SPEAKER_01 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_02 0:32

Hello, everybody. This is John Katz with Meet the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Virginia. This is an exciting day. I'm talking here with Mark Goldstone, a great lawyer over in Rockville, Maryland, who I met when I started doing uh activist defense representing uh four plowshares activists, arrested for hammering on uh warplanes that fired depleted uranium bullets. And when I said, well, who's a good lawyer to talk to to get an idea about how to defend these activists? Because these are folks that I was representing who actually admitted what they were doing rather than denying it, but said it was justified under international law and I guess maybe the laws of God. Uh, they gave me two names. They gave me Mark Goldstone and they gave me Katya Commissoric. And I'd like to get her on the show sometime if I can even find out where she is. Maybe Mark knows because Katya was a plow shares activist who, after her time in jail, however brief or long that was, she went to Harvard Law School and the rest is history there. Mark Goldstone, please introduce yourself to the audience.

SPEAKER_04 1:42

Hi, John. It's an honor to be on your show. Uh, thank you for hosting. And um I'm a uh criminal defense lawyer in Washington, D.C. And uh I also work in in Maryland, as John mentioned. And I've been specializing in the defense of political protesters for all of my career, which now spans uh 40 years.

SPEAKER_02 2:03

Okay, so Mark, um you graduated from law school when? What late what led you to the legal uh path? What led you to do the criminal defense and uh protester defense?

SPEAKER_04 2:17

So I graduated law school in uh Temple in Philadelphia in 1984. Uh and uh I I always knew I wanted to be on the legal path, so that wasn't uh a big leap for me. Um in terms of uh getting into criminal defense, I did that about a year or so after I graduated from law school. Uh I tried the political path first when I graduated from law school, not intending to practice law, but I worked for the presidential campaign of Fritz Mondale and Geraldine Ferraro. Uh that was a historic um campaign uh because Ferraro was the first uh major party nominee who was a female. Uh and it also made headlines because we lost 49 states to one. Uh I think we won Minnesota and perhaps the District of Columbia.

SPEAKER_02 3:05

He was he was competing with his uh president Jimmy Carter.

SPEAKER_04 3:09

Uh not in 84, he wasn't competing with Carter.

SPEAKER_02 3:12

He was competing for losing by a landslide.

SPEAKER_04 3:16

Oh, competing with Carter in that room.

SPEAKER_02 3:18

As much as Carter was my favorite president, despite his flaws.

SPEAKER_04 3:22

Uh, in terms of uh criminal law or criminal defense, I worked for Fritz Mondale and Geraldine Ferraro in their presidential campaign at their headquarters in Washington, D. D.C. on Wisconsin Avenue, uh, doing foreign policy work for them. And then uh after that, um I worked for Joe Biden, uh, who at the time was the ranking minority leader on the Senate uh Judiciary Committee. And I worked there as a professional intern. Uh it was post-graduation from law school, and I did a lot of work with the Judiciary Committee, particularly on the issue of uh extradition treaties. Um, and that was a great experience. And then I tried to get a job uh on Capitol Hill and was not successful in getting a job on Capitol Hill. And then in 1985, uh realized they didn't not only was I not successful in getting a job on Capitol Hill, I didn't, I wasn't really sure I wanted to get a job on Capitol Hill uh as a researcher and foreign policy analyst. So I I basically just hung up my shingle in 1985 picking up criminal cases in the Superior Court of the District of Columbia, and I've been picking them up ever since.

SPEAKER_02 4:27

At the time when being called the Fifth Street, or even if it wasn't pejorative, actually had people that had their offices on 5th Street.

SPEAKER_04 4:36

Yeah, so I was a Philadelphia lawyer coming into the 5th Street environment. Uh, and it's interesting because when I grew up, being a Philadelphia lawyer was considered a compliment, and that terminology actually shifted a bit uh during my uh legal career to the point where some people consider a Philadelphia lawyer uh being a you know denigrating term. I I always thought of as a great uh accolade to be called a Philadelphia lawyer. To me, it meant someone who was street smart, street wise, and could you know maneuver around a court and maneuver around a crime scene uh you know equally effectively and was comfortable talking with uh all manner of people? That's how I understood a Philadelphia lawyer, and I'm proud to be called a Philadelphia lawyer.

SPEAKER_02 5:20

And how did you come into doing activist defense? And do you only represent the so-called progressives or do you also represent people on the right who you disagree with?

SPEAKER_04 5:31

So very early on in my career as a court-appointed lawyer under the Criminal Justice Act in the Superior Court, uh, I was assigned to one case. Uh there was a protest against Ronald Reagan's wars in Central America. Uh, I supported the protesters. I wasn't at the protest, but when they came through in lockup, I was very excited to be uh representing one of the protesters who sat down on the Capitol Rotunda protesting $100 million in military aid uh going to the anti-communist forces. I think it was in Nicaragua, perhaps El Salvador, I don't remember. Um it was in 1985 or 1986. Uh and um I got assigned to one of the cases, and I was very excited, as I mentioned, because it was in the news and it was a political cause that I was very uh supportive of. And by the time the cases got called in court later in the afternoon, about 130 of the lawyers uh withdrew from the case. And I was, quote, stuck with 132 uh criminal cases of people who sat down on the Capo Rotunda.

SPEAKER_02 6:34

That's wild.

