SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense and DUI lawyer Jonathan Cat, 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 Kat.

SPEAKER_02 0:32

Hello everybody, this is John Katz at Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. One of the greatest things about Beat the Prosecution is me getting reacquainted with people who I've known sometimes for decades and haven't spoken to for years. Like our guest today, Art Spitzer. Art Spitzer is a great lawyer. He'll tell off he's he's uh what he's still doing with the ACLU, but he was the was and maybe still is the ACLU legal director for the years and years in DC. I've known him for over 30 years. Art, please introduce yourself.

SPEAKER_01 1:08

Hi, John. Happy to be here. Yes, I I was the legal director for uh 40 years. I'm now senior counsel. Um so you can update your quote unquote Rolodex. Um uh but still working at the ACLU DC and um um and and these days working from home.

SPEAKER_02 1:30

Okay, well, let me tell you, ever the audience, why I've got art on here. Now, my selfish reason was this is a great way to get back to talking to art, but what is talking to art, Spitzer, have to do with beating the prosecution? This is a man who, in my view, is as tough as nails. He has a sharp mind. I don't know if he's done any criminal defense, we'll find that out. He's done a lot of First Amendment defense, civil liberties defense, civil liberties advocacy, art. What have what about that? Have I gotten wrong or right?

SPEAKER_01 1:58

No, that's right. I've done uh almost no criminal defense. Um, a couple of cases really where the where the facts weren't in dispute and and the law was the issue, uh, I think they all involved First Amendment issues. Um, but lots of litigation against the government. Most of what we do, of course, is litigating against the government, federal government, and District of Columbia government. Um, and often cases involving the police, but usually um the civil rights cases where we're representing a plaintiff rather than a defendant.

SPEAKER_02 2:34

Right. Art, what brought you to uh doing work with the ACLU? And I think you were before that with uh the Wilmer Cutler uh law firm, if I'm not mistaken. And did you have a judicial uh clerkship?

SPEAKER_01 2:46

Yeah, so um I did clerk for a year on the you on the federal district court in Wilmington, Delaware, right out of law school. Um and um then I I took a year off, having gone from kindergarten straight through to clerkship. I decided it was time for a break. I took a year off and I uh came back and moved to Washington. And and your memory is right. I I worked at what was then called Wilmer Cutler and Pickering, now Wilmer Hale, for about three and a half years, um which was uh uh totally worthwhile for me. Um I know there are some public interest lawyers who look askance at people who don't stay on the straight and narrow public interest path from cradle to grave, but um but I really learned how to be a lawyer in my time at Wilmer. Um and frankly, I wouldn't have learned that at the ACLU because the ACLU was such a small operation back then. When I started at the ACLU in 1980, I was the only lawyer on the staff of the local office of the ACLU, so there would have been no one to show me how to do anything. Um and so um they they needed to hire someone who had learned uh at least a few years of how to be a litigator. Um so so as I say, I started at the ACLU in 1980 as as the legal director of myself. There was nobody, no other, no other legal staff. Um, and um um and until fairly recently, um the the legal team at the ACLU DC was always really quite small. For most of that time, it was me and a volunteer or two. Um, but um the ACLU, uh both locally and nationwide, has grown an enormous amount in recent years. And we now have a legal department of um uh uh three full-time lawyers, a full-time fellow, usually out of law school or out of a clerkship, um, and a full-time paralegal. And we've actually just hired a fourth lawyer who'll be starting in the fall. Um, so I now have uh people to supervise, uh, even though I'm gonna go.

SPEAKER_02 5:05

Excellent. A question I have. Well, I'll start with this. The ACLU is particularly important to me for many reasons. One is the essential civil liberties work it does. And two, I was elected to the uh ACLU board of Prince George's County, Maryland, where I sat from 992 to 95. And uh then I was one of uh that affiliate's two representatives to the ACLU board in DC. And that's how I got to uh know you better, Art. And also what you may not know, and uh and what's coming up later this week in my uh podcast with Steve Bright, who I interviewed last week, uh I think it was the Foster versus Georgia case, which was argued around 1990 uh in the Supreme Court. I got a mailing. We didn't have the internet yet, Art, right? Back in 1990, I got a mailing that at the ACLU legislative office in DC, there was going to be a reception afterwards. And Charles Oltretry was there who argued the case, and Steve Bright was there from the Southern Center for Civil, uh Southern Center for Human Rights, and Brian Stevenson from the Equal Justice Initiative and a bunch of other people. And I myself was at a corporate law firm at the time for about a year and a half, and I wanted to move into more public interest type of work. And um so that alone makes the ACLU fundamentally important to me, and there are many other reasons for that. So, why did you decide to leave uh Wilmer, Cutler, Wilmer, Hale, whatever, and uh go to the ACLU?

