Criminal Law

The importance of identifying dangerous jurors.

Posted on May 30, 2008
 How many times do we meet people with twisted if not dangerous ways of looking at life and processing information? Some sue the government to stop directing neurotransmissions at their brain functioning. Others are convinced the FBI and CIA are tailing them, even when doing so would be a complete waste of the FBI's and CIA's time...

When convicted felons are nearby guns and drugs.

Posted on May 29, 2008
  Bill of Rights (From public domain.) When convicted felons are around guns and unlawful drugs, they risk exposure to substantial incarceration time. Lewis D. McCarson learned that when federal marshals came to his girlfriend's home with an arrest warrant for him...

When acquitted conduct is considered for federal sentencing.

Posted on May 28, 2008
  Bill of Rights (From public domain.) Last December 2007's Gall and Kimbrough opinions from the U.S. Supreme Court raise questions about whether it any longer is legitimate for sentencing courts to consider acquitted conduct in setting a sentence.  In an unpublished opinion from March 21, 2008, the Fourth Circuit reversed a sentencing that refused to consider acquitted conduct, and held that the standard at sentencing is whether a crime can be proven by a preponderance of the evidence, even if the conduct was acquitted under the beyond a reasonable doubt standard...

What will come of the Viacom v. YouTube suit?

Posted on May 27, 2008
   Computer hard drive. (Image from Pacific Northwest Laboratory's website). Even my most well-heeled litigation clients set a ceiling on the money they are willing to spend for litigation fees and expenses. One thing that interests me in the pending Viacom, et al...

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What does Memorial Day mean?

Posted on May 26, 2008
Image from website of the White House Commission on the National Moment of Remembrance.  Last year on Memorial Day, I posted the following piece on the topic. I agree with the posting as much today as last year.  Intervening since the 2007 Memorial Day was my father's fiftieth West Point reunion yesterday, which I attended with my wife and boy...

Defending criminal copyright infringement cases.

Posted on May 23, 2008
Computer hard drive. (Image from Pacific Northwest Laboratory's website). According to a posting at lawyer Allan Ellis's website, the United States Sentencing Commission reports that 94% of federal criminal cases result in guilty pleas. This week, my client and I bucked that trend by proceeding to a jury trial in Alexandria, Virginia, federal court for alleged criminal copyright infringement...

Marijuana smokers: Lend me an ear.

Posted on May 22, 2008
Image from public domain. No stems, no seeds that you don't need,Acapulco Gold is -- pfffffffffffffffff -- bad-ass weeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeed. - Cheech & Chong (listen here). My introduction to the pro-marijuana culture was heavily influenced by Cheech & Chong, who at once indulged (at least Chong, and I assume Cheech) in marijuana and lampooned those who did the same...

Does the First Amendment prohibit convictions for juxtaposing lawful images of children with adult sexual images?

Posted on May 21, 2008
  Bill of Rights (From public domain.)NOTE: The following blog entry was written before the awful May 19 Supreme Court decision in U.S. v. Williams (May 19, 2008).This blog entry follows up on my previous discussions of child pornography defense here and here...

Your vote for president will affect the Supreme Court's tilts for decades to come.

Posted on May 20, 2008
  Bill of Rights (From public domain.) On May 19, 2008, the United States Supreme Court affirmed a conviction involving the mere promoting of child pornography, as opposed to the possession or distribution of such material, even if no child pornography is behind the promotion...

Blogging by Google senior copyright counsel.

Posted on May 19, 2008
Computer hard drive. (Image from Pacific Northwest Laboratory's website). Our blogroll grows by around one new blog every three to six weeks.  One of our most recent blogroll additions is William Patry's Copyright blog. Patry is a senior copyright counsel at Google, which gives him a very informed angle from which to blog...

Reverberations of a step and a drum.

Posted on May 18, 2008
 Where did I get on this calmness kick that I discuss in my May 16 blog entry? It predates my t'ai chi practice to reach to the late 1970's, when meditation was already highly popular in the United States. I learned meditation through Herbert Benson's Relaxation Response book...

Addressing adversity like a t'ai chi teacher.

Posted on May 16, 2008
  A big dichotomy can exist between the devotion to being calm, and actually being calm. Although I do not know if it is true, a well-known peace proponent whom I respect very much claims that Gandhi, the very would-be pillar of calmness, was a tyrant to his wife...

In New York, it's Geoffrey Holder; in D.C. it's Douglas Ginsburg.

Posted on May 15, 2008
Imagine Geoffrey Holder, with his commanding voice, arguing before Judge Douglas Ginsburg.  I have lived in two celebrity towns: Manhattan and Washington, D.C. In Manhattan, I'd pass Lou Jacobi as he dropped off dry cleaning, Geoffrey Holder (see him in the YouTube video above) on a cold weekend afternoon in Greenwich Village, and Madeline Kahn in the audience waiting to see Linda Hunt and Wallly Shawn onstage...

A new assistant and a new beginning.

