After I wrote Trial by Myspace, something related came across my Twitter timeline.
I’ve sworn off Twitter till after the election (more time to blog!), so I’m not going to bother to go look it up (does it matter?), but it was to the effect, “People who complain about ‘likes’ and ‘retweets’ need to realize that most social interactions in real life are about the weather.”
I hate to be doom-and-gloomy, but we are doomed. Comparing the clicking of a “like” button on Facebook or Twitter with even the most rudimentary of face-to-face interactions reveals the emptiness of the former and the richness of the later.An Introduction to Representational Systems
Human beings think in representational systems — primarily visual, auditory, and kinesthetic. You can often listen to the language that a person uses to describe the world, and hear what representational system he is using.
See what I mean?
Do you feel me?
As far as I know, nobody thinks exclusively in any one system, but (and my understanding of this is still primitive) we think primarily in one system at a time, and switch between primary systems. So, for example, if you ask me to solve a problem I might first listen to the question, then picture several different solutions, then check how each of them feels, and tell you what I’ve come up with. Or I might need to sketch it on the back of a napkin.
These systems are like channels on a television, or a radio, or … the kinesthetic equivalent of a television or radio? We consciously attend primarily to one at a time (while unconsciously attending to all three).Saying “Hi” on All Three Channels
When we communicate with each other face to face, we provide visual and auditory information. When we touch — even if the touch is just a brief handshake — we provide kinesthetic information as well.
So I see my friend Lonnie in the elevator lobby at the criminal courthouse, and we shake hands and say “hello.” We hear each other’s tone of voice and breathing, see each other’s skin tone, muscle tone, and posture, feel the firmness of each other’s handshake, the dryness of each other’s skin, the duration and vigor of the handshake, the duration of the eye contact.
If I am paying attention, I know if something is bothering Lonnie, or if things are going really well for him. I know whether he’s in good health or has been fighting a bug. I know whether he is preoccupied with something. I know whether he’s happy to be there. And I’m sure there’s more that I’m not thinking of at the moment. The point is that, if we attend, “hello” is much more than hello.
And that’s just one word. If we start talking about the weather, sports, or anything else — the content matters little — we are giving each other megabytes of visual, auditory, and kinesthetic clues. What’s more, these are for the most part clues — minute variations in tone — that only human beings can assimilate and use.Digital Communication
Clicking “like” or “retweet,” by contrast, provides exactly one bit of information. Neurolinguistic Programming practitioners might call it “visual-digital” information. This post, too, is visual-digital — the information you get from it is not auditory or kinesthetic (though you might react to it those channels).
I am not a fan of watching videos on the internet. I go to the net for information, and if I want information I want it digitally, not visual-analogically or auditorily. But I suppose that video is as rich as online communication gets, because it provides those channels as well as the words. But even the highest resolution digitized video is not as good as being there, even the highest resolution video doesn’t convey the whole picture, and no video conveys the touch of human skin.But … the Future!
Could digitized audio be as good as being there? Could online video convey the whole picture, so that we might mistake it for the actual experience? Could kinesthetic signals someday be conveyed over cables so that it’s just like being there?
But it’d be much easier to get us dishabituated to face-to-face contact — to con us into believing that social media is just as good — than to build the technology to more accurately transmit the richness of such contact.
“Talking about the weather” was the epitome of shallow human interaction before social media, but the serious suggestion that it is anywhere near as shallow as a retweet or “like” betrays how far down that road of dishabituation social media have brought us.
If you get this twice via email, it means it’s working. Due to popular demand (my Dad wasn’t getting emails) I’m moving away from the “subscribe2” WordPress plugin that didn’t work reliably, and to MailChimp, which should work better.
If you were subscribed before, I’ve moved your email address over to my MailChimp list. If you weren’t, there’s a new subscription box in the right column.
Once I get this foundering ship aright, I’ll be inclined to write more.
Yesterday we had Trial by Myspace. Today Scott has Assault by Twitter in the First Degree, riffing off an article by a lawprof whose theory is that by sending a link to an epileptogenic video to a journalist, the sender committed an assault: “intentional creation of a reasonable apprehension of imminent bodily harm.” An assault by threat, as we’d say in Texas — a class C misdemeanor, fine-only stuff.
There is nothing new or particularly interesting about online assaults by threat — any online threat could be an assault, provided that there is some imminence. It happens every day.
But this assault on the journalist is interesting for another reason. It’s not only a threat to commit imminent harm — indeed, it’s arguably not even a threat to commit harm — but an attempt to cause bodily injury. That’d be a class B misdemeanor in Texas, with a maximum 180-day jail sentence and $2,000 fine. It’d be a third-degree felony — up to 10 years in prison — if the assailant intended to cause serious bodily injury.
Weaponized tweets, resulting in physical harm, are cyberpunk stuff: long-distance brain hacking. The brain has a tremendous deal of influence over how we feel, and people can manipulate our brains with electronic messages. (For a really-bad-case scenario, see the chapter on electronic slot machines in Matthew Crawford’s The World Beyond Your Head).
I can’t think of a good reason an electronic message sent with the intent to cause an epileptic seizure should not be treated like any other attempt to cause bodily injury.
Granted, assuming the twit sent to Eichenwald satisfied all the elements of an offense, it’s still a highly limited situation. It would only apply to someone who suffers from epilepsy, and even then, there is no certainty that a video will, in fact, do harm.
I’m not convinced this is correct. For our attempted-bodily-injury analysis, it doesn’t matter whether the hack is certain to succeed. And any rule that applies to epilepsy might just as well apply to some other brain-body disorder.