SPEAKER_01 6:37

Well, um I had been interested in uh public policy sorts of issues going all the way back to high school or junior high school. Um I was one of those nerds. I actually had a subscription to the congressional record back in high school, and it would come in the mail every day, and I would read it on the bus on the way to school, not all of it. Um, but I was interested in politics and things like that. Um, I certainly became interested in free speech sorts of issues while I was at college, which was during the the Vietnam War, and there were demonstrations going on all the time um on campus, and I went to some of the mobilizations uh in Washington. Uh so I thought about those sorts of issues. Um and um uh while I learned an enormous amount about how to be a good lawyer at uh Wilmer, um I didn't I found that I didn't care a lot about whether my clients won or lost. Um I I had no prejudice when I started that job. If I had really liked it, I might have stayed for my career, but I discovered that um that it just wasn't exciting to me. Um uh and uh some of the pro bono work that I did there, including some cases uh for the ACLU, were much more uh exciting to me, and and I found that I cared more about them. So I was I was already looking around for something else to do uh when the ACLU job here opened up for the first time in about a dozen years or so. My predecessor, a lawyer named Ralph Temple, had left the ACLU and they were looking for a lawyer, and uh so it was just good timing. I had enough experience to be uh ready for the job um and um uh and ready uh to leave where I was, and um so it was it was uh uh very lucky uh that the that the job was available when I was available to take it. I had been thinking, frankly, that you know, that I maybe I would take off six months or something in between jobs and and have a long vacation. I said something like that to the ACLU when they made me the offer and they laughed. And they said, you know, we haven't had a lawyer at the office since Ralph left at the end of December. This was now in March, and they said, No, we need you to start in two weeks, or we're gonna make it the offer to somebody else. So I gave two weeks' notice and I had a weekend off between jobs. Um, but it was certainly the right choice for me. I um I I I really um loved everything about the job from the day I started.

SPEAKER_02 9:39

Wow, you know, when you mentioned Ralph Templer, it reminds me of all the great people I met through the ACLU. I would see Ralph at some of the uh annual fundraisers. You were always very kind. I tried not to uh uh uh overcall you about ideas about uh directions I was taking in my career and strategies I was doing in my cases. Mary Jane DeFranc was the executive director when I was on the board, how nice she was. And I remember reaching out to her when I was in law school asking about some law firms that at least did work with the ACLU. And I think your uh Walmer was one of those she mentioned. And uh then there was Adrian Barth. So Adrian Barth was on the ACLU board when I was there, and I lived just two blocks from her. So I would give her rides home after the meetings and I would say, Adrian, would you like me to uh pick you up at the front of the building? Say, no, I'll walk with you to your car. Adrian, my car is like five blocks away. I don't mind. And uh for the listeners, Adrian's uh husband, Alan, was an editor of the Washington Post in the midst, in the very middle of the Watergate. And uh I remember at one of her um uh annual eggnog parties, which you would invite me to, there was Ruth Bader Ginsburg when she was on the Supreme Court. Uh there was Daniel Shore, a whole bevy of other people. Uh so this was just uh just a fascinating thing for me intellectually and personally uh to hobknob with all these ACLU folks. Now, when you said you didn't care uh whether your clients want or lost, but didn't you care whether you want or lost? Aren't you someone who's really competitive and really just likes to win?

SPEAKER_01 11:19

Well, I'm not a uh cutthroat litigator the way some people are. Yes, uh of course I I I want to win, and I think you probably can't be a good litigator if you don't have some of that motivation. You should go into writing contracts instead. But um but but but it obviously did make a difference to me whether I thought I was litigating for a cause I believed in or not. Um, sure. I mean, I think I did um good work at Wilmer. Um, and I never felt like I was doing um evil. There was not a case where I where I said, this is you know, this is really taking a bite out of my conscience. Um it was basically a fair fight, the cases I was in between some big company and the government, or some big company and some other big company. Um how much money did one owe to the other, or was this regulation justified or not justified? Um and so they were interesting issues. Um, but they just didn't turn me, turn me on, and and and and and winning alone was not enough. And of course, the vast majority of those cases settle, and the vast majority of ACLU cases settle too, eventually, although um often not before there is some decision on a motion to dismiss or some other important motion that at least gets at the issue that we were trying to litigate, and then often the case settles after that. Um and and settlement, as you know, as probably any lawyer listening to this knows, is probably the right outcome for most cases. Um, unless the case is really just built around a legal issue and it's most important to the client to have an answer. Um uh, but um, but otherwise it's it's you know I've advised many clients as you have that if you go to trial, you don't know what the outcome is going to be, and you're likely to be better off with an outcome you can control in settlement than where you may walk away not only a little disappointed but completely disappointed. I I had one case that went to trial where the other side had made, I thought, a reasonable settlement offer, and I had suggested to the client that it was reasonable, and the client was sure he was gonna, you know, get a million dollars from this jury. And so we went to trial, which was a good experience for me, and we won, but he got a tiny amount of money and was very unhappy. Um, so um, so I tell that story to clients a lot. You you know, you can you may be very sure of your own case, but you're not the jury.

SPEAKER_02 14:34

Right. Well, I'm happy you mentioned settlement because uh what what I believe uh about settlement, I I guess you do as well, right? Uh you have to negotiate from position of strength. The other side saying you're not just ready to go to trial, you're ready to go full guns at trial, right? And uh now what what has been the uh the dichotomy of your work at the trial level, your appellate level, uh about how many bench trials and jury trials have you done? Uh have you argued at the Supreme Court?