SPEAKER_04 6:35

I couldn't be withdrawn. I couldn't have been more excited. So um I I just enjoyed that type of representation. None of the other lawyers did, as I just mentioned, uh, and then the court you know realized that they had someone who was willing to take uh protest or cases, and they started assigning me protest or cases, and then you know, one thing led to another. And then, of course, um, because I was doing a lot of the court-assigned protest cases, uh, then private protest cases would come to me uh as I began developing a name and a reputation for being the guy or one of the guys who did uh protest cases uh in the District of Columbia. Now, in general, I I support left-of-center protest and left-of-center activism. Uh, I'm I'm a person, generally speaking, on the left. However, I have defended uh right of center protesters. Uh, and the purpose behind my defending them is not because I support them politically or necessarily want them to win or necessarily want their viewpoint to be aired. The reason I do that is because I see myself as more of an ACLU lawyer, American Civil Liberties Union type of lawyer who's willing to defend speech, political speech, free speech, whether I agree with that speech or not. Uh, and that's an important principle that the ACLU stood for, uh, at least in my memory, since the 1977 argument that the ACL ACLU did in Skokie, Illinois, where they defended Ku Klux Klanners who wanted to protest uh outside of Skokie, uh, which was a predominantly Jewish suburb uh in Illinois. Uh, and a lot of people were very upset if that they were going to allow the Nazis to protest there. And I supported the ACLU position uh that they they should be allowed to protest. Uh and it was very controversial, of course, uh, but the Skokie decision really sort of um informed my view of how an ACLU lawyer, whether they like the client, don't like the client, like the speech, don't like the speech, should defend freedom of speech. So I have defended uh cases that I that I don't agree with, um, especially with those on the right.

SPEAKER_02 8:52

Right. And I I've defended the full spectrum of people from the uh far right people to the communists uh for First Amendment stuff, libel defense and and uh protesters' rights. And for the ones uh that I vehemently disagree with, I tell them at the outset, before they harm me, I say, uh, if I represent you, I'm not gonna stand up for your your uh your your message. I'll I'll stand up for your uh the the cause you hired me for, your right to say what you're saying, or your criminal defendant's rights, and and then we go right to it. I mean, it's kind of like uh I my recollections that the ACLU asked an African-American gentleman many years ago to represent the right of the Klan to uh to wear hoods against uh the uh uh the law was actually upheld. I forget if it went to the U.S. Supreme Court or was just in Virginia saying that no, you can go ahead and ban hoods uh uh or mask uh across the board as long as it's not specified to the Klan itself. So what made the 130 people withdraw from that case?

SPEAKER_04 9:55

So so it's interesting. I did actually speak with a number of those 130 other lawyers and say, why in the world would you want to get off these very interesting, very exciting cases? And the Washington Post was covering it, and the TVs were covering it. It was you know, it was in the news as uh they were trying to get $100 million in military aid to the to the rebels. Uh very controversial political topic at the time. Um, and what they told me was was interesting, they said, well, the the clients don't pay, protesters don't pay, uh, which isn't true because I was being paid by the court, as were the other lawyers. So the fact that they don't pay doesn't it had no bearing. The other thing they said was really more uh influential in their decision, which was they they're gonna tell you what to do. The protesters will direct you what to do, and it's your job to tell them what to do. And I I was sort of shocked and appalled by that uh lack of client centricity. In my view, I have a very client-centric view of that, that I lay out the options for the clients and the clients decide. Sometimes the clients decide uh in ways that I personally would have disagreed with. Other times uh they they follow you know my suggestion, but it's the clients' decisions. My job to you know to lay out the options and let them and let them figure it out. They're the ones who after all bear bear the responsibility for for the ultimate decision, uh, whether uh you know whether to follow my advice or not.

SPEAKER_02 11:23

Uh is this when the hourly rate uh for CJ Law's in DC was around around the uh around about $35 or $50 an hour? Was this before or after that uh the strike that went uh forward?

SPEAKER_04 11:36

It was right around the time of the strike. Uh I think it was right after the strike. Um, and uh I believe the strike got us up to $35 per hour. This is in in 1985.

SPEAKER_02 11:47

Even in those days, so were you part of the strike? No, no, I joined the panel. To what extent did people uh join this? What percentage of the CJA lawyers actually joined that strike?

SPEAKER_04 11:57

Uh I joined the panel after the strike, uh, which was not allowed. Um it was not it was not successful directly. I think it was direct indirectly successful uh of a strike, but we did not have the right to strike, and that's been made very clear to us uh you know over the years, even though uh periodically we do get pay raises uh you know from the court. And we're we're not at $35 an hour anymore.

SPEAKER_02 12:21

Okay, so the name of the show is Beat the Prosecution. So how did you learn your chops about how to win in court?

SPEAKER_04 12:29

Well, I I don't I don't know that I'm the right guest to be on Beat the Prosecution, um, in that my clients typically will uh put out press releases saying that they're going to break the law. They break the law, they film themselves breaking the law, and then they boast about it uh used to be on you know non-social media uh platforms, and now of course it's on social media. Um so it's very difficult uh to have a uh anywhere near a winning record uh in defending activists who commit acts of nonviolent civil disobedience, because the goal of their action is not necessarily to win in court or to beat the prosecution. Um I've never calculated my winning percentage, but it's uh it's probably the lowest of any uh guest on the Beat the Prosecution podcast. I can tell I can almost guarantee that.

SPEAKER_02 13:20

Well, unless it was uh um an incorrect, flattering journal journalism. Usually I figure that about us criminal defense lawyers, if the journalists get it incorrect, it's not flattering. But there's a flattering article about you online about how you climb through the ranks and within about two, three, or four years or shorter of doing Criminal Justice Act, court-appointed cases. You got some really big cases. And I think you uh according to the journalists, you said you you were in about 50% of your cases. Is that uh something you're shrouding in the past?

SPEAKER_04 13:54

Well, that I I know what I know what article you're you're making reference to, uh, and it was an article it which detailed my swift climb through the ranks of criminal defense attorneys in the District of Columbia to the point where a couple years into my practice, I set a record, uh, a dubious record for getting a client the most amount of jail time on a pre-indictment plea in the history of the District of Columbia. Uh, I managed to get my guy 85 to 255 years in jail on a pre-indictment plea. Um, and uh he escaped from prison that night, he threatened my life, uh, and then he was captured the next day. But I quickly decided that um, you know, for the for the same amount of hourly rate to pay to defend a person who got 85 to 50 to 255 years in jail on a pre-indictment plea, uh, I may as well uh settle in comfortably in the misdemeanor uh nonviolent civil disobedience ranks, which which I I I then did after this first couple years of doing, you know, robbery, rape, kidnapping, uh, and murder cases.