Suppose that the intended injury is not a seizure but a panic attack. It’s no less real to the person experiencing it than a seizure. Why would we not treat an electronic message sent with the intent to cause a panic attack like any other attempt to cause bodily injury?
How about a suicide attempt? Shall we treat an electronic message sent with the intent to cause someone to commit suicide like an attempted murder?
Speaking of attempted murder, check this out when you have an hour to spare:
How about a message sent with the intent to trigger someone’s PTSD? Why punish an attack on an epileptic but not on the PTSD sufferer?
Okay, what about “friggering” speech? Is speech that is intended to cause someone physical distress an attempted assault? (Does it matter whether you believe that the harm is frivolous?)
Does it matter whether the communication could not cause the harm? Nope: What is required is the intent to cause bodily injury. If that’s what the sender of the message intended, he has committed the crime:
A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
All of this is distinguishable from an assault by threat. To commit the attempted assault, the assailant doesn’t threaten harm, but invites it. The epileptogenic video is an interesting special case, but any attempted assault on Twitter is attempted assault.
When I read this description of how all sorts of tech toys could be used to prevent human interaction in the courtroom of the future, I first thought, “surely Mitch Jackson doesn’t try cases.” But apparently he does.
The tech and legal issues are unbelievably complicated. The parties to this case are concerned that the average Orange County juror just isn’t going to be able to get a good grasp on the issues and damages.
That’s his excuse for using a jury pool that “consists of programmers and tech experts from the Silicon Valley, The East London Tech Center in the UK and from Bangalore in India.”
[T]he jurors that are selected for the VARS trial program are experts and specialists from around the world who understand the issues, evidence, and arguments of the parties. The entire trial process is more efficient, and the chance for misunderstandings leading to an incorrect verdict is almost completely avoided.
That’s not a jury trial. That’s an arbitration.
For me, I’ll be starting my jury selection using my HTC Vive 1000 (fits on my sunglasses, covers my eyes, and offers a true enclosed 360 degree virtual view of the courtroom) while walking the beach at Strands in South Orange County, California. That’s where I do my best thinking and that’s where I’m going to start virtually connecting with my jury.
Fantastic. He’ll be “virtually connecting” with his jury while his attention is divided between the beach and them. So let’s play that out a little farther. He’s wearing sunglasses and his HTC Vive 1000, and he’s talking to a jury. Either they see a lawyer walking in place wearing sunglasses and an HTC Vive 1000 (external camera?), or they see a computer-generated version of him. Either he’s walking down the beach in a suit, they see him wearing beach clothes, or — again — they see only a computer-generated version of him.
for all purposes, jury selection takes place just like it would in a traditional non-digital courtroom.
Just like it would in a courtroom, except that the panel doesn’t represent the community, and instead of having people talking and listening to each other, you have people who are distracted by other realities looking at each other through technological intermediators. There is lag — sometimes perceptible — in every conversation. If the images are not computer generated, everyone will see everyone else with their eyes hidden by goggles, through a camera, ten thousand miles of cable, and a display.
Not to worry, though,
each juror will be given and wear the VARS sensory device which will allow counsel and the judge to “sense” what the jurors are feeling and thinking.
. . . . .
The result is that the perception what the jurors think and feel is substantially higher and much more accurate.
I highly recommend reading the whole post if you have a quota of stupid stuff to read today. (In which case what are you still doing here?!?)
The jury trial — “the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution” — was not invented in Silicon Valley. It evolved over thousands of year. The process is not perfect, but tinkering with it risks unforeseen consequences. The parties get some say in how it goes, and it is certainly conceivable that some plaintiff-defendant pair would at some point agree to trying a case on Facebook. But at least one of them would certainly be in error: Any deviation from the process benefits one side more than the other. If I consented to a trial by social media I wouldn’t expect the State to.
Usually in jury trials we try to humanize our clients. In Jackson’s hypothetical trial he would find a corporate representative of his client whom the jury would feel for. The technologies required to create an approximation of human contact over the Internet would have the opposite effect: dehumanization.
But what about Facebook? What about Twitter? All of these toys we use to connect with each other?
Have you seen how people treat each other on social media? They are all dehumanizing us by getting people used to not having human contact with each other. There is a reason the Confrontation Clause requires confrontation.
The courtroom is one of the few places that modern life still tries to force us occasionally to have live contact with other human beings. A person could live alone, check out at the automatic checkout at the supermarket, microwave dinner, surf the web, go to bed, wake up, and telecommute to work. That jury summons may be the only thing requiring him to see anyone else face to face.
Jackson’s essay would be technodystopian science fiction, except that Jackson seems to be earnestly enthusiastic about it:
As you can probably tell, I’m passionate about disrupting industries and creating positive change….
Whatever happened to Second Life?
I’ll bet Jackson is big into Second Life.
Regular readers know that for nearly three years, since right after killing the dirty-talk portion of Texas’s Online Solicitation of a Minor statute, I’ve been going after the balance of that statute, which appears at first to forbid only actual solicitation (which is unprotected speech), but on further reading explicitly criminalizes protected fantasy by eliminating lack-of-defense and fantasy defenses. The argument is that the statute is constitutionally overbroad.
Texas lawyers know that I’ve racked up an impressive record of failure in the intermediate courts of appeals, which have uniformly held that the statute forbids “conduct” rather than speech.