SPEAKER_01 15:07

Yeah, uh there's less of all that than you would guess. Um so I've had only three jury trials um in more than 40 years at the ACLU. Um I've had a few bench trials, and I'm not sure of the number, but not an enormous number. Um, I did have one argument at the Supreme Court, which I won um early actually in my time at the ACLU. Um, and you know, hundreds of cases that have um either won or lost on summary judgment or in a motion to dismiss or have settled. And I would I would guess I haven't kept a running list that most have settled. Um my one Supreme Court case was a case that uh came to me quite by accident. Um, it was a death penalty case from Oklahoma where the defendant had killed a couple of people. There was really no dispute about that. His defense was insanity. And his lawyers, his public defender lawyers in Oklahoma, uh said to the judge, we need a psychiatrist to help us put on an insanity defense. Um and it was also clear that he had a non-frivolous insanity defense when he was arrested and brought before a judge. It was quite obvious to everyone that he was um to be colloquial crazy. And the judge sent him off for evaluation and treatment at the state mental hospital where he stayed until he was till they decided he was competent to stand trial. And the judge said, I agree with you. I think you need a psychiatrist, but the law in Oklahoma is clear. I have no authority to pay one for you or appoint one for you. So you're on your own. Um, so he went to trial, and his lawyer tried to put on an insanity defense, and the state's um expert witness was the the chief uh psychiatrist from the state mental hospital, where this guy had been, who testified that yes, when he arrived at our hospital, he was crazy. Uh, and we diagnosed him as schizophrenic, but he was fine six months, I'm sorry, six weeks earlier when he killed these two people. Um and um and so the jury found him guilty and sentenced him to death. And um ultimately the Supreme Court ruled that, and and and most states by this was about 1983, I think, most states had figured out for themselves that if a defendant needed an indigent defendant needed an expert, that it was the state's obligation to provide one. But there were about a dozen states, and you could name them, um, that had not figured this out for themselves, including Oklahoma. And so the Supreme Court said yes, uh, in a situation like this, if a if an indigent defendant needs an expert, whether it's a psychiatrist, a ballistics expert, a fingerprint expert, a chemist, whatever it might be, the state has an obligation to provide a competent expert. So so um Mr. Ake got a new trial. Um he got a uh uh his name was Glenn Ake, and uh he was tried again, he was convicted again, um, sentenced to life imprisonment instead of the death penalty, and did spend the rest of his life in going back and forth actually between Oklahoma State Penitentiary and Oklahoma State Mental Hospital, as his mental condition uh deteriorated and he had to be um treated again and you know given new medication. Um, it's a famous case. The case is Ake Against Oklahoma, and and it did require half a dozen, uh require about a dozen states to to change their practice, yes.

SPEAKER_02 19:05

So I I think I read that case maybe in law school. When did when did you win that case?

SPEAKER_01 19:09

Yeah, I think it was 1983.

SPEAKER_02 19:11

And uh it almost like ache the follow-up and and won that in the Supreme Court uh a few years ago. You may know.

SPEAKER_01 19:21

Yes, I I I I did, I was aware of that. Yeah.

SPEAKER_02 19:26

Well, that's amazing. That's what I that's what I get for not reading the names of uh the people who are so now I know. What year did you graduate from law school? 74. Pretty cool. So then you did eight, uh you went eight nine years later. Uh okay, seventy-four. So um did you go straight? So you went straight into law school from uh college, right? Right. So therefore, by the time you finish law school, you don't have to be concerned about being drafted to Vietnam.

SPEAKER_01 19:56

That's right. No, if I had been drafted, it would have been uh sooner than that. Um I got a good number in the draft lottery while I was in college, so I that's when I could stop worrying about the draft.

SPEAKER_02 20:10

Okay, now um you've dealt with both the uh let's see, the DC government lawyers, uh federal lawyers. Is that the extent of it? I guess you haven't dealt with corporate lawyers, or have you, or private?

SPEAKER_01 20:25

Some we we we occasionally sue a private defendant. Um it's it's uh a small part of our docket, but but we will do uh discrimination cases, for example, right against a private defendant, employment discrimination, housing discrimination, public accommodations, that kind of stuff. Um and of course, there are there are uh uh some occasions where there's a question of whether a private uh entity really is a state actor.

unknown 20:59

Right.

SPEAKER_01 21:00

And and that comes up a little bit also. We've we've certainly thought about that. I don't think we've we we've had a couple of potential cases, but we haven't litigated one on the question of whether uh uh charter school, for example, is a um a state entity. And I think the answer in DC, I think the answer may vary from state to state, right? And there have been some circuit decisions going both ways. I think in DC we're pretty confident the answer would be yes, but we haven't had to litigate the issue.

SPEAKER_02 21:30

So from that, I'm gonna segue into two aspects of dealing with opposing counsel. One is I assume that you've dealt with a wide range of types of opposing counsel, both based on ability to not and nastiness and not. But the first one I want to talk about is negotiating.

unknown 21:47

Uh-huh.

SPEAKER_02 21:47

Now, when I was a freshman at Tufts University, uh Roger Fisher from the Fisher and Yuri uh Getting T Yes book spoke.

unknown 21:55

Uh-huh.

SPEAKER_02 21:55

And I was riveted. So I want to start with that.

unknown 21:57

Uh-huh.

SPEAKER_02 21:58

Uh to what extent do you You read the book, and uh to what extent do you believe in uh taking that approach, negotiating on goals versus positions? Because I absolutely do.

