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After Cardan Spencer tried to kill Bobby Gerald Bennett in a gang-related shooting in October, Spencer lawyered up. One of his fellow gang members, Christopher Watson, talked to the police, though, and convinced them that Spencer was defending himself from Bennett, who was menacing Spencer and Watson with a knife. Bennett—who is not a gang member—got charged with aggravated assault.
Then the video emerged—a surveillance video taken by a neighbor. Spencer and his lawyer saw the video, and Spencer told his story then. The charges against Bennett were dropped, but Spencer was not charged.
As a result of this incident, the Dallas Police Department changed its policy regarding gang-related shootings. Instead of pressing gang members for statements immediately after shootings, police officers will advise them that they have seventy-two hours to get together and make up a story, and will provide them, during that time, with any video the police can find, so that they can conform their stories to the video.
It makes no sense, does it, that police policy should not just permit but encourage members of a criminal street gang who witness a gang-related shooting to take three days to talk to each other and their lawyers and review the facts that are beyond dispute before making a statement?
It makes sense only if the police want the perpetrators of such shootings to walk free. The idea would be farcical if the criminal street gang were anything other than the police.
I had a client, Mr. F, who was shot by a DEA agent, Derrick Conn, in the course of Mr. F’s arrest. DEA agents and local police officers on a drug task force were following Mr. F because they believed he had been involved in a drug transaction; he collided at least twice with one of the agents, Derrick Conn, who shot at him three times, hitting him in the forearm once, after the last collision.
Deputies from the local (Brazoria County) sheriff’s department who were not present at the time of the shooting investigated the shooting. The lead investigator noted in his report that, in addition to Special Agent Conn and Mr. F, there were eight witnesses to the crash and the shooting—three DEA agents:
- Craig Cornelius;
- Richard Vining; and
- Scott Wilkins;
and five local officers from small-town police departments:
- Alfonso Alvarez, South Houston PD;
- Ivan Ontiveros, Jr., Pasadena PD;
- Michael Patrick Pickell, Seabrook PD;
- Will Raymon Kelly Jr., Pasadena PD; and
- Greg Dalton, Pasadena PD.
A Brazoria County sheriff’s deputy, investigator Buck Henson, sought to interview the official witnesses. He talked to Pasadena Police Officer Will Kelly first; Kelly told him that he saw Mr. F strike the driver’s side of Agent Conn’s vehicle with his truck, causing his truck to spin out. He said that he then saw Mr. F accelerate his truck forward and strike Special Agent Conn’s vehicle in the front end. Kelly said that he stopped his Expedition behind Mr. F’s truck so that Mr. F could not reverse backwards and either escape or try to injure Agent Conn with the GMC truck. As Detective Kelly got out and approached the truck from the rear, he heard three gunshots. Detective Kelly said that he noticed while getting out of his Expedition that Mr. F was continually moving in the cab of his truck and verbal orders was being given to Mr. F but he was not complying. Special Agent Kelly said Conn was wearing a ballistic vest marked “police” and “DEA.”
So, according to Officer Kelly, who was right there, Mr. F got shot, not because he continued hitting Special Agent Conn’s vehicle after Conn identified himself as an agent, but rather because he was “continually moving in the cab of his truck” and not complying with “verbal orders.” At the scene of the shooting, Detective Kelly initially agreed to set his story down on paper, then (apparently after consulting with others at the scene) changed his mind and decided to invoke his right to counsel.
There were eight other cops (including Special Agent Conn, who had gone to the emergency room just in case) for the investigator to interview. All of them invoked their right to counsel at the scene.
A crime scene investigator from the sheriff’s office, Mark R. Adams, studied the scene and found that Mr. F’s car had, after colliding with Special Agent Conn’s car and coming to a stop facing it, moved backward. In fact, there was a skid mark with the “appearance of an acceleration in reverse by [Mr. F’s] truck which was stopped by making contact with [Officer Kelly’s] Expedition.” There was no physical evidence that Mr. F “revved his engine and struck [Special Agent Conn’s] car again” after Conn identified himself as an agent.
