Criminal Law

Engaging the opponent.

Posted on August 04, 2009
  At this past Sunday morning t'ai chi practice, one of my push hands partners talked of the need for a push hands player to engage the opponent and to connect with the opponent's tan t'ien, which generally is the point near the navel where t'ai ch practitioners are taught to sink their ch'i, their minds, and their very centers, with one of the many benefits being that an opponent has more trouble finding any center against which to push...

Merging DUI and DWI per se.

Posted on August 03, 2009
Image from National Institute of Standards & Technology. The jurisdictions where I practice criminalize both drunk driving (DUI) and driving with a blood alcohol content over 0.08 (DWI). If a defendant is convicted of both, the defense lawyer should be ready to ask the judge to merge the two convictions, or, in the alternative, the two sentences...

Q: Did you go to law school? Penn: No, clown school.

Posted on August 02, 2009
Penn Jillette sticks it to those with a crabbed view of the First Amendment.

D.C. Court of Appeals rules against convicted peace protestors.

Posted on July 31, 2009
On July 30, 2009, the District of Columbia Court of Appeals ruled against convicted peace protestors in Tataz, et al. v. D.C.  My brother civil liberties lawyer Mark Goldstone wrote the non-pro-se defendants'-appellants' brief in the appeal.  The three?judge appellate panel in Tataz ?- with Judge Ruiz partially dissenting, in favor of reversing the conviction for unlawful assembly at the Rayburn Building ?- affirmed all convictions of multiple defendants for unlawful assembly in the Capitol Building, at the Hart Senate Office Building and the Rayburn House Office Building, and for crossing police lines after leaving permit-issued protest space outside the Capitol Building...

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The First Amendment trumps Virginia's unconstitutional harassment statute.

Posted on July 31, 2009
Virginia has an unconstitutionally vague and overbroad harassment statute, which provides:   "§ 18.2-186.4. It shall be unlawful for any person, with the intent to coerce, intimidate, or harass another person, to publish the person's name or photograph along with identifying information as defined in clauses (iii) through (ix), or clause (xii) of subsection C of § 18...

An indictment is merely an accusation delivered by a sham grand jury proceeding.

Posted on July 30, 2009
 Bill of Rights. (From the public domain.) An indictment is merely an accusation delivered by an unfairly slanted grand jury proceeding. The least that prosecutors can do is to clearly acknowledge that indictments are no more than that.  Both under the current and prior presidential administrations, the United States Justice Department has issued a flurry of press releases about federal prosecutions, convictions, sentences, and even acquittals (see additional acquittal press releases here)...

Police Chief David Baker, meet prosecutor Davis Ruark and the litany of others.

Posted on July 28, 2009
Image from National Institute of Standards & Technology. My first five years in criminal defense was with the Maryland Public Defender's Office. There, I was always on the opposite side of cops, except for the one time I defended an ex-cop. Among the many cops I have met on and off of my work time, I have interacted with police running from the delightful and caring to the reprehensible-acting, just like in the general human population...

Maryland's highest court provides trial courts guidance on handling inmates' DNA testing requests.

Posted on July 24, 2009
Today, Maryland's highest court issued two opinions providing trial courts guidance on handling inmates' DNA testing requests:  - Gregg v. Maryland, __ Md. _ (July 24, 2009).  - Simms v. Maryland, __ Md. _ (July 24, 2009).

Our phone system works again.

Posted on July 22, 2009
Thanks to Verizon's staff who quickly eliminated the fallout from a downed wire by first closing off the non-functioning phone line last night so that our phone and Internet system worked as if nothing was inoperable, but instead just one phone line short...

Henry Louis Gates, Jr's story shines the light on common police practices.

Posted on July 22, 2009
Professor Henry Louis Gates, Jr's story shines the light on police practices that too often are business as usual operating too often in the shadows. Here are some of my thoughts on his conflict with the police;  - Too many police will arrest for disorderly conduct when people exercise their First Amendment right to complain about those holding governmental power...