SPEAKER_01 22:09

Yeah, um so to some extent, of course, it varies with what the client wants, it varies with the strength of our case, and and in some ways I I maybe the most important part of negotiation is having a um uh an accurate evaluation of the strengths and weaknesses of your own case, which clients often don't have. Um and so it's an important thing for a lawyer to try to educate the client about the strengths and weaknesses. The client always sees the strengths, but the strengths and weaknesses of your case and of the other side's case. Um and it's also important to try to figure out what might be um a more um uh amicable path to settlement on the other side. Sometimes it's money, but sometimes there are other things. Um talking about negotiating with the government, which is most negotiations that I'm in, um sometimes it can be um uh easier for the government to pay money, sometimes it can actually be easier for the government to make some programmatic um uh adjustments to some policy, let's say, um uh or to some training. Um and uh and and at least from the ACLU's point of view, that can be very valuable, and and and sometimes that's something that um that is worth uh discussion with the client. To what extent does the client who's in charge ultimately of settlement, to what extent is it important to the client to get benefit for himself, like money, and to what extent is the client interested in seeing in helping to protect the rights of people in the future, his own, but mostly other people's, um, to try to have some change that will avoid the situation that happened to him from happening to others, whether that's police misconduct or discrimination, let's say. Um and that's something we often talk about with our clients uh at the very beginning, too, to get a feeling for what their own desires are. Um we are frankly not as interested in, and not to say we would never do it, but we're not as interested in representing a client who says, I just want money, than a client who says, I'd really like to see this practice change. I'd really like to see some policy uh improvement here. Um, and sometimes the the lawyers on the government side um will share that interest and will help to persuade their clients um that that that can be a meaningful part of the settlement.

SPEAKER_02 25:25

So in criminal defense, I have to be uh ready for trial always for two reasons. I owe it to the client. Uh number two, once again, uh settling a case uh is better coming from position of strength. And also that way the lawyer doesn't get caught with his pants down. Because, you know, let's attempt a bench trial art. And here in uh Fairfax, Virginia, most of northern Virginia, we don't even negotiate our bench trials until the day of court usually. If my client swears up and down that he's gonna take the play offer that the prosecutor proactively offered the day before and he changes his mind on the trial date, the judge is gonna give me a postponement because I said, gee, I was expecting this gonna play. I'm ready for trial. I let the prosecutors be the one who are uncomfortable that I'm going to trial. Case in point, uh, I had this prosecutor. Uh, we had a simple DWI case. It was under the former chief prosecutor, Haran, who was here for uh years and years and decades and decades. He was a lot more conservative than the current chief prosecutor, in a fair fact. And I said, Look, this is a great DWI case just to settle for just the wet, reckless driving. And he'd hear nothing of it. Fine, we'll go to trial, no problem. So five minutes later, he says, I want to talk to you here. And so I sit down and say, Okay, what do you want to talk about? He said, You're wasting You're wasting my time going to trial. So I could have told him he was a jerk, and I have some other uh four-letter words to think of there. But you know, uh, once you say him, well, the audience has heard, and also it's a downward, downward spot. So I'll just say I could have called him a jerk, but I didn't. Uh so of course you know where this is going because myself and a lot of my other colleagues, we just like telling our wind stories. I can tell my lose stories too. So, how did I respond? I won the trial. And it's not the first time a prosecutor is really obnoxious. And one of the reasons that can happen, of course, you know this hard. I mean, you know, when the prosecutor or opponent's getting all getting all arrogant, they miss things, and and and and that's when their opponent who's level-headed uh can win. You know, it's just like the samurai who's thinking of the next move. He's more likely to have his head lopped off by by the less experienced samurai who at least has his mind in the moment. Uh now, uh to what extent? And so a lot of the prospects that deal with art, they give me these uh so-called take it or leave it offers, or they say, you know, uh, this is the best I'm given. And I say, well, you're negotiating based on positions rather than goals. Uh okay, so you're telling me your goal is you know to scare the crap out of my client and give him some days in jail. He's already lost his army job, he's already been uh uh ushered out of the army before the his DWI case even went to trial. He's gonna lose his security clearance if he gets any jail for this DWI case, and on and on, or if it's uh someone who's not a U.S. citizen, he's gonna lose the opportunity to apply for a green card in five years no matter what. So you've already got your goal that he's not gonna do it again. And if the process says screw you or in in whatever words, so we go to trial. And sometimes it's in the middle of trial that we settle the case. I don't know if you ever had that experience, but I want to get back to this negotiating on goals versus positions. To what extent, uh, you know, what's the been the continuum for continuum for you where you where your uh opponents are more negotiating on goals versus positions or the or the opposite?

SPEAKER_01 28:49

So I I actually don't know that uh nomenclature. Um you might have to explain it to me. Um you know, I I and maybe my negotiating isn't isn't as sophisticated as it should be. Um we're we're usually looking to get the best settlement we can, often a combination of some money uh for the client and some policy reform. Um and um and and we see where the flexibility is on the other side. Um uh so it's so it's it's quite ad hoc, I would say. Cases are all quite different. And and and I've had a lot of success using a mediator. I don't know how much that happens in criminal cases, probably not much, but in in civil litigation uh here in DC, the courts, both the federal courts and the local courts have a um a robust mediation program that's available to litigants. And when both sides are interested, um judges are happy, even eager, to refer the case to mediation. Um, and a mediator can be tremendously helpful, I think, um, in um uh sounding out each side separately and then giving the other side a candid view of uh how how the other side is is thinking and feeling without um without uh anybody having to admit anything uh or um say anything on the record. Um and so um and and sometimes can be very useful in saying to uh a government lawyer, because you know my clients are there at the mediation, government clients are are almost never there, they're available by phone. And so the mediator can say to the government's lawyer, um, I think I think your client ought to hear the following. I I think that your your client should be aware of of this or that uh weakness that they maybe they don't know about. Or I think if you're if you could get your client to just offer this a little bit more, we could get a settlement. Um, and so um a lot of our settlements uh happen with the assistance of a mediator, and they can be they can really be uh worth their weight in gold.