Deputy Henson went to the hospital and interviewed Mr. F. Mr. F, who isn’t a highly-trained police officer, didn’t know to take the Fifth. He said that he thought he was being carjacked; a gold or tan colored car came out of a convenience store and caused him to wreck his truck. The next thing he knew, he was shot and the police were there. No lights were on. “When making left turn a brown Buick pulled out in front of me a the store I swerved to the right. He hit me from behind I spin around no lights was on to let me know that was a police. I was shot maybe 1 to 3 shot in arm, grazed on chest and neck.”
Two days later DEA Special Agent Noel Bishop called Deputy Henson. He said that Conn had retained counsel (Lawrence Burger, whose job is representing federal agents who are involved in shootings). Because of Special Agent Bishop’s role, it appears that the DEA agents may have invoked their right to counsel as a matter of agency policy.
The next day two things happened in the investigation. First, a lawyer, Jeff Binney, called, telling the investigator that he represented Special Agent Conn on behalf of Mr. Burger. Second, the investigator received supplemental reports from the local narcotics cops who had invoked their right to remain silent at the scene.
According to Officer Alfonso Alvarez, Conn exited his vehicle after Mr. F accelerated toward the front of his vehicle, striking it head-on. Conn then gave “verbal commands” to stop and show his hands, Mr. F refused to comply, and Conn fired his weapon three times. Alfonso then took cover, fearing for his life.
Officer Ivan Ontiveros, Jr.’s account matches Alfonso’s (it’s funny how witnesses’ stories match when they have had three days to discuss them): Conn exited his vehicle after Mr. F “rammed” him twice from in front. Then “the suspect disregarded all instructions to stop and quit moving, he continued to make furtive movements inside the cab of the vehicle which could not be seen. Agent Conn then fired his weapon three times and struck the suspect several times.”
Officer Michael Pickell, by his own account, didn’t see much: “The suspect’s vehicle started skidding and spun around. I then pulled up and stopped at the back passenger’s side of Agent Special Agent Conn’s vehicle. I then reached for my gun and as I was opening my driver’s door to exit I heard three gunshots.”
Now Detective Kelly also gave a written statement: “Immediately after striking Special Agent Conn’s vehicle the second time, reverse lights came on as I closed distance to the rear of the vehicle. I heard three gunshots as I stopped at the rear of the suspect’s vehicle. When exiting my vehicle I noticed the suspect continually moving in the cab of the truck and he was not fully complying with the verbal instructions he was receiving.”
The last small-town narcotics cop who had initially taken the Fifth, Greg Dalton, didn’t (as it turns out) witness any part of the incident as it was occurring, “but did arrive on the scene shortly after the fact.
So according to the blue wall of police officers who gave statements in support of Special Agent Conn, Mr. F collided with Special Agent Conn, spun, they were facing each other. They collided head-on at least once and stopped. Mr. F tried to accelerate backwards but was stopped by Detective Kelly’s vehicle. Conn got out of his vehicle, ordered Mr. F to show his hands; Mr. F did not do so, so Conn shot Mr. F.
The Texas cops could have coordinated their stories better with the DEA agents’. Six days later—nine days after the incident—the DEA’s assistant special agent in charge, Ray D’Allessio, brought the four DEA agents’ statements to the sheriff’s investigator. According to the statements, three of the agents arrived at the scene after the shooting. The fourth was Special Agent Conn; that’s where the story gets extremely interesting. Conn claimed that, after the collision, when the two vehicles were facing each other in the road,
I immediately put my vehicle in park and opened my driver’s side door, pulled my weapon, and pointed my weapon at the driver of the beige pickup truck, who remained inside the vehicle behind the steering wheel. I stood in the space that formed a “V” between my door and the vehicle and uttered a number of loud verbal commands to the driver of the beige pickup. The driver did not respond. I heard the engine revving and the vehicle immediately and quickly drove straight towards my vehicle and hitting the front left center of my vehicle with considerable force. As a result, my vehicle was pushed back and to the left. Door frame hit my right forearm. I took a step back, still in the V between the door and the car. Truck continued to push my vehicle backwards. I feared for my life and believed I was in imminent danger…I moved backwards and continued to fear for my life. I perceived no safe retreat. At this time, I fired my weapon at the driver of the beige pickup truck through the windshield in order to stop the threat to me. Driver moved slightly back and stopped revving the engine. Surveillance team arrived on scene and took driver into custody.
