Criminal Law

D.C.'s breathalyzer failing grade should raise tougher scrutiny of breathalyzer tests nationwide.

Posted on February 28, 2010
 Image from National Institute of Standards & Technology. Breathalyzer tests are junk science. At best, breathalyzer machines should only be used to determine whether to obtain a more thorough blood alcohol screening, through a blood test (or a balloon test, according to one forensic chemist whom I respect very much)...

Immigration consequences from criminal convictions and sentences: Excellent links.

Posted on February 26, 2010
As I have blogged before, criminal defense lawyers need to remain cognizant of the ever-developing complex morass of immigration risks from criminal convictions and sentences.  In that regard, thanks to the National Immigration Project for presenting this page of links about such risks...

A criminal defendant's testimony at a suppression hearing may not be used against him at trial.

Posted on February 25, 2010
"[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection."  Simmons v. United States, 390 U...

Ninth Circuit permits warrantless search of home when arrest warrant subject remains outside of home.

Posted on February 24, 2010
Unfortunately, last September, a Ninth Circuit panel upheld a warrantless home search where the subject of an arrest warrant never got into the searched home. The panel justified the search under the protective search and plain view doctrines. U.S. v...

To access this complete feed in the blog feed reader login or register for free.

Persuading judges, jurors, and prosecutors about marijuana.

Posted on February 23, 2010
NOTE: Following is an article that I recently submitted for publication in the newsletter of the Maryland Criminal Defense Attorneys Association: Here are some thoughts for persuading judges, jurors, and prosecutors for negotiations, trials, sentencings, and probation/parole violation hearings involving marijuana:   - In all likelihood, a small minority of convicted Maryland marijuana defendants will be sentenced under the medical marijuana sentencing scheme...

D.C. federal judge denies motion to dismiss obscenity prosecution against Evil Angel, et al.

Posted on February 22, 2010
Thanks to a listserv member for posting on last Friday's 24-page denial by D.C. federal trial Judge Richard J. Leon of Evil Angel, et al's, motion to dismiss their obscenity prosecution. U.S. v. John Stagliano, et al., Criminal Action No. 08-93 (RJL) (D...

Supreme Court: The Batson-ruling judge need not witness demeanor of stricken juror.

Posted on February 22, 2010
By unanimous per curiam decision today, the United States Supreme Court said that where Judge A is present during jury voir dire and Judge B hears a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), in the same trial, Judge B may still overrule the Batson challenge where the prosecutor claims that the potential juror was stricken only based on demeanor, even though Judge B did not have an opportunity to observe the potential juror's demeanor...

Fox News apparently did not edit out Tiger Woods's references to Buddhism.

Posted on February 21, 2010
The Chinese script for the character "mu," which means nothing. Why are so many intricate brush strokes needed to convey nothing? (The copyright was relinquished by this animated symbol's creator. The symbol also is available here.) NOTE: Please see my February 22, 2010, addendum at the end of this article...

Tongue Fu and Verbal Judo.

Posted on February 21, 2010
  Tongue Fu and Verbal Judo. I recently told a former police officer who is now a forensic psychologist about Cheri Maples, who found a way to inject the Buddhist approach of mindfulness into her training of police officers, including encouraging them to talk directly to other police personnel with whom they had beefs, rather than to let it boil into gossip and worse...

Keeping drug field tests out of evidence.

Posted on February 05, 2010
Virginia has a statute allowing marijuana field testing testimony into evidence:  "In any trial for a violation of § 18.2-250.1, any law-enforcement officer shall be permitted to testify as to the results of any marijuana field test approved as accurate and reliable by the Department of Forensic Science pursuant to regulations adopted in accordance with the Administrative Process Act (§ 2...

James Shellow on cross-examining drug analysts.

Posted on February 04, 2010
On a recent criminal defense lawyers' listserv thread, a colleague recommended James Shellow's Cross Examination of the Analyst in DrugProsecutions (Lexis-Nexis). My colleague who posted on Shellow's above-listed treatise points out that he was a chemist before going to law school...

Meeting macaca-gate's central anti-Allen catalyst.

Posted on February 03, 2010
  S.R. Sidarth and Jon Katz (Copyright Jon Katz.)     I kept my composure when encountering such excellent and accomplished people as Lou Jacobi (through a storefront window), Geoffrey Holder (on a SoHo street), and Madeline Kahn (in the audience of Aunt Dan and Lemon)...

Challenging breathalyzers with engineers.

Posted on February 02, 2010
Forensic toxicologists and forensic chemists are common experts for challenging the accuracy and reliability of breathalyzer tests. Sometimes an engineer should be consulted for providing analysis and testimony about the breathalyzer, including testing the breathalyzer with such equipment as an oscilloscope...

"Swear words" are not sufficient by themselves to get a conviction.

Posted on February 01, 2010
Recently, Virginia's Court of Appeals confirmed that so-called "swear words" are insufficient by themselves to convict for obscene or profane language. In Lofgren v. Virginia, __ Va. App. _ (Nov. 3, 2009), the Court reversed Lofgren's conviction for a phone call in which he let loose a tirade against the complainant with F-bombs, and the words bitch and c-nt...

D.C. City Council to hold hearing on medical marijuana.

Posted on January 31, 2010
Image from public domain. The District of Columbia City Council will hold hearings on February 11, 2010, on the road to effectuating the medical marijuana initiative that D.C. voters approved in 1998, but which Congress blocked until recently. Further details are here http://www...

Applying Gant, D.C.'s Court of Appeals affirms a drug search.

