SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_06 0:30

Hello, everybody. This is John Katz at Beat the Prosecution. I am a Fairfax criminal defense and DUI defense lawyer. I cannot contain myself with any guests I've had so far. This is Jay Marks, my former law partner of 10 years. Jay, please introduce yourself.

SPEAKER_03 0:50

Gato. Thank you so much for having me. And I'm pretty sure you'll explain to everyone why I say gato. But uh my name is Jay Marks, and uh I practice uh mostly immigration law, uh, and um it's a nationwide practice, but we're based here in Silver Spring, Maryland. And I had I had the honor to practice law with John Katz for 10 years, and uh and uh I have the honor of knowing him for uh 55 years since 1969. That was for uh 63 years. So 63, 63. So it's really um it's just uh an honor to be here and an honor to be included in this pantheon of great guests that you have because I've listened to these podcasts, and the folks that you have on are really uh tremendous uh in their fields, they're tremendous human beings. And I just I'm honored that you considered me for this gato. So thank you so much.

SPEAKER_06 1:59

And Jay is on the same level. So Jay and I met at Jeffrey Nishball's six-year-old birthday party in 1969, when little did we realize that all those fashions then uh were gonna be the big wide collars and a bunch of that other stuff was gonna become faux pas later. Paisley's. Exactly. And Jay and I started bumping into each other in the DC Baltimore area when we were both practicing law, and I graduated from law school about two years before he did. And uh the entrepreneur, free enterprise guy Jay is, and the I don't want to have any bosses guy I am united us in law partnership from 1998 to 2008. And my gato and my gato name came from Jay. Jay was brilliant. He already had a Spanish radio show uh before we even start our partnership called Legally Speaking, with your where your cause is our cause, and that's where my Spanish improved tremendously, as well as uh, you know, he would rib me. We'd go to lunch and I'd put up a sign and we'd get back uh to the office and Jay would say, What what is this uh almost revolver in 30 minutos? We're gonna revolver in the 30 minutes, regresamos in 30 minutos. So it was there that I got my name gato. Jay would say things like Gato, ¿qué tipo de casos haces marks and cats? What types of cases do we do we do? And I was just forced to do the Spanish because we did a criminal defense radio show once, and uh I was speaking in English, and Jay was interpreting, and people were saying to Jay, is this a Spanish-speaking radio show or what? And it just forced me to speak the Spanish.

SPEAKER_03 3:47

Well, I was very fortunate for those 10 years to be in practice with you because honestly, had it not been for you, there's no way I would have ever gotten on El Sol because it was um I was invited by El Sol, uh, which was then a CBS station here in DC that had just opened, they had just dethroned a uh a traditional rock station that had been uh on that same frequency for 30 plus years. And one morning the DMV, the Washington, D.C. area woke up, and instead of hearing, you know, um uh Boston, uh, they started hearing uh Celia Cruz and nobody could understand what happened, and they just changed formats one day, but they didn't have a morning show until about three months later. Uh, and then that morning show called our office and said, Hey, we need an immigration attorney. Do you speak Spanish? Can you come on the show? And I said, Sure, how'd you find us? Oh, your website. Well, who built our website? Gato. My gosh, who made us uh uh prominent on the web, gato. So I really owe all of that to you. I went on a four-year run of free uh you know exposure in the largest market uh of Spanish speaking, yes, because of the website that you built for us. So I always agree.

SPEAKER_06 5:22

We can go on for five hours, the mutual hug fest and love fest, which is true. And I'm gonna tell everybody that when I started going on radio and TV, uh Jay would just reassure me, he'd say, you know, a lot of those questions that are gonna come from some of these basic interviews, they're gonna be softball questions. You can just smile and answer it well. Of course, Jay, you didn't prepare me for when I went up against Mike Barnacle and uh Linda Rice Hughes was on there where he was trying to hear me about my my extreme free speech uh approach. But I I took care of him well enough that by the time I went up against Bill O'Reilly on the O'Reilly factor after being on the radio factor for uh twice over in 2006. One of my uh colleagues of many years he said it seemed like O'Reilly must have been on Darvon or some sort of tranquilizers. O'Reilly just wasn't yelling at me.

SPEAKER_04 6:14

Oh, I remember that. Now I remember that. That was crazy amazing, right there. That was that was really amazing.

SPEAKER_06 6:21

And and now, I mean, the topic of that was about whether Sami Al Arian uh should be retried or not after the jury hung on uh most of the sorry acquitted on most counts and hung tent to two on a few of the others. And uh who does uh Mayor Adams from New York go trotting out about trying to uh complain about some of the demonstrators over at Colombia. He's tried saying that they're agitating forces there from the outside, for instance, the wife of a terrorist. What wife of he's talking about? The wife of Sami Al Arian, who was acquitted of most of the counts, tended to uh uh mistrial on most of the rest, and he just pled guilty ultimately to one count of uh conspiring to financially assist terrorists. So uh talk about some people being off base.

SPEAKER_03 7:08

Well, we are gonna do you remember when we had um uh the free speech priest from Vietnam.