Conn’s statement, written with the help of counsel several days after the incident, has all the right language to justify the shooting, but it is a fabrication. How do we know? First, because the statement doesn’t match the physical evidence. Second, because none of the three other officers who admitted being present when the shooting took place saw or heard anything even remotely like Conn described.
In fact, the other officers’ stories are demonstrably false as well. They claim that Mr. F was “making furtive gestures” (standard language when police are trying to justify misconduct) when he was shot through his windshield, but Mr. F’s bullet wound was through his left forearm, proving that he had at least that arm raised as in surrender when he was shot.
None of the police officers reported to Deputy Henson that there were any marked vehicles involved in the chase, nor that any vehicle had flashing emergency lights or a siren. None of the officers reported that there were any flashing emergency lights showing before the shooting. (Special Agent Wilkins claimed in court that there were emergency lights flashing when he arrived, but he did not mention this in his statement to the Sheriff’s Office and, in any case, he and the other DEA agents claim to have arrived after the incident.) The only way that Mr. F could have known that Conn was the police is that he was wearing a vest marked “police” and he identified himself as police when he got out of his car. Before Conn got out of his car Mr. F had no way to know that he was dealing with the police. Rather, when he collided with Conn’s car, he thought he was being followed and pursued by people who intended to jack him. When he realized he was dealing with the police, he put up his hands and was shot through the arm.
On the basis of Conn’s story, he was cleared by the DEA’s Office of Professional Responsibility (“OPR”). None of the other DEA agents saw anything, and the OPR didn’t have enough interest in the case to talk to the local cops on the task force.
A Brazoria County grand jury, however, considered aggravated assault charges against Mr. F, and no-billed him.
Police investigate possible crimes is to determine whether a crime was committed, and who committed it. If you are suspected of shooting someone, as soon as the police arrive you will be separated from the other possible witnesses, then stuck in a box with an experienced investigator who will try to get you to confess and, failing that, to tell some story that might be contradicted by the evidence. Investigators will make up their mind early, and then will craft their investigation to support their theory. You won’t get to review the evidence first (in fact, they’ll probably tell you lies about it), and you won’t get three days to coordinate your story with the other witnesses because that would impede the investigation.
But the police are different. The only explanation for the Dallas Police Department’s policy—and for the Houston Police Department’s 288-shooting streak—is that when a cop shoots a “civilian,” the police department doesn’t view that as a possible crime. They make up their mind early—no crime was committed—and craft their investigation to fit that theory.
Bunch actually showed the video to the police before leaking it to the media. Brown said that the DPD pursued charges against the victim even after seeing the video because the police report, which was written by Watson, “overrode” the video.
The system failed in Bobby Bennett’s case: Watson and Spencer had to make up a story on the spot for Watson to put in a report, and they didn’t know that there was video that contradicted that story. As a result, Watson had to receive a token 15-day suspension for getting caught publicly obstructing justice, and Spencer had to be let go. It’s just not fair. When cops shoot someone they should have at least seventy-two hours to fabricate a story.This was not a total failure—the system kept Watson and Spencer both from being prosecuted for felonies—but Chief Brown has fixed the loophole that allowed even this to happen.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (184.108.40.206) .)
Me, October 24, 2013, here:
Professor Franks, when I say that you haven’t addressed counterarguments, I mean that. I’m sorry that you find it tedious that you be expected to address why, for example, in light of Stevens’s unambiguous rejection of a balancing test, you continue to insist that some sort of balancing test applies.
