Criminal Law

Martial arts and the law.

Posted on November 19, 2009
The martial art of t'ai chi, of course, is an essential part of my personal and professional life.  It turns out that some lawyers brand themselves as martial arts lawyers.  Practicing in the nearby city of Fairfax, David Kaufman runs the Karate Law blog...

Alternatives to self-medication.

Posted on November 19, 2009
Many "recreational" drug users are not only using them for recreation, but to self-medicate. The following blues-fighting list from local psychologist Michael Radkowsky, though basic, is spot-on. As an aside, I met Michael through the listserv of the Horowitz-Margareten extended family; we are very distantly related...

Where do all the little green men come from?

Posted on November 18, 2009
A Lexis search of appellate opinions shows no judge calling anybody a nutball or whackjob.  However, a Lexis search does show at least two dozen occasions where appellate opinions have included the phrase "little green men", including yesterday's opinion from the D...

This just in: Available legal research and writing professional for short-term projects.

Posted on November 17, 2009
To those seeking assistance with short-term legal research and writing projects, I highly recommend the following top-notch person:  Legal research/writer: twenty+ years of experience in research and drafting trial court motions and legal memos and state and federal appellate briefs concerning criminal and immigration matters...

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A mere hunch does not permit a frisk nor a search.

Posted on November 16, 2009
Praised be Virginia's Court of Appeals for last week further distinguishing the factors separating a mere hunch -- which does not justify a police frisk or search -- from a Terry  frisk based on reasonable articulable suspicion to believe the suspect is armed and dangerous...

When doctors force medical treatment. When one overcomes physical handicaps.

Posted on November 15, 2009
In 1995 at the Trial Lawyers College, I met Dax Cowart. He is one of my favorite people from the college.  On the one hand, I prefer to think of Dax for himself, not for any physical handicaps. On the other hand, he has travelled extensively telling the story about being burnt all over his body in 1973, and he has transcended the hellish ordeal of feeling skinned alive during doctors' forced efforts to treat him when he refused medical treatment and insisted on dying...

DWI experts.

Posted on September 30, 2009
Thanks to the Kavinoky law firm for posting this list of expert witnesses for drunk driving defense. Included in that list is Patrick Demers, whom I have retained several times as an expert witness.

Virginia: Defendant entitled to new sentencing hearing after the jury recommended an illegally high sentence.

Posted on September 29, 2009
In Virginia, the jury decides guilt-innocence, and recommends a sentence in the event of a conviction.  Jerome Rawls was sentenced to 25 years in prison on the jury's recommendation, for second degree murder. At the time of sentencing, Rawls's lawyer, the prosecutor, and the trial judge mistakenly thought that the then-existing forty-year maximum sentence (instituted in 1993) applied, but instead the twenty-year maximum applied, as it existed at the time of the 1992 crime...

Seeking a full-time legal assistant.

Posted on September 29, 2009
Our law firm seeks a top-notch experienced legal assistant to start as soon as possible. Full details are at http://katzjustice.com/jobs.htm#assist . This full-time position is in addition to our two experienced part-time legal assistants. We deeply appreciate any Underdog readers who help us identify the right candidate...

Closed today for Yom Kippur. Back tomorrow.

Posted on September 28, 2009
  We are closed today, September 28, on Yom Kippur, the Jewish day of atonement.  The holiday ends sundown, and I will start checking phone messages and emails this evening. We will be back in full fighting and blogging swing tomorrow, September 29. Jon Katz.

Did Clarence Darrow distract a jury with a long ash?

Posted on September 27, 2009
Years ago, I heard a story that a lawyer -- posttibly Clarence Darrow -- distracted a jury from the opponent's argument, impressed that Darrow could create a very long ash with his cigarette or cigar, in the days that smoking was allowed in courtrooms...

Transcending daily tasks and obligations.

Posted on September 27, 2009
Competing with seizing life's opportunities and challenges are work, mundane daily tasks, and fatigue. Perhaps I met Andrew Wales yesterday as a reminder to keep focusing on transcending the latter hurdles in life. I met Andrew yesterday at the annual underground comics Small Press Expo at the North Bethesda Marriott on Marinelli, or perhaps I should say he found me and my boy, who is now 3 1/2-years-old, and had more of an interest in getting lunch at the bagel carryout up the street than taking this backyard visit to which many others had driven hundreds of miles...

More ammunition for beating prosecutions for open alcohol containers.

Posted on September 25, 2009
Too often, defendants all too eagerly plead guilty to possessing an open container of alcohol, whether it be beer, vodka, wine, or any other alcohol-containing beverage, whether that be to minimize the fine or other sentencing exposure, particularly when they are unrepresented by an attorney...

The two-witness rule governs perjury convictions.

Posted on September 24, 2009
On September 17, the D.C. Court of Appeals reversed a perjury conviction where the two-witness rule was not satisfied. Gaffney v. U.S., __ A.2d. _ (D.C., Sept. 17, 2009).  The Court described the two-witness rule as follows: According to the venerable ?two-witness? rule, ?the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury...

Westboro Baptist Church wins hands-down.

Posted on September 24, 2009
For a week and a half in October 2007, my life was consumed with my defense of the Westboro Baptist Church (WBC) and its pastor before a Maryland federal jury against charges of intentional infliction of emotional distress and intrusion upon seclusion...

