Criminal Law

Ketchup on your Frankenburger?

Posted on September 19, 2008
First the FDA approved the safety of cloned offspring on your plate. Now it's genetically modified chicken, What next?  When I was in summer camp, my eyelids needed velcro to stay open as I read a friend's letter telling me about the tomatoes his mother was growing...

Would a Virginia bar kick out Virtus if pastie-less?

Posted on September 18, 2008
Virginia's state seal has a bared breast.  Virginia's above-displayed seal shows a half bare-breasted Virtus. under current Virginia law, if Virtus walked into a Virginia bar, she would either be required to cover up with pasties or something more modest, or to leave...

First Amendment slays spam conviction.

Posted on September 17, 2008
Computer hard drive. (Image from Pacific Northwest Laboratory's website). Thanks to the lawyer(s) who last Friday won a First Amendment-based reversal of a spam conviction in Jaynes v. Com., _ Va. _ (Sept. 12, 2008), http://www.courts.state.va.us/opinions/opnscvwp/1062388...

"You're not wanted in these parts."

Posted on September 16, 2008
 Bill of Rights (From public domain.) The late Supreme Court Justice Thurgood Marshall knew the ugliness of racism in Maryland right through his bones. In one televised interview, Justice Marshall recounted one day as a youth, when he was in a section of Baltimore where he could not find a bathroom other than those designated for white people only...

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Yin-yang and the scales.

Posted on September 15, 2008
 At the Trial Lawyers College, the inevitable day comes when everyone is handed a paintbrush, and is told to tell an important personal story through painting, without regard to technical artistry. As it turned out, when I did the painting exercise, some of the most meaningful paintings at first looked as rudimentary as those done by elementary schoolers while the final piece of one of the more talented brushmasters told more of an a la carte menu than an integrated and deep story...

Before retiring tonight, don't forget to wave goodnight to the FBI outside your window.

Posted on September 14, 2008
 Bill of Rights (From public domain.) In college, I had an excellent Eastern European politics professor -- Sarah Terry -- who recounted a Halloween party she attended at one of the Western embassies or other Western centers in Warsaw during the Cold War (I think in the 1970's or 1980's)...

The strength of positive karma.

Posted on September 12, 2008
 A Maryland Daily Record reporter reads my blog, and saw my posting about the transition from the Marks & Katz law firm into separate firms. She interviewed me for an article expected to appear this Monday, about law firms that split. I said that although I know about some friction-filled law firm split-ups, ours was amicable, and Jay and I continue sharing good karma (and even have similar roots to our new email addresses, shown below)...

Seven years later.

Posted on September 11, 2008
 The Silver Spring, Maryland, YMCA has become an eerie place of sorts. On September 11, 2001, I was working out there before starting the workday. On my way to the locker room to the office, I saw the television playing the horrifying footage of the World Trade Center attack and collapse, and learned that the Pentagon -- just about ten miles away -- also had been attacked...

Revisiting a denied objection.

Posted on September 10, 2008
Photo from website of U.S. District Court (W.D. Mi.). Judges are generalists, at least where I practice law. They are expected to grasp and rule on a vast body of law. The law is too vast for even the most conscientious insomniac judge to be a walking encyclopeia on the law...

ACLU seeks staff attorney in South Carolina

Posted on September 09, 2008
 Bill of Rights (From public domain.) Full Glass Consulting has asked me to spread the word about an open ACLU staff attorney position. In the early Nineties, I served on the board of the ACLU of the National Capital Area, and recommend applying for this position if you are looking for a new position and if your ability and interest meet the job description, which follows:   Position Availability / Staff Attorney of South Carolina National OfficeCharleston, South Carolina The American Civil Liberties Union welcomes applications for the position of Staff Attorney of the South Carolina National Office, available immediately...

Money laundering: On a hanger or in a box?

