UNDERDOG - Criminal/Drunk Driving Defense in Maryland, Virginia, DC

Image from Library of Congress's website.

Lately, I have been inundated with a few hundred daily spam emails that do not list my email as the recipient. Such emails get filtered to a box that I have no choice but to empty daily without reviewing the messages. That is too many emails to wade through.

Previously, I would ask people not to send me mass emailings unless I am listed as a bcc party, lest I become the victim of reply-all messages. Now, I still do not want my e-address listed on the first, but I will not be reading the latter, either.

In short, I continue being a victim of the same spam for which I support robust First Amendment protection. Spammers: why alienate one of the people who supports your rights to robust spamming? Jon Katz.

Bill of Rights (From public domain.)

Field sobriety tests are junk science administered by cops who have no expertise to administer them, because junk science precludes having expertise. See how poorly is the performance when asking even a fully sober and awake person to follow unfamiliar instructions for standing on one leg for a count of thirty and walking heel to toe ("don't miss heel to toe") nine times and pivoting correctly on the way back. If a person has even had a glass of wine two hours ago and is somewhat tired, s/he will be between a rock and a hard place to take or not take the field sobriety tests in the following states that Virginia's intermediate appellate court has joined for considering the results of field sobriety tests for determining probable cause to arrest for violating drunk driving laws.

In Jones v. Com., _ Va. App. _ (May 7, 2008), Virginia's Court of Appeals upheld a thirty-day jail sentence for unreasonable refusal to take a breathalyzer test, where the defendant had previous drunk driving convictions, and allowed consideration of the defendant's refusal to take the field sobriety tests for the probable cause determination. Moreover, the court was silent about the cop's repeated requests for field sobriety tests, which sounds like such test requests were demands rather than the simple requests they should have been (just as cops are not permitted to demand that a person submit to a "consent" search; they may only request it). In reaching this conclusion, Jones detailed the situation in the following states that permit consideration of refusal to perform field sobriety tests, Jones at n.4:

See, e.g., State v. Ferm, 7 P.3d 193, 197 (Haw. Ct. App. 2000) (affirming conviction when officer arrested appellant for DUI based on his “impaired demeanor, the smell of alcohol on his breath and his refusal to undergo a field sobriety test”); State v. Sanchez, 36 P.3d 446, 449-50 (N.M. Ct. App. 2001) (holding that, while refusal to perform field sobriety tests would not, standing alone, provide probable cause, it is a legitimate factor in the probable cause determination). Far more courts have decided the analogous issue of whether refusal to perform field sobriety tests may be used as substantive evidence to establish intoxication in criminal trials. See, e.g., Longley v. State, 776 P.2d 339, 345 (Alaska Ct. App. 1989) (holding evidence admissible because “[a] refusal to take the [breath] test is . . . probative of guilt . . .”); Johnson v. State, 987 S.W.2d 694, 698 (Ark. 1999) (“The refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant’s fear of the results of the test and the consciousness of guilt.”); State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995) (Appellant’s “refusal [to take field sobriety tests] is relevant to show consciousness of guilt.”); People v. Johnson, 819 N.E.2d 1233, 1237 (Ill. App. Ct. 2004) (Refusal evidence is admissible because “[t]he trier of fact can infer that a defendant refused to submit to the test because it would confirm that he was” driving under the influence.); cf. State v. Mellett, 642 N.W.2d 779, 786-89 (Minn. Ct. App. 2002) (refusal evidence admissible; no Fifth Amendment violation); State v. Hoenscheid, 374 N.W.2d 128, 129 (S.D. 1985) (refusal evidence admissible; no Fifth Amendment violation); Seattle v. Stalsbroten, 978 P.2d 1059, 1061 (Wash. 1999) (refusal evidence admissible; no Fifth Amendment violation); but see Commonwealth v. Grenier, 695 N.E.2d 1075, 1078-79 (Mass. App. Ct. 1998) (holding that refusal evidence is inadmissible on the issue of intoxication based on state constitutional grounds).