SPEAKER_02 31:38

Yes, I've dealt with mediation arbitration many times, more when I was doing civil cases in the past than criminal. But with criminal, there's some mediation for some of the misdemeanor case, at least. And you may or may not be aware that there's a restorative justice movement. And one of the greatest leaders of that is Sujata Baliga. I hope I pronounced her name right. She went to Harvard Law School, she uh is publicly a uh a victim of sexual assault by a close family member, and still she believes that uh what is needed in so many criminal cases is for the uh alleged victim and their uh relatives and loved ones and the defendant to get to get together in a room and have a mediator or you know, conciliator, whatever you call it, and uh just let the uh let the victim and their alleged victim and their family air their grievances and hear from the uh hear from the defendant. Of course, the defendant has to be protected about what can come into court or not uh from that. And I really do believe in it. I think that some of the uh Northern Virginia uh prosecutors are paying uh, I won't say lip service, but talking about it more than doing it, because I don't think it's necessarily that they don't want to do it, but it's a matter would have to be implemented. Uh, but it's not so hard to implement. Uh it's just a matter of taking this the civil mediation arbitration and amending it to the criminal aspect of it.

SPEAKER_01 32:58

Yeah, I'm glad you brought that up because I agree. I I've certainly had uh a few cases where just having our client sit across a table from the police officer who was the defendant in the case, and have the two of them able to look each other in the eye and talk to each other, not in a courtroom situation, um uh was um very valuable and enabled them to see each other as people who were looking for justice, uh, not just as enemies and adversaries, and and really helped a lot in bringing the case to a settlement.

SPEAKER_02 33:43

So, what do you think about this one, Art? I've never really uh fully figured this one out. Uh, I guess that it's easier to uh demonstrate in small groups, at least in DC. Maybe that was from Booz versus Berry without a permit than when Gulf 401 started. So uh the uh Senate was debating whether to authorize George Bush I to launch war uh during uh for Gulf 401. So it was around January 1991 or December of 1990. So I woke up a friend of mine who was visiting me for the weekend. I said, hey, the radio says the Senate's voting on this. We've got to go demonstrate. So I went to the hobby shop nearby and we made picket signs. And I think I mindset something like uh, you know, war is premature or whatever. I speaking of mediation, I felt that diplomacy hadn't been hadn't played itself out enough. So suffice to say we've got our picket signs and and the and and the signs, and I realized we didn't make it too well because it's windy and the wind was just blowing the signs all over the place. So I hadn't been tooted on that. And a a capital police officer, uh, we waved to him, showed him our signs. Uh it was on the uh uh south, sorry, east end, east side of the Capitol. He said, Are you demonstrators? So I made my first mistake because I was still with my first corporate law firm before being a public defender. And I said, Yes, no, you don't tell them. You know, so I I he already got that uh that element approved. And he said, Well, come over here and he said, I want to see your license. I said to my friend who was younger, I said, Look, if you weren't here with me, I wouldn't show him my license. You don't have to have one. I said, Why do you want my license? He said, Well, you're not allowed to demonstrate without a permit. And he said, Um, in this way, for me to have uh your license, I'm gonna report it. And if you're found demonstrating without a license, uh, you know, then you can get arrested. So I said, Where do I go to get a permit? And he points out at someone far on the other side of the capital, maybe near Union Station. And this woman shows us this um this map. This was like I think the weekend before Gulf War I started. She shows us this map and she says, Well, you can demonstrate here. And it was far over, like, no, not on the east side. We saw the cop on the on the west side. This is far on the east side, like behind the trees, behind the parking lot. I said, if we're over there, no senators will see or hear us. I said, Well, you know, I I said, What about I saw a bunch of demonstrators? I think there were Unitarians on on the west side of the Capitol. They had a prime spot. Why can't I have something like that? She said, Well, well, they applied uh they applied um a few weeks ago. If you had applied a few weeks ago, we could have done that. I said, I have no way to know that the Senate was going to be voting on this. Uh so what I ended up doing is I spoke to the Unitarians or whoever was demonstrating. They said, tell you what, we're about to wrap up. There's more demonstrations going up against the over Lafayette Park, and that's what I did. So uh to what extent uh was was was that uh would that hold up today under First Amendment jurisprudence to say the two people holding picket signs uh would really need to have a demonstration permit if um what is it, FWP, not FWPBS, the Chicago Windy City case was followed or whatever. And uh and what's the difference if if you have to have a permit to have the picket signs versus if I'm just wearing the same uh symbol on my t-shirt?

