Criminal Law

Underdog is three years old / Happy 420

Posted on April 20, 2009
 Today, Underdog is three years old. We launched on 4-20-06.with this tribute to 420. Reprinted below is our 4-20-08 anniversary blog entry:  Since our 2006 launching, Underdog has blogged every weekday, except for holidays and a few vacation days (sometimes I blog a few articles in advance of vacation days, and pre-program the articles to upload each day I am away)...

When SunWolf speaks, gems emerge.

Posted on April 20, 2009
Courtesy SunWolf: A criminal defense lawyer's criminal defense lawyer, showing lawyers the powerful path to humanizing our clients, through storytellilng, kindness to all, summoning our inner magic, and a reminder that "reality is no obstacle." Dr...

More on lessons of powerful peacefulness.

Posted on April 19, 2009
Enso - Japanese symbol of Zen Buddhism. (Available for public distribution.) An essential path towards powerful advocacy as a lawyer is to follow the path of powerful calmness and fearlessness of death. Buddhism has many beneficial teachings on this path...

Watch out about opening doors.

Posted on April 17, 2009
Often prosecutors are fond of proclaiming that defense counsel "opened the door." Which door is the prosecutor talking of, seeing that hundreds of thousands of doors exist within as little as a  mile radius of many courthouses.  Paying homage to Lucy van Pelt, prosecutors of defendant Anthony Loyd Mitchell told the jury, during opening statements, of the the witnesses that the prosecution might or would call against Mitchell, but then some of the listed significant witnesses did not testify...

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Where would we be without Daniel Ellsberg and Thomas Tamm?

Posted on April 16, 2009
Before my college sophomore year began in 1982, I started working at a small Brooks Brothers-type men's clothing store in Harvard Square. One of the two owners delighted in watching a boxing match between African-Americans, exulting at "two n-gg-rs" (his phraseology) "beating the crap" out of each other...

Guest Blawger Ben Trachtenberg on hearsay and its exceptions.

Posted on April 16, 2009
Welcome and thanks to guest blawger Ben Trachtenberg, who sent an email of such high quality about yesterday's blogpost on cops using "magic language" that I asked him for permission to post it here, or for him to update it to a guest blawg entry, which he did...

When cops use "magic language", watch out for exaggeration, omission, and prevarication.

Posted on April 15, 2009
Why do cops repeatedly parrot back similar language in their incident reports, no matter the suspect? If there is a training manual with this standard language, I want it, whether through a freedom of information request or otherwise:   Here is some standard language I see repeatedly:   For drunk driving cases: ?The defendant had slurred speech, and bloodshot and watery eyes...

Barbaric hunt for undocumented people ensnares even United States citizens.

Posted on April 14, 2009
Being American or lawfully-admitted to be in the United States does not involve an "American look" or a "documented look". One of the great things about the United States is that it has a great mix of people arrived or descended from around the world...

Beware Shepard's

Posted on April 13, 2009
In the days before Al Gore discovered the Internet, my law school legal research and writing instructor introduced us to the tomes -- called Shepard's Citations -- through which we painstakingly checked whether court cases being cited by us had been overturned, reversed, or affirmed, or had certiorari granted or denied...

Finding beauty in the suburban outdoors and beyond.

Posted on April 12, 2009
Somewhere between the excitement and grit of the city and the natural beauty of the wilderness lie the suburbs and exurbs. Two months after moving two years ago to our current home fifteen miles from downtown Washington, D.C. I was minding my own business removing the groceries from my car after dinnertime on a Sunday evening not long before Halloween, and my otherwise very likeable and interesting neighbor asked me if I had gotten my pumpkins yet...

When may a prosecutor reopen the case in chief?

Posted on April 10, 2009
In the Fourth Circuit, "[t]he reopening of a criminal case after the close of evidence is within the discretion of the trial judge. See United States v. Walker, 772 F.2d 1172, 1177 (5th Cir. 1985); United States v. Molinares, 700 F.2d 647, 652 (11th Cir...

President Obama: It's time to clean house at the VA.

Posted on April 10, 2009
Imagine entering the military, risking your life in the line of duty, being treated at a Veterans Administration Hospital, complaining voluntarily about the VA hospital treatment to a reporter after speaking up at a town hall gathering there, and then having VA security stop the interview and strongarm the tape from the reporter...

Bad civics lesson: U. Maryland's president caves to state senator's efforts against on-campus erotic film screening.

Posted on April 09, 2009
 Bill of Rights. (From the public domain.) For many years, I have proudly defended the robust First Amendment rights of everyone, including political activists of all stripes, libel defendants, and the adult entertainment industry.  Politicians' efforts to clamp down on adult entertainment are hardly confined to the Bible Belt...

Of Passover and social justice.

Posted on April 09, 2009
Passover commenced last night. Human rights and social justice are the most important message to me with Passover.  A close relative yesterday emailed a Passover greeting to family members. I replied as follows:  Because I will not be with any of you to do so live at the seder table, here?s the rabble I would have roused at the seder: Passover, of course, is a bittersweet holiday, not only because it juxtaposes slavery with release from slavery, but also because it continues to portray a god with a hairtrigger finger, although I do not believe in the torah as non-fiction...

Rowe to the rescue.

Posted on April 08, 2009
Image from National Institute of Standards & Technology. Where I usually practice law in Maryland, a drunk driving defendant with a good driving record and nothing unusual in his or her case is a good candidate for a probation before judgment after any guilty verdict...