Jones v. Com., _ Va. App. _ (May 7, 2008), 

I hope Jones files and wins a petition for appeal to Virginia's Supreme Court in this case. Jon Katz

ADDENDUM: Thanks to a lawyers' listserv member for bringing this Jones case to my attention.

 Sketch by John Iorio

Not long ago, a burnt-out appearing lawyer expressed cynical surprise that I continue getting a big charge out of fighting for criminal clients. He said something along the lines that after practicing over ten years, I will see what he means; at the time, I was approaching fifteen years of criminal defense practice. Criminal defense practice is not for everybody, but it is definitely for me.

Helping keep me rearing to go each day are the often boundless possibilities for obtaining justice for clients -- often with inspiration from great visual and performing artists -- and the deep caring I feel for my clients. Among artists, none have inspired my criminal defense practice more than John Coltrane.

Trane once said: "There is never any end. There are always new sounds to imagine; new feelings to get at. And always, there is the need to keep purifying these feelings and sounds so that we can really see what we've discovered in its pure state. So that we can see more and more clearly what we are. In that way, we can give to those who listen the essence, the best of what we are. But to do that at each stage, we have to keep on cleaning the mirror."

Similarly with criminal defense practice, no two clients nor cases are alike. There are always new possibilities to visualize and apply for fighting for justice. Always there is room for improvement, in a never-ending process forward.

What does Trane mean about needing to "keep on cleaning the mirror?" I suppose he means that we need to see ourselves not only for who we are, but also how others perceive us, where we have come from, where we are headed, and where we might change where we are headed.

John Iorio is a fellow Trane fan and fellow creator. His above-displayed recent sketch of Trane captures the man's essence, even though John and I both were too young when Trane died in 1967 to have experienced him live. He and I benefit, of course, from the vibrations of Trane, who said: "One thought can produce a million vibrations."  Jon Katz

Bill of Rights (From public domain.)

Growing up in southern Connecticut, I recoiled in horror over the blatant, violent, and rampant racism that overtook so much of the South right into the 1960's. Confronting such a reality made me also recognize all the more the substantial extent of racism right in my Northeast United States backyard -- and, sadly, even my local backyard -- without the South's then-recent Jim Crow laws.

Mildred and Richard Loving were a low-key counterpoint to my numerous strongly-worded responses over time to people saying words that at best have been racially insensitive, with some speakers admitting their racism outright, and with most of them denying being racist and sometimes trotting out that one of their best friends is this or that race or religion.

Appropriately surnamed, Mildred and Richard Loving were in love and wanted to marry, having no Jim Crow-busting agenda beyond that. However, as an interracial married couple in 1958 Virginia, they were prosecuted and convicted for violating the state's law criminalizing interracial marriage (with the case having moved so quickly, apparently to get released from pretrial detention, that it seems doubtful that they even had a lawyer when entering their guilty pleas).  As the New York Times reports, the Loving's sentencing judge "Judge Leon M. Bazile, in language Chief Justice Warren would recall, said that if God had meant for whites and blacks to mix, he would have not placed them on different continents. Judge Bazile reminded the defendants that 'as long as you live you will be known as a felon.'”

In 1967, the Lovings overturned Virginia's marriage miscegenation law out of the ballpark with a unanimous United States Supreme Court. The racist judge Bazile died less than a month before the case was argued before the Supreme Court. which decided the case in two months flat. In overturning the Loving's conviction, Chief Justice Earl Warren declared: "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." Loving v. Virginia, 388 U.S. 1 (1967). 

Only eight years after this Supreme Court victory, Richard Loving died in a car accident. Last Friday, Mildred Loving passed away at sixty-eight. These two apparently otherwise very private people became permanent public figures through their last name, which will remain synonymous with smashing racism not only with interracial marriage but as another nail in the coffin of Jim Crow. 

As an aside, one of the Loving's two Supreme Court lawyers, obtained through the American Civil Liberties Union, was the now-retired Philip J. Hirschkop, just around two years out of law school when he argued the case, with lawyer Bernard Cohen arguing in rebuttal. Read this colorful account of this lawyer who is very colorful, to say the least, and who has apparently never shied away from defending the most controversial of clients. What a counterpoint: the salty-tongued Phil Hirschkop representing the low-key Lovings. Perhaps it was yin and yang; perhaps not.