Friends know that I’m not going to let that bunch of Mensa-aspiring civil lawyers running for reelection tell me what the U.S. Constitution protects. After all, until the Court of Criminal Appeals ruled 9–0 in Lo every court had upheld section 33.021(b) of the Texas Penal Code as well.
So I filed petitions for discretionary review in the cases in which the courts of appeals upheld the statute: Wheeler, Fisher, Alvarez, Chapman, Radford, Mahmoud, Leax, Parker, each petition different than the one before. The Court of Criminal Appeals refused the first couple (no telling why). Five of them are still pending. Last month the Court of Criminal Appeals granted discretionary review (with oral argument) in Leax.
In Leax I have presented a single issue: The Ninth Court of Appeals erred when it held that Section 33.021 is not a content-based restriction. Whether the statute is a content-based restriction (on communication) is the key to an as-written overbreadth challenge such as this one because a content-based restriction is presumed to be unconstitutional, and the State has the burden of showing that it meets strict scrutiny (by demonstrating that it is the least restrictive means of achieving a compelling government interest).
Last year the Texas Legislature amended section 33.021 to permit fantasy and lack-of-intent defenses. So conduct post September 1, 2015 is covered by a statute that probably passes constitutional muster as written. This is a good thing for three reasons. First, because it allows the State to prosecute people who intend to commit sex crimes against children. Second, because it doesn’t allow the State to prosecute people who are engaged in age play. And third, because it is proof that the pre-9/1/15 statute is not the least restrictive means of achieving the compelling government interest.
The Texas Court of Criminal Appeals has already held that if it is necessary to look at the content of the communication to decide if the speaker violated a statute — true of 33.021 — the statute is content based.
Because the Texas Legislature has already passed a less restrictive statute that achieves the same compelling government interest, section 33.021 is not likely to survive a finding that it is content based.
The New Jersey Courts’ index of attorneys shows no “Tyler Schultz.”
The New York Courts’ attorney search shows no Erin Brooks.
California shows several John Russells, one of whom might be in the same age range as the guy in the picture. I’ve reached out to him to inquire.
But I’m betting that “John Russell, CA” is made up like Tyler Schultz and Erin Brooks, because:
Yes, you are correct: Crooked [pretend-]lawyer John Casement, on his website hawking “content written by attorneys” has invented two — and probably three — lawyers from whole cloth, inventing names and choosing stock photos to represent them.
This causes bar problems for Casement. [The joke’s on me. The Missouri Directory of Lawyers shows no lawyer with the last name “Casement.” So Casement isn’t violating bar rules, which only apply to lawyers. He’s just committing fraud.]
The lesson that Casement will take from this is that when someone tells him, “If I could keep you from getting licensed, with your talk of ‘leads,’ I would,” he probably shouldn’t email him with his next scam.
The lesson that Casement should take from this is not to lie, because he’s probably going to get caught, and when he does it’s going to hurt.
The lesson that the rest of you should take from this is to do your due diligence before sending any money to a marketer, even if he is [or claims to be] a lawyer. If he is so shoddy with his own ethics and reputation, you don’t want to trust him with yours.
When I talk about online marketing and social media to lawyers, I remind them that outsourcing their marketing is outsourcing their reputation. I point out that many people selling online marketing will lie to get their attention — to get you to read their emails or return their calls. And I ask them:
If they would lie to get your attention, why would you trust them with your reputation?
I got a call today from a “Denise McDermott” at 312-252-0605. The message was, “she is doing some work for the Inglis Law Firm that she wants to discuss.” It’s probably not a lie, but rather an omission: McDermott knows that if she leaves a message saying that she’s selling whatever online marketing crap she’s selling, I won’t be returning her call. Fortunately for her, I won’t be returning her call because I recognize her vague message as an attempt to get me to call her back without quite lying to me. Fortunate because my language when I’m tricked into calling someone tends toward the hurtful.
Last year I got this email from “John Casement” of Missouri, subject “Hey Mark, Quick Question.” There was in fact no question in the email:
My name is John Casement, I am a recent JD/MBA graduate with an emphasis in marketing analytics. I actually just took the Missouri bar a couple of days ago; now I am competing to win a $50,000 grant from LaunchKC and could really use your help to get more traction. My company is called Legally Marketing.
Basically, we would like to redesign your website so that it generates more leads and clients for your firm. We have created a proprietary, scientific process to analyze your visitors’ behavior and turn them into clients using machine-learning.
We are charging each ‘case study’ client $999 for our complete website redesign service, with the guarantee that our services will drastically improve your professional image and profits. The price is so low because we are building references. Your redesign will be completed by August 31st, we will then test and improve it for two months. Our goal is to sign up all six ‘case study’ clients by August 6th; we have four on board right now.
I would love to schedule a call to discuss this more – please let me know when you are available. Thank you for your time.
John Casement | jd, mba
My response was pointed:
Not only will I not pay you any money, but you won’t get any positive attention from me at all. If I could keep you from getting licensed, with your talk of “leads,” I would.
They’re clients, not leads.
Casement’s reply was adequate:
Thank you for your time and response. I apologize for offending you and really appreciate your feedback. You are right, calling clients ‘leads’ is impersonal and affronting. I will make sure to avoid doing so in the future – thanks again for the advice. Hope you have a great week.
I thought I was done with him.
Yesterday another email from Casement showed up in my box: “Quick Question.” I get quick questions from potential clients and fellow lawyers all the time, and I didn’t remember the earlier email from Casement, so I didn’t immediately send it to spam.