Our main phone line is temporarily down.

Posted on July 21, 2009
As of around 6:30 p.m. tonight, our main phoneline is temporarily down. Until then, you can reach us and our answering machine at 301-495-8822, and 301-495-8823.  Our phone technical expert should be here between tonight and tomorrow morning. It appears that our building's main phonebox may have a technical problem, rather than the problem originating from my office unit...

Persuading by being centered.

Posted on July 19, 2009
  On May 25 and 28, I wrote about Jan Diepersloot's Warriors of Stillness, This book further says:  "Dantian [a.k.a. "tan tien"] means 'field of elixir', after the Taoist and Buddhist discoveries that putting awareness there in meditation generates a warmth and feeling of well being that permeates the entire body...

D.C. Circuit enjoins police checkpoints to screen neighborhood entrants.

Posted on July 16, 2009
In 1994, a border patrol agent stopped my car many miles north of the United States-Mexico border, as I drove at night towards my resting point in Albuquerque from Las Cruces, New Mexico. The stop was not pleasant, as the border patrol agent checked the back of my rental car -- perhaps to see if the trunk was weighted down with illegal drugs, smuggled people, or unauthorized mescal -- and then proceeded to try to get me to say I have a green card (maybe I've had a plaid card, but not a green one), and then waved me on after giving me his name, which I had requested, ultimately for no benefit...

Be neither limp nor stiff.

Posted on July 15, 2009
  Because battle in court as well as everywhere else calls for being calm and powerful in the eye of the storm, I continue practicing t'ai chi daily, and joining many highly-skilled t'ai chi practitioners each Sunday morning at Carderock Park along C&O Canal in Maryland...

What is with these "I'll sue you" letters?

Posted on July 15, 2009
 Bill of Rights. (From the public domain.)  When a client comes to me with a lawyer's letter threatening a lawsuit unless my client makes amends for allegedly libelous words about the lawyer's client, I might remind the lawyer about the First Amendment's limitations on such lawsuits, as well as a lawsuit's re-airing of the allegedly libelous communications that the plaintiff claimed s/he did not want aired in the first place...

Limit junk science testimony.

Posted on July 14, 2009
Too many trial judges allow pseudo-expert cops to testify as expert witnesses on such topics as illegal drug sales and gang activity. Here is a Second Circuit case that at least puts brakes on testimony that masquerades as coming from the expert realm, but instead tries to introduce factual allegations that would not come in without expert testimony and that cannot come into evidence with expert testimony, either...

Replacing our legal assistant, who is going to law school.

Posted on July 13, 2009
 My full-time legal assistant, David, will start law school this August.  We have an immediate opening for his replacement. The successful full-time legal assistant candidate will be trained by me, David, and our part-time legal assistant who will begin her college senior year this fall semester...

"In this war of all against all, who can withstand the might of the federal government?"

Posted on July 09, 2009
   Bill of Rights (From public domain.) The Drug Enforcement Administration revoked Novelty, Inc's, registration to distribute list I chemical products.  Novelty, Inc., v. DEA, et al., _ F.3d _ (D.C. Cir. June 22, 2009). Putting aside the questionable company name if it wants to be taken seriously by straight-faced government regulators, such a revocation clearly was devastating to Novelty, Inc...

What if a person cannot find a restroom?

Posted on July 08, 2009
   Bill of Rights (From public domain.) In court recently, I watched a public urination bench trial after my case finished. The county code carries up to six months imprisonment for such a violation. The cop got straight to the point by testifying that he was patrolling a parking garage in one of the higher-end commercial districts in the county, and saw the defendant get out of his car, pull out his ____ (using a two-syllable word beginning with a "p" more commonly heard in a raucous bar), and urinate (but he used the three-letter word for it)...

Miranda need not kick in to exclude silence in the face of police questioning.