SPEAKER_01 37:04

Yeah, well, there's a lot in your question. Um and um and for people who come to demonstrate in DC, there's there's really a lot for them to know because um most of DC, you deal with the DC Metropolitan Police Department and their demonstration regulations. And and actually, one of the probably one of the best things that I've accomplished at the ACLU was working with the DC Council to get a law passed that's called the First Amendment Assemblies Act, which sets out the rights of demonstrators in DC, which are uh stronger than their rights under the First Amendment. We've added additional layers of protection in terms of, for example, not needing a permit. Um but if you're on federal land, which is the mall and the ellipse behind the White House and most parkland in DC, even small spaces like DuPont Circle and Farragut Square, that's all federal land. That's the U.S. Park Police, and they have a different set of rules and regulations which take up many pages of the Federal Register. Um, and if you're on Capitol Hill, you're dealing with the U.S. Capitol Police, and they have their own set of regulations, which are um uh misleadingly named traffic regulations, um, but which include the demonstration regulations. Um and the Capitol Hill had been a problem, and we had made a lot of progress in opening it up for demonstrations until 9-11. And as you will remember, after 9-11, all of a sudden security took over from everything else, and basically the Capitol grounds were closed to the public for quite a period of time after 9-11, and eventually um mostly opened up, but uh still not opened up to the extent they used to be. I mean, the the the um the western side facing the mall is still largely closed to the public, except the lower levels down at the bottom of the of those magnificent stairways. And on the east side facing the big parking lot, um, is also mostly closed unless you have official business and you're going into the into the capital. Um, and so designated areas where you can demonstrate, um they are they are not entirely out of sight, um, but they're not the prime locations that a person might want to pick. Um, but they're close to the public. So, I mean, we can win a case, and we did win a case where uh an area of the Capitol, this the sidewalk just below the eastern steps, um, was open to the public, and people would walk across there pushing their baby strollers and going from east to west. No, I'm sorry, going from north to south across the Capitol grounds. Um, but when our clients stood there handing out leaflets, he got arrested. And the DC Circuit said, no, uh, if it's open to the public, the Capitol argued, you know, security, security, security, and the DC Circuit agreed with us, if you can push your baby carriage there, then there's no security problem with standing and handing out leaflets. Um so so areas that are open to the public should be fair game for First Amendment activity. But if the whole, if a whole area is closed to the public for security reasons, um, and this happens, for example, on the White House sidewalk frequently. The White House sidewalk is generally open to the public and you can stand there with a sign. But when some foreign dignitaries in town and coming to visit the White House, they'll close that whole sidewalk and Pennsylvania Avenue in front of it. No one can walk in the in the security zone, and neither can a demonstrator. Uh, and and that's I think that's the right answer. If it's open to the public, it's open to First Amendment activity. But if it's closed to the public, then it's then you don't get a special uh privilege to go there just because you're holding a sign.

SPEAKER_02 41:34

Let's talk about forum analysis here, Art.

SPEAKER_01 41:37

Well, form analysis, of course, is key to most um uh First Amendment activity that involves demonstrations, and and as many of your listeners may know, there are uh traditional public forums, streets and sidewalks and parks, where the government's ability to regulate is relatively low, but there can still be regulations of time, place, and manner. And so that might, for example, include manner that um you know your your loud speaker can't be too loud in a residential neighborhood at night to protect people's ability to sleep. Um a regulation of of um uh similarly a regulation of time in DC. You can have your big march down Constitution Avenue, but you can't have it during rush hour on a workday. Um you can have it on a weekend, you can have it in you know, some hour that's not rush hour, but but um but uh but you can't have your big march down a main street at nine o'clock in the morning on a weekday. Um so those sorts of of content neutral rules they apply equally to everybody pro-war, anti-war, pro-life, pro-choice. Um, those kinds of uh neutral regulations are allowed.

SPEAKER_02 43:05

I think art screen is frozen. Can I go back?

SPEAKER_01 43:10

Excuse me?

SPEAKER_02 43:11

Okay, your your screen froze for a bit.

SPEAKER_01 43:14

Oh, sorry.

SPEAKER_02 43:14

Um it says your internet connection is unstable. I hope that's not my internet connection.

SPEAKER_01 43:19

Oh, I don't know. So far, mine looks okay on my end. Okay. So there are limited public forums, which is government property that's that's not required to be open to First Amendment activity, but which the government can choose to make open to First Amendment activity, and it can choose how to limit that in a um uh content neutral kind of a way. And so let's take, for example, a city council hearing is a good example. Council hearing may be open for public testimony, but limited to the subject of the hearing. So if you want to come into a hearing that's being held on um on the school budget, you don't have a first amendment right to come in and testify. About abortion. They have designated the boundaries of that forum. You can say whatever you want about the school budget, but you don't have a right to come in and talk about something else. And then there are places that, of course, are not public forums at all. If you're taking a White House tour, you don't have any right to stand in the green room and hold up your picket sign. That's just not a public forum. You're an invited guest in somebody else's house.

SPEAKER_02 44:37

So I want to tell the audience that uh I'm talking about uh this stuff about demonstration. I want to talk about uh some other um uh expressive activity because there is an overlap in many areas between expressive activity and the criminal law. Uh, because we see it all the time, Art, right? With uh with political demonstrators in DC not only getting arrested by police, but often unlawfully so and often manhandled by the police. We go beyond that. We have the unholy triumvirate often of uh people where a cop can't think of sending something else to arrest somebody for, but they don't like maybe the guy uh the defendant flipped the burden. So they they arrest them for disorderly conduct, maybe assault on police, maybe resisting arrest. Of course, then we have uh for the listeners who may or may not know, we do have certain levels of First Amendment protection for uh sexual uh material, at least if it's not child pornography and not obscenity. And uh all these things, all these things are criminalized. All right, if I'm not mistaken, I think I even found out there are still some states that have criminal libel laws. And if I'm not mistaken, I don't think any court has said that it's unlawful to criminalize libel. Am I mistaken there?