Again, there was no quick question. Now Casement is selling ghostwritten web content to lawyers:
First, thank you for your time. Because of my legal and marketing background, I have been consulting with law firms and helping them attract more clients. During this consulting, firms have repeatedly asked for professionally written blog posts and website content.
Because I heard this so often, I recruited a staff of attorneys and professional writers to create exceptional content for firms like yours.
Writing is thinking. Good clients choose lawyers based on how the lawyers think. They can tell how the lawyers think by reading what the lawyers write. Mark me down as violently opposed to “professionally written blog posts and website content,” because lawyers with ghostwritten content are tricking these good clients. John Casement is in the business of tricking people. Lawyers should not be in the business of tricking people. It’s a crooked business, for crooked people.
Twice John Casement tricked me into opening his emails. I might admire the gumption if he didn’t claim to be a lawyer. I still wouldn’t do business with him, because my reputation is too valuable to be put in the hands of a crook.
At the end of his email Casement wrote, “I would really appreciate any feedback you can provide. Thank you again for your time.”
Here you go. Happy to help.
Remember, it is not what you think about the Super Lawyers program, it is about what the potential client thinks!
Thus spake Bart Taylor, trying to sell advertising in the Super Lawyers online directory in an email purporting to come from Houston PI lawyer Randy Sorrels:
Lots of lawyers seem to agree with Bart. As exhibit “A,” I would offer the trumpeting of bullshit “Top 100 Lawyers” “honors”:
Here’s Jim Sullivan:
Joe Vinas:I have nothing against Jim, Grant, Phil, or Joe. I like them all, and have found them to be smart, generally ethical lawyers,1 but they are playing with fire here. Because lying in advertising is pretty much frowned upon, not only by me, but also by the State Bar. I hope this post will prompt them all to return to the ethical fold.
The “Top 100” are not “the top 100 trial lawyers” (as Jim and Grant claim) “the top 100 trial lawyers in Texas” (as Phil claims) “the top 100 trial lawyers in criminal law” (as Joe claims) or even the top 100 trial lawyers in criminal law in Texas.
The “Top 100” are the top 100 lawyers willing to pay $350 to the “National Trial Lawyers” for the privilege of lying to potential clients about the ranking in a geographical area specifically gerrymandered to contain 100 or fewer such lawyers.
A lawyer would have to be stupid not to know this, and none of these guys are stupid. All of them know that they haven’t been named “one of the top 100.” Yet they advertise that false claim, perhaps because they, like Bart, think it is not what you think about the honor, it is about what the potential client thinks.
But that’s crap, of course. Because unlike marketers, lawyers have ethical rules we have to follow. And if we know that an honor is bought-and-paid-for bullshit,2 we have a duty not to mislead the public.
I’ll go farther: We have a duty to not be ignorant about the claims that we make about ourselves.
And of course we are responsible for things done on our behalf as though we had done them ourselves.
So the marketers say “all that matters is what the potential client thinks.” This is a siren song — who doesn’t want clients thinking of him as one of the top 100 lawyers? — that we must resist. For if the potential client thinks our marketing means something that we know it not to mean, we are deceiving him.
In Trial Theory I I concluded:
Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect.1
Blockbuster evidence in this context has a technical meaning: it is evidence that is:
If the you or the State has primed the jury to expect the evidence, it is not unforeseen. If other evidence contradicts the evidence it is not incontrovertible. And if the story of the party who the evidence seems to disfavor still makes sense when the evidence is considered it is not dispositive.
Let’s work our way back through the trial to see how the theory works.Jury Deliberation
In jury deliberation, the jurors tend to go back and take a first vote. Then they work their way to a verdict. The way the initial split goes (toward guilty or not guilty) is almost always the way the final verdict goes. If you have seven jurors when the jury goes out, your client is probably going to be acquitted, or the jury hung. If the state has seven jurors at the first vote, your client is probably going to be convicted (or the jury hung). What changes minority jurors’ beliefs is not the weight of the evidence, but the weight of the personalities against them.
The evidence and the law are important not because they are going to change jurors’ minds but because they are going to give jurors face-saving reasons to change their minds.Closing Argument
In closing argument, then, we remind our jurors of the evidence and the law to which they can cling to preserve their own beliefs (preserving a hung jury if our jurors are in the minority) and to which they can point to give the other side’s jurors an excuse to change their beliefs (getting to an acquittal if our jurors are in the majority).The Jury Charge
The purpose of the jury charge is to set before our jurors the law to rationalize their beliefs and to give their jurors a face-saving reason to change their beliefs.The Evidence
The presentation of evidence serves two purposes. First, it gives our jurors—those who believe our story—ammunition to use in the jury room to resist the weight of personality arrayed against them, or to give the government’s jurors a face-saving reason to vote for acquittal.
Second, the presentation of evidence makes it possible for us to give the government’s jurors blockbuster evidence that they have not been primed to expect, which might change their minds. At the same time, defensively, we want to keep the government from introducing blockbuster evidence that might actually change our jurors’ beliefs.How is any of this different than the traditional?
The presentation of evidence, the wrangling over admissibility, and the closing arguments under this model look just like the same procedures under a more traditional model (in which we pretend that jurors don’t actually make up their minds until deliberations).Opening Statement
What about opening statement? In opening statement, we tell the jury what they should believe. Nobody is going to believe something just because a defense lawyer tells him to. So the jurors’ beliefs, in this model, are formed in jury selection and affirmed in opening statement.Jury Selection
In this model, jury selection is everything. In jury selection, the jury, given the parameters of the accusation (the elements and, at least in hypothetical terms, any major issues), comes up with the defense (perhaps among other possible defenses), and in opening statement you confirm that that is your defense. Roughly, in voir dire this would happen:
You: How could someone charged with this crime in hypothetical circumstances like this not be guilty?
