Criminal Law

Cops: Exceed a frisk at your own risk.

Posted on February 20, 2009
 Bill of Rights. (From the public domain.) Praised be Maryland's highest court, which this week reversed a conviction where the police opened a gym bag (and found heroin there), without more than reasonable, articulable suspicion at the time. The Court confirmed:  "When the container is subjected to a more intrusive search in lieu of a pat-down, the State can sustain its burden of proof that the search was reasonable either by having the officer explain why it was necessary to conduct that search or by demonstrating from the container itself that a pat-down would not have revealed the presence or absence of a weapon...

Batson advanced in the former cradle of the confederacy.

Posted on February 19, 2009
 Bill of Rights. (From the public domain.) Remnants of the confederacy are still heavily highlighted all over Virginia, which closes its courts and other government offices on Lee-Jackson day, has the miles-long [Robert E.] Lee Highway that stops just a half mile from Washington, D...

Prosecutors: No reward for late-produced drug chemist reports.

Posted on February 19, 2009
 Bill of Rights. (From the public domain.) Prosecutors like getting drug analysis reports into evidence at trial without the chemist's presence, so that chemists may test more drugs, more drugs, and even more drugs  in an effort to nab more people in the unjust drug war...

How to stay healthy during trial battle?

Posted on February 17, 2009
  Regular Underdog readers know of my strong interest in improving physical, mental, and spiritual health to be a more powerful trial lawyer. That is why I practice t'ai chi daily, to improve physical health, reduce stress, and increase calm. Trial work involves battle and war, and no warrior should go to battle from the couch potato position...

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Trial after trial after trial not automatically unconstitutional.

Posted on February 16, 2009
 Bill of Rights. (From the public domain.) A colleague once suggested that the risks of being sufficiently paid for one's time for drawn-out federal drug conspiracy defense work are often too high unless the work is done by court appointment under the Criminal Justice Act...

Kangaroo tribunals and student discipline.

Posted on February 15, 2009
In addition to criminal defense, I do student discipline defense. The two legal defense areas go well together, sometimes with student disciplinary matters relating to pending or potential criminal charges, and involving the fight for fair proceedings and fair treatment...

Chatting with cops

Posted on February 13, 2009
Today, I was waiting in line at a lunch carryout, and a local cop was behind me. I admit that I remain so obsessed over all the police brutality, other police misconduct, police slickness, and legally-sanctioned police lying (to get confessions and other discovery)  going on in the world that I do not tend to do much chatting with cops outside the courthouse (unless it is about a pending case), as much as I know the value of knowing the opponent...

Don't get caught in cops' slickness.

Posted on February 12, 2009
For awhile I have praised the Busted video for giving people practical approaches to assert their Fourth, Fifth and Sixth Amendment rights with the police. Now adding to that arsenal of important information is the following YouTube presentation by a former criminal defense lawyer and a cop, where the professor encourages people to assert their Fifth Amendment right to remain silent, and the cop says that the vast majority of people can be coaxed to talk within the bounds of law...

Gerry Spence on video.

Posted on February 11, 2009
The powerhouse of John Johnson and Gerry Spence (Aug. 1995, Thunderhead Ranch)  Lately, more videos of trial great Gerry Spence -- who founded the Trial Lawyers College, which I attended in 1995 -- are getting to YouTube. Here are the most notable videos:  - Cross examining, and asking: "You did have a coach? Oh!...

Apprendi and safety valve sentencing.

Posted on February 10, 2009
Photo from website of U.S. District Court (W.D. MI). Imagine pleading guilty when facing a high risk of a three-strikes non-parolable life term in prison. Why enter such a guilty plea unless such an approach is one's only realistic hope not to die in prison, for instance where the prosecutor offers, in exchange for a guilty plea, to dismiss other pending criminal charges that are even more certain to result in life imprisonment either by themselves or by accumulation of counts?  Scott William Thompson unsuccessfully rolled the dice by entering such a guilty plea...