Back from spreading the Bill of Rights gospel at the University of Maryland.

Posted on September 23, 2009
 Bill of Rights. (From the public domain.) Following up on my September 18 blog entry:  This past Monday night, I spoke on a Know Your Rights panel at the University of Maryland. Here is the brief Diamondback campus news article on the packed gathering...

D.C. Circuit strikes First Amendment-violative F.E.C. rules.

Posted on September 23, 2009
On September 18, the D.C. Circuit struck down new F.E.C. rules limiting "how non-profits may spend and raise money to advance their preferred policy positions and candidates." Emily's List v. F.E.C., _ F.3d _ (Sept. 18, 2009).  Praised be and long live the First Amendment...

Maryland's highest court reverses conviction for insufficient waiver of counsel.

Posted on September 22, 2009
On September 18, 2009, Maryland's Court of Appeals made it loud and clear that judges must correctly advise defendants about their sentencing exposure, or risk having convictions reversed where the defendant waives assistance of counsel. Brye v. Md., __ Md...

DC: Police emergency lights plus an already stopped car might not implicate the Fourth Amendment.

Posted on September 21, 2009
What if a person pulls legally to the side of the road to dial a phone number, intending on driving away immediately after doing the dialing? What happens if a police officer pulls up behind the car with emergency lights flashing, and testifies that this was done merely to show the driver and other cars that the officer is approaching, rather than to tell the driver not to move the car?  If the foregoing scenario happens in the District of Columbia, the driver may have a steep battle to have this qualify as a seizure...

The late Cat Bennett's website, with sample voir dire.

Posted on September 20, 2009
See sample jury voir dire at the Cat Bennett jury consultants website.

L'shana tova!

Posted on September 18, 2009
Good karma to all in 5770! Jon

September 21: Jon Katz speaks on "Know Your Rights" panel.

Posted on September 18, 2009
Support FlexYourRights, (Jon Katz serves on its Board of Advisors.) On Monday, 7:00 p.m., September 21, I will be returning for a third time to the University of Maryland to spread the gospel of the Fourth and Fifth Amendment rights to refuse searches and seizures (passively, of course), to say not a damn thing to cops, and to stand firmly on those rights no matter how scary, pressure-filled, or divide-and-conquer the situation seems...

Learning more about American Indian law.

Posted on September 18, 2009
Numerous law schools have American Indian law classes. Mine did not. I have wanted to learn more, including the law concerning treaty rights, land rights, gambling, and sacred medicine, and also about the past and current mistreatment and slaughter of Native Americans and efforts and accomplishments to reverse such mistreatment...

Call your Congress member now, to stop Rep. Souder's ongoing efforts to bar financial aid even for marijuana possession.

Posted on September 17, 2009
For years, students with convictions for drug convictions as minor as possessing marijuana would have their federal financial aid stripped away as a result. Wonderfully, currently proposed legislation will take a huge bite out of that sting by limiting financial aid deprivation to those with drug sales convictions during the time they receive financial aid, even though hopefully even that penalty will ultimately go away...

"We think too much and feel too little."

Posted on September 16, 2009
Sixty-nine years late, I finally saw Chaplin?s final speech in The Dictator. It is time to watch the rest of the movie.  The speech is transcribed in this YouTube link. KarmaTube links to this remix of the speech, by Dan Reed. 

Melendez Diaz's footnote 1 elucidates, but does not limit, the wonderful M-D opinion.

Posted on September 14, 2009
Soon after its release, I felt resistance to Crawford v. Washington,  541 U.S. 36 (2004), by many judges, concerning Crawford?s prohibition on testimonial hearsay at trial where the declarant does not testify. Now I feel resistance to Melendez-Diaz v...

September 11, eight years later.

Posted on September 13, 2009
Last year I posted this entry about September 11. I would have preferred posting it two days ago, on September 11, but all day was in two courthouses and away from the computer.  While the horrors of September 11 must not be allowed to give the government the green light to trump civil liberties, this does not preclude the deep importance of keeping the vicitims in our hearts and memories...

Sending good karma to Jack Herer.

Posted on September 13, 2009
   Around late 1990, I attended part of the annual NORML conference, in Washington, D.C., which was a much smaller event than today. I was very taken by Paul Krassner's talking about Abbie Hoffman, and got belly laughs from his jokes; was told that Hunter Thompson's no-show was Hunter Thompson being Hunter Thompson; and felt less isolated on such important issues as drug law reform when, unknowingly, I was a few months away from leaving the life of corporate law to defending indigent clients with the Maryland Public Defender's Office...

When immunity trumps the Fifth Amendment.

Posted on September 10, 2009
The Fifth Amendment to the U.S. Constitution provides, in part, that no person "shall be compelled in any criminal case to be a witness against himself."  However, over thirty-five years ago, the Supreme Court ruled that witnesses can be compelled to give immunized testimony even if they assert their Fifth Amendment right not to be witnesses against themselves: "[T]he immunity provided by 18 U...

First Amendment Protects the Finger.

Posted on September 09, 2009
A survey would likely find infinitely more arrests for finger flipping than finger pulling.  However, the First Amendment protects finger flipping, as confirmed earlier this year by the Western District of Pennsylvania:  By 2006, numerous federal courts, including a United States District Court in Pennsylvania, had ruled that the middle finger gesture was constitutionally protected speech...

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