SPEAKER_06 7:19

Uh oh the priest, the actual priests, yes, we we can and Steve Kelly were the priests. Exactly. Uh then we also had Susan Crane, who's the lifetime peace activist who still visits my uh social media, and Elizabeth Walls, who which seemed to be her her her her first uh first action that was gonna get her jailed up. Oh, yes, and Ramsay Clark with us, yes.

SPEAKER_03 7:44

Oh, that's right, and Ramsay Clark got though. It was really talk about a fascinating, absolutely fascinating 10 years of what we did there, right?

SPEAKER_06 7:57

Well, yes, not only that I I grew so much because suffice it to say, I'm uh I'm a very passionate person, and uh Jay is too, but uh Jay was very good at uh by uh by his example alone, showing me how to uh harness those passions to do all the better. And I think that loops into what I was talking with uh Doug Ramser about last week, who's this great uh warrior for death penalty defense. You know, I said to him, you know, you seem like a really nice guy, and you say you stand but stand up against these uh judges and prosecutors. It seemed like you like most people, you know, how do you do it? And I think he does the same thing that Jay does, which is to recognize that everyone has their goodness in them, but that means that we're not we're gonna know who not to turn our back to either. And if we have to grab the knife and disarm uh out of their hand and disarm them and break their arm in the process of doing it, if that's what we got to do, that's what we got to do.

SPEAKER_03 8:52

You know, the um you taught me such a valuable lesson. If you don't have absolutely anything nice to say about the judge or about the prosecutor, you can certainly say, I'm so grateful for the wonderful staff in this courthouse. I always get great service at the clerk's office. You know, that I tell you, Gato, that has served me well because there are times when you are in front of the judge and they're a miserable old bastard, and you really just want to give them what fur. And you can't, of course. Uh so you just have to give the positive energy of I had I had a wonderful experience with clerk X or Y or with the interpreter. Thank you, madam Interpreter. That was very kind of you. Or but you've it's all I I have to just not take the bait on that negative energy and just redirect it. And I'll tell you, it's worked miracles because everyone in the courthouse, all the people with those important jobs in the courthouse, when they hear you say something like that, they're deeply grateful because they're probably uh mistreated by that miserable old bastard in the black robe, you know.

SPEAKER_06 10:13

You know, interesting that you say that. Now, of course, that came from Steve Wrench, my god, Steve Wrench. You know that I have several of my, I think you called them the pantheon. And I would say that uh if I'm having a tough time with a judge or prosecutor in the courtroom, I might imagine Chiang Man Shang, who developed my form of Tai Chi to my left, uh Steve Wrench, my great trial law teacher who's out in Denver to my right, and Jun Yasuda, my my peace teacher behind me. And Steve's one of these great uh criminal defense lawyers too. And he's and I said to him, Well, Steve, how do you deal with fascist judges? He said, I never have a problem with a judge. I said, Steve, come on. He said, Well, you know, a challenging judge is like a boulder in the middle of the road. You can either drive around the boulder or get a hernia and go into the emergency room for an operation. And he said, So if the judge is barking at him, and this has worked so many times with me, well, Jay, if the judge is barking at him, uh he'll just smile. Steve will smile and say, I'm just trying to, I'm just trying to uh convince you, judge. And then uh someone who I wasn't too fond of, although he had his he had his good moments, uh Antonin Scalia said that if the judge keeps asking you uh what your arguments are and you've already made all your arguments, you just say, I made all my arguments.

SPEAKER_03 11:32

As simple and easy as that, but it but the the idea of soaking up the judge's bad energy and then trying to give it back is so counterproductive. It's just so uh it's just pollutes your own ability to uh you know think creatively, positively, and be ready for the counterpunch that you have to give legally, the the legal counterpunch. It kind of pollutes the mind. And by having the positive, having being able to dodge all that negativity and just stay focused on your argument, uh, is you know, it's listen, I was at the Fourth Circuit a year ago in March of 2023, arguing uh on behalf of a detained client, and uh Chief Judge Wilkerson, right? Wilkinson or Wilkerson, I always get it confused, the razor or or not, I can't remember. And he was coming at me, got so uh but the the the point was that he was really just shoveling it on, and and I really breathed deeply and just said, No, Your Honor, the holding of that Maryland State case was quite the opposite. And I mean, we you know, we got the case remanded, uh, and that was good news. Uh no, no major legal victory, but you know, I I just feel like um I'm glad that I was able to maintain my composure in the in the in the face of all of his negative energy.