SPEAKER_01 45:54

As far as I know, you're right. I and that's not a subject I really pay a lot of attention to, but I I think there are some states that still have criminal libel laws. And and no, the Supreme Court has not said that's unconstitutional, um, it except I think if it applies to a public figure, libel of a public figure or a public official. Uh, but no, you you can, as far as I know, still be potentially prosecuted for a libel. I don't think that happens very much. Um and of course, on the civil side, New York Times against Sullivan made it much more difficult for a plaintiff in a defamation case to win, if the plaintiff is a is a public official or a public figure. And public figure includes what they call a limited purpose public figure, that is, someone who's a public figure only on the particular topic that the libel was about. So if you you may be in general a private person, but if you thrust yourself onto the public stage in some particular way, let's say you're you become a big uh election denier for the 2020 election, uh somebody who says something about you is gonna be more protected if it if it has to do with that topic where you've made yourself a public figure than it has to do with something in your, you know, in your private sex life where you have not become a public figure.

SPEAKER_02 47:21

Right. And and here here's another part of uh the First Amendment what deals when it deals with sexual sexual stuff that does commonly come up with my cases in Northern Virginia or uh numerous of my clients. Uh we've got um indecent exposure, and we also have um upskirting and down blousing, so with uh and peeping toms. So with indecent exposure, the fun thing and the strange thing also once in Virginia is uh the definition of indecent exposure is uh being in a public place and uh indecently exposing your body parts, but they uh your your body but doesn't say a part of the body. So that's my argument not to be able to criminalize uh uh barred breasts. We we know that uh uh some some state courts say that that's uh protected on their constitutions, but we haven't only had any federal protection beyond maybe uh Colorado on that. And uh that it has to be an obscene uh display. So what I like to say without getting into anything but G-rated, I just say, well, um if the person is just urinating, for instance, and he's uh he's not masturbating, for instance, that's that's not wouldn't come under the definition definition of of obscenity. Yes, I would then go to the Miller versus California uh definition of of obscenity. But strangely, the uh the Virginia um uh code also defines obscenity. It it comes close to the uh Miller versus California standard, but but not as protected. So then I'm ready to say to the judge if it goes to trial, I I'm usually able to get these cases dismissed ultimately or one way or the other. But I'm ready to say to the judge, you know, uh the Supreme Court trumps whatever the code says, the definition of obscenity is. And then we have upscurting and downbloosing and and peeping Tom. So um you know, it's I I guess it's one thing to say, well, you know, it's a it's a criminal similar to criminal harassment for these guys. Uh what some of these guys do, it's always guys that I see is that they'll maybe put a little camera in their briefcase and kind of like just scoot the briefcase underneath the legs of a woman who's in a skirt and the line in front of them in the grocery store. Uh I haven't dealt with the down blouseing aspect. And I'm, you know, what I'm ready to do is uh is to move a little farther from there because I also had a client who was prosecuted for harassing a woman. What he was doing is his video that video camera that was seized picked it up. He was running after her, and he and he his video camera showed that he was repeatedly following women and uh and focusing his video camera on their butts. And what I'm ready to say there is, well, you know, unless there is harassment, unless the woman knows that he's walking after them, this is public photography. Well, here's a jury trial I won. This was a real fun one, Art. Uh my guy was uh prosecuted for uh violating Virginia's uh peeping law peeping tom photography law, which is essentially uh uh photographing or videotaping uh the uh the bare genitals, bare buttocks uh bare uh of people or uh or bare uh breasts of women. And in this case, my guy stupidly went to trial by himself, if not mistaken, or just pled guilty at the district court level in Virginia. He had an automatic right of appeal, so hired me for the jury trial. And the way that I argued to the jury uh to an acquittal, I said, Look, all you've heard is uh my client who testified uh talked about how his alleged victim, his roommate, who was paying off her rent by doing work around the house, cleaning the house, cutting the lawn. He took pictures of her showing that she was just lying on the couch in the living room. And he testified to he what didn't have his glasses on to see that pubic hair was sticking out of her shorts. I said she just didn't have a reasonable expectation of privacy on there. We argued a lot more than that, but we won the case. Now, something that was made all the harder about this is that over my objection came into evidence that on my client's same phone was that uh my guy uh allegedly morphed the alleged victim's head onto a nude person's body, uh, you know, showing that maybe he had a sexual interest in order to take the pictures. Um what do you think about um whether there should be any First Amendment protection at all to at least possession of child pornography? It might be harder to say that it's okay to uh have First Amendment protection to producing it, but what about possessing it? Now, of course, we know the U.S. Supreme Court has said that's okay, but it but is that uh Supreme Court uh jurisprudence-wise?

SPEAKER_01 52:01

Well, uh we think it's wrong, and the ACLU filed an amicus brief in that case, arguing just what you said that um production of child pornography may involve abuse of a minor, sexual abuse of a minor, but possession doesn't. And uh the government's argument was um uh was a um uh uh uh uh supply side, I guess demand side argument. They said if there was no market for child pornography, then there'd be no incentive for people to make it, and so we're protecting children from sexual abuse by drying up the market for the child pornography, the creation of which subjects them to abuse. So that was their argument, it was an economic kind of an argument. Uh, but we didn't agree with that. Uh, our view was once the pornography is made, it's made. And somebody who may be, you know, many steps down the chain of possession um and and may receive it for free and isn't paying for it necessarily, uh, isn't isn't involved in abuse of any child. Um, but as you say, we lost that case in the Supreme Court. Um, there have been other cases, I haven't been involved in any of them, but there have been cases in which people have been prosecuted for obscenity for um for computer-generated images or cartoons. And I think the argument there has been more successful. If there really is no human being involved in this at all, right? It's just animation um and imagination, uh, then then the only harm is the harm of people thinking bad thoughts, and that's that should be protected by the First Amendment, just the same as people thinking bad thoughts about politics or economics.

