Criminal Law

Non-attachment: An essential practice.

Posted on June 22, 2009
- One day I was speaking with a law school professor, and asked if he knew a particular person from his home town. Know him? The professor exclaimed: "What a pr*ck." - With difficult judges, trial master Steve Rench applies the basic and effective lesson of the magic mirror...

New drug conspiracy opinion from Fourth Circuit.

Posted on June 17, 2009
 Bill of Rights. (From the public domain.)  On June 17, 2009, the Fourth Circuit issued an opinion in a drug conspiracy case, addressing the following particularly important issues, in U.S. v. Marc Jeffers. __ F.3d _ (4th Cir., June 17, 2009):  - The Fourth Circuit rejected Jeffers's request for plain error review on the absence of a jury instruction about the possibility of multiple unrelated conspiracies...

Human conflict paralleling martial arts.

Posted on June 15, 2009
In Cheng Hsin: Principles of Effortless Power Peter Ralston makes total sense in declaring that problems between people "are really a parallel to what occurs in martial interaction and in fighting." If this is so, how can a trial lawyer afford not to learn, study, practice and apply martial arts in court? Choose the martial art you want, but forego martial arts in court at your own peril...

An overburdened federal trial courthouse, in the nation's capital.

Posted on June 11, 2009
   Last night I stopped by the annual D.C. Bar-sponsored meet-the-judges reception at the District of Columbia Superior Courthouse. I am of two minds about attending such gatherings, which I rarely attend. On the one hand, the situation is somewhat artificial because the lawyers' conduct rules prevent me from talking about my most burning concerns and questions without my opposing lawyers' presence...

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T'ai chi may lead to fewer blogposts, but they will continue.

Posted on June 10, 2009
  Before this month, rarely a business day passed without an Underdog posting. This month has seen some business days without postings.  When I am not working or spending time with my family, I am spending increased time practicing t'ai chi ch'uan. At first, when I started practicing t'ai chi in 1994, I thought t'ai chi development needed at least one daily full round of the 37-posture yang style short form, as developed by Cheng Man Ch'ing...

David Carradine: "If you cannot be a poet, be the poem."

Posted on June 08, 2009
  For many years, David Carradine and his Kwai Chang Caine character were virtually one and the same for me. I did not think about whether Carradine was the best actor for the role, nor how realistic or not Kung Fu presented effective martial arts. His character presented an alternative to the brute force, hard style of fighting that predominated in the West at that time, and an alternative to the daily hustle-bustle of life...

Fight repeat offender sentencing tooth and nail.

Posted on June 04, 2009
 Bill of Rights. (From the public domain.) Although a relative warned me, when I considered law school, that many lawyers are dissatisfied by the tediousness of practicing law, an essential part of practicing criminal defense -- if not all litigation battle -- is to meticulously obtain, review, analyze, synthesize, and apply the applicable evidence and law...

Don't let tyrants sleep: The blood still soaks Tiananmen Square.

Posted on June 03, 2009
On June 3-4, the Chinese army turned its guns on its own people, who were peaceful demonstrators in Tiananmen Square. Such atrocities are not limited to China. Look no farther than Kent State nineteen years earlier, even if on a smaller scale and not ordered from the highest echelons of power...

The sometimes long and prickly road of probation.

Posted on June 02, 2009
 Bill of Rights. (From the public domain.) NOTE: Underdog's June 2 blog entry is being posted late. Stay tuned for a resumption of regular daily postings.  Criminal defendants sometimes focus on their time out of jail versus in jail, and not enough time on the often onerous and even draconian deprivations of liberty involved during supervised probation and parole...

More on Judge Sotomayor

Posted on June 01, 2009
Thanks to listserv members for bringing my attention to the following material on Judge Sonia Sotomayor, looking at her performance as a judge and as a lawyer:  - "A View of Judge Sonia Sotomayor from Cyberspace," by Arthur Bright.  - "Sotomayor Sides With the Cops - And persuades a Republican judge to go along with her," by Emily Bazelon...

Persuading by being open.

Posted on May 31, 2009
  Today, I was minding my own business waiting for a traffic light to turn green when there was a light tap on my driver's side window. There was a time when I would have tensed up in defensiveness with my armor under the same circumstances, before knowing who was there, lest it be someone with a knife or otherwise...

Is Obama any better than Clinton with Supreme Court appointments?

Posted on May 29, 2009
Bill of Rights. (From the public domain.) When Bill Clinton was elected president, I was happy to be seeing George Bush I leave the presidential palace, but did not have high hopes for Bill Clinton -- including consideration of his detour to attend an execution during the presidential campaign -- but had higher ones than I had for Bush I...

Gaining advantage over opponents without angering them.

Posted on May 28, 2009
  On May 25, I wrote about Jan Diepersloot's. In Warriors of Stillness, Diepersloot writes:  "Both in the conduct of his life and in the methods of his teachings, Master Cai [Song Fang] epitomizes how knowing one's own center and that of those we come in contact with in push-hands and energy field play can be used to shore people up rather than upsetting them, stabilizing rather than destabilizing them...

4th Circuit: Trial courts may not presume reasonableness of Guidelines sentences.

Posted on May 27, 2009
 Bill of Rights. (From the public domain.)   Yesterday, the Fourth Circuit confirmed that trial courts may not presume reasonableness of Guidelines sentences:  While an appellate court reviewing a sentence may presume that the sentence within a properly calculated Guidelines range is reasonable, see United States v...

Lessons from Wolfe Lowenthal.