SPEAKER_06 13:10

There was this great lawyer who died from cigarette smoking soon after I became a public defender in 1991, and uh he was fond of saying the first time that a judge hears what might sound like a cockamamie argument, the judge might shout denied. And then uh but then the judge thinks about it um before seeing the lawyer the next time and realizes it may not be so cockamamey. So the second time the Laura makes the argument, and the judge takes a few seconds to think about it but still denies it. But then later on, the judge is maybe talking about that argument with another judge over in the men's room or wherever they're hanging out after court. And then the third time the Laura makes the same argument, the judge says, That's a great argument. I've thought of that myself. I've been waiting for a Laura to make that argument. Granted. And uh, from a practical standpoint, I mean, I was dealing last October with a judge I like. I don't have any complaints about this judge. Um, the case is pending in something, so I'm gonna talk around a little bit. Let's just say that uh I said to the judge, I make a motion. It was a monumental motion, it was in the middle of trial, and the judge said, I'm not gonna grant that motion because X, Y, or Z did not happen. Praise be the court reporters who do an overnight transcript. I got an overnight transcript. I gave it to the judge immediately by email, in person, the prosecutor, too, once I got my hands on it, it's six or seven in the morning. And the judge acknowledged, okay, Mr. Katz, you're right. You're correct that A, B, and C did happen during testimony yesterday. I'm granting the motion. And by my being calm about it and welcoming the judge to do the right thing, that was the closest I could have come to getting that victory, which I got.

SPEAKER_03 15:04

Gato, I I have um always sung your praises uh because of your tenaciousness, your willingness, uh, your unwillingness to give up, your persistence, your perseverance, your attention to detail. I really uh let me tell you, there are very, very, very few people in the world like you. And uh it's just um the work you do and the way you do it, um, the dedication, the perseverance, the focus, uh, the creativity, uh, the through and through knowledge of the case law. Uh, really, man, it it I can't say enough great things. Uh I know I I I say it to your face, I'll say it to whoever. You're really a fantastic criminal defense lawyer, Gato.

SPEAKER_06 16:01

And you're a fantastic person and lawyer. And at this point, people are probably wondering why aren't they together just hugging each other to death right now? And why didn't they stay together?

SPEAKER_02 16:11

And I Well, Gatto doesn't like me to hug him, but I'm gonna hug him the next time I see him. Jay says, whether you like it or not, you're getting the hug. That's right. That's right. And I know you cringe, but I have to.

SPEAKER_03 16:23

I have to hug you because you have no idea how you inspired and helped me. I think I for 10 years. You really did. I your your your uh that energy that you brought every day was uh taught me so much. You taught me so much just about how to approach opponents, uh cases. Gato, something as simple as work backwards from your goal. Like that is something that I use every single day, all the time. Okay, I want to achieve this. Now I just got to work backwards. Okay, where do I need to be today to get to that? Like you taught me that, and I use it all the time, and I'm deeply grateful for it.

SPEAKER_06 17:12

Well, thank you. And and you're great at rallying people together. Jay is a leader in the community, including in the Spanish-speaking community. I don't know how you did it. You went to what you went to these Mopavi meetings, Marcelino Pani Vino, which does great community service. And when do you go someone's go to like as many as two or three meetings a week there? And then drive more than an hour back after 10 p.m.

SPEAKER_03 17:36

It was it was quite a schlep, that's true. Uh, I won't deny that part, but um, but it was uh I love direct action. I I love the fact that um there was no distance between uh the community that we were working with and the efforts that we were doing. It was there was no no organization, no buffer, no, it was just all direct action. I love that. So it was uh constantly um doing uh law day, you know, uh at least once a month we would have a law day uh where we would just bring lawyers in, immigration lawyers, um uh uh housing lawyers, uh uh contract lawyers, and the community would line up and need and get um uh legal services, advice, professional counsel. It was um it was a great access to justice um vehicle. It really improved access to justice in a big way. We did this the same thing with medical doctors. Uh we would bring in medical doctors, we did the same thing with housing. We bring in uh real estate agents to try and and loan officers to try and get people uh from paying exorbitant rents to paying for their own house, you know. So I feel like we we did a lot of good in that organization while I was involved.

SPEAKER_06 19:07

Oh, they do great work. And uh, Jay, remember what Mark Winston said to us, our partnership lawyer, when we went to meet with him and he had the uh partnership agreement already?

SPEAKER_04 19:18

What did he say?

SPEAKER_06 19:19

He said, You're really going through with this, aren't you? He said, Why else do we pay of this money through our partnership agreement? Of course. I forgot all about Mark. Oh my gosh. He left our salary jobs. I won't name them, but one of the two owners at your law firm, uh close in time, said to both of us, I think you're both crazy going out on your own.

SPEAKER_03 19:40

Yes, yes, he did. He said, You're not gonna last. He was he was so sour on us, and I'm like, God, yeah, yeah.

SPEAKER_06 19:53

And and it all worked. Well, it all worked, and uh, and and it worked for for two or three main reasons. One was that uh we were intent on making it work. Uh, we had finally become our own bosses, which both of us had wanted to do long before that, I think. And um we we didn't look at the statistics at all the law firms that fail in the first six months or a year or whatever. And uh I think that was a great formula to just present ourselves as people's lawyers, uh, no errors about us. And that was uh brilliant. Uh that we came up with the idea of focusing on the Spanish-speaking community and having that radio show legally speaking. I was on with you for about a year. You continued it for around two years before you went to uh El Sol, and uh that really got the word out to the people uh without filtration.

SPEAKER_03 20:47

That was that was really something I gotta say. And then all the all the First Amendment work that that was the first amendment work was the bomb, man.

SPEAKER_02 21:00

That was that was fun right there.