Jurors: Maybe because X, or Y, or Z.
And in opening statement this would happen:
You: You’re right, jury. Y. And here are the facts that back that up.
If the jury didn’t come up with your defense in jury selection, it was a lousy defense.
Treating jury selection like it’s all that matters doesn’t preclude treating opening statement like it’s all that matters, treating your objections to the government’s evidence like they are all that matter, treating your cross-examination of the government’s witnesses as all that matters, treating your presentation of evidence as all that matters, and treating closing argument as all that matters.
But if you don’t win your case in jury selection, at best you have an uphill battle to win the case in the end.
(That’s why you should come to TCDLA’s voir dire seminar in Dallas next Thursday and Friday.)
This is not entirely correct. There is something else that will change jurors’ formed beliefs. I’ll talk about it in another part of this discussion. ↩
…That night, someone sent an e-mail to Vietnamese groups alleging appellant was going to Vietnam to “bow down” to Ho Chi Minh and the Vietnamese Communists.
. . . . .
In 2014, appellant [Al Hoang] won the Republican primary for State Representative District 149. Nguyen continued to label appellant a Vietnamese Communist. In October of that year, Nguyen reported that appellant’s father committed suicide in 2007 because appellant was a Communist. Nguyen also stated that appellant made the bomb with which he was threatened in 2012 to gain attention.
From 2010 to the time suit was filed in October 2014, articles published in Thoi Bao called appellant “a Vietnamese Communist, an agent of Vietnamese Communist, or a spy of the Vietnamese Communist [sic].” These articles were also disseminated to Vietnamese groups and over the internet.
Appellees win: Appellant had failed to provide “clear and specific evidence that the
statements of which he complains were published with actual malice….”
While Hoang v. Nguyen was pending the same panel of the Fourteenth Court of Appeals — Justices Martha Hill Jamison, John Donovan, and Marc Brown — in State v. Stubbs upheld Section 33.07 of the Texas Penal Code in the face of an overbreadth challenge.
Section 33.07 forbids using someone’s name online without his consent with intent to harm him.
The appellees’ speech in Hoang v. Nguyen — articles about Mr. Hoang disseminated over the internet — used his name online without his consent with the intent to harm him.
So while Thoi Bao and Mr. Nguyen are protected by the Texas Citizens Participation Act from frivolous lawsuits such as the one by Mr. Hoang (who will be paying my fees), they risk felony prosecution under Section 33.07 whenever they write something unfavorable about Mr. Hoang (or anybody else). And under Section 33.07 neither the truth, lack of actual malice, nor opinion is a defense.
Even if they write what they know to be the truth, they may face felony prosecution. They will have to go to trial to make an as-applied challenge to the statute (it is unconstitutional as applied to them) and nobody but them is going to pay my fees when we win.
(Part of the court’s reasoning in Stubbs was that prosecutors haven’t used 33.07 to prosecute newsmen for criticizing public officials, but prosecutors’ noblesse oblige is not part of the overbreadth analysis. That the Harris County DA did not come to the aid of her Republican brother does not mean that future DAs will abstain as well.)
To know what to do at any point in a jury trial, we must have some theory of how the parts of the trial fit together.
In a felony jury trial with twelve jurors (and the requirement of a unanimous verdict) there are 4,095 permutations of verdicts that do not involve our client going to prison.1 There is only one permutation that convicts our client. If each juror’s verdict were independent of the others and there were a 50% chance that each juror would convict, there would be a 1 in 4,096 chance of a conviction.
But jurors’ verdicts are not independent—one juror’s verdict will affect another’s—and the chance that any given juror will acquit is not necessarily 50%.
Our goal as criminal-defense lawyers is to keep the government as far as possible from that one permutation that convicts our client. To do this we need to recognize how jurors’ verdicts are dependent on each other, and how each juror reaches a verdict.
Many trial lawyers believe that every trial is won or lost in jury selection. Modern research into human cognition suggests that once a person forms a belief, it is very difficult to change that belief. Mere evidence will not suffice to change a normal person’s belief; she will disregard evidence that contradicts her beliefs and will magnify the evidence that supports her beliefs. This is called confirmation bias. Other biases act toward the same goal: to lock a person into her initial belief.
While we make jurors promise to consider all of the evidence before reaching a decision, there is very little evidence that they actually do this.
Research with mock juries suggests that how the jury is split when it goes out predicts the verdict. A jury that is 7–5 for conviction on the first ballot will most likely convict or hang; a jury that is 11–1 for conviction on the first ballot will almost certainly hang. A jury that is 6–6 or better for the defense on the first ballot will likely not convict. It appears that it is force of personality, rather than quality of evidence, that determines whether jurors will change their minds.
So we want to have as many jurors as possible on our side when they go out (we don’t want our defense to depend on beliefs formed in the jury room), which means that we want to have as many jurors as possible on our side as early as possible.
How early is “as early as possible”? Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect.
Each juror’s individual verdict can be either “guilty” or “not guilty.” The combined verdict of the entire jury can be expressed as a 12-digit binary number, with each bit representing one juror’s vote, 0 for guilty and 1 for not guilty. There are 212 = 4,096 12-digit binary numbers. Only one of them, 00000000000, or 0, is a unanimous guilty verdict. ↩
TCDLA has given me the go-ahead to tell you that if you sign up for the voir dire seminar (which I am directing) or the cross examination seminar (which I am not) in Dallas September 8–9 at the Sheraton Dallas Hotel by the Galleria, you can attend sessions of the other.