The jury watches everything the client and the lawyer do.

Posted on April 07, 2009
Courthouses and courthouse procedures expose parties and their lawyers to being seen and heard by the juries doing things they do not intend to be seen and heard doing, including conversation in restrooms, criminal defendants in chains before being brought to the courtroom, and parties and their lawyers looking disengaged from the jurors...

Persuasion should not be akin to filling uncomfortable phone silences.

Posted on April 06, 2009
 The Chinese script for the character "mu," which means nothing. Recently, a prosecutor -- not too many years out of law school, for whatever that is worth -- kept talking and talking and repeating and repeating to the judge during a bench trial...

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

Posted on April 05, 2009
 How I wish I had done trial litigation work with a law firm, public defender office or ACLU-type group before beginning law school. That would have helped me reach harmony more quickly with those three years of legal boot camp.  My full-time legal assistant, David, will start law school this August with such an advantage...

One is never too young to stand up for one's convictions.

Posted on April 05, 2009
 This evening, I stopped by the local Nipponzan Myohoji Buddhist temple (I maintain the temple's webpage here) during its annual flower festival, where I met up with the local nun and my friend and teacher Takako Ichikawa, my longtime friend and mentor Jun Yasuda, and Brother Kato and Brother Toby from the Leverett, Massachusetts Nipponzan Myohoji temple...

Expose police abuse far and wide.

Posted on April 03, 2009
  When police operate in the shadows, the risk increases that they will abuse suspects' rights. After all, power corrupts, including when a cop has a handgun, taser, blackjack, billyclub, handcuffs, a badge, and the power of arrest, and the suspect has none of those...

Unlawfully entering the United States does not enable a conviction for visiting a miltary base.

Posted on April 02, 2009
 Bill of Rights. (From the public domain.) Why do good deeds so often go punished? Eliazer Madrigal-Valdez probably thought he was doing a soldier a favor by dropping him off at his military base in Fort Lee, Virginia.  Instead, when Mr. Madrigal was unable to produce a government-issued identification at the military base's checkpoint, he was detained, interrogated, deemed to have been a Mexican citizen, found not to have a record of being lawfully in the United States, arrested, and prosecuted...

Listen to your client, or else.

Posted on April 01, 2009
After practicing criminal defense for many years, a lawyer can get jaded by some of the more cockamamie-sounding urgings from clients, including the absence of fingerprints when ten witnesses and five videocameras caught the double-killing, and the shooting defendant was then tackled and held until the arrival of the police...

Jim Webb distinguishing self from Jack Webb?

Posted on March 31, 2009
Before now, nothing impressed me about Senator Jim Webb other than that he was less worse than George Allen of macaca-gate infamy.  On March 26, 2009, Webb introduced the National Criminal Justice Act of 2009. It is good that more people than criminal defense lawyers and ACLU types are publicly proclaiming how much of a failure is the nation's criminal justice system...

Some cases just need to be tried.

Posted on March 30, 2009
In what way is our payment of taxes for the salaries of uncaring and unjust prosecutors any different from Kevin Bacon's imploring "Please sir, may I have another [whack on the butt]" in Animal House? Too often, prosecutors refuse to hear from my witnesses to help them assess whether to prosecute a case, or whether to move closer to narrowing the settlement negotiations gap...

Keeping fascination going, even in an otherwise stuffy courtroom.

Posted on March 29, 2009
Steve Martin's flawless famous napkin trick.  My law practice keeps me away from the outdoors too often, except when I drive to and from courthouses, jails, and incident scenes.  On this glorious day, my three-year-old boy and I visited Potomac Overlook Park for the first time...

If tongue stud remains, the 20-minute rule is violated.

Posted on March 27, 2009
Image from National Institute of Standards & Technology. In all jurisdictions where I practice law, guidelines call for checking for an empty mouth for at least twenty minutes before administering breath tests for blood alcohol levels, because doing otherwise risks getting an inaccurate result from an already inaccurate procedure...

Atrocities plague the drug war, too.

Posted on March 26, 2009
  War breeds atrocities. We saw it with Abu Ghraib, My Lai, mini-My Lais (see here, too), and the list continues pathetically and endlessly. Consequently, great care must be taken by the government in deciding when and how to wage armed war and war in the criminal justice system, and in minimizing the risks and occurrences of atrocities...

Being human, prosecutors can act like Lucy van Pelt.

Posted on March 25, 2009
 Bill of Rights. (From the public domain.) As liars go, Lucy van Pelt was a pro. How else did she repeatedly convince Charlie Brown to try to kick a football that she always pulled away a split second before his foot touched the ball?  Being human, prosecutors, judges, criminal defense lawyers, and everyone else have the capacity to go back on their word, whether or not they do so intentionally, and whether or not they never intended to fulfill their part of the bargain in the first place...

Down by law for upskirting and downblousing.

Posted on March 24, 2009
   Bill of Rights. (From the public domain.) On the one hand, I think peeping camera laws have gone too far to to the point of chilling legitimate photography and other legitimate activities that have no lascivious intent and no intention of capturing intimate images...

Using scene-setting to persuade the decisionmakers, and to get the client to open up to the lawyer.

Posted on March 23, 2009
Often I feel an ill-placed center of gravity sought or accepted by too many judges. Of course judges bear the brunt of overloaded dockets and postponed cases by at best feeling like a grocery store cashier with never-ending lines of customers mixed in with inconsiderate and unaware people cutting in the line to ask where to find the store-brand wax beans...

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