Criminal Law

SCOTUS Double Header: Eighth Amendment and Civil Caging.

Posted on May 18, 2010
Supreme Court spiral staircase. Yesterday the Supreme Court issued two critical opinions whose importance extend well beyond the specific case facts.  Graham v. Florida, __ U.S. _ (May 17, 2010) , provides further discussion about the application of the Eight Amendment?s prohibition against cruel and unusual punishment, and reverses non-parolable life imprisonment on a non-homicide crime committed while the defendant was a juvenile...

Criminal defense is war, Part II.

Posted on May 17, 2010
Fearlessness is essential for an effective criminal defense lawyer.   Criminal defense is war, and an essential part of war is to be fearless. To do otherwise can be fatal. A trial warrior and the criminal trial defendant might not be able to eliminate all fear and nervousness, but the best start to doing so involves being in the moment, being here now...

"Take care of the music." Take care of the persuasive practice.

Posted on May 16, 2010
 Yow! I knew Bill Evans was a great musician, but did not realize until recently finding Universal Mind of Bill Evans (taped in 1966) on YouTube how fascinating he was about the creative and self teaching process (see exerprts here, here, and here).  I experienced a great performance by Evans in 1978 at the outdoors Nice jazz festival...

Here is the final text of D.C.'s medical marijuana law.

Posted on May 14, 2010
Image from public domain. Last week, I blogged about the D.C. City Council's final passage of a medical marijuana law, for Mayor Fenty's expected signature.  Not having found the final law's text on Google, I obtained it from the D.C. City Council website, which is not the easiest to navigate...

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Now the Arizona government will sit in its scalding immigrant witchhunt bath.

Posted on May 14, 2010
Now the Arizona government will sit in its scalding immigrant witchhunt bath, as organizations and local governments with financial muscle cancel meetings in Arizona and go to vendors in other states for goods and services. At best. Arizona governor Jan Brewer has not read her state's new immigrant witchhunt law, and at worst, she is misstating (if not downright prevaricating) what the law says, starting with its harassment provision, when she claims ?- in trying to avert the crippling boycotts faced in her state due to this law -- that: "The bottom line is there are a lot of mistruths about the bill...

Criminal defense is war.

Posted on May 13, 2010
If criminally charged, arm yourself with a qualified criminal defense lawyer.  Last week, one of my two assistants filmed and produced my first YouTube video, talking about how to deal with the police. In thirty minutes, she later showed me how to work the camera and tripod myself, and I then used the equipment to tape last Friday's presentations on U...

Text of Arizona's draconian immigration law.

Posted on May 12, 2010
Looking for the text of the recently-passed Arizona immigrant witchhunt law, it appears from Bill 1070's information sheet that the state House version is the one signed into law. If not, here is the state Senate version.

Before the Emancipation Proclamation: Judicial recipe on determining who was a slave.

Posted on May 12, 2010
One need look no further than Lexis or Westlaw to find the pathetic twists and turns of the institutions of slavery and racism.  It turns out that the Virginia appellate courts, alone, repeatedly reviewed disputes on determining who was a slave or not, including in the context of whether to grant a person temporary freedom from enslavement pending a final judicial determination of the issue...

Here is the text of the D.C. City Council's latest medical marijuana measure.

Posted on April 26, 2010
Image from public domain. Following up on my April 23 blog entry, after searching high and low for the text of the April 20, 2010, D.C. City Council initial medical marijuana legislation, I found it in only one place, at Safe Access DC's blog, and not even on the D...

On 4/20, did the D.C. Council approve an excessively restrictive medical marijuana measure?

Posted on April 23, 2010
Image from public domain. On the one hand, the April 20 date of this week's D.C. City Council approval of a medical marijuana measure could have been auspicious.  On the other hand -- having just completed two back-to-back jury trials -- I will get my hands on the legislation to see how much I agree with Oakland's Harborside Health Center Director Steve DeAngelo, who responded: "I think the bill is deeply flawed, and I don't think it is going to achieve the purpose, which is protect patients...

Defending challenger to Don't Ask Don't Tell.

Posted on April 22, 2010
Photo from website of U.S. District Court (W.D. Mi.). For over a decade, I have been defending activists of many political stripes, sometimes agreeing with their goals, and sometimes not; and sometimes agreeing or disagreeing with the tactics of those whose goals I support...

Supreme Court's "crush film" decision raises meat-eating issues.

Posted on April 21, 2010
Is meat-eating possible without cruelty to animals? Certainly, meat is no treat for those you eat.  How unaware to the cruelty of their own meat eating were meat eaters who passed the federal ban on "animal cruelty" videos that the Supreme Court struck down yesterday, on 4/20 no less? U...

Underdog is four years old / Happy 420

Posted on April 20, 2010
  Today, Underdog is four 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 business day, except for few vacation days and t'ai chi 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 is offsite criminal activity sufficient to permit a warrant to search one's home?

Posted on April 19, 2010
   Bill of Rights. (From the public domain.)   Search warrants of people?s homes often are issued as a result of alleged criminal activity that takes place far from the suspect?s home.   When is alleged offsite criminal activity sufficient to permit a warrant to search one's home? In such a jurisdiction as Maryland, a limited nexus is needed between the criminal activity that has already taken place and the suspect?s home...

Jack Herer departs his body.

Posted on April 18, 2010
  Last September, I blogged about hemp activist Jack Herer's health.  Sadly, Jack passed away this past Thursday. More information is here.