Sign up here. See you in Dallas.TCDLA Voir Dire seminar Dallas 2016
You may have noticed that I’ve added a widget to the right-hand column of “Cool Things I Really Like.” It’s stuff that I buy for myself, and can get more of if you use the links (or, with UberEats, the code “eats-nw0pp“) to buy something for yourself.
I just added a link to Nootrobox. I chew their GoCubes, which are coffee (with other sparkly ingredients) in small gelatinous cubes. They’ve got other nootropics as well, and if you are interested in biohacking they have a lot of interesting stuff to read on their website.
Thank you especially to those of you who have ordered custom shirts from Original Stitch. I hope you enjoy wearing them, and think fondly of me when you do. I’ll think fondly of you, whoever you are, for helping fund my custom shirt habit.
I wrote yesterday about Texas’s Law of Parties, and how it is different from Texas’s Felony-Murder Rule. An observant reader emailed to ask:
What about Enmund v Florida?
An excellent question. In Enmund the U.S. Supreme Court reversed Mr. Enmund’s death sentence because he “d[id] not himself kill, attempt to kill, or intend that a killing take place or that lethal force w[ould] be employed.”
So how is it that Wood, who according to Hedayati “had no reason to anticipate” the killing, got the death penalty?
Because the jury found otherwise.
The law when Wood was prosecuted, as now, was that if a person was convicted of capital murder and the State sought death, the jury had to be asked:
(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.
If the answer was “no,” the defendant was not death-eligible.
So a properly charged jury in Wood’s case must, in order for Wood to be sentenced to death, have had to find beyond a reasonable doubt that Wood at least anticipated that a human life would be taken.
And the jury was properly charged.
So before Wood was sentenced to death a jury found beyond a reasonable doubt that, at the very least, he anticipated a killing in his escapade with Reneau.
I don’t think the State should be in the business of putting people to death. But neither do I think it acceptable for a lawyer to spread untruths to get people to oppose the death penalty. And when Hedayati writes:
[N]eglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible.
That’s just untrue.
Spreading untruths for a political end is not just wrong; it’s also counterproductive. It gives ammunition to your political opponents (Look! He is so wrong he has to lie to try to win!) and it alienates your honest allies (Hi!).
Wood was convicted and sentenced to die under Texas’ arcane felony-murder law, more commonly known as the “the law of parties” — for his role as an accomplice to a killing, which he had no reason to anticipate.
That Wood “had no reason to anticipate” the killing should have prevented him from being convicted under a parties theory. Here’s the Law of Parties:
Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Texas’s Law of Parties is surely draconian. But it’s distinct from the Felony-Murder Rule:
Sec. 19.02. MURDER.
(b) A person commits an offense if he:
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
Calling the Law of Parties the Felony Murder Rule makes people stupider. Where did Hedayati —described by his bio in the Statesman as an attorney, but not a criminal lawyer — get the idea that they are the same thing? My guess is Wikipedia, which until I edited it just now equated the two.
What’s more, Hedayati’s premise — that the Law of Parties required Wood’s conviction — is false: If it is true that Wood “had no reason to anticipate” the murder then it is not true that the murder “should have been anticipated as a result of the carrying out of the conspiracy.” He may not have anticipated it, but in order to convict him a jury found that he should (that is, had reason to) have anticipated it.
Hedayati goes on:
Under the law of parties, those who conspire to commit a felony, like a robbery, can be held responsible for a subsequent crime, like murder, if it “should have been anticipated.” The law does not require a finding that the person intended to kill. It only requires that the defendant, charged under the law of parties, was a major participant in the underlying felony and exhibited a reckless indifference to human life. In other words, neglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible.
Where he oversold the Law of Parties on anticipation, here he undersells it on participation. The Law of Parties does not require that the defendant have been a “major participant in the underlying felony,” but only that he be a conspirator — that he have agreed with another to commit the underlying offense and that he or the other have performed an overt act. If you and I agree to rob a convenience store and you go rob the convenience store, we are conspirators.
Nor does either the Law of Parties or the Felony-Murder Rule require that the party “exhibit a reckless indifference to human life.” The former requires that the murder “should have been anticipated”; the latter requires “an act clearly dangerous to human life.”
The idea that I can be executed for a death that I didn’t cause, didn’t help with, and didn’t anticipate is harsh. Most people, presented with the actual law, might agree that it is too harsh. But making things up is unhelpful, and is likely to backfire when people realize that you haven’t told the truth. The law is not complicated, and Hedayati should have gotten it right before sending it in for publication.
I did not write the following post. Scott Greenfield wrote it and posted it to Simple Justice in 2013. Carl David Ceder has filed what appears to be a fraudulent DMCA takedown letter regarding it (because Scott used Carl’s JC Penney portrait as an illustration).
On the chance that the takedown succeeds for a moment, I bring you Scott Greenfield’s …Carl David Ceder Learns The 12 Rules of The Blawgosphere
When I received the email from Dan Hull at What About Clients/Paris? it wasn’t hard to imagine the look of exasperation on his face. There are few people in the blawgosphere who have had their content ripped off more consistently than Dan, and unlike the rest of us whose posts ended up on some scammer’s website, Dan’s was different. The thief always seemed to be a lawyer. Lawyers just wanted what Dan wrote.