SPEAKER_02 15:00

Well, either that wasn't in the article or I missed it of having your life threatened. Well, uh your life survived, because I'm sure that was decades ago. Um the closest I ever came to uh to having uh physical harm threatening by McKean, and I'll say this in terms who won't identify him, and this maybe just would have been a slug of words you might have suggested, is there was this man who uh he was about to be released from jail anyway. He had gotten a short uh jail term. And uh, I'm sure you're coming back, Mark. Okay, I'll keep talking. Thanks. He got in a short jail term. Uh I was appointed for his appeal uh in federal court. And um, after he signed the papers for me to get out of his case, I'm not gonna get into why. Let's just say sometimes we have challenging clients and he'd gone through a slew of previous clients, uh, previous lawyers, so uh you know, there was a history. So then he starts complaining to me about how I have been handling his case. I think I only found it a week before or whatever. So he had plenty of time to do it. And I said to him, Why are we even talking about this? I said, You've already signed the paperwork for me to get out of your case. You're gonna get another lawyer soon. And he said to him, like, if I wasn't in here, I said to him, Oh, come on, we've gone along other lines fine since then. I didn't hear from him since, but you know, Mark, I mean, to go off in a tangent, but this is important for the criminal defense lawyers to hear. I I think it's the divorce lawyers and maybe uh uh a plaintiff's employment discrimination lawyers more often who get actually murdered and otherwise severely uh injured by their clients. But I mean, have have you heard of this happening much uh to criminal defense lawyers? Uh having them actually get physical harm from their clients and former clients?

SPEAKER_04 16:55

Uh not not not too much. I I had a situation where I represented a young man who was charged with murder very early in my career, as I mentioned, uh, and he pled guilty to a diminished murder charge of murder two or manslaughter, I don't remember what. Um, and he was maybe 20, 21 years old at the time of the offense. And he very readily admitted the offense. It was a drug deal and and and so forth. And then um maybe 10 years after that, uh, he was now about 30 years old, and I was in uh Lorton Reformatory, which is a former uh former jail visiting a client in the maximum security. And I I I'm looking at this guy and he's looking at me and I recognized him, and it was the guy who I had you know done the plea with on the murder charge 10 years earlier. And I was like a little bit nerved up that he was not gonna be too happy to see me, but it turns out that we had a nice little um uh just a very, very brief conversation, but he wasn't he wasn't agitated at me. Uh uh, thank the Lord. So yeah, I it it can it can certainly be dangerous. Uh it can certainly be dangerous work. Now, the work that I'm doing currently, which is the First Amendment freedom of speech stuff, is certainly less dangerous uh than the work I was doing uh early at the first uh leg of my career.

SPEAKER_02 18:10

Well, I want to address that in two ways. One is about the kinship I feel with you, even though we don't see each other a lot. Sometimes we just bump into each other and then you make a joke to me and they're always funny. Uh but but also um uh I I don't I don't want to lose uh I don't want to lose track of that. Uh but but but also well we'll go we'll go right to that one then because I had another thing in mind. Well, yeah, it's it's about you then. Um you are a very likable person, and I'm not aware that you let that compromise the quality of work you do. So where does this likability come from? And how are you able to uh uh not have it get in the way of you doing um being successful for your clients?

SPEAKER_04 19:07

Uh early on when I first started doing criminal cases, uh criminal defense cases on uh First Amendment civil disobedience cases, I I tried cases uh with a with a lawyer, uh female lawyer, and uh we were like fire and ice. Uh she was very fiery, pounding the table a lot, storming in out of courtroom, slamming her, slamming her briefcase down, and I was considered the ice of the relationship. So we were fire and ice, and um I I don't know likable, but I I just was um a little bit more laid back, I think. And uh I think the judges sort of appreciated that, and the clients I think appreciated that. Um and I also worked with another lawyer, uh, African-American male um who did his best work uh when it is he said it when the marshals were jangling the chains uh behind him, just about to lock him up for contempt of court, uh, he did his best work under those circumstances. And and I'm the exact opposite. I like I like everything to be uh calm and orderly, and I like to know what I'm doing in the courtroom, and I like to know what I'm about to say and so forth. So uh you call it likability, I I just consider it um, you know, a little bit um uh you know, a little bit of calmness. Uh and I I I try to steady my clients because my clients are not familiar uh with courts and with judges and probation departments and and and uh parole officers and and marshals and cell blocks and all that kind of stuff. So I try to uh and and they don't even know where the witness stand is sometimes. So I I try to sort of break down the system uh in a way that is uh understandable for them. The other thing I like to do, which uh I think perhaps increases my my likability or favorability, is I I try to explain to my clients that a trial is just about asking questions, right? If you use the term testimony uh and testifying, it sounds you know very um dramatic, right? If you just say, you know, can I ask you a few questions? Uh no one no one's objecting to that, right? So it just it's just a way of breaking down the formality of the process. And the process is designed to be intimidating. After all, you have a judge in a black robe who's sitting on an elevated position, there's marshals around, you know, with handcuffs and tasers and stun guns and all kinds of equipment. Uh, and it's an intimidating environment. And um, you know, I try to make it, I try to make it for the defendant as unintimidating uh as I can. Um I just try to have a a loose courtroom uh demeanor if I can. If I feel confident about you know the facts of the case and I feel confident about my client, then I can be certainly more uh you know in a in a loose and a calm demeanor. But if I don't have good facts and I have a Bad client, a non-cooperative client, it's it's it's very difficult. And that likability or that um ability to um get along with people um you know can be uh in effect compromised uh if you have bad facts and a bad client.

SPEAKER_02 22:14

But the likability must have come before law. So I mean with me, the you know, the challenge I had about um you know uh not being uh as confrontational as I used to be, let's say, in grade school, high school was where I grew up and where I went to summer camp. I was often expecting fist fights. Uh well, often they'd be called caused by my mouth, I guess, but uh or or the like. Uh so where did it come from, if you're willing to share? It must have come from your childhood.

SPEAKER_04 22:47

Yeah, I'm I'm not a confrontational person. Uh in my family and in my uh relationships, it's always been non-confrontational. Um, so uh I'm I'm an unusual person to be a you know courtroom litigator because typically those persons who uh enjoy that work or excel in that work can be confrontational. I'm not a confrontational person.