SPEAKER_02 54:04

Um, the Supreme Court case you talk about is Ferber, right?

SPEAKER_01 54:08

Yes.

SPEAKER_02 54:09

All right, so uh what would be uh your thought then about someone who's um distributing uh child pornography, but not for money, but maybe because they're on the the torrent system where you where you have this file sharing system where for for the uh Joey to get child porn, he's got to share his child porn with the rest of the people who are on the bulletin board.

SPEAKER_01 54:32

Well, I I suppose if he's making his own child porn to share, he can be prosecuted for that.

SPEAKER_02 54:39

Um, I'm talking about just Joey having his own his child porn that he possesses.

SPEAKER_01 54:45

Would the Supreme Court be open to reconsidering that case? I don't think so. I mean, your crystal ball is as good as mine, but and and the Supreme Court has been in general pretty good. They had uh, I think five First Amendment cases this term, and all five of them came out okay for the First Amendment side. Um it was sort of the one nice piece of this term's decisions, but um uh but I I I'm I I wouldn't be looking to take a case up there to say please overrule your child pornography precedent. I don't I think that's a precedent they're not looking to overrule.

SPEAKER_02 55:24

And uh and for me to scare the crap out of more people who haven't heard me say it otherwise before you start uh uh foraying online uh to to seek out even if it's adult porn, if it's from an unreliable source rather than from the more reliable companies that hopefully are checking against kitty porn, although we can't promise you about obscenity, you know, things like Hustler, Vivid, Wicked, whichever those uh still exist, is that art, I'm sure you know this uh to um receive even one kitty porn image on that's a federal mandatory minimum of five years in prison. And the reason why prosecutors don't go after one image alone is it just takes too much time and they want the the the bigger bulk, but if that doesn't scare the crap out of people who are risking what they're watching on uh online and elsewhere, I just don't know. Art, the name of the show is or the podcast is Beat the Prosecution. Now, beyond your well, I think you're modest, maybe you're not. Beyond your being a having a brilliant mind, being a brilliant person, being a very excellent uh litigator, and I'm sure covering all your bases, probably over covering with preparation. Beyond that, and even cover any of that if you want, how does one beat the prosecution, or how does one beat your opponent at the trial level, at the appellate level?

SPEAKER_01 56:50

Well, so as you've noticed, I I really don't do criminal defense, and so I don't I don't beat the prosecution. Um but um you certainly made the point that preparation is is tremendously important and it is. Um unlike with criminal cases, civil cases don't go to trial very fast. And and so um, and we know when a trial is coming, and usually it's preceded by a motion for summary judgment. Um and so there's there's you know you don't really have to prepare for trial until until after usually a pretty lengthy period of discovery and motions practice. Um, but sure, if you're gonna have a trial, you you you need to be prepared. Um it's it's it's it's certainly essential that you understand the other side's case uh legally and factually. That's also easier in civil litigation than criminal litigation, where you've got much broader discovery. Um it's important to know the relevant law. Um and um uh if you you know if you if you've got those things, then you're in as good a shape as you're gonna get, I guess. And um, and of course you want to hire an experienced lawyer like Jonathan Katz, who knows how to examine witnesses and cross-examine witnesses and bargain with the with the district attorneys. Um experience counts for a lot.

SPEAKER_02 58:36

Uh Art, you don't come across as a cream puff at all. So I take it you do sometimes get angry at your opponents or the judges. Have you ever gotten angry? And if so, uh, what do you do not to express it? Because of course, if you express it to your opponent too bad or to the judge in the court, that could be counterproductive for uh your client, let alone for your bar license.

SPEAKER_01 58:57

Yeah, well, yes, I agree. Um I do sometimes get angry, but but I don't have a um an anger management problem. Um I've known some other people who really do, and um, and and I'm you know, and and that can be something they have to uh work on. Um I'm I I'm just um instinctively okay at sort of keeping that in um and and uh being more mild-mannered um on the outside. Um so I don't have any good advice to people with anger management problems, is you know, find an anger management counselor. Um, but that's not that's not a problem I've really had to deal with.

SPEAKER_02 59:50

Okay, well, Art, thank you tremendously for joining us. Uh do you have any um last thoughts you want to share with the audience that maybe weren't brought out or weren't brought out enough?

SPEAKER_01 1:00:02

No, I'm I'm uh you've done a good job of cross-examining me, John. Um uh I'm uh I'm satisfied. I rest my case.

SPEAKER_02 1:00:13

Thank you, Art. And uh, Art, as I've said to so many of my guests, uh one of my Tai Chi Chuan martial arts teachers says, do not let your teachers forget how much you appreciate them. You have been a great teacher to me, art. I haven't gone into total detail about it. Uh, but when I think of uh, you know, great minds and just a way to just go right for the juggler of winning, you're one of the people I've thought of and it helps inspire me. I really appreciated art. Uh everyone, you've listened to Art Spitzer, that's S like Sammy, P like Peter, I, T like Tommy, Z-E-R, a great lawyer. I didn't even know before today that he was the one who won the eighth case in the Supreme Court, which puts me even more in awe of the man. This is John Katz with Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Virginia. Thanks again, Art.

SPEAKER_00 1:01:09

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 be the prosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.