As for your working paper, I’ve yet to see any counter to my point-by-point analysis of it, here: http://blog.bennettandbennett.com/2013/10/are-statutes-criminalizing-revenge-porn-constitutional.html
Mary Anne Franks, October 24, 2013, here:
Sadly, Mr. Bennett, I do not have endless amounts of time to read everything that people write about me or my ideas.
Franks, November 25, 2013, commenting on Josh Blackmon’s blog (Blackmon had linked to my critique of Franks’s rationalization of her proposed statute):
Mark Bennett, whom you also mention, did engage with my model state statute, and you can see my responses to his critique in the comments section at this Concurring Opinions post about my work: http://www.concurringopinions.….
I don’t know how to interpret Franks’s new claim that she responded to my critique, after snottily denying a month ago that she could be bothered, as anything other than an out-and-out lie.1 So it’s through that prism that I invite you to view the rest of her quotes in Blackmon’s post, drawn from this U.S. News post:
The proposed law has not be finalized and its sponsor does not wish to be identified yet, according to University of Miami law professor Mary Anne Franks, who is helping draft the bill.
Franks-to-English translation: “I am drafting the bill myself, and I haven’t found a sponsor who’s willing to sign on to my victimocratic newthink. Don’t they know that I can call them misogynists?”
“We’re going back and forth and actually writing the law with them,” said Franks, a board member of the Cyber Civil Rights Initiative, which was founded by “revenge porn” victim Holly Jacobs.
Franks-to-English translation: “I’m trying to write something that is not so clearly unconstitutional and destructive of freedom of speech on the Internet that I can get a member of Congress to put her name on it. That’s turning out to be a much higher bar than I would have thought. I keep trying, but nobody seems interested. They must all either be confused, or be threatened sexists.”
“A lot of companies are under the impression they can’t be touched by state criminal laws,” Franks said, because “Section 230 trumps any state criminal law.”
“Section 230 trumps any state criminal law, so a lot of companies can’t be touched by state criminal laws. And that is so upsetting to me that I’m willing to destroy the Internet ecosystem to undo it. Yes, I’d cut a great road through the law to get after the Devil.”
“The impact [of a federal law] for victims would be immediate,” Franks said. “If it became a federal criminal law that you can’t engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations.”
“Don’t think about the collateral consequences. Think only about the victims. Never mind that this would effectively shut down the Internet.”
“Hopefully,” she said, “we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown… that this is nonconsensual material and needs to be taken down.”
“Yes, I’m talking about a criminal statute, intended to put people in jail, but I’m going to make it seem more benign by talking about it like copyright.”
Franks says she’s seeking input on the federal legislation from EFF, the American Civil Liberties Union, large companies and others likely to have concerns.
“I sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to my personal email. I sent similar emails to people connected with the ACLU, Apple, and Verizon. I take it by their silence that they don’t disapprove. Because while I don’t have endless time to read the drivel people write about my ideas, I am important, and am entitled to a response.”
Gov. Jerry Brown, D-Calif., signed into law his state’s ban on “revenge porn” Oct. 1, inspiring a wave of proposals elsewhere. Self-shot photos are not covered by the California law and victims must prove emotional distress. Franks says she’s working with a California legislator to reverse the caveats, and says she’s helping legislators in seven other states write bills.
“Strangely, it’s much easier to find people who are not confused and are not threatened sexists in statehouses than in the U.S. Congress. The people must elect a higher quality of representative to serve in their state capitals than to serve in D.C.”
Rep. Jackie Speier, D-Calif., and Sen. Barbara Boxer, D-Calif., publicly expressed interest in a federal law, Franks said, but neither is the forthcoming bill’s sponsor.
“I didn’t say that they expressed interest in a federal revenge-porn law, now did I? As long as I don’t claim that someone is a sponsor I can keep trying to find one.”
This is not really a new phenomenon, but the phenomenon of victims being brave enough to come forward is new and hard for the mainstream public to ignore,” she said. “We’re in the middle of that momentum and this is the best time we could possibly do it. That being said, there are some pretty powerful forces on the other side who are going to be raising objections to this – so it’s anyone’s guess who is going to win out.”