SPEAKER_02 23:09

Okay, now we met each other when you were the chair or co-chair of the National Lawyers Guild Demonstrations Committee. This was around 1999. And uh I've told you some of my thoughts about the guild. I know we're not going to be asking you, not gonna be asking you much about your thoughts of what other guild people do because you haven't been in essentially involved in them for a while, I guess. Uh, but I I joined the guild despite the guild. I I joined the guild because of the demonstrations committee, because of the good work they were doing for a lot of the criminal defendants and immigrants and the anti-racists, anti-sectists, and I ended up leaving because I think they just uh they they got too doctrinaire, and uh it really had to end with things like in 2000 was around 2008 when that guy threw his shoes with uh George Bush, George uh W. Bush. Uh and the yellow made they just made themselves look silly, I think, uh, saying we we support the shoe thrower uh by asking to donate shoes. And I think we still actually have a lister before the unique the general lister and kind of like, so what is this crapple not declining the violence of it, even if it's minimal violence? And so this man who was on the national board at the time, really nice guy, local, local in DC. Actually, I had uh gone with him to the uh federal court in Alexandria to um move his admission into the court. He said that the the guild doesn't talk about nonviolence, of course, not you know, about non they're okay with nonviolence often with the with the the the folks they support. But what made you get involved with the guild? I mean, my problem was that uh there is there's no good lawyer alternative uh to the guild other than the ACLU. And the ACLU is not such a lawyers group as much as the Civil Liberties Group. So what made you get involved with the guild and why aren't you as involved with them now?

SPEAKER_04 25:08

So I got involved with the guild uh through the demonstration support committee, uh which I was very active on uh and ultimately chaired for many, many, many years. Um, and it was a great experience because we were sort of at the forefront of receiving requests for services, whether they be legal observer services or uh actual law service, legal services for groups that wanted to come into the District of Columbia and protest. And we had we had the expertise in how to do that. Uh and uh people coming in from New York, Boston, from Philadelphia, West Coast, wherever they're Chicago, wherever they're coming from, they they needed to understand the lay of the land in the District of Columbia, which uh you know is this DC is very small, but it's very powerful. And has the Supreme Court, it has the Congress, and it has the White House along with the embassies and trade missions and all that. So DC is a target rich environment for protest. So all kinds of groups, you know, 24 hours a day are coming into the District of Columbia and they needed to know how to protest. Some wanted to just, you know, learn how to get pro uh permits and so forth, others wanted to commit acts of nonviolent civil disobedience. So I I was fascinated in uh advising those groups because the the rules of the road are actually very different in the District of Columbia than than elsewhere. Um and you know, I would have a lot of conversations with out-of-town activists to tell them that DC is very different. We had at the time 30 different police agencies, and the rules for each building that I mentioned, whether it's the White House or the Supreme Court or the Capitol, were very uh very specific. Uh so there's no such thing as a general First Amendment right in those buildings. Uh each one of them has their own rules and regulations, their own police forces, and their own case law. So it's very site-specific in the District of Columbia. Um and I I enjoyed that work, and I did that work for for many, many, many, many years. Um I I I simply left the active portion of the guild, not really from any uh uh substantial disagreement. I just I moved into uh you know a different direction. The the one thing I will say about it is uh one one year, uh a year or so after I left, I don't remember when I left the guild formally, I didn't resign, I didn't last them or anything. I just I I just stopped attending you know two two or three meetings a week. Um I I um I remember uh speaking with one of the lawyers who attended one of the conventions. And the lawyer said to me, I said, How is the convention? Because I used to attend all the national conventions, the regional conventions, the local conventions. I spoke at all the conventions. Um and and the lawyer said to me, Oh, it was a great convention. Uh this year we had a safe space. And I said, I said, Well, what's a safe space? I had sort of heard about it in in colleges at the time when they would have these rooms for kids who felt triggered or violated or annoyed or upset about something a professor you know read in class that you and I read in class, and you know, whatever, you know, we didn't need to go to a safe space. And I didn't, I didn't really know what it was. And my image of a safe space was where, you know, the sort of soft music, soft couches, and and some you know, administrator, you know, is blowing bubbles on you to calm you down so that you can return to the you know to the academic uh academic setting. So the lawyer said, Oh, you know, and the lawyer thought it was a great thing that there was a safe space. And I'm thinking to myself, why in the world would a lawyer's convention need a safe space? Safe from what? We're there to argue, we're there to debate, we're there, you know, there to make policy, meet people and and advance, you know, advance the issues. So I was sort of shocked that the lawyers guild needed a safe space. But you know, as you as you mentioned the term doctrinaire, that to me was emblematic of uh you know the political correctness uh that had infected uh not just the National Lawyers Guild but other groups. And then you also mentioned there there's not a lot of alternatives in the District of Columbia, and that's very true. There is the ACLU, which has both DC and national uh offices and staff and so forth, and also the American Constitution Society, right? Um uh other than that, there's not a lot of progressive um, you know, civil rights and and civil liberties types of organizations.