SPEAKER_06 21:02

Well, of course, Jay is mainly doing immigration work, and uh his law firm is at Marksjustice.com, not Marks like Carl, but M-A-R-K-S uhjustice.com. And I'm doing mostly criminal defense, but when we opened, we knew we were going to be people's lawyers. We thought we were gonna do a lot of personal injury work, but we realized uh a lot of people poo-pooed on the idea of being able to be profitable as a criminal defense lawyer. I soon realized that wasn't the case, and Jay learned that he would do well with immigration, so that helps explain why we didn't need to stay with each other, but we remained good friends. Uh, but the First Amendment work, which I don't do as much of now, which involved libel defense and uh defending demonstrators, and the bread and butter was really adult entertainment, strip clubs, adult video stores, um adult internet. Yes, I met uh some of the most interesting characters from there. So one day after work, you know. Jay and I went off and uh uh chew the fat after work, after the, well, not our work wasn't finished, but our staff had gone. And we were talking about how do we get more clients? And I said, you know, I want to get some more, how about some adult entertainment clients like strip club and adult video clients? And Jay said, Well, why don't you call that guy Dr. Phil Good? There was this guy who had a cover article about him in the city paper. And I said, Yeah, let me call him up. And I found his number in the yellow pages. They had that at the time, and he hooked me up with this guy who was involved with the free speech coalition named Bill Margold, who told very stories about having starred in a bunch of uh it's probably been 20 years since I've thought of Bill Margold. He said he uh kid, he said to me, I've been in 200, 500 sex scenes. I think I lost count of how many. And within a year, I think it was within a year and a half or two years, I was the founding president of the free speech coalition of DC, Maryland, Virginia, uh, which was all about promoting the um free speech rights of the adult industry and everything related to it. And it just went from there.

SPEAKER_03 23:07

We did meet a lot of it. We had a lot of adventures with that one in uh the East Coast video show.

SPEAKER_06 23:13

Oh, yes. Well, and it wasn't just adult because you remember I I was the lead uh lead trial lawyer in the Westboro Baptist Church case. Oh after they took that multiple, I completely forgot to take it in federal court around 2002. They then went with one of their lawyers who was uh uh a member of the family who spectacularly got that reversed on First Amendment grounds in the Fourth Circuit in the U.S. Supreme Court, and that's called Snyder versus Phelps. That's a landmark decision.

SPEAKER_03 23:42

Uh that got though, I completely forgot about Westboro Baptist. And talk about representing people who are excoriated and hated, uh, who are exactly the kind of people that have to have their rights protected so that we're all protected.

SPEAKER_06 23:57

Right. And then remember when I represented that uh Maoist communist successfully in his uh failure to um follow a police officer order case. It was a bench trial, and I forget how he was referred to me, but um, he was charged with uh not following a police officer's uh order to move on when he was leafleting against George W. Bush, and he wasn't blocking anyone on the sidewalk. So I just won that one on the argument that he had a First Amendment right to do this, he there was no lawful police order. Uh what a fascinating guy this was. I said to him, you know, this was around like, I don't know, 2005 or 2006 when I represented him. I said, you know, I I I guess you Maoist communists really don't think you're gonna achieve a whole bunch right now. Like, I think you've missed the boat. And he kind of admitted it, but he did give me the uh the autobiography of Bob Avakian, who was the self-exiled uh leader of the uh Maoist Communist Party in uh in America. I think he moved over to France. And I actually read the autobiography, and one of the pages, uh Vakian said, Oh, yeah, I was into duo music in the 1950s, and I was listening to the radio one day and I heard some song, and I said, Oh my god, I can't believe they're playing that. Hey Jay, I think that got past the uh the godless communist censors that they included the God word in that book.

SPEAKER_03 25:23

You know, the other thing, Gatto, that I was always so grateful for during our partnership is your unbelievable capacity to remember details. I no, I mean it. I I I that was so important because my my brain is like Swiss cheese. I I'm I'm not, I have very little memory. Uh, it's amazing. I have to write things down constantly, but Gato, you have a steel trap memory, it's unbelievable.

SPEAKER_06 25:56

Yes, people better watch out what they say to me because they deny 20 years ago saying it, I'll tell them where we were sitting, what the weather was like, what we were eating when they said it, and they won't be able to get away from it. Well, uh to the memory book by uh Jerry Lucas and Harry Lorraine about creating ridiculous associations, visual associations between words and sounds, and uh and to remember them. But I do remember in my first appellate court argument, um a judge asked me something really obscure, and I turned right to the page, the record from it. I didn't even have any tabs in there, and I went right to the line and page of it, and I totally uh defanged the judge on what could have been a very difficult question, otherwise. And the law, the litigation partner from the law firm was sitting down with me at lunch afterwards. He said, I just don't know how you do it. Uh and it's it is amazing, Gato.

SPEAKER_03 26:53

Your memory is a super powerful gift that you have, man. It's unbelievable.

SPEAKER_06 26:59

Unbelievable. Well, you have enough of a memory to be you speak better Spanish than most Latinos.