Human cattle call and a roll of toilet paper in John Waters country.

Posted on February 09, 2009
 Too many people are unjustly caged in American prisons. (Image from Bureau of Prisons' website). Why does John Waters make so many of his films in Baltimore? Because nobody could create in a studio setting as strange a place so full of urban decay and quirks as Baltimore...

Trials and the art of bloodless war.

Posted on February 08, 2009
  Is criminal defense work about proverbial war and sometimes bloodletting? Hell, yes, whether one wants it that way or not. As I have said before, t'ai chi principles are important to criminal defense, for focusing on harmonizing an imbalanced situation without applying more than a few ounces of force and without seeking to inflict heavy proverbial casualties as a goal, but not shying away from inflicting such casualties if necessary and within the bounds of law and legal ethics...

Respond to despicable speech with more speech.

Posted on February 06, 2009
 Bill of Rights. (From the public domain.) Recently, a fellow lawyer asked me my motivation for representing libel defendants "who destroy another person's reputation and peace of mind with malice." I turned my answer into the following blog entry:  - I strongly believe that libel suits violate and are incompatible with the First Amendment...

If everyone substituted marijuana for alcohol, society would be a better place.

Posted on February 06, 2009
Image from public domain. Imagine if everyone drinking alcohol tonight switched to puffing marijuana, nibbling a hash brownie, or downing a marijuana smoothie. As a result, fewer people would beat the sh*t out of others, fewer would act like raving lunatics, fewer would be heaving chunks, and some people would be receiving medicine superior to many of the pills and injectables peddled by Pharmaceutical, Inc...

The jury is the thing. Petty offenses are the barrier.

Posted on February 05, 2009
 Bill of Rights. (From the public domain.) Yesterday I blogged on a recent marijuana bench trial victory in federal magistrates court.  In my view, however, it is unconstitutional -- absent the clear and informed consent of the criminal defendant on the record in court -- to expose a person to incarceration without a judge nominated by a governor or the president and confirmed by the respective legislature -- or else elected pursuant to state Constitutional provisions -- and without the right to a trial by jury...

William Thomas's funeral is February 7

Posted on February 05, 2009
The peace symbol went far beyond hippies. Gerald Holtom designed the symbol in 1958, and the Campaign for Nuclear Disarmament adopted the symbol for its logo.On January 25, I blogged about the passing of William Thomas. News reached me yesterday of his following funeral time and location:  February 7, 2009, 4:00pm-5:30pm, New York Avenue Presbyterian Church, 1313 New York Avenue NW, Washington, DC, 20005...

Defending in federal magistrates' court

Posted on February 04, 2009
 Bill of Rights. (From the public domain.) Recently, I won a marijuana possession case in federal magistrate's court. I won the case not through pulling any rabbits out of the hat, but by using procedural rules and procedural strategy to my advantage...

When a court's affirmative orders meet with lawyer silence.

Posted on February 03, 2009
Photo from website of U.S. District Court (W.D. Mi.). Today, Virginia's intermediate appellate court found a lawyer in contempt and disbarred her for her insufficiently explained silence in response to the Court of Appeals' orders to file an amended petition for appeal after denying her petition to withdraw as court-appointed appellate criminal counsel (she also was silent when the order was repeated), not responding to a subsequent order to show cause why the foregoing behavior should not lead to a contempt order, and then not appearing in court on the date designated for hearing the contempt show cause matter...

Why is PETA's sexy vegetable ad worse for children than McDonald's cruelty on a bun ads?

Posted on February 02, 2009
Following up on my January 30 blog entry on PETA's racy vegetable ad rejected for Super Bowl airtime (see NBC's very explicit rejection e-mail at PETA's site), Jonathan Turley -- whose blog is among the handful I read almost daily -- blogged yesterday his view that too many children watch the Super Bowl to justify running the ad during that event...

The secret taping did not begin with Nixon.