Posted on September 09, 2008
 Image from Bureau of Engraving and Printing's website. The closest I ever came to being a cop was my year before law school as a financial auditor at a large Wall Street commercial bank. Early on, among our duties, we were taught to monitor for violations of the money laundering laws, by verifying that IRS Form 8300 had been properly filed for cash transactions over $10,000, and that multiple deposits by the same customer were not being used to circumvent the money laundering laws...

I will never forget that face?

Posted on September 08, 2008
 Bill of Rights (From public domain.) An armed robber bursts into the local bank with guns drawn. As a bank customer, do you stare at the robber's face to be able to describe the perpetrator to the police in the minutest detail, or do you try to protect yourself and those around you?  Unfortunately, countless innocent people are wrongfully convicted on the testimony of an eyewitness saying "I will never forget that face" when the witness never had a chance to process the image of the suspect's face and other features in the first place, when the visual and sound observation totaled only seconds at best, and when the witness's first priority was to emerge safely, rather than to be a photographic-memory witness...

Practicing law in the black.

Posted on June 15, 2008
 Image from Library of Congress's website. Critical to practicing law is placing clients ahead of money. To do the opposite likely will result in less income for a lawyer, or else in income not sufficiently or properly earned.  Fortunately, many lawyers believe in the importance of doing good for society on the road to doing well; staying committed to social justice while practicing law; doing pro bono and low bono work; and helping others (including competitors) rise along with the lawyer, rather than stepping on their throats and heads in the process...

Immigration risks from criminal cases.

Posted on June 13, 2008
  Bill of Rights (From public domain.) The National Immigration Project's website has some good links for criminal defense lawyers to review a client's negative immigration exposure. Thanks to a fellow listserv member for providing the foregoing link...

Maintaining calm in the eye of the storm.

Posted on June 12, 2008
  Some people seek calm by avoiding conflict. I seek to use calm to harmonize conflict to the advantage of me and my client. By applying the principles of t'ai chi to my law practice, I do my best neither to chase an opponent's power nor to hide from it, but to use my opponent's power and energy to the best of my advantage, by doing my best to anticipate the opponent's strategy and attack, to give the opponent nothing to push against, to find the opponent's weaknesses, and to neutralize the opponent...

Should I get a Blackberry or iPhone?

Posted on June 12, 2008
Checking email only at the office has become too inefficient, to the point of offsetting the bliss of not having email to deal with when away from my wired computer.  Therefore, having read some of the articles comparing the BlackBerry and iPhone, I seek Underdog readers' input before making a final decision...

The Longest Walk: Donations needed.

Posted on June 11, 2008
Longest Walkers meet police in Columbus.  In my office is an American Indian Movement emblem, and at home is my AIM t-shirt. I became all the more interested in the movement after reading Dennis Banks's autobiography Ojibwa Warrior, and then meeting him in 2006 at the conclusion of the Sacred Run...

Virginia Court of Appeals finds no First Amendment violation with online solicitation of minors law.

Posted on June 11, 2008
  Bill of Rights (From public domain.) On June 10, 2008, Virginia's Court of Appeals found no First Amendment infirmity with the law prohibiting soliciting sexual activity with a minor. Podracky v. Com., __ Va. App. _ (June 10, 2008). The court also emphasized that such a crime can take place even if the "minor" turns out to be an undercover cop,...

The Longest Walk

Posted on June 11, 2008
Longest Walkers meet police in Columbus.  In my office is an American Indian Movement emblem, and at home is my AIM t-shirt. I became all the more interested in the movement after reading Dennis Banks's autobiography Ojibwa Warrior, and then meeting him in 2006 at the conclusion of the Sacred Run...

Maryland substantially amends criminal discovery rules.

Posted on June 10, 2008
Image from Maryland State Archives. To those practicing criminal defense in Maryland: Generally effective July 1, 2008 (see the Court of Appeals' implementing Order), the District Court and Circuit Court will have significantly updated discovery rules, as designated in the following links to Maryland Rules 4-262, 4-263, and 4-301...

Fourth Circuit sends terrorism case back for resentencing.