SPEAKER_03 27:07

Thank you, Gato. Uh people it's certainly a tool that has helped me immensely in life and uh um uh professionally and personally. Uh it's it's a great, a great thing to be able to speak different languages, to be able to multiply by the hundreds of millions the people in the world that you can speak with. It uh to me is always just a uh that's always been an amazing thing for me. Uh so it's been helpful. And yes, it's um it's great for clients who come in and um they they really uh for cultural reasons, it's very difficult to understand the concepts in our legal system, and to try and describe them in their halting English is almost impossible. And when I am able to explain to them in span in their native language exactly what's happening, who's accused whom of what, uh, you know, where's the charging document now? Uh, what are the defects in the charging document? Our our motion to dismiss because the charging document is this problem or that, or your defense to removal and all that, to be able to just explain it. Because, you know, Gotto, these are these are not stupid people. These are people with PhDs and from the University of Life. They are they are really smart people who have uh, you know, a lot of these folks that uh are our clients, Gotho, they are incredible business people. They own real estate, they own multiple uh income-producing properties in addition to a small business, in addition to uh, you know, uh their own home. It's amazing what they are accomplishing in this country. The thing is, this technical legal mumbo jumbo that they are forced to, you know, go through, they're forced to live through and defend themselves in, it's extraordinarily difficult for anybody, whether you're an English speaker or not an English speaker, it's extremely difficult.

SPEAKER_06 29:23

And this is a great segue into uh discussing crimigration and the state of immigration law. And I think to help go into that, is you used to say all the time on our radio show, uh correctly, immigrants are the backbone of American society. Yeah. Yeah.

SPEAKER_03 29:39

And they they get into no more or less trouble than any other group in the population. And then that's really one important thing that folks, you know, especially after the last 30 years of the right-wing uh drumbeat of immigrants are criminals, immigrants are terrorists. Uh immigrants statistically get into no more or less trouble than anybody else because they're they're just like us, they're not different in any way, uh, you know, the obvious ways, the uh different language are born in a different country, but they're human beings, and as a community, they they uh uh they uh can find themselves entangled with the with the police, uh, and but in no greater or less uh statistical uh average than than you or I or anybody else.

SPEAKER_06 30:34

And how about how remarketable it is? So there are so many U.S. citizens who complain, I can't find a job that pays enough, I can't make ends meet. And uh what's the percentage of the uh gross national product of El Salvador that has their uh their expatriates sending money back home, uh even with the ones who are not making a whole lot of money, even when they're busting tables and are uh sharing a one-bedroom apartment with four or five other people? Amazing.

SPEAKER_03 31:02

It it is the remittances that are sent back uh to Mexico, Central America, it's it is billions upon billions. It is more than any foreign aid program could possibly hope to achieve. Uh, and it is all because these people are hyper-productive, they are focused on one thing only supporting their families, whether the family is here or whether the family is in the home country, they are laser-like in their focus and they will do anything. And they that motivation, you know, as the great, late great Michael Maggio said, these immigrants that come here, they are self-selected for entrepreneurial success. These are people who will give um who will give up their language, their culture, their food, their families, their way of life. They will give it all up because they are chasing a dream, they are chasing greatness, they are chasing success. I mean, what isn't that exactly the kind of person you want to come to your country? Of course. Somebody who is so focused on making uh uh a great life for themselves and their families. I mean, that's exactly who you want here. And I I I uh that that's why in in great measure, that's why uh you know I chose that field. Is these folks are are really um special. And they are, I still believe, and I continue to believe, and will always believe, that they are the backbone of of our country. And also I can't forget all those conversations that we had over the dinner table when I was growing up in Fairfield, Connecticut. And the the immigrant, like it's it's like my great-grandparents were almost seated at the table with us, and how Pa and Bobby were venerated, and everyone was so deeply grateful for the sacrifice, the hard work, and the great success that they had in the United States that enabled us to be where we were. Right. And so that's that veneration of pa and Bubby, I think, really stuck with me. Uh, and and and and that's a big reason why I do what I do and I've done what I've done.

SPEAKER_06 33:36

Yeah, well, Jay, with me, I I went into the immigration clinic um in my second year of law school and I loved it. I had uh two deportation hearings, talk about toughies. One guy he had a green card and he got convicted of importing two pounds, no, two kilos of cocaine into the country. We were unable to save him. And then we had another guy who was found to have done uh forum shopping, uh, leaving uh what I always like to call during that time when Reagan was president, uh, when I was in the clinic, the uh the Marxist communist red government in Ethiopia. But unfortunately for him, he first got to Zimbabwe and then here. They weren't gonna deport him back to the red Marxist country, but they weren't gonna give him a green uh asylum either. Um and then with languages, you were smart. You chose Spanish at the front end. I chose French, which I love the language, it helped me learn Spanish better. But Jay, you know, I only studied Spanish formally for one semester in college. I was just lucky that we had such a great professor, and we covered uh the equivalent in one semester of Spanish in college, it was the equivalent of almost like two and a half to three years of what we covered in French. And then um when I went down to Juarez, Mexico to meet up with my friend, who was a uh a lawyer over there who had been uh for a year in a master's program at law school, he starts talking to me in Spanish when I'm making arrangements to uh cross the border from El Paso to see him. I said, I'm not comfortable talking Spanish right now. He said, Porque, why? And then he couldn't shut me up. It was like diarrhea and didn't stop.