SPEAKER_02 29:37

Right. Well, I really appreciate it. I'm happy that I'm not the only one who's been blasting the National Awards Guild for being a bigger umbrella. But look, you know, I think there was an article, I don't know, it was probably one of the official uh guild publications one or two decades ago, where it was mentioned, yep, a lot of the original guild members, the more the people who were more likely to also be law partners, some of the big corporate law firms uh who helped found the guild, they just left. That's right, because the guild just became overly doctrinaire. And and a bunch of the guild members who were overly doctrinaire were willing to have that as the price. Now, uh a key reason I actually got involved with the guild at the time was after I, when I heard Gerald Leftcourt talk in 1991 at the National Association of Criminse Lords meeting in Penn of Philadelphia, it was my first NHCBL meeting. I had this great idea which actually worked, which was to join the National Association of Criminse Lords and the State Criminal Defense Lords group, put them on my resume and then apply to public defense offices, even not having done any criminal defense work yet, it worked. And Jerry Lovecourt was talking about representing Abby Hoffman and Abby Hoffman saying to him, uh, look, I just need you to keep me out of jail so I can do my stake. And I said to myself, wait, did I miss the vote in representing the activist? Of course not. As Ramsey Clark said to me, as he and I were driving up to visit with the plow chairs because he was uh the other lord in the uh in the team. Uh he said to him, John, there's no sort of such cases as long as you want to do it for no pay. Um so cases it was it was in 2000, was it not, when there was the A16, I guess which stand stood for April 16th, World Bank protest. And I said to myself, oh wow, this is great. So not only am I representing Plow Chair as an activist, uh Susan Crane, Phil Berrigan, uh Father Steve Kelly, as well as Elizabeth Walls, but then I get to represent all these people coming in and dealing with what lock boxes they were doing to these plastic and traps. You put your arm in, two people put their arm on each side and hold on to the middle bar in there to make it harder for the cops to break a chain, or you could like have many people having lockboxes there. And so I was I was at those meetings of the guild without giving up if it could be called attorney client privilege, but I was at those meetings where we were making the plans for representing the uh people uh protesting at the against the IMF World Bank. But really, I mean, Mark, their message did not resonate with me. I mean, you know, I I believe in in being and not shoving things down people's throats by the IMF and World Bank saying the nations, look, you know, here's a loan, but here's what you have to do uh for austerity measures and everything to get the loan and pay it back. But but nonetheless, it it was a great time. But like you said, I mean, this was a totally different way of practicing law, which was for these folks to say, look, we have an agenda here uh that that we have to that we have to forward. But uh, I mean, I drew the line that, okay, fine, you know, uh with these dem these activists that I told you about, uh, I'll go ahead and represent you and I know what your terms are. Um, but I'm not this is not gonna be a long-term thing that I'm gonna do. But my understanding with you, Mark, is you will have these meetings with uh supporters of activists, and you'll and you I think you once did a figurative pounding of your fist on the table, saying to a group of people once along the lines of uh, look, if you want to do A, you've got to do B. So it's a bunch of cooks in the kitchen you're dealing with that I don't like dealing with. So you deal with a bunch of cooks in the kitchen, and if so, why do you do it and and how do you do it?

SPEAKER_04 33:37

So you mentioned uh Jerry Leftcourt defending Abby Hoffman. I I need to put in um sort of a plug there. I I represented uh one of the Chicago seven, uh, not in Chicago Seven, obviously I was too young in 1968 to do that, but I represented David Dellinger and his wife Elizabeth Peterson, uh, and we had a trial for them opposing um, again, a Reagan War in Central America, and traveling up to um Vermont uh and staying with David uh and his wife, both deceased now, was a really fascinating, fascinating experience. David was 20 years removed from Chicago 7, he was the least well-known of all the Chicago 7 defendants, probably. He wrote a famous book called From Yale to Jail, the life, you know, the story of a you know a lifelong dissenter. He actually descended from the Second World War of O-Wars. Um, so he was a lifelong pacifist, fascinating guy. And uh despite his very mild demeanor and um academic look and academic dress, um, despite that, and and Abby Hoffman with the big hair and and uh Jerry Rubin with the hair and the costumes and so forth, David Dellinger actually faced the most contempt of court time for his interactions with Judge Julius Hoffman in the Chicago 7. So he he was a fascinating, fascinating historical figure that I really got a I got a kick out of getting to know David and his wife.

SPEAKER_02 35:09

Oh, that was that's great.

SPEAKER_04 35:11

So that was awesome. Did you win for him? No, we lost, and it was a 30-second demonstration that took almost six weeks to try the case. Um we went in front of a judge whose name was Luke Moore, and his nickname became Forevermore because it took six weeks to try a 30-second demonstration. Now, to Judge Moore's credit, there were 17 or 18 defendants, three prosecutors, three defense attorneys. So uh there's a lot of litigation over that 30-second uh arrest, and they charged him with three separate charges uh and all that. But it was just a pleasure to be in court with David Dellinger. So back to the uh A16 thing. Um so what happened in A16 was a direct result of the battle in Seattle, which was the year before. That was the World Trade Organization coming to a meeting in Seattle, and about 30 or 40,000 people were there protesting, and they shut down the city. There was a lot of back and forth with the police officers, lots of arrests. And the interesting thing about the the battle in Seattle, uh, which really kicked off the anti-globalization IMF World Bank protest, which lasted or are still going on, but lasted, you know, you know, for year after year. But what kicked that off was um was that event, the battle in Seattle. So the chief of police in DC said, I am not gonna allow these people to burn down my city. Uh and he he did everything possible, legal and illegal, to prevent people from uh getting arrested on A16. Now, A16 uh led to over 2,000 arrests uh in the streets on that you know a couple year period of time. And because the arrests were so bogus, they had falsely arrested a bunch of people, falsely imprisoned them, that the District of Columbia ended up paying out about $20 million in damages uh for that for that short period of time that the anti-globalization protesters were in DC. And one note that that sort of is a personal note about that, I I represented the IMF World Bank people before the battle in Seattle. And they would send me a Christmas card every year, and all the activists that were at the IMF World Bank protests, which were about eight or ten of them, would sign the card. And then I realized that by you know 1999-2000, that the Christmas card would have had about 10,000 or 20,000 uh names on it because the numbers were astronomical and uh in terms of uh the anti-globalization of protests, uh, which was interesting because it was the it was the melding of labor, labor issues, environmental issues, and trade issues. So a lot of those issues came together under the banner of anti-globalization. Now, you mentioned about meetings and cooks in the kitchen. One thing I think is really, really interesting is that I'm one of the few lawyers who meets with clients before they commit a crime. And I get up on a stage or I get up in a in a many times in a dusty schoolroom or in a dusty church basement, and I explain to them what is going to happen to them if they break the law. What's going to happen to them if they do this or if they do that? Where do they get taken? What is the booking process? What are the charges and what are the likely outcomes? And I know you're going to ask, how do I protect myself in giving that advice? Well, I do it in a number of ways. The main way is to tell the clients that look, I'm your lawyer, right? I'm a member of the bar. I am not conspiring with you. I am not encouraging you, I'm not enticing you. But if you decide that you want to step over that barricade, here's what's going to happen to you. I'm going to be the guy in the suit with the briefcase watching you step over the barricade, right? I am not going to be stepping over the barricade with you. So I am not conspiring with you. Um, and that's that's the main way that uh I I you know obtain protection. Uh and I will say, and I can say this in the public podcast, that I I have been responsible for saving more uh activist jail time than than probably anybody else, because you know, in these meetings they they propose some really crazy things and I explain to them what the law is, and I you know tell them, I think, you know, I don't tell them you can't do it. I tell them that you know that is probably not a wise thing if you're looking to you know get back on the bus to New York uh the same afternoon or or the following afternoon, because the the thing that you're talking about is much more serious uh than just a minor uh demonstration type misdemeanor, like a disorderly conduct or unlawful entry or failure by a lawful order or things along those lines, illegal demonstration. Uh when the things that they talk about that I try to move them away from uh involve uh uh simple assaults or assaults on police officers or uh destruction of property. And uh we saw some of that uh in the A16 and some of that in the anti-globalization movement, uh, where uh a destruction of property was considered to be a valid tactic if the target was a target that the activists felt deserved to be uh deserved to be degraded or destroyed. And uh I as a lawyer would have to explain to them that that's a you know it's a very, very bad tactic. Um and it's hard because internationally uh the anti-globalization movement was sort of um impressed by some actions in uh France and some other places where you know McDonald's or you know other corporate entities were uh you know were having challenges with their protesters. And so there was some smashing windows and breaking proper, you know, breaking property, some fires that were lit and so forth. And you know, I had to I had to really calm down a lot of those sorts of um sorts of tactics, which with certain groups made me you know very unpopular. And you mentioned likable, and I wasn't very likable uh to some of those groups where I would tell them I thought that was a you know a terrible idea. And in fact, I would even tell some of the groups that uh when you see someone splitting off from your group and lighting fires or throwing bricks through windows, uh, you know, that's that you need to do something about that, right? You can't you can't encourage that, you can't uh you can't disassociate yourself from that. And and most groups uh feel very uncomfortable about involving law enforcement when someone breaks off from their rally and does something that's you know counter to the guidelines that have been agreed to by the group. Uh, but nevertheless, I I I do generally speaking recommend that. And I you know a lot of times I get booed for for suggesting that, but that that's how I feel.