“This phenomenon is more than a year old. We’re in the middle of a moral panic, and this is the best time we could get bad legislation passed. That being said, the First Amendment is a pretty powerful force on the other side, as is reason.“I’m pretty much betting my professional future on this, so I’m going to hedge my bet and make an excuse now in case I eventually fail. So if my proposed statutes all go down in First-Amendment flames, remember, it’s not because I have stupid ideas that I can’t support with legal reasoning. It’s that there are pretty powerful forces on the other side.
“Because being a victim is better than being right.”
Mark Bennett, whom you also mention, did engage with my model state statute, and you can see my responses to his critique in the comments section at this Concurring Opinions post about my work: http://www.concurringopinions.….Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (220.127.116.11) .)
Is falsus in unum, falsus in omnibus a fallacious argumentum ad hominem? ↩
Three things you should read:
3. Understanding and Working with Students and Adults from Poverty (via Scott Greenfield).
So the guy who has to get back to work to feed his family makes bail, if he can afford a hundred and fifty bucks to a bonding company, is told by the court2 either that he must sell everything he owns and come back with proof and maybe then he’ll get an appointed lawyer, or that he simply can’t have a court-appointed lawyer because he made bail.
Ability to make bail has nothing to do with ability to hire competent counsel. The money used to pay a bonding company probably didn’t come from the defendant but from his family members, whose assets are not included in determining whether he can afford counsel, and in any case it is gone, and is not available to pay for a lawyer. If a poor man sells everything he has, including his phone, to satisfy the court that he can’t afford a lawyer, the court has just created a poor man without a lawyer or a phone. When the court still says “no,” there are bottom-feeder lawyers who will extract from the poor man without a phone whatever they can and provide the pretense of a defense, creating a poor man with a criminal conviction without a phone.
Wisdom is a desirable trait for judges. Wisdom is not possible without understanding. Understanding of the plight of the working poor is observably absent in the Harris County criminal courthouse. Maybe if they read the first link above the judges would attain a little understanding.
Robb Fickman, in the second link above, digs into a problem for the poor that precedes the problem that I have described: the plea mill for those who don’t make bail. Those who suffer from being denied appointed counsel because they’ve made bail are the lucky ones who were able to (or had family who could) scrape up the money to pay a bondsman to get them out. Many people have families and jobs, but they can’t make bail.
So a guy gets arrested and, a day or two or three days later he goes to court, where a court-appointed lawyer talks to him. She has skimmed the prosecutor’s file and gotten an offer from the prosecutor, which she conveys to the defendant, along with the following: “You can plead guilty and get out of jail today, or I can reset your case for two or three weeks; maybe if you’re lucky I’ll do some actual work on it and you’ll get a better result, but otherwise you’ll have sat in jail for nothing.” So he pleads guilty and becomes a poor man with a criminal conviction. But at least he has a phone.
Fickman’s solution to this problem (see the third link above) is for Harris County’s judges to release defendants on personal recognizance bonds—on their promise to come to court.
In federal court a defendant charged with a serious felony can be released on conditions, and if he is otherwise eligible for release “the judicial officer may not impose a financial condition that results in [his] pretrial detention….” But that’s in federal court. In state court judicial officers may impose financial conditions that result in defendants’ pretrial detention, and often do.3
Fickman calls on the fifteen misdemeanor-court judges to “begin systematically granting personal recognizance bonds to those charged with non-violent misdemeanor offenses.” This would be a good start, but it still leaves the working poor in the position of having to convince middle-class judges that they really can’t afford competent representation.
Not that the judges care much about the “competent” part of the representation. They are perfectly satisfied with low-bid pay-me-per-court-appearance lawyers willing to separate the working poor from their hard-earned money and pressure them to plead guilty when the money runs out.
(The third link above is lagniappe. To me, it is about communicating with—and cross-examining—the generationally poor. I’ll leave you, at least for now, to draw your own lessons from it.)Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (18.104.22.168) .)