SPEAKER_03 35:16

Menguistu.

SPEAKER_06 35:18

That was the name of the red marks discovered in Ethiopia, menguistu. That's right. And then uh and then what happened when I was with you, the I think there were two or three defining moments that helped my Spanish. One was we were on the radio show and I had no choice but to speak Spanish. The other one was when you would do some gentle ribbing of me. It was all it wasn't only when I would make a mistake about Spanish, but when I would drop my telephone because my wire was my wires get tangled up, you would just sometimes just stand at my doorway smiling. Oh well, I want to give the the audience some law here. So to move into that, then uh so one day I was meeting with a client and one of our legal assistants was interpreting, and I just said to her, That's not what I said. I said something very affirmative to the client. You apparently don't feel comfortable telling the client what I said. I'm taking over the meeting from here. You tell me if I screw up, and that was the defining moment. That was around 1899, and you couldn't shut me up in Spanish from then on.

SPEAKER_03 36:25

Um so you know, this whole thing about immigrants and crime, Gato, it it uh it's a very interesting topic on so many levels, first because of the this um the big lie that has been repeated over the last 30 years about immigrants and crime. But um, but the but I think the other part that most folks don't understand is that uh if a United States citizen is convicted of a drug offense, that United States citizen might get convicted, might get jail time, uh, and then they could be released on probation, join, rejoin their family, right, uh, etc. But when a permanent resident or an undocumented person um gets convicted of a drug offense, there's a whole second set of punishment that um that is inflicted upon them, and that's the punishment of deportation, right? Um and uh as as the great Maureen Sweeney said, professor of law at uh University of Maryland, uh uh I I taught a uh seminar at the law school there uh at the clinic, and she guided me. That was my first time teaching in a clinic setting. So she was she was there to mentor, guide, and support me. And she said, you know, it's you can't judge a person by the worst day of their life. Their life is much bigger than that one terrible day when something bad happened, whether it's something bad of their own making or something bad of some of another's own making that was foisted upon upon the client. But you can't judge someone based on the worst day of their life. That is not that person. And and that always stayed with me. The the problem is that the immigration system is so harsh and so severe that that is exactly what happens. All of the person's good work, their their employment history, their business, their spouse, their children, their the soccer team they coach, none of that matters because deportation is mandatory for so many types of convictions, especially non-marijuana drug convictions. Right. There's no there's no way to stop those, those deportations. And I was it is disproportionate and uh severe and and just terribly unjust. Um, and so it's you know, that's that's another reason that we we get into uh you know, we do this work because of the injustice that can be um wreaked on a family. Uh, and there's really it's just it's just terribly disproportionate.

SPEAKER_06 39:35

And we criminal defense lawyers, uh, not only must we from a moral uh perspective uh know enough about the criminal, sorry, the immigration law, or at least uh when to seek out an immigration lawyer's advice. Uh, but the U.S. Supreme Court says we're we're duty bound to it under the U.S. Constitution's Sixth Amendment, which guarantees effective assistance of counsel. And that's the case of uh Padilla versus Kentucky. Is it Padilla J or Padilla? No, you got it, Padilla.

SPEAKER_03 40:05

You got it, man. Mr. Padilla was transporting like 40 pounds of marijuana around the state of Kentucky in the back of a truck, and his lawyer said, Don't worry, you're a permanent resident, just take the guilty plea on the trafficking, it's fine on the distribution, it's fine. And that was patent misadvice, and the Kentucky Supreme Court refused to correct that wrong, and so it took the Supreme Court to do it. But um, but yes, uh solid advice on immigration is is key.

SPEAKER_06 40:39

And so I was so fortunate during my 10 years with you. Uh all I had to do was uh either shout out to you at the end of the day or walk over to your office and say, hey Jay, what about this? And uh that was 10 years of tutoring that not many of us criminal defense lawyers get, and uh that serves me well to this day. But uh, for those criminal defense lawyers who are listening, I want to scare the crap out of you. Uh both about the harm that's gonna come to your clients and the harm that might come to your reputation, even your bar license, if you don't make sure that you have either have an understanding, a basic understanding of the immigration law that affects your client, or at least to know what you don't know when you don't know it, and when you need to turn to an immigration lawyer, or at least tell your client, look, you know, you got to get this advice from an immigration lawyer.

SPEAKER_03 41:30

And we are blessed in the DMV here in uh uh Maryland, DC and Virginia to have really a great immigration bar. We have a terrific group of lawyers in the DMV who really know their stuff about uh the immigration consequences of criminal convictions or crimination. Uh, there are great resources uh that are available online. Uh, you know, a really a great immigration attorney who knows what they're doing is just an easy phone call away. So really, yeah, you know, in the DMV, we are blessed to have so many uh good practitioners in this area.

SPEAKER_06 42:10

Unfortunately, a lot of the uh prosecutors around here are enlightened enough to realize that the response to me telling them, you know, the conviction here andor a certain type of sentence might get my client deported, inadmissible, uh unable to adjust their status.