Posted on May 26, 2009
  As I said yesterday, t'ai chi ch'uan is essential for my life and law practice.  Here are some powerful passages from Wolfe Lowenthal's biography of t'ai chi master Cheng Man Ch'ing, entitled  Gateway to the Miraculous: Further Explorations in the Tao of Cheng Man Ch'ing:   "Whatever abuse or oppression we may experience, its effect on our balance is still in our hands...

New legal assistant hired.

Posted on May 26, 2009
To those asking if we are still seeking a new legal assistant, the position has been filled.  Thanks to all those who applied. In this day of resumes sent by the simple click of a button, we may not get a chance to reply individually to each candidate who applied...

More t'ai chi lessons.

Posted on May 25, 2009
 Long ago, I learned that t'ai chi ch'uan is essential for my life and law practice. Consequently, I decided to incorporate the t'ai chi symbol in my above-displayed law firm logo, after having toyed with a tidalwave or my initials in bamboo shape. The tidalwave symbolizes t'ai chi's lesson to be as hard to push against as water or air, but as powerful as a tidalwave or hurricane...

What does Memorial Day mean?

Posted on May 25, 2009
See my answer here.

When the power of arrest corrupts cops.

Posted on May 22, 2009
If a cop is going to arrest a reporter and news camera operator for covering something as non-political and non-controversial as an overturned truck from the opposite side of the highway, imagine what the same cop will do under the cover of the night passing by people doing "oink, oink" pig sounds...

Unauthorized third-party phone recordings do not come into trial evidence.

Posted on May 21, 2009
 Bill of Rights. (From the public domain.) Daniel Crabtree was found in violation of federal probation in part based on audiotapes that his girlfriend surreptitiously recorded of Crabtree's phone conversations with others.  Two days ago, the Fourth Circuit reversed Crabtree's probation violation ruling, writing in part that:   "In our view, the issue is resolved by the language of [18 U...

Getting convicted for assault without even raising a hand or fist.

Posted on May 20, 2009
In the courts where I practice criminal defense, even giving an unwanted hug is an assault. That is additional testimony to the wisdom of bowing to others to greet them, apart from the reduced risk of catching swine flu (or mucus, if the person recently sneezed into the right hand), but I digress...

Look before you sue.

Posted on May 19, 2009
Although most of my time is spent on criminal defense, my strong civil libertarian bent has led me to do in-depth civil litigation over the years, as well, particularly defending free expression rights of political activists, adult entertainment industry members, and libel defendants...

The art of happiness at work and in court.

Posted on May 18, 2009
Several years ago, the Dalai Lama provided material for The Art of Happiness at Work, which sequels The Art of Happiness.  How many people truly enjoy their work? How many are miserable in their work? One of the Dalai Lama's themes in The Art of Happiness at Work is to see the bigger, optimistic picture of the work we do, including work as basic as folding shipping boxes...

The world around us.

Posted on May 17, 2009
  Until around fourteen years ago in particular, I too often saw life in shades of gritty, sometimes depressing, sometimes heavily empty, and sometimes constraining gray. When driving through beautiful parts of Maryland's Eastern shore to or from court, I would obsess about how much more unjust criminal defendants tended to be treated in those courts than in the already unjust Maryland courts closer to Baltimore and Washington, D...

Sun Tzu as an unsympathetic character.

Posted on May 17, 2009
Last February, I wrote of the many beneficial non-violent lessons from the Art of War by Sun Tzu.  Recently, I read the following story about Sun Tzu in Samuel Griffith's Art of War translation from Ssu-Ma Ch'ien's Shih Chi/Historical Records' biographical account of Sun Tzu: As Griffith translates the account, Ho-lu, the king of Wu, hired Sun Tzu to conduct an experiment in the movement of troops, using a few hundred women, some or all of whom were the king's concubines...

Sentencing havoc from a speck of cocaine.

Posted on May 15, 2009
DEA image in the public domain. Federal courts repeatedly impose harsh prison sentences, including with drug sentencing schemes that should not exist in a just world.  Although the federal sentencing guidelines by now are advisory only, many federal judges still rely heavily on them, as did the sentencing judge of Timothy Jenkins, who gave and applied to Mr...

Maryland bars HGN evidence without expert testimony.

Posted on May 14, 2009
Image from National Institute of Standards & Technology. If you are going to drive after drinking alcohol, why agree to perform the junk science "tests" requested by a cop suspecting you of drunk driving?  Ironically, today Maryland's highest court mandated expert testimony to present evidence on the junk science horizontal gaze nystagmus...

Guilty pleas are ripe for attack when the record does not show the defendant was informed of the nature and elements of the charged offense.

Posted on May 13, 2009
Guilty pleas are ripe for attack when the record does not show the defendant was informed of the nature and elements of the charged offense. Miller v. Maryland,  __ Md. App. _ (May 4, 2009).

D.C. Circuit rules on FOIA exemptions 1 and 3

Posted on May 12, 2009
On May 8, 2009, the D.C. Circuit issued a detailed ruling on exemptions 1 and 3 of the Freedom of Information Act. Larson, et al. v. Dept. of State, et al.  Larson describes the two FOIA exemptions as follows:  "Exemption 1 protects matters 'specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ...

Good luck keeping your jurors off the Internet about your case.

Posted on May 12, 2009
 Bill of Rights. (From the public domain.) In her wonderfully compassionate way, the amazing SunWolf emphasizes that jurors generally are going to bring their usual behaviors from their daily lives into the deliberation room regardless of the judges' warnings to tell them to change behaviors that jurors are already habituated to -- or see as personally sacrosanct as deciding whether to put the right shoe on before the left one...

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