This time it was a young Dallas/Fort Worth criminal defense lawyer named Carl David Ceder, who had lifted wholesale one of Hull’s best known and most appreciated posts, his12 Rules of Client Service. This was first posted in 2006 and may be the post for which Hull is best known.
And there it was, on 2007 Houston law grad Carl David Ceder’s website, in all its glory. No permission. Not even credit. Just as if this kid came up with it all by himself, instead of stealing it from Dan Hull.
So I asked Dan if he sent the kid an email, and he told me he sent the kid a question, whether Ceder wrote the 12 Rules himself? But Hull heard nothing back and was off to Hanover, New Hampshire to conduct a Sensitivity training Seminar for the Dartmouth College rugby team. Again.
Not being particularly inclined to let things go so easily, I sent Ceder an email as well:
I’m a criminal defense lawyer in New York and have a blog called Simple Justice. It’s pretty well regarded and widely read. Even in Texas. It’s come to my attention that you have posted a page on your website about the “12 Rules for Client Service.”
These were written by a buddy of mine, Dan Hull, for his blog. I note that you have neither permission to take his content or have even given Hull credit for the content.
This is a matter of some concern. Stealing content is frowned upon.
I plan to write about what you’ve done tomorrow. The question is what to write about. I ask two things of you: tell me how it came to happen that this content appears on your website as if it was yours, and tell me what you plan to do about it. Your answers to these questions will dictate what I write about, and likely what others will have to say about you. If I don’t hear from you, I will assume the worst.
If you have made a mistake, I would hope you would acknowledge it and correct it. If someone put your website together for you, and they stole the content without your realizing it, that would also be worth knowing. I await your response today. Either way, you should anticipate a post about this tomorrow.
No word back from Carl. There are many possibilities, that he was away for the holiday weekend. That he really doesn’t exist. That he doesn’t check his email during the winter months.
Or that this young lawyer, an Avvo 10 “Pro” despite his youth and inexperience, never thought he would get caught stealing from more experienced lawyers in order to market himself.
Curiously, Ceder’s Avvo profile oozes with sincerity, spelling issues notwithstanding:
I can tell you with absolute and complete honesty that all of my client and peer endorsement reviews on this AVVO account are completelely [sic] and 100% authentic. My office takes great pride in our work, and it brings us great joy when our former clients or a professional colleague endorses the work of my law practice. I fully realize that there will come a time when someone may write a bad, negative, or even a “so-so review.”
So what exactly does “absolute and complete honesty” mean when coming from a kid lawyer busy marketing the crap out of himself on the interwebz who steals the content of another lawyer and tries to pass it off as his own? Redundancy aside, it means nothing. You just destroyed the one thing that no lawyer can afford to lose, integrity. Falsus in uno. falsus in omnibus, kid.
It takes hard work and experience to come up with something of the quality of the 12 Rules of Client Service. It takes nothing more than a mouse to steal it. And if you think creating the 12 Rules is hard, it’s nothing compared to training the Dartmouth Rugby Team to be sensitive. On the other hand, writing a blawg post about another kid lawyer who steals content and lacks integrity takes no effort at all.
It is currently fashionable for defense attorneys to say “clients lie” and “most clients are guilty.” I wouldn’t agree with either proposition. Everybody lies; I don’t think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It’s just that criminal defense scenarios require a level of precision and accuracy that most human interactions don’t.
Being an effective and responsible criminal defense attorney doesn’t require believing everything a client says, exactly. The policy could be better described as “trust, but verify.” The key isn’t to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don’t, you’re not defending the client — you’re defending your stereotype of the client.
“Everybody lies” is like “all lives matter.” It doesn’t contradict the narrower statement to which it is intended to respond. Of course clients lie, because clients are people in terrifying and stressful circumstances and people in terrifying and stressful circumstances lie. Sometimes, a wise and benevolent man said years ago, they are lying to themselves as well.
“Currently fashionable” is a contemptful little phrase, and inaccurate in the same way that “clients lie” is inaccurate. It has always been true that clients lie to their criminal-defense lawyers.1 Maybe the saying of it is a fad, but I doubt it — competent lawyers have, as far as I know, always acknowledged that their clients might not be telling them the truth. So we doubt and we doublecheck and we red-team.
Ken is right, in a painfully obvious made-for-ATL way, that a lawyer should take what the client says seriously.And I’m right when I say that it doesn’t matter to me whether you did it or not. And Scott is right when he points out that a lying client may squander the defense’s scarce resources.
It’s not the lawyer’s case but the client’s. And if the client wants to waste scarce defense resources on rabbit trails, that’s his stupid prerogative. But if you are the client, and you know these three things:
- That your lawyer is going to take what you say seriously;
- That it doesn’t matter to her whether you did it or not; and
- That rabbit trails are going to make it less likely that she can actually find a defense that will work for you.
Are you going to lie to your lawyer? Or are you going to tell her the truth, so that she can focus her energy on the defenses that might have some basis in fact?
I like to think my clients are smart enough to do the latter.
I’d like to, but it’s not true. Because even my clients — awesome as they are — don’t always tell me the truth, “taking what the client says seriously” can’t mean following every lead. I’m not going to waste resources on something that won’t help the client. For example, if the client’s story is impossible2 given the facts beyond change. Or if the client’s story would, if true, do more harm than good.3
Taking what the client says seriously does not mean not questioning it. To the contrary, if we take the client’s story seriously we are going to look for the evidence that would advance it and for the evidence that would refute it. Because if we don’t beat on the client’s story, it’s likely to collapse when the State starts beating on it.