SPEAKER_01 42:26

Um instead, uh instead of the prosecutor often saying, Well, if he knew about that, he shouldn't have committed the crime in the first place.

SPEAKER_06 42:36

A lot of times they get great plea deals by the prosecutors, realizing, well, that helps scare my clients straight anyway, and uh and and made sure they won't do it again. Like with DACA, oh my gosh, deferred action for childhood arrivals, the dreamers. Uh yeah, I don't know why so many of them don't realize that they get convicted of a DWI driving onto the influence of alcohol or drugs, and how easy that is to happen. Uh, bye-bye to get their DACA renewed. No exceptions, right, Jay?

SPEAKER_03 43:05

Correct, no exceptions. And and even if you try a quorum nobus or a post-conviction uh on that, uh ICE, it is completely 100% discretionary. And, you know, good luck in trying to get that uh DACA back, even with a quorum nobus or a post-conviction.

SPEAKER_06 43:27

Right. And so, you know, so many lawyers, I I I cringe, Jay, when I read some of these discussions on the some of the criminal defense lawyers listservs, or someone says, like, well, you know, my client's charged with robbery, so if we just plead this down to felony theft, am I okay? And then a bunch of lawyers say, Oh, yeah, you know, as long as the uh sentence is less than the air, you're good. And I and I I, you know, sometimes we'll send a private message over saying it's a little more complex than that.

SPEAKER_03 43:55

There's yeah, it's so true because so many part part of the challenge. For immigrants, is that so much conduct that a US citizen can commit or can engage in that results in a slap on the wrist. Oh, just plead it and go home for, you know, and it's no problem. For an immigrant, it results in catastrophic problems. Um, you know, uh in Maryland, uh first-degree uh assault is a huge problem for immigrants. Uh thanks to Maureen Sweeney, Maryland theft uh is no longer a CIMT, uh, a crime involving moral turpitude. But the same cannot be said in other states. In other words, it's a state-by-state analysis. Um it's complicated. It it is it is a it requires a a review of the statute itself, it requires a review of sentence, it requires a review uh of case law. It it's it's a it's a serious thing, and you just don't want to be on the wrong side of that.

SPEAKER_06 45:13

Exactly. Uh Jay, please walk the audience through both the lawyers and the non-lawyers, not the prosecutors. No, well, I I usually like to say we don't want to help the prosecutors out, but for this show we do. We want them to know the immigration law. Uh, can you walk through the audience on a few basic scenarios on uh how uh what kind of uh possible landmines there are? Well, let's take a simple one. Uh DWI case, driving the influence of alcohol case, uh, and the different different types of landmines there are, uh, whether the person it has a green card, F1 visa, H1 visa, just a tourist visa. And and how about even this uh garbage about the uh the F1 visa holder, for instance, or the non-immigrant uh visa holder receiving an email from the consulate in their country saying uh you can't renew your uh your visa in the U.S. You got to fly out to our consulate in India or uh Uruguay or whatever.

SPEAKER_03 46:09

So DYs, DWIs are problematic for TPS holders and for DACA holders. For DACA, one DWI and you're done. And you better have a plan B uh to maintain legal status or to get legal status because your your DACA will be revoked. Um, so you've got to you've got to Uber, you've got to lift, you've gotta take a taxi, you've got to have a designated driver, but you can't have a DUI or a DWI if you're a DACA holder. If you have TPS, two DUIs, you will lose your TPS. TPS temporary protected status. Correct. And there are many, many populations, uh immigrant populations that have TPS. Uh El Salvador, Honduras, Nicaragua, uh, Syria, Sudan, Haiti, um, Ukraine, I think, has TPS, Venezuela has TPS. There are a lot of communities in the United States, immigrant communities in the United States, that have received temporary protected status from the United States government. Um, it's a it's uh an executive designation. Congress has granted the executive the power to do this to protect a population because in the country of origin there may be there may be civil war, natural disasters, re reasons why the home country cannot receive its nationals from the United States. And so they are granted in the United States, they're granted this temporary protected status. But the deal is that the person who gets TPS cannot have two misdemeanors. Once you have two misdemeanors or one felony, you no longer have TPS, it will be rescinded. Uh, and I was quite literally just dealing with uh this before we got on the phone. Uh, before we start, I came out to the podcast. A gentleman was in to see me uh who has multiple DUIs um and a pot case. So he has uh and and USCIS took away his TPS. So you've got to be very careful with DWIs, DUIs um in those two contexts. Um for permanent residents, uh it's a DUI is not a removable offense. Um so however, however, if you wish to apply for naturalization to become a United States citizen, it is absolutely a factor that will affect good moral character. So again, if it's not gonna result in your deportation because you're a permanent resident, well, yay, but uh it's gonna affect your ability to get your naturalization. And finally, on the very issue that you asked about non-immigrant visa holders who have to go back to the U.S. consulate in the home country to get a new visa placed in their passport. Uh, once they see the DUI, they could absolutely not grant you a non-immigrant visa because there's this thing called consular absolutism. Uh, they are uh you're you get no due process at a consulate. You there is no constitutional protection of any kind. You are outside the U.S. asking to come back. The fact that you may have spent three years in the U.S. on an H1B and want to go back to resume your life working for um IBM or the ABC Corporation, uh, which is your sponsor, and you've got a great job, and your kids are in great schools, and your uh spouse is, you know, everyone's happy, right, in the U.S. But the fact that you got a DWI could absolutely cause the consulate to say, no, it's too risky to give you uh a non-immigrant visa.