Thanks, Mildred and Richard Loving, for staying true to yourselves, and for having stepped out of the shadows of anonymity to advance this essential fight against racism and for justice. Jon Katz

For food-producing animals. life is no picnic, and usually is incredibly short. (Image from USDA's website.)

The global food price crisis is real and worsening. Many factors certainly contribute to the crisis, including rising energy costs (if only the globe's runaway appetite for fossil fuels could be tamed dramatically).

What would happen to global food prices if everyone stopped eating land animals and their milk and egg products? Insodoing, the inefficient livestock-producing system will be cut out of the nutrition-providing process. Instead, humans will get their nutrition in an incredibly more efficient and inexpensive process, straight from plants, and not just from roots and berries but from an endless list of delicious exotic and ordinary fruits, nuts, seeds, vegetables, beans, tubers, and their countless simple recipes. An acre of land used to grow grain for livestock provides dramatically less human nutrition than using the acre to grow food plants for humans.

What will happen to the environment if everyone stops eating land animals and their milk and egg products? Gone will be the tons of fecal pollution and choking methane produced by the legions of factory-farmed animals, the vast majority of whom are bred to deliver lunch and dinner to people's plates. Gone will be the enormous waste of water to irrigate land used to feed non-human animals, rather than using the water to irrigate fields for plants to be eaten directly by humans. Gone will be the wasted fossil fuels used to raise farm animals.

What does all of this have to do with my law practice? A critical focus of my law practice is on social justice. Slaughtering animals for people's unnecessary flesh cravings is not justice for animals. The constant slaughtering and eating of animals numbs too many people about violence, and makes too many people more able and willing to perpetrate violence against other humans; it becomes a matter of cross-species violence. Eating meat contributes to world hunger by increasing the demand for land for livestock, rather than keeping food prices lower -- through supply and demand -- by eliminating the huge money and pollution expense of raising cattle, pigs and poultry.

How hard is it to become a vegetarian? For me it took three years of concerted effort eating lower and lower on the food chain, until one day at an Italian restaurant, as a pesco-vegetarian (a misnomer), I resolved that I could not, after all, order pasta with marinara and shrimp, after having spent time with so many amazing and feeling fish at the aquarium a mile away. I became a vegan thirteen years later, to do my share in reducing the number of mistreated and captive animals who often find themselves slaughtered for human food, pet food, and leather after they stop producing enough milk and eggs, let alone the male chickens who are not spared their lives to produce eggs, because nobody yet has found a way for males to produce eggs. I no longer wear leather.

Even if most people are unable or unwilling to become vegetarian, world hunger and food prices still will dramatically fall if people will drastically reduce their consumption of meat, fowl, milk. milk products and eggs. There has never been an easier, more healthful, or more delicious time to live vegetarian; even supermarket aisles have infinitely more vegetarian choices than even five years ago. Restaurants have more vegetarian options than ever before. See how you feel about your health, your annual physical exam, the environment, and world hunger after making such a change in your eating choices. You may never turn back. Jon Katz.

Awaiting federal sentencing for her prostitution ring conviction, Deborah Jean Palfrey took her life this week.

On the one hand, Ms. Palfrey's suicide brings to mind how rampant is suicide in society, and how much desperation contributes to it. Ms. Palfrey previously said she would not do a day in prison; and her suicide ended up being likely the only way to avoid it.

How did I learn of Ms. Palfrey's suicide? Certainly not the way I wanted: Through an undiplomatic television camera and microphone sticking in my face. Having left the District of Columbia Superior Court yesterday afternoon, I was on the phone talking about a sex-related criminal case, minding my own business. I have not even closed my cellphone on my completed conversation when a local television reporter says something along the lines of "I heard you speaking about a sex case. I was wondering if I could ask you some questions." By now the camera is running, and I say I'm not ready to speak on the record, thinking he wants to talk about my own clients' sex-related cases. The camera still looks on, and the reporter is still holding the mike. The reporter persists, apparently wanting to ask about various aspects of criminal procedure at the Superior Court, and I say I will not be speaking on the record about that, either, because I do not go to Superior Court often enough -- versus Maryland and Virginia courts, as the District of Columbia courts have the hugest Beltway percentage of defendants obtaining court-appointed counsel  -- so he'll do better to speak to a lawyer who goes there more regularly. 