Posted on July 07, 2009
At a recent drunk driving bench trial -- in Maryland, where defendants facing over ninety days of possible incarceration for one count may opt for a bench trial followed by a de novo jury trial on appeal, or a jury trial in the first instance -- the police officer testified that my client was silent when the officer asked my client on the roadside about what he had imbibed earlier that evening...

A formal arrest is not required to exclude silence in the face of police questioning.

Posted on July 07, 2009
At a recent drunk driving bench trial -- in Maryland, where defendants facing over ninety days of possible incarceration for one count may opt for a bench trial followed by a de novo jury trial on appeal, or a jury trial in the first instance -- the police officer testified that my client was silent when the officer asked my client on the roadside about what he had imbibed earlier that evening...

Persuading and fighting more successfully by humanizing opponents.

Posted on July 05, 2009
  Lately, I have gotten many new weekly ideas for persuasion and trial combat, through weekend t'ai chi push hands gatherings, daily solo practice, and ongoing viewing of videos and reading of books by today's and yesterday's t'ai chi masters. Here are some recent ideas:  - Learned at Sunday t'ai chi push hands practice today: Do not be too late in yielding nor attacking...

Give me a serious discussion on civil liberties over July 4 pomp and circumstance any day.

Posted on July 03, 2009
NOTE: Following is a reprint of what I wrote for July 4 in 2007 and reprinted in 2008: Whenever I look around on July 4, the scene is long on fireworks, beer, and merrymaking, and too short on discussion of what Independence Day is all about.  The Declaration of Independence was hardly signed by a bunch of pacifists...

As we approach our first anniversary.

Posted on July 01, 2009
 Last July, my decade-long former law partner Jay Marks and I opened our separate law firms. The good karma with which we made this transition -- including sending out a joint news release -- has continued to this day, and dates back to our first meeting at a six-year-old birthday party in Connecticut in 1969...

Virginia Super Lawyers adds me to its list.

Posted on July 01, 2009
Jonathan L. Katzonly 5% selected each yearvisit superlawyers.com For whatever it is worth, Super Lawyers has added me to its 2009 list of Virginia criminal defense lawyers, on top of my inclusion in 2008 and 2009 in Super Lawyers' criminal defense lawyer listing in Maryland and Washington, D...

Fourth Circuit denies en banc review in the Whorley obscenity case.

Posted on June 29, 2009
   Bill of Rights (From public domain.) On March 9, 2009, I blogged about the Fourth Circuit's decision upholding a conviction and steep sentence on counts for obscenity and child pornography in the form of Japanese anime drawings and allegedly obscene e-mails...

More on strength through non-attachment and non-resistance.

Posted on June 28, 2009
 As Peter Ralston says, problems between people "are really a parallel to what occurs in martial interaction and in fighting." Therefore I keep practicing the martial art of t'ai chi daily, and t'ai chi fighting/pushing hands weekly.  The t'ai chi practitioners whom I push hands with on the weekends -- right up to the highly skilled -- are all selfless and patient in helping me advance to higher levels of martial art ability, and I try doing the same with those who are newer to t'ai chi pushing/sensing hands than I...

Supreme Court tells judges to follow its rulings.

Posted on June 26, 2009
    Bill of Rights (From public domain.) Five years ago, the U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). For testimonial evidence, Crawford scrapped the rule of Ohio v. Roberts, 448 U.S. 56 (1980), that the Sixth Amendment right to confront one's accusers does not preclude unavailable witnesses' hearsay so long as said hearsay bears adequate indicia of reliability...

Of sealing, expunging, and shielding.

Posted on June 25, 2009
In addition to my own clients, frequently I receive calls from people asking for help to expunge their criminal records when I had never been in court with them in the first place. For my pre-existing clients, I gladly do the work where they are eligible for expungement...

Internet connection problems lead to fewer Underdog postings.

Posted on June 25, 2009
Since last Sunday, my home Internet connection has been dead. A technician hopefully will fix the problem tomorrow. As a result, there was no Underdog entry last night.

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