SPEAKER_06 50:05

And how common is it for the people uh with non-immigrant visas while they're waiting for their trial date to receive some sort of communication, email or whatever from the consulate saying we're canceling your visa?

SPEAKER_03 50:18

So if they if uh law enforcement communicates, so ICE could be getting information from local law enforcement. Uh ICE also uses uh the um MVA or DMV databases uh uh to sort of search for people with uh who are non-citizens, with convictions, um uh and possibly with driver's licenses that do not have the real ID, uh, that are not real ID compliant. And they use all that to target people who they want to remove. But they also share information with other agencies, including the Department of State. And that's how consulates get information, derogatory information, and then they say to somebody, uh, you're uh you're you're having these troubles in the United States, and so we're going to revoke your visa, uh, or and or we're going to you have to, you know, at your at your next uh visit, we're gonna go through all this, we're gonna review all this, which means they're gonna deny it. So um, so yes, all of this is like staying clear, steering clear the criminal justice system is is really smart for lots and lots of reasons. When you're an immigrant, there's an additional layer of urgency to trying to steer clear the criminal justice system.

SPEAKER_06 51:54

And during these last five minutes on the show, this has passed us too quickly for me. Uh, the name of the podcast is Beat the Prosecution. So, Jay, beyond what we've already been saying about how to persuade uh our opponents to persuade judges. Do you have any other uh thoughts about how to persuade to win for you in immigration court and uh with getting benefits for your immigration clients and uh for me as a criminal defense lawyer?

SPEAKER_03 52:25

You know, Gato, I I think you've got this one nailed down. You've got to be, you've got to love. You may not like your client, but you have to love your client. Yes. Uh you have to you have to love uh the the person in front of you, knowing that the person in front of you may not be likable, the person in front of you may have done things that are despicable, uh, that you find unpleasant, abhorrent. But this human being needs a defense. This human being deserves help just because they're a human being in need against a system that is unjust and can be crushing. Uh, and this human being in front of you has loved ones that are depending on him or her, uh, children, spouses, parents, siblings, grandparents, uh, and that this human being needs is really looking up at a tsunami of uh uh power coming at him or her to try and destroy him or her. And you've you know, that's the putting yourself between that person and the tsunami to try and give them the chance that they need because they aren't that horrible person uh that that they're made out to be on the worst day of their life. They really do deserve uh that second chance. Um and the system needs to be brought to heal uh to give them the space to be, to give to have that second chance. And so I know I'm preaching to the choir got though, I know you know all that. Uh but our listeners too. I I feel it in my I feel it in my bones, like that's that's why we do what we do, because we want the system to be brought to heal so our clients can have that second chance.

SPEAKER_06 54:30

That's right, and connected to that when we care and love about our clients so much, we're able to uh understand them, hear them. They will open up more to us, and we're able to tell their story in a more compelling way, and it's much harder for the judge, the jury members, the prosecutors, in your instance dealing with the ICE folks, to just see them as a number versus a human being with a beating heart.

SPEAKER_03 54:57

Yes, exactly. That's why I love you so much, Gato. That's exactly right. Well, yeah, that's what you told me.

SPEAKER_06 55:04

Uh a fly on the wall during our love fest today, Jay. Wait, are there people listening to this? You're a funny one, Mr. Media Master. Well, everybody, uh, what a delight this has been, Jay. You can reach Jay Marks in Silver Spring, Maryland at marksjustice.com. Uh, Jay, what's your preferred email address over there?

SPEAKER_03 55:29

Uh J A Y, my first name, Jay. J-A-Y at Marksjustice.com. Happy to happy to receive the emails.

SPEAKER_06 55:36

And your phone number over there. And do you do texting uh with a texting number?

SPEAKER_03 55:41

Um people can feel free to text my cell. I have no problem with that. It's 240-505-7468. 240-505-7468. If they want a more traditional, call the office and make an appointment. It's 301-578-4444. Gato, you remember that one?

SPEAKER_06 56:03

4444. Just like with Coffee Talk.

SPEAKER_03 56:05

Yes. I warned the audience. Gato, thank you. I'm so deeply grateful for this. First of all, I haven't talked in so long that this has been just a phenomenal reconnection on a personal level. So thank you for that.

SPEAKER_06 56:19

And yeah, and I warned the audience I was gonna have trouble containing myself. And now no matter how excited I do sound, I I do have myself glued to my chair. So it may maintain the uh the keep down the excitement a little bit. But thank you so much, Jay. Looking forward to keeping in touch. Everybody, this has been Beat the Prosecution. Uh, you'll hear more about Where to Reach Me. But if you need an immigration, Laura, you're hearing the guy, JayMarks and Marksjustice.com. Signing out.

SPEAKER_00 56:50

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.