The camera still runs, and the reporter still holds the microphone, and says he wants to talk about Deborah Jean Palfrey, who he tells me killed herself. Ah, the First Amendment, before which I worship and for which I defend against government and court suppression and punishment of even the most vile and offensive speech. How close I came to telling the reporter "Ms. Palfrey's passing should not be a media feeding frenzy. Why should I be asked to be told on-camera about her death and be asked to comment on the spot after learning of this sad news?" Instead, already programmed through some of the most trying courtroom exchanges to do battle, I decide to take my battle for justice to the news camera once again.

The reporter asks my reaction to this sad news. I say something along the lines of: "This is sad, and never should have happened. Ms. Palfrey never should have been prosecuted, because prostitution needs to be legalized, as does marijuana and gambling. Only by doing that and by heavily decriminalizing drugs can we have a fair criminal justice system." The reporter keeps probing; probing for what? For me to say she had it coming to her (which she had not)? To see if any of my clients ever have committed suicide (none have)? To see if I would lash out at the prosecution, after the reporter mentioned the possibility that her prosecution cost over one million dollars?

THIS IS NOT AUTHENTIC JOURNALISM. Perhaps this is but a failed attempt at infotainment. This is pandering to try to get television ratings, and to charge advertisers more money based on those ratings. This is an effort to make the commercial television news merely an interval separating the commercials without which commercial television would never exist. Is this paragraph hyperbole? If it is, I still haven't come down from such feelings after yesterday's interview.

THIS INAUTHENTIC JOURNALISM DID NOT STOP THERE. The reporter then tells me he wants a shot of me as I go on my way, and the cameraperson asks me to wait as he changes positions to get a better angle. At this point, I don't have any other beef with the cameraperson, and I let him get his camera angle.

WHAT IS JOURNALISTIC ABOUT VIDEOTAPING ME WALKING TO THE SUBWAY? Not having any television at home other than a DVD player -- how sweet it is -- I do not know if the interview ran, nor whether -- as I suspect -- the walking segment was spliced before the interview segment; I have had it done before. This brand of television reporting is far from limited to this reporter and cameraperson.

It all reminds me of the sadly comical section from the great Joan Didion's essential White Album, where Ms. Didion recounts how the actress Nancy Reagan cooperated with a camera crew at the California governor's mansion the same way she would have done for a movie or theater director, along the lines of: "Would you like me to turn to the left after I come into the doorway, and check my phone messages?"

Ms. Palfrey's life, plight and death should not be trivialized, should not be made into the butt of late night television jokes or light water cooler chatter, and should not be swept under the rug. She died after being put through a trial that was unjust: unjust because prostitution should be legal (it does not need to be made illegal to address the socio-economic oppression that leads plenty, but certainly not all, people to choose such work; there are other effective ways to address such oppression); unjust because police and prosecutors have enough rape, robbery and murder cases to address, and should not be wasting tax dollars and resources on prostitution cases; unjust because so much money and court resources were so unjustly wasted on the case; and unjust because so many immunized prosecution witnesses were outed as former prostitutes allegedly serving Ms. Palfrey and her clients.

At the very least, praised be Ms. Palfrey's judge, James Robertson, who asked the prosecution: "You want to make public the names of all the employees? ... Is there no limit to the collateral damage?" Proceeding in this very human vein, Judge Robertson refused the prosecution's insistent request to revoke her bond, lest she flee pending sentencing (flee where, in this day and age where governments and police investigation agencies seem even to know when and where we go to the toilet, let alone where to find us if we miss a court date?). Thanks, judge, for giving Ms. Palfrey a chance to spend time with her mother after her guilty verdict, and to spend time away from the cameras and away from gawking eyes in the jail.