Posted on June 10, 2008
  Bill of Rights (From public domain.) In this post-Rita, Gall and Kimbrough world, the Fourth Circuit recently reversed the thirty-year sentence of a terrorism convict as too lenient, and seemed to call for the trial judge to look more closely at the sentencing guidelines before deciding whether to depart from them...

In praise of Tod Mikuriya.

Posted on June 09, 2008
  As I became more knowledgeable over the years about the marijuana legalization movement, from time to time I would hear about Tod Mikuriya, M.D. As the May 29, 2007, New York Times tells it, Mikuriya "was an architect of Proposition 215, the state ballot measure that in 1996 made it legal for California doctors to recommend marijuana for seriously ill patients...

The tighter job market, and eliminating me, me, me & I, I, I.

Posted on June 08, 2008
 Image from Library of Congress's website. The job market is tightening for all jobs, including law jobs. When applying for jobs before and during law school, I often felt that plenty of employers were non-feeling and too unfair. Now that I am on the hiring end, I feel that many qualified candidates are not getting their point across succinctly and persuasively enough to get a job interview and to be hired, and that many underqualified candidates do not appear underqualified at first blush, thus calling for careful screening by employers of job candidates (although I do not support going as far as doing drug testing and privacy-violative background checks)...

Jury convicts Max Hardcore.

Posted on June 06, 2008
  Bill of Rights (From public domain.) On June 3, 2008, I blogged about the Paul Little/Max Hardcore federal obscenity trial that was then underway.  Sadly, on June 5, the jury convicted Mr. Little on ten counts of distributing obscenity online and by snail mail...

DC Atty General: ?I?m not worried about the constitutionality" of Mayor's state of emergency.

Posted on June 05, 2008
  Bill of Rights (From public domain.) Giddiness seemed to run wide over Adrian Fenty's ascension to the District of Columbia mayoral throne two years ago at age thirty-five. He apparently made good at knocking on more voters' doors than his competition, had the energy to get his daily work done and still run for miles weekly, and learned valuable work ethic lessons from his parents who took a risk at opening an ultimately thriving running store...

Exclude defendant's refusal to consent to a search.

Posted on June 04, 2008
  Bill of Rights (From public domain.) A suspect's right to refuse a search is as sacred as a suspect's right to refuse to talk with the police. Therefore, such refusal by a criminal defendant should generally be excluded at trial. Whether or not the refusal follows advice from cops about the right to refuse, the jury is not permitted to consider the refusal for purposes of inferring any guilt...

Max Hardcore's obscenity trial underway.

Posted on June 03, 2008
  Bill of Rights (From public domain.) On June 4, 2007, I blogged about Paul Little's (a.k.a. Max Hardcore) obscenity prosecution in Tampa federal court, and said, among other things:  "The feds' latest effort to go after the more shocking variety of adult material is its May 17, 2007, indictment of Paul F...

Speedy trial clock should continue after bad faith non-prejudicial dismissal.

Posted on June 02, 2008
  Bill of Rights (From public domain.) In some courthouses, it is hit or miss whether the prosecutor will be ready for trial on the trial date. In other courthouses, it is unusual for the prosecutor not to be prepared to proceed forward on the trial date...

Congratulations, Gerry Spence and Geoffrey Fieger!

Posted on June 02, 2008
The powerhouse of John Johnson and Gerry Spence (Aug. 1995, Thunderhead Ranch)   I owe a lot to Gerry Spence. On the one hand, my guru of gurus Steve Rench was the paramount motivator for my attending the Trial Lawyers College. On the other hand, Gerry is the yin to Steve's yang, completing an essential whole...

Don Fiedler departs the planet.

Posted on June 01, 2008
  In 1990, I took out a subscription to High Times  magazine in protest over a federal prosecutor's subpoenaing the magazine's advertiser records -- as reported by Index on Censorship -- in an apparent effort to clamp down on hydroponic sellers and customers, and various other suspected marijuana-related vendors...

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