SPEAKER_02 42:09

Well, Mark, um actually I I I didn't do the uh A-16 uh World Bank uh protests are free because that was court appointed. In fact, I think that was the only time I did any court appointed work in Superior Court. And wasn't there some arrangement that was made through the uh criminal justice act office that uh that that the uh the the people lawyers coordinated with the National Laws Guild were more likely to get those cases in in part because at least the National Laws Guild uh related lawyers were going to be willing to deal with the tactics of the protesters with how they wanted to deal with uh with the lawyers?

SPEAKER_04 42:47

Yeah, we were court-appointed on that. And what was interesting uh uh you know about that was um, as I said, there was 2,000 arrests. And at the end of the day, a couple years after the dust had settled, there was 2,000 either dismissals or acquittals. Not a single person got convicted of anything during that couple year period. And what what was interesting was as we were sitting around doing our own after-action uh you know reporting and figuring out what what just happened, we we thought, oh, we're such great lawyers, we just you know defeated 2,000 criminal cases. And it it took us a little while to sort of figure out what was really going on. What was really going on is that the government was not arresting people in order to bring them into court to get a conviction. Right was arresting people preemptively to lower the numbers on the street and to take the this the you know the heat off of the street. Because if you arrest 450 people, then all their friends and supporters are gonna be tied up in court, in jail, in figuring out you know, health conditions in the jail and not on the street uh for the big A16 protest. So the tactic that they used was. Not designed to get criminal convictions. The tactic was to clear the streets and then declare we kept your streets free and clear.

SPEAKER_02 44:07

Right. Right. I mean, what is this crap hole in DC Mark? It wouldn't be as likely in uh in Maryland and Virginia. We'd have these peaceful protesters if they were even doing that, being held overnight at the lockup in the uh uh DC Superior Court building. What a hellhole that is. The bigger hellhole is, of course, the D.C. jail. What a hellhole. The only bigger hell hole I know of than the DC jail is the Maryland penitentiary, at least when I was there in the 1990s. And I'd have my clients tell me they didn't give us any water, they didn't give us any food, not even water. So uh why is that kind of crap still happening, Amart? I mean, I guess it's because in DC that you don't really don't get considered for pretrial release for hours and hours for uh up to the up to the next morning. I mean, what's that all about? And with these protesters, I found myself fighting to make sure that there weren't any pretrial release orders to stay 500 feet or whatever from the from where they were arrested because that was their First Amendment right to go back and at least to peacefully protest and legally protest.

SPEAKER_04 45:19

Well, you asked a lot of different questions. What I will say, John, is that um the option of posting and forfeiting is available in the District of Columbia and has become a very well-recognized tool in a nonviolent protest. So they and it's actually become almost so easy to get a $50 post in forfeit that groups come into DC and almost expect that. And I have to spend a lot of time dissuading them uh that they're likely to get a post in forfeit, depending on you know where they do it. If they can't get a post in forfeit and pay $50 or $100 and then get released with no charges, uh then they can be eligible for what's called a citation release, which is simply a piece of paper instructing them to return to DC Superior Court at a certain date. And now with the advent of online uh Zoom, they call it uh WebEx, the Cisco WebEx product uh that the DC court has, we do a lot of our initial hearings uh by WebEx, which is a version of Zoom so that people can come in and get arrested. Um and if they don't get offered post and forfeit, they can do their first court appearance, oftentimes remotely by this WebEx product. Um the other thing you mentioned was the conditions in the DC jail and in the central cell block. Those conditions are are still absolutely terrible. Uh they remain terrible. Uh Brooke Pinto, the councilwoman from uh the District of Columbia, has been very active in terms of trying to get uh awareness and attention and funding for a new jail. Uh I believe that's uh you know uh in the budget, not for next year. It's gonna take a while to build it. Uh but hopefully there will be a new jail at some point over the next couple years. Um because the cockroaches in the DC jail on the central subblock are just larger and hungrier than ever. Uh so it's not it's not a place you you you want to be held uh for for any period of time, let alone uh let alone overnight.