On "High Times"

Posted on April 16, 2010
Image from public domain. By coincidence, the first issue of my my law firm's new High Times subscription arrived on April 14, just six days shy of 4/20/2010,  Flashing back to 1990, I first took out a subscription to High Times  magazine in protest over a Louisiana 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...

Former California trial judge supports drug reform.

Posted on April 15, 2010
  Photo from website of U.S. District Court (W.D. Mi.). The June 2010 High Times, which my law firm keeps in our reception area, has an article about retired California trial judge James Gray, entitled "Gray Matters".  Mr. Gray was "raised as a Republican" but switched to Libertarian when he could "no longer condone the so-called Patriot Act, which was a direct unnecessary attack on our civil liberties...

Speaking tonight in Silver Spring: Police trainer who follows mindfulness

Posted on April 15, 2010
   Three months ago, I wrote about  Cheri Maples, who incorporates Buddhist mindfulness into training police.  Ms. Maples will be speakng this evening in Silver Spring, as follows:  "Foregiveness, Repentance, Criminal Justice, and Mindfulness," 7:00 p...

When cops stray from Miranda, pounce on it, II

Posted on April 14, 2010
Ernesto Miranda (r). (Image from State Department's website).  Today, Maryland's highest court affirmed the suppression of a murder suspect's statement to the police, where the statement followed a botched Miranda warning. Maryland v. Luckett, __ Md. App...

New medical marijuana law eludes Maryland this legislative session.

Posted on April 13, 2010
Image from public domain. Days could be taken speculating over why the Maryland Senate took until near the end of its legislative session which ended yesterday -- and why the House of Delegates did not vote on the bill -- to pass a medical marijuana bill (see the text here ) that legalizes medical marijuana use, as opposed to the current state law that just limits medical marijuana to a $100 fine if the defendant proves medical necessity...

Spread Flex Your Rights' videos far and wide.

Posted on April 12, 2010
Watch FlexYourRights' Busted and 10 Rules for Dealing with the Police.  Too often when I tell potential and existing clients that they did not have to talk with the police nor consent to a search, their faces turn to an ashen "Aw sh*t" looks...

Beware D.C. traffic gridlock from April 12-13 Nuclear Security Summit.

Posted on April 11, 2010
On April 12-13, the District of Columbia Convention Center, near Chinatown, hosts the Nuclear Security Summit. Traffic gridlock galore is likely, and might even start today, Sunday.  At the very least, the expected traffic snafu will affect those going to the D...

From Krassner to Kosuth to Poe.

Posted on April 11, 2010
 Outside Poe's Baltimore House.  I always look beyond the law and lawyers on my road to improving myself as a person, lawyer and persuader. Most jurors and witnesses are not lawyers, which makes it all the more critical for trial lawyers to expand their horizons well beyond the law...

Judges may not inquire into immigration status in criminal cases.

Posted on March 08, 2010
Thanks to a listserv member for posting this opinion from Maryland's Judicial Ethics Committee, which says judges may not ask a criminal defendant to divulge his or her immigration status at sentencing nor at a bail hearing.

Non-duality revisited.

Posted on March 07, 2010
    During my decades of obsession over civil liberties and human rights, I have staked too much of my feelings of well-being or ill-being on things happening outside myself, when instead it is critical simultaneously to fight for social justice while also reaching and maintaining internal well-being, balance and harmony...

The federal sentencing guidelines may not bind judges.

Posted on March 05, 2010
Today, the Fourth Circuit revisited Gall v. United States, 552 U.S. 38 (2007) and Rita v. United States, 551 U.S. 338 (2007), in ordering a resentencing where a sentencing judge "stated that while it did not agree with the Guidelines range, it was 'obligated' to give [defendant] Mendoza a Guidelines sentence unless 'a reason for a departure from those Guidelines, or a variance based on 18 U...

Hurdles to suing for copyright violations.

Posted on March 04, 2010
A real tension exists between the First Amendment and the Constitution's protections of intellectual property.  Art. I, § 8 of the Constitution empowers Congress to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries...

Attacking horizontal gaze nystagmus evidence.

Posted on March 03, 2010
Image from National Institute of Standards & Technology. Horizontal gaze nystagmus tests are junk science, but not all judges have the same view. Here are some items to consider in attacking horizontal gaze nystagmus tests:  ?The cases and literature indicate that, in addition to alcohol, many other factors have been mentioned as a possible cause of nystagmus...

Putting a shelf life on Miranda rights.

Posted on March 02, 2010
How many Supreme Court justices have been interrogated by police? Probably none. How many have asserted their Miranda rights with the police, only to have the police repeatedly come back to them seeking a reversal of the waiver? Probably fewer. How many of them agree with a shelf-life of fourteen days for an assertion of the right to counsel in the face of police interrogators? Seven, including the so-called more liberal wing justices Ginsburg, Sotomayor, and Breyer...

Summary contempt proceedings are only available where the judge witnesses the contempt firsthand.

Posted on March 01, 2010
Many make much fanfare about the United States criminal justice system's right for criminal defendants to remain silent, to have a trial, to be presumed innocent unless and until found guilty beyond a reasonable doubt, and the right to counsel.  However, the courts where I practice interpret the United States Constitution as not requiring the right to counsel, nor a trial for summary contempt proceedings where the judge witnesses the contemptuous behavior...

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