Posted on May 15, 2008
Two weeks ago, I blogged that I was accepting resumes for a new legal assistant. My search ended quickly, and my new assistant Sandra started working with us this week. Sandra is highly experienced in litigation, cares very much about our clients, and is a big asset to our firm...

Supremes: Constitutional for lawyers to agree to magistrate judge jury selection.

Posted on May 14, 2008
Supreme Court spiral staircase. On May 12, 2008, the United States Supreme Court affirmed a conviction where the defendant's lawyer agreed to magistrate judge-run jury selection, even though the defendant was not asked directly on the record whether he so consented...

State's Attorney Ruark pleads guilty to driving under the influence.

Posted on May 13, 2008
Photo from website of U.S. District Court (W.D. Mi.). On February 25, 2008, I wrote:  Wicomico County, Maryland, State's Attorney Davis Ruark said of his arrest from last Friday, which involved an alleged 015 blood alcohol content reading:  "I am human ...

Interstate commerce has its limits in criminal law.

Posted on May 12, 2008
Praised be Orlando federal judge Gregory Presnell for delineating the limits of federal jurisdiction in criminal prosecutions, in finding the federal sex offender statute unconstitutional when it comes to criminalizing to failing ot register with a state agency as a sex offender...

If you want to reach me, please refrain from bcc.

Posted on May 09, 2008
 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...

Stop police abuse now by shrinking the criminal justice system, disciplining cops, and maintaining compassion for them.

Posted on May 09, 2008
  Bill of Rights (From public domain.) Praised be the inventors of videocameras, right into today's generation of lightweight, small, inexpensive digital cameras. Without such cameras, more rogue cops would get away with lying that a suspect's face got rearranged merely because "he struggled with the cuffs, lost balance, and landed on the tip of my boot, then bounced off the tip of my boot onto my fist, and, by some strange happenstance, this got repeated seventy-three times until he finally landed nose-first on the pavement below...

The risks of refusing a test that should be fully refusable.

Posted on May 08, 2008
  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...

"There is never any end. There are always new sounds to imagine."

Posted on May 07, 2008
 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...

Thanks, Mildred and Richard Loving.

Posted on May 06, 2008
  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...

Horan's county bar tribute was not in my name, and never will be.

Posted on May 05, 2008
  Bill of Rights (From public domain.) When a criminal defense lawyer whom I highly respect and admire became the president of a Northern Virginia county bar association, I asked myself "why?". Why get involved in overseeing tributes to retiring judges merely because they are judges, tributes to lawyers merely because they are lawyers, and bench-bar dances to congratulate lawyers and judges all the more merely because they are lawyers and judges? Or, did this lawyer find a Doug Henning secret to overhaul the bar association to the image of the Virginia Association of Criminal Defense Lawyers or the American Civil Liberties Union? I imagine the above-mentioned county bar association does more than arranging events and programs to congratulate lawyers and judges merely for being lawyers and judges...

How to reduce hunger and eating costs, and slash methane and fecal pollution?

Posted on May 04, 2008
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)...

Deborah Jean Palfrey: It should not have ended this way. Not the time for a media feeding frenzy.

Posted on May 02, 2008
  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...

"Kaleidoscopic, fantastic images surged in on me." Farewell, Albert Hofman

Posted on May 01, 2008
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...

"Sir, I have never been to Paterson, New Jersey."

Posted on April 30, 2008
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...

Everyone is my teacher, including Justice Scalia on advocacy.

Posted on April 29, 2008
Photo from website of U.S. District Court (W.D. Mi.). The Dalai Lama wisely said that "everyone is my teacher, starting with my enemy."  As much as I often have sharp differences with Supreme Court Justice Antonin Scalia's judging -- see here and here, offset here and here -- he apparently has much that is beneficial to teach with co-author Bryan Garner's Making Your Case: The Art of Persuading Judges...

Jon Katz seeks experienced legal assistant/paralegal.

Posted on April 29, 2008
 Underdog readers, please lend me a hand by spreading the news that our law firm has an immediate opening for an experienced litigation legal assistant/paralegal to work with me for criminal and First Amendment defense. Do you know the right candidate to work just a mile from our nation's capital while fighting for truth, justice, and the Constitutional way? Who better to help us find the right applicant than our Underdog readers?  Our office sits across the greenest and most beautiful part of downtown Silver Spring, overlooking Woodside Park and its multi-foot fountain...

Praised be brave bloggers. Support their right to voice their views.

Posted on April 28, 2008
  Image from Library of Congress's website. Robust protection must be provided to free speech worldwide. That is a message I have been emphasizing and re-emphasizing for decades.  Bloggers represent one of the biggest perceived dissident threats to repressive governments -- and all government repress people's rights to one degree or another -- by changing the pre-Internet, pre-computer government censorship model that went beyond jailing dissidents to depriving disfavored publishers of newsprint, printing presses, photocopiers, and publishing licenses; jamming radio broadcasts; and monitoring and jamming dissidents' telephone calls...

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