SPEAKER_02 47:20

Yes. Well, um it's interesting that uh I forgot if we co-counsel them on one of the uh uh cases involving Bush protesting, but two of the cases that we collaborate on involve Bush protesters. So on one, it was almost like performance art where my client was uh alleged to have taken a knife to a huge Bush placard. And uh I I guess they didn't have the witness to the knife stuff, but they did have uh the cop saying that I I I forget what the justification for doing the search of the car was, but that there was a concealed dangerous weapon, the same knife, ledge knife in my guy's car. I I won that one. And I think you were representing the co-defendant, my guy's wife. And so that was an anti-George W. Bush protest back around 2001 or so, maybe a little later. And then you referred me this great one. It was a guy, all he was doing was just peacefully handing out leaflets uh against the same George W. Bush, I call him George Bush II, on a sidewalk. And a cop said, move along. And he said, No, I'm leafleting. He wasn't he wasn't in the way of anybody. They can walk around. He wasn't accused of like uh blocking people's path or being 500 pounds and not letting them get by, and there's a fence on one side and the street on one side, the other side. So we we easily uh won that one. And uh, you know, when I was at the trialuras college at Jerry Spence's ranch back in the quaint days of 1995, for the entire month of August before the Trielauras College had a schism where Jerry Spence kicked the Trialuras College off of his ranch, as much as I still think the world of Jerry. And I was thinking to myself, once I leave the ranch, am I going to have to be going all over the country to find lawyers who I really feel are birds of a feather? I mean, yes, we have I have a lot of great lawyers I collaborate with, but how many lawyers and locally, I mean, nasty two, but how many lawyers are there locally where I can really let my hair down with and talk to them as a real person? You're one of them. Chris Floor, who's a great criminal defense lawyer in Saverna Park, Maryland, who we had on uh, I think from my first interview slot, along with great psychodramatist Don Clarkson. He's another of them. But I mean, no slight to to Art Spitzer, for instance, who I had on as a guest, who for 40 years more or less was the the director of the National Aurora's Guild. I didn't feel it.

SPEAKER_03 49:58

America's civil liberties in what did I say? National Lawyers Guild.

SPEAKER_02 50:02

No, I'm sorry. It's been it's how long this uh things have been going on. ACLU, I mean I can't, I don't feel I can let my hair down with him in the same way, as much as I think the world of him. So um I I do think that there's something you just haven't shared with us and maybe just hasn't come to the surface about uh you do have successes in court. If it's not with Charles a lot, it must be with uh getting people out of jail. So what is your your secret or non-secret to getting wins?

SPEAKER_04 50:39

I to getting wins. So I I did a little bit of research uh before I got onto the podcast because I knew I was going to be asked about what's like a big win. And I won a case in the federal district court with a group of activists who went to the lower step of the U.S. Supreme Court. They were protesting uh the contingent detention of people in Guantanamo without charges. And they were there in maybe 2008 or 2009. The trial happened around 2009. No, I'm sorry, 2019, excuse me. 2019, not 2009. And they they their banner said we kill, we maim, we torture, which is illegal to carry that banner on the lower steps of the U.S. Supreme Court. And four of the five people had pled guilty. And my client, an an activist named Manaji Saba, from uh she's actually from Iran, but she's been living in New Jersey for the last 30-something years, uh, she was acquitted. And I I couldn't imagine the grounds under which she was acquitted. And I I had to you know go go to the archives and find out why she was acquitted, because that's one of the few wins that we had, clear win. And the reasoning behind the decision of Magistrate Judge Deborah Robinson was that the banner that they held was not a violation of 40 U.S. Code 6135, which prohibits a flag, banner, or device designed or adapted to bring it to public notice, a party, organization, or movement. The government argued that you know, we kill, we maim, we torture is part of the anti-guantanamo movement, a very common sense argument that I didn't really have a lot to contradict. I I said, I said to the judge, I said, this is not a party organization or a movement. We lie, we maim, and we torture. And the judge accepted that and and acquitted Ms. Saba of the charge of illegally demonstrating at the U.S. Supreme Court, which is a very challenging statute because um you can't do anything on the lower steps of the Supreme Court, the plaza area of the Supreme Court, or the upper steps of the Supreme Court, which, in my view, uh, and I've been litigating this issue uh uh affirmatively for almost my entire career, it's illegal to do that. And I I argue that there should be uh a little bit of freedom of speech allowed on the steps of the U.S. Supreme Court. Uh, as Justice, the late Justice Thurgood Marshall said, why is it that the Supreme Court, which is the arbiter of First Amendment rights, doesn't allow a little bit of freedom of speech on our own steps? Not talking about disruptive speech. I'm not talking about uh you know people throwing bricks on the steps. I'm talking about people with a flag, banner, or device.