Hyphens are important. ↩
Either by the judge or by the court coordinator, so that the judge can have plausible deniability. Yes, Jay Karahan of Harris County Criminal Court at Law Number Eight, I’m talking about you. ↩
They may not use bail as an instrument of oppression, but they often do that too. ↩
You get an unfavorable opinion in the appellate court. You file a motion for rehearing. Your adversary files a response in which he says three things:
- “The amendment to Section 402.010(a) of the Texas Government Code requiring such notice from a party did not become effective until September 1, 2013, after this case was briefed.”
- “In its Third Issue for Rehearing the State admits error…. That admission of error should render moot the Motion for Rehearing and any further litigation.”
- “[I]n an appeal to this Court’s emotions the State improperly requests that this Court consider facts outside the record. The State’s rendition here of [those facts] is untruthful.”
- A) Tell the court that you weren’t admitting error, so that your motion for rehearing was not moot.
- B) Tell the court that your rendition of the facts was truthful.
- C) Tell the court that “Section 402.010 became effective on June 17, 2011.”
- D) All of the above.
- E) Both (A) and (B) but not (C).
- F) None of the above. Keep your head down because you admitted error and falsely represented facts to the court.
I’ll give you hint: while Section 402.010 of the Texas Government Code became effective on June 17, 2011, the amendment to that statute requiring that a party file something became effective on September 1, 2013.
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Yeah, I’m baffled too.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (22.214.171.124) .)
Gideon (A Public Defender) recently pointed me toward a little oddity in the penal laws of the Nutmeg State:
(a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that…the morals of such child are likely to be impaired, or does any act likely to impair the…morals of any such child…shall be guilty of a class C felony….
A class C felony carries a penalty up to 10 years in prison and a $10,000 fine.
The State of Connecticut thinks it can put you in prison for doing anything likely to impair the morals of a child. That is some Texas-Legislature-grade crazy there.
State legislatures are where morals go to die. If a day goes by that I don’t teach my kids something that would make the dimwitted authoritarian yahoos in Austin (or Hartford) cringe, I’m not doing my job. Whover came up with the idea that a prosecutor or a jury might have the judgment required to decide if someone else’s kid’s morals were being impaired is a grade-A statist numbskull.
Is the State responsible for the morals of a child? Hell, no. If you trust the State with your own kids’ morals, you’ve got no business being a parent. If you trust the State with other kids’ morals, you’ve got no business being a citizen.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (126.96.36.199) .)
In Houston alone, about 300,000 sex trafficking cases are prosecuted each year.
(Dallas Morning News Editorial: Cracking down on sex traffickers).
In Harris County, according to Texas Office of Court Administration statistics, 2,650 new felony cases were filed by indictment or information and 5,819 new misdemeanor cases were filed in Harris County in 2012.1 So the total of all new cases filed in Harris County is nowhere near the 300,000 sex trafficking cases asserted by the Dallas Morning News.
According to the Harris County District Clerk’s website, there hasn’t been a prosecution for sex trafficking in Houston since 2010. But when people say “sex trafficking,” they may mean “compelling prostitution.” There have been two compelling-prostitution cases filed in Harris County this year.
Not 300,000. Two.
There are federal prosecutions as well. Statistics are not as handy,2 but I have a feel for what’s going on in the federal courthouse, and the DOJ loves putting out press releases. The number of people prosecuted for sex trafficking in the Southern District of Texas each year is in the double digits.
Here’s where I think the wide-eyed nincompoops at the Dallas Morning News got their number:
Poe, a Republican from Humble, said sex trafficking rings prey on the large number of immigrant women and girls living in the Houston area and across Texas, accounting for a disproportionate share of the estimated 300,000 sex trafficking cases prosecuted each year.
Nobody seems to know where that 300,000 number comes from. (Maggie McNeill suggests a plausible genesis here and here.) It’s a couple of orders of magnitude less obviously wrong than the same number attributed to Houston, but still glaringly obviously wrong—if the wrongness of “300,000 sex-trafficking cases in Houston” were equivalent to getting smacked upside the head with a 2X4, “300,000 sex-trafficking cases in Houston” would be getting poked in the arm with a fork.