Yes, let us examine and discuss Ms. Palfrey's case, life and death, and why she killed herself. Let us do so with compassion for Ms. Palfrey, and with an eye to eliminate prostitution prosecutions and other unjust prosecutions once and for all. Jon Katz.

LSD image from DEA's website.

Although I have never used LSD, it has had a profound indirect impact on me. Ram Dass --born Richard Alpert -- likely became Ram Dass only because he was booted out of Harvard with Timothy Leary for having conducted LSD experiments in the Sixties, so he had some time on his hands to make his trip to India that is recounted in his essential and tremendously influential Be Here Now. When Ram Dass was giving out LSD in India, trying to make further sense of the drug's interaction with people, he met Bhagavan Das,who wanted in on the acid, and who introduced Ram Dass to being here now, which is a life approach that is so critical to me, and to everyone.

Although Owsley "Bear" Stanley may be legendary for his Sixties LSD manufacturing, LSD would not exist without its creator and accidental self-experimenter Albert Hofman, who left the planet on April 29 at 102 in Switzerland. After accidentally absorbing LSD through his skin as a scientist at Sandoz pharmaceuticals, Hofman experienced the following in 1943 from his first intentional LSD intake: "Now, little by little I could begin to enjoy the unprecedented colors and plays of shapes that persisted behind my closed eyes. Kaleidoscopic, fantastic images surged in on me, alternating, variegated, opening and then closing themselves in circles and spirals, exploding in colored fountains, rearranging and hybridizing themselves in constant flux. It was particularly remarkable how every acoustic perception, such as the sound of a door handle or a passing automobile, became transformed into optical perceptions. Every sound generated a vividly changing image, with its own consistent form and color."

Hofman writes more about LSD, including meeting with Aldous Huxley, in LSD - My Problem Child (1980). Without LSD, the whole course of the Sixties, its counterculture, and the Deadhead culture would have taken a dramatically different path. Thanks to Jonathan Turley for blogging on Albert Hofman and his passing. Jon Katz.

Photo from website of U.S. District Court (W.D. Mi.).

Ten years ago, lawyer Michael Tigar told the Washington Post that in interviewing to clerk for Justice William Brennan, Brennan asked Tigar "Did you attend a Communist Party training camp in Paterson, New Jersey?' " Tigar responded: "Sir, I have never been to Paterson, New Jersey."

On Tigar's cross-country drive to start his 1966 clerkship with Brennan, Brennan cancelled the deal over concerns about Tigar's leftist student activities. In 1990, Brennan admitted he may have overreacted. With only $10 to his name, instead of getting a useless consolation prize, Tigar got hired by legendary lawyer Edward Bennett Williams.

In the summer of 1987, before ever hearing of Michael Tigar, each day I passed by [Edward Bennett] Williams & Connolly, when Brendan Sullivan from that firm represented Oliver North before Congress in the Iran-Contra hearings, on my way to my summer clerkship at the then-named Federal Home Loan Bank Board, during the savings and loan crisis that caught up so many banks regulated by the FHLBB. Williams died the next year, at sixty-eight. 

Perhaps some of Williams's and Tigar's positive vibes emanating from that building had something to do with my becoming a public defender lawyer four years later and sticking to the criminal defense path today.

Although I have found no online videos of Michael Tigar, who is a captivating speaker, I did find this fascinating "how can you represent those people?" Mike Wallace interview of Williams in 1957. (See Wallace chain smoking and promoting filterless Philip Morris cigarettes during his Interview program from various other segments the same year; thanks to Boing Boing for the Wallace Interview archives link.)

Certainly it did not hurt Michael Tigar's career and 1966 initial financial straits that he graduated first in his class from Berkeley law school and was its law review's chief editor. That makes him no less of an inspiration to me to focus my career -- including arranging pro bono and low bono time -- on important social justice issues, no matter the cause's popularity or lack thereof. Thanks, Michael Tigar, for your inspiration for me to remain on that path. Jon Katz