SPEAKER_02 53:30

Well said. And and about this thing about uh winning, uh uh winning even by just parsing through the statute. In the abstract, that was one of the things about law school that was hard to get me excited about, like parsing through the the most minute part of uh a statute until I was actually applying it to representing defendants. And and uh most of my clients, they don't care whether they win by me getting the case dismissed by successfully arguing that the statute doesn't apply to their alleged actions versus getting an acquittal from the jury. They just want to win. And uh and that and that's the reason why I went to law school, and that's the reason why I was able to survive, persevere, and succeed in law school well enough. Because I to me, law school is like a boot camp. I kept my eyes on the prize about seeing the light at the end of the tunnel because there were a lot of pains in the butt in law school among the uh among the professors and the students. A lot of the professors seem to have no hearts, be more interested in getting published and uh get money from the think tanks, even though I was paying a lot uh for tuition. Uh, but it worked. I decided I was going to law school to save the world. I was either going to save the world full-time or work at a law firm where I was doing a lot of pro bono in saving the world. I found a way to do both. I'm my own boss and I'm saving the world, doing criminal defense. And uh Marshall, he was he was right on the ball. Did I tell you about that time when I was with my first employer, Mark? This was 1991 in January. I was working with a corporate law firm in D.C., a 25-Laure law firm, which in D.C. would be considered small. And uh I've mentioned this on the podcast before. And uh I was doing civil litigation and uh corporate regulatory work. And I wake up in the morning, a good friend of mine uh was visiting, and my clock radio, which I was using, said that the Senate was voting on whether to authorize George H.W. Bush, the first, to go to war in Gulf War One. And uh so I said to my friend, you want to go protest? He said, sure. So went across the street. I was living DC to this uh hobby shop. We got the the picket, the wooden pickets in the paper. Well, I learned there, Dan, uh it was uh Mark, it was very windy. It doesn't make sense to have a picket, uh, a wooden picket fence thing piece and paper on both sides and stapled together. The wind's gonna go crazy. We go down there to the Capitol, and I'm proudly showing my uh my protest sign to this Capitol police officer, and he said, Come over here. I said, Yeah. He said, Are you demonstrators? I said, Yeah. And you know, if I was a criminal defensor, I would realize, no, you don't admit this stuff because I had just gotten uh gotten all the elements of the case for him. He said, Well, um, I want to see your IDs. I said to my friend, I'm only showing him my ID if you if uh if if you're concerned about refusing to show the ID, so let's show him the ID. He said, Okay, you're showing me the IDs voluntarily, hardly, uh, by coercion. He said, I'm gonna call your identities in, and if you're found to be demonstrating without a permit, you'll be arrested. So I said, where do we go for the permit? And he told us the office, I don't know, it was maybe near Union Station or whatever. And this woman shows the map, says, We'll give you a permit here. I said, What on earth are you talking about? I said, This is over on the near the parking lot on the east side of the Capitol. No one's gonna see us. And so we saw a bunch of demonstrators in this primary just west of the you know, west of the front of the Capitol. They were a bunch of uh Unitarian Universalists living. He said, Oh, well, well, they got their permit a few weeks ago. I said, I didn't know until today there was a reason to demonstrate. They only started doing the debate today. So she said, Well, if the uh if the other demonstrators are willing or free to join their their protests, you can do that. So I talked and they said, We're wrapping up. They said there's a more significant protest going on over in Lafayette Park. So into Lafayette Park. And uh what an eye-opener I got, Mark, about how widespread the peace, uh, the peace movement is. I mean, including, well, I guess I should have realized that that would be common with Unitarian Universalists. And I saw these cops come up to demonstrators, seeming to try to intimidate them and taking pictures close up. I mean, this was 1991. I mean, now we get our photos uh where can we go in public now that we don't get photographed by uh by public uh video cameras and and and by uh you know the the government sets up and people using their own devices? So let me ask you this two things. First of all, do you think that it was a tactic by police in DC, often to intimidate demonstrators by going close up to them and photographing and visiting them? Number one. And number two, in the pre-Thomas uh Wendy City case or whatever from the Supreme Court, uh isn't isn't that crazy to say that I could have gotten arrested and prosecuted and convicted for demonstrating without a permit. I don't know if Booz versus Barry would have changed that at all. But if I'd had my message, which was probably like uh uh, you know, no war yet, I just thought it was premature. I didn't wasn't totally against the war. Uh, if I had had that on a t-shirt versus on a placard.

SPEAKER_04 58:49

So to make a long story short, I would think that that case, if you got arrested, would be no paper, which means it's prosecuted. So I'm gonna I'm gonna dodge, I'm gonna dodge that very complicated question by by answering it that way. Um but yeah, no, I think the the tactic of photographing you and documenting your visit and asking for ID was an intimidation tactic. Absolutely, I I agree with that. I did want to um I did want to talk about this other win that I had, which just came to me as as you were talking about uh as we were talking about this one win I had on the Supreme Court steps. Um the night before a trial for climate change activists who blocked a highway in DC, the chief prosecutor from the District of Columbia came up to me and said, uh we're dismissing this case and 40 of your other cases. And I said, Okay, great. Why? He said, We read the First Amendment Rights Act, and we believed that the warnings that we gave were insufficient. And I never even challenged the warnings. I said, Well, why do you think they're insufficient? The prosecutor said that the statute requires an amplified device to give the warnings under the First Amendment Rights Act of 2004. And I said, I said to him, I said, I'm I'm gonna accept the dismissal, but I didn't make that I didn't make that argument, number one. And number two, to have a captain or an inspector of the DC police screaming in your ear, get out of the F and Roadway. That seems to me that's equivalent to an amplified device warning. So he laughed. He said, it probably is better than an amplified device warning, but the statue requires an amplified device, it wasn't an amplified device. We're dismissing these 40 cases and said, okay, have a good day. And he dismissed 40 cases. I couldn't believe it. So I kept saying to the prosecutor, I said, okay, I need to talk to a supervisor because that can't possibly be the actual reason. What's really going on? Is it budgetary? Is it is it lack of prosecutors? Is it is it that you sympathize with climate change? Is it the politics? Is it that Carl Racine, who was then the attorney general for DC, doesn't want to prosecute climate change protesters? What's really going on? He said, no, that that's what's going on. We didn't have an amplified, amplified device to give the warning. So, okay, whatever. Didn't even occur to me.

SPEAKER_02 1:01:17

Wow. So um, Mark, I told you this would go for an hour, and and we're at the hour. Uh, so please tell everybody uh if you want to, if you want more clients, where can they reach you? And is there anything you'd like to say that you haven't already said?

SPEAKER_04 1:01:33

Well, I I see my role as uh comforting the afflicted and afflicting the comfortable. And I I've I've maintained that. Uh, and the other the other phrase I like to say is that I'm a lawyer who defends activists. I am not an activist who happens to be a lawyer. So feel free to contact me at mglaw at comcast.net. Uh I am available to help you with your protests in DC. Keep it nonviolent, keep it non-property destructive, and you got yourself a lawyer. Thank you and keep supporting the First Amendment. Freedom of speech is what makes this country great. Thank you.

SPEAKER_02 1:02:10

Yes, very much so. Mark, thank you so much for you and for your friendship for all these years. This has been John Katz at Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia.

SPEAKER_01 1:02:23

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.