Posted on February 01, 2009
One thing that made me fond of vehemently disliking Nixon starting in the early 1970s was his non-stop or near non-stop secret audiotapings of conversations from the Oval Office. Then, several years ago, I learned his two Democratic predecessors were frequent secret audiotapers, and that Lyndon Johnson showed Nixon the taping system at some point between Nixon's 1968 electoral victory and taking office...

Horton hears a who: What about mice and rats?

Posted on January 30, 2009
 Whether or not one agrees with PETA's message -- and I agree with PETA's advocacy of vegetarianism and boycotting of circuses that use non-human animals (Cirque de Soleil apparently only uses human animals, for instance) -- the group has developed a knack for persuasive videos...

Being out of the U.S. does not automatically prevent challenging asset forfeiture action.

Posted on January 29, 2009
 Image from Bureau of Engraving and Printing's website. Doesn't the United States government have better things to do than to be prosecuting gambling? Would the government be chasing after gambling operations if the prospect did not exist to obtain forfeiture of the alleged gambling operations' money and to obtain unpaid taxes? Greed clearly is not limited to the private sector, particularly when one includes greed for power in the mix...

Supreme Court further entrenches Terry v. Ohio.

Posted on January 28, 2009
Terry v. Ohio wrongfully tramples on civil liberties. (Image from FBI's website). The United States is far from a truly free nation; nor are any other nations. Light a flame in a dried-out forest, and soon an uncontrollable inferno will rage beyond the control of the firesetter...

Summary judgment risk to civil defendants evading entry to the United States.

Posted on January 28, 2009
 Image from Bureau of Engraving and Printing's website. Doesn't the United States government have better things to do than to be prosecuting gambling? Would the government be chasing after gambling operations if the prospect did not exist to obtain forfeiture of the alleged gambling operations' money and to obtain unpaid taxes? Greed clearly is not limited to the private sector, particularly when one includes greed for power in the mix...

The inseparability of knowledge, technique, and fighting strength.

Posted on January 27, 2009
 Yin Yang T'ai chi works for trial battle and beyond,  A fellow otherwise accomplished criminal defense lawyer recently took issue with the inclusion in a state criminal defense association newsletter of my recent article on applying t'ai chi principles to trial battle without seeing other articles dealing with the written law and non-t'ai chi trial technique in that issue...

RNC demonstrators win.

Posted on January 26, 2009
 Bill of Rights. (From the public domain.) A few days ago, a Ramsey County, MN, trial judge dismissed a prosecution for insufficient evidence against protestors who demonstrated during the 2008 Republican National Convention. The defendants were charged with obstructing the legal process, disorderly conduct, unlawful assembly and blocking traffic...

Living and sweating it out when death is an inevitability.

Posted on January 25, 2009
 On death, Woody Allen asked: "I keep wondering if there is an afterlife, and if there is, will they be able to break a twenty?"  My own death seemed somewhat abstract to me until, at nineteen years old, a close relative was diagnosed with cancer...

Thomas departs the planet.

Posted on January 25, 2009
Thomas: "I don?t like unnecessary suffering."  In August 1986, I came to George Washington Law School after a year working at a Wall Street bank, where I learned that I would need to seek much more deeply and widely if I were going find fellow Amnesty International and ACLU enthusiasts in the belly of the capitalist beast...

Judges: Why reveal indictments to the jury?

Posted on January 23, 2009
 Bill of Rights. (From the public domain.) Criminal jury trial are fast-paced events that risk all sorts of appealable errors. While it is nice to have good appellate issues to argue in the event of a conviction, it is nicer to prevent the errors in the first place...

Scrutinize jury instructions with a fine-tooth comb.

Posted on January 22, 2009
 Bill of Rights. (From the public domain.) In jurisdictions where the judge instructs the jury on the law before closing trial arguments are made, it is tempting for lawyers to focus on putting the finishing touches to their closing arguments while the judge instructs the jury...

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