Man Ch'ing posting with the closing phrase "Mitakuye Oyasin".

This being the first time hearing the phrase, I researched further to learn that it is Lakota for "all my relations" and, by extension, "we are all related." I e-mailed Thunderhands my thanks for his blog and for his railroad illustrations; trains and elevators are my son's favorite machines. He replied to my inquiry about the phrase: "Mitakuye Oyasin is Lakota and it means all my relations, including all living things. Winged creatures, two legged's, four legged's, crawling, reptiles. etc. Of course yes we are all related, we are all one, but live in a delusion that we stop at our skin." That would throw out the window my being able to make an exception for the way I approach and talk about cops, prosecutors, and probation agents.

Interestingly, a person named Atuuschaaw maintains a blog entitled with the same phrase, Mitakuye Oyasin. Learning about Mitakuye Oyasin reminded me of Baba-Kundi Ma'at-Shambhala, an inspirational man I met last year at the Whole Foods parking lot. As it turns out, two months ago, he started a blog entitled Essence Blogeshere, which frequently amplifies on Mitakuye Oyasin, without saying the phrase.

Mitakuye Oyasin.

 Jon Katz.

Some people reach ecstasy by seeing their favorite band live, as have I, when experiencing such superhumans as Return to Forever, Dizzy Gillespie, and Cat Anderson. Yesterday, I reached ecstasy by interacting more directly than ever with t'ai chi Master Ben Lo.

Frequent readers of this blog know that I believe strongly in applying the principles of t'ai chi to the practice of law and to the rest of my life, and that two lawyers inspired me most to practice t'ai chi.

Curiously, Master Lo -- who focuses his students on the power of being mindfully relaxed and soft -- playfully tells me that lawyers and salespeople tend to be stiff. Maybe he thinks their minds are subject to too much intellectual clutter. Wishing to hear this megamaster rather than debating him, I did not bother suggesting that such stereotypes do not work, in part considering that all lawyers were non-lawyers at some point in their lives.

Yesterday was my fourth class with Master Lo since 1995. Master Lo visits the District of Columbia area from his California home around once or more annually. He started off the weekend session by asking why people came to the class. One attendee said she was there to learn t'ai chi from him. His ultimate response as we proceeded was that it is easy to learn about t'ai chi, but much more difficult to apply it. He then proceeded to emphasize the importance of learning t'ai chi at one's own pace, while he pushes students into his teaching realm of "no burn, no earn/no pain, no gain," or, as his teacher Cheng Man Ch'ing once pointed out to his students while on a walk that they have plenty of time in the future to rest (gesturing towards a cemetery) but that much is left to be done while on this Earth.

Imagine if the late Ernie Kovacs attended law school and somehow was put under and followed the misimpression to speak and write in monotone.

Then, imagine if Ernie Kovacs were a lawyer, and injected all his vim, vigor, vitality, and humor into his written and oral words. He would be a tough act to follow.

In that context, it is a delight to upload and link here -- with the author's permission -- to a very emphatic, fast-paced, grabbing federal sentencing memorandum by Los Angeles criminal defense lawyer David J.P. Kaloyanides. Whether or not a judge agrees with his sentencing memorandum, it is bound to grab his audience as his advocacy piece moves forward in a similar attention-getting vein as watching the original M*A*S*H movie, as it draws the audience into a cohesive and clearly-developing story.

Kaloyanides's sentencing memorandum unveils the very sham of the drug war and the draconian federal drug felony prosecution and sentencing system.

Are you considering being a prosecutor? Other than using that as an attempted career stepping stone or a way to have one of the highest-paying federal attorney jobs, why do it? Prosecutors and would-be prosecutors, feel free to answer anonymously if you wish. Jon Katz.