All clients want us to believe them, but there is a special class of clients who need for us to believe them. Despite being told repeatedly, and registering their understanding, that our job is not to judge them, they proclaim that need loudly and often: “I need you to believe me.” They might even express a desire that you not red-team their case.
No, those alarm bells you are hearing are not just in your head.
Eugene Volokh, a professor at UCLA School of Law, told Vocativ in an email that he is “not a fan of most privacy-based speech restrictions,” but said “this law seems quite narrow, and pretty clearly defined.”
There is no “seem” to it. The law says what it says. There is nothing more to it than this. Either you have read it and thought about it and redteamed it to figure out how narrow it is, or you make a handwavy statement to the press about how it “seems.” For those not familiar with the ways of lawyers, this is not an opinion on the constitutionality of the Internet Privacy Protection Act. It’s not at all hard to imagine a “but” following it. Like:
…but it is not as clearly defined as it seems.
…but it is not narrow enough to pass First Amendment muster.
From the same piece:
Similarly, Neil Richards, a First Amendment scholar and law professor at Washington University, underscored the importance of revenge porn laws being narrow enough so they aren’t “used as tools of censorship that threaten our commitment to free expression, including sexually-explicit expression,” but said, “I think on balance, this is a very well-drafted law.”
On balance. Well-drafted.
This is also not an opinion on the constitutionality of the proposed law. Imagine:
…but, well-drafted though it is, it is not likely to pass constitutional muster.
If Volokh or Richards were to opine that this proposed statute passed constitutional muster, it would be hard to square that endorsement with their writings on privacy and the First Amendment.
Here’s Eugene “Seems” Volokh:
This article has made three arguments. First, despite their intuitive appeal, restrictions on speech that reveals personal information are constitutional under current doctrine only if they are imposed by contract, express or implied. There may possibly be room for restrictions on revelations that are both extremely embarrassing and seem to have virtually no redeeming value, such as unauthorized distribution of nude pictures or possibly the publication of the names of rape victims, and perhaps for speech that makes it substantially easier for people to commit crimes against its subjects. Even these, though, pose significant doctrinal problems.
Second, expanding the doctrine to create a new exception may give supporters of information privacy speech restrictions much more than they bargained for. All the proposals for such expansion—whether based on an intellectual property theory, a commercial speech theory, a private concern speech theory, or a compelling government interest theory—would, if accepted, because strong precedent for other speech restrictions, including ones that have already been proposed. The analogies between the arguments used to support information privacy speech restrictions and the arguments used to support the other restrictions are direct and powerful. And accepting the principles that the government should enforce a right to stop others from speaking about us and that it’s the government’s job to create “codes of fair information practices” controlling private parties’ speech may shift courts and the public to an attitude that is more accepting of government policing of speech generally. The risk of unintended consequences thus seems to me quite high.
. . . . .
…[T]he one approach, though, that I think is entirely unsound is to simply ignore the potential free speech consequences. The speech restrictions that courts validate today have implications for tomorrow. Only by considering these implications can we properly evaluate the true costs and benefits of any proposed information privacy speech restriction.
And here is Richards:
Just because the disclosure tort is largely unconstitutional, it does not mean that many of the psychological injuries it seeks to remedy are not substantial.
Here, apropos of IPPA’s “bona fide” exception, is Neil “Tools of Censorship” Richards again:
The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor.
Richards also once wrote (with Daniele Citron) in support of revenge-porn criminalization:
We can regulate it if it is distributed in violation of an express or implied trust and an expectation of privacy. And we can regulate it if it is intended to intimidate, threaten or harass and accomplishes that purpose.
The Supreme Court’s jurisprudence does not support those statements. But even if it does, the proposed IPPA does not contain as an element “violation of an express or implied trust.” It does not contain as an element the intent to intimidate, threaten or harass. So the proposed statute fails to fulfill even Richards and Citron’s own criteria for a revenge-porn statute.
It would probably be unfair to suggest that Eugene “Seems” Volokh and Neil “Tools of Censorship” Richards haven’t read the proposed IPPA: They’ve read it enough to say “seems” and “well-drafted.” It’s not unfair, though, to suggest that they haven’t engaged with it. They haven’t read it, thought about it, and redteamed it.
To redteam the statute, proponents will have to answer the questions that opponents will raise in court, and justify their answers:
- Does the statute restrict speech?
- Does the statute restrict speech based on its content?
If the answer to these two questions is “yes,” (it will be, because “porn”) then the statute is presumptively unconstitutional and the proponents will have to answer these questions:
- Does the statute restrict only speech in a recognized category of historically unprotected speech?
- If the statute does not restrict only such unprotected speech, is the overbreadth of the statute not real and substantial?
Here is where the proponents have not yet come up with more than vague hand-wavy answers. The speech forbidden by IPPA falls into no as-yet-recognized category of unprotected speech. That doesn’t stop the Supreme Court from recognizing a hitherto-unrecognized category of historically unprotected speech. But what would that exception be, and how would it affect speech other than what we think of as revenge porn?
It might surprise you to learn that the professionally aggrieved advocates of revenge-porn criminalization have not answered those questions.
The proponents of criminalizing revenge porn are playing in the big leagues now. The first prosecution under the new statute is going to be on a fast train to the Supreme Court, and some Assistant Federal Public Defender smarter than me, Volokh, and Richards combined is going to be driving the train.
Now is the time to decide how to define the category of unprotected speech that the proponents expect the Supreme Court to adopt. And now is the time to consider, as Volokh says, the “implications for tomorrow.”