Posted on January 29, 2010
On January 21, 2010, D.C.'s highest court considered the application of Gant to a car search. In affirming the search and conviction, the court stated:   "Here, appellant was arrested for possession of marijuana ? for which the police had probable cause ? after seeing him drop a blunt on the ground...

To meet the execution exemption for being mentally retarded, one must assemble the smarts and evidence to prove mental retardation.

Posted on January 28, 2010
On January 27, 2010, the Fourth Circuit essentially said that to meet the execution exemption for being mentally retarded, one must assemble the smarts and evidence to prove mental retardation. This 2-1 Fourth Circuit opinion sets the bar too high for proving mental retardation to avoid capital punishment...

Recent Maryland appellate opinions.

Posted on January 28, 2010
Following are two particularly important recent opinions from Maryland's Court of Appeals:  - The Court affirmed a trial court's exclusion of a defense expert on witness identification. Bomas v. Maryland, __ Md. _ (Jan. 15, 2010).  - The Court found that probable cause to arrest (which arrest revealed PCP possession) was absent based on the totality of the circumstances, including the odor of ether on the defendant...

Three fake crack rocks insufficient to prove intent to distribute.

Posted on January 27, 2010
Praised be Virginia's Court of Appeals, for finding that possession of three fake crack rocks -- without more -- is insufficient to convict for intent to distribute. Holloway v. Virginia, __ Va. App. _ (Jan. 26, 2010).  Curiously, just four days before Holloway was decided, the New York Post reported on the abortion of justice by the arrest and multi-day jailing of two men who possessed candy that might look like crack, but would have tested negative had the cop(s) taken but a moment to use a field drug test kit, which they did not...

Briscoe is but a blip on the screen.

Posted on January 26, 2010
Through the sheer elegance of minimalist language, the Supreme Court -- without dissent -- kept Melendez-Diaz in its rightfully supreme place. Here is the Court's per curiam Briscoe opinion from January 25, 2010:  "SUPREME COURT OF THE UNITED STATES No...

Recent Virginia Supreme Court opinions.

Posted on January 26, 2010
Following are some particularly important recent Virginia Supreme Court opinions:   Logan v. Virginia, __ Va. _ (Jan. 15, 2010): The "exclusionary rule is not applicable in probation revocation proceedings absent a showing of bad faith on the part of the police...

Citizens United v. FEC

Posted on January 25, 2010
The Internet is abuzz about Citizens United v. FEC. For the First Amendment defense side of my law practice -- and as a concerned person -- Citizens United is a critical opinion for me to read and digest, all 183 pages of the case, which covers Chief Justice Roberts's opinion, two concurring opinions (by Justices Scalia and Thomas), and Justice Stevens's opinion (joined by Justices Ginsburg, Breyer, and Sotomayor) that partially concurs and objects...

A policeman's lying eyes lead to a drug felony dismissal.

Posted on January 24, 2010
As I have repeatedly said, a large percentage of people repeatedly lie; police are drawn from the general population without any more immunity from lying than anybody else; so a large percentage of police will repeatedly lie, even on the witness stand when under oath...

Jack Litman leaves his body. Kindness, brilliance and passion personified.

Posted on January 24, 2010
Over the weekend on a lawyers' listserv came news that Jack Litman left his body yesterday. Because death seems to be an artificial boundary, other than to describe the shutdown of one's organs and body, I prefer not to say that he died, including when considering how many lives Jack continues to positively touch, which became all the clearer from the numerous listserv comments I have read from those close to him...

''N-----, what are you doing out of your neighborhood?,'' the cop taunted.

Posted on December 31, 2009
Today, too many people still echo the quote listed in the title to this blog entry at least in their minds. Longer ago, many more people -- police included -- would openly verbalize such thoughts.  Born in 1920 to a former slave, at the age of thirteen Percy Sutton was handing out NAACP leaflets in an all-white neighborhood, apparently in his home state of Texas...

Praised be Steve Rench and his organization approach.

Posted on December 29, 2009
A friend told me he once saw Sting on a London street in the mid-1980's. Word traveled rapidly that he was there, and Sting slipped deftly away before he got mobbed. I, on the other hand, saw Roger Daltrey in a Vancouver hotel lobby in 2001, and left him to his peace and quiet...

The continued stink of drug dog sniffs.

Posted on December 28, 2009
 Image from the NIH's website. In the past, I have blogged about drug dog sniffs, including the following items:  - "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment...

More on shoveling sh*t on the way to obtaining justice.

Posted on December 25, 2009
On December 17, I blogged about the unglamorous side of fighting for justice. A civil rights lawyer in Conncecticut advised me early on in my legal career about the need often to shovel sh*t to do civil rights litigation. Larry Pozner -- a great cross-examination teacher, among other things -- emphasizes the huge percentage of preparation time needed to execute a powerful and persuasive defense in court...

Is Ronald Machen the best available candidate to be the U.S. Attorney in D.C.?

Posted on December 24, 2009
Photo from website of U.S. District Court (W.D. Mi.). A United States Attorney is the chief lawyer overseeing virtually all criminal and civil trial litigation in a federal trial court district in which the federal government is a party, as well as subsequent appeals...

The land of probations before judgment and suspended impositions of sentences.

Posted on December 24, 2009
Photo from website of U.S. District Court (W.D. Mi.). No matter how out-of-balance I have found Maryland's criminal justice system -- as to the rights of the criminally accused -- Virginia is heavily an even less hospitable place.  Virginia is eminently worse than Maryland in the realm of discovery, alone...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.