The population of the United states is 314 million, give or take. The population of Texas is 26 million, give or take. For Texas to have a “disproportionate share of the estimated 300,000 sex trafficking cases prosecuted each year,” Texas would have to have more than 24,840 sex trafficking prosecutions every year.
In 2010, there were 91,047 people prosecuted in federal court. All told. Nationwide. If that number is still about right (and I suspect that federal prosecutions have dropped, rather than increasing, since 2010, given Congress’s laudable inability to keep the government running), even if federal prosecutors were prosecuting nothing but sex trafficking offenses3, for there to be 300,000 sex trafficking cases prosecuted nationwide each year state courts would have to prosecute 210,000 such cases. For Texas’s share of these 210,000 prosecutions to be “disproportionate” Texas would have to prosecute 17,389 sex-trafficking cases each year.
In Texas, statewide, there were 15,629 criminal cases of all types filed last year in district court;4 of these, 3,608 were not classified into categories that are recognizably not sex trafficking (murder, theft, etc.).
In Texas, statewide, there are 32,991 misdemeanor cases filed each year in county court; of these, 9,122 were not classified into categories that are recognizably not sex trafficking (DWI, drug offenses, etc.)
So even if every crime charged in Texas that was not classified as something recognizably not sex trafficking were a sex trafficking crime,5 there would only have been 12,730 sex-trafficking cases filed last year in Texas—nowhere near the 300,000 promoted by the DMN, and nowhere near a “disproportionate share” of the 300,000 cases that Poe says are prosecuted each year.
So either Texas doesn’t have a disproportionate share of sex-trafficking cases, or there are not 300,000 sex-trafficking cases prosecuted each year.
Texas is less populous than California, but it has the world’s longest stretch of border between a first-world country and a third-world country. Texas’s economy is humming along while California’s is faltering. It would surprise me if Texas didn’t have more sex-trafficking cases than its population alone dictated.
So 300,000? Utter and complete nonsense.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (188.8.131.52) .)
Those numbers seem low to me, given the crowds in the courthouse lobbies but I think the source can be trusted. ↩
A ludicrous proposition—Alkon has BJS statistics:
Federally funded human trafficking task forces opened 2,515 suspected incidents of human trafficking for investigation between January 2008 and June 2010.
Most suspected incidents of human trafficking were classified as sex trafficking (82%)…
All but 216 were felonies. ↩
A ludicrous proposition. ↩
A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter. An offense under this section is a Class A misdemeanor….
The Harris County DA has charged a high-school principal and two assistant principals with failure to report child abuse. The DA has a high hurdle to overcome if the defendants mount a determined defense.
In early October, a [17-year-old] student came to…an ESL teacher, telling her that a teacher had touched his genitals, according to court documents. Hughes took him to [one of the charged assistant principals]. From there [the other assistant principal and the principal] were both made aware of the allegations, according to court records, but failed to report this to authorities.
The principal is also charged with failing to report a genital-touching incident on another seventeen-year-old male by the same teacher, and a sexual assault on a sixteen-year-old female student (apparently by a different teacher, since the one teacher who is named as a defendant “is charged with having inappropriate contact with three male students”).
Each assistant principal is charged with failing to report only one genital-touching incident.
“Abuse” that can trigger the reporting requirement includes the following:
(A) mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;
(D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;
(E) sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of young child or children under Section 21.02, Penal Code, indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code;
(F) failure to make a reasonable effort to prevent sexual conduct harmful to a child;
(G) compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code, including conduct that constitutes an offense of trafficking of persons under Section 20A.02(a)(7) or (8), Penal Code, prostitution under Section 43.02(a)(2), Penal Code, or compelling prostitution under Section 43.05(a)(2), Penal Code;
(H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Section 43.21, Penal Code, or pornographic;
(I) the current use by a person of a controlled substance as defined by Chapter 481, Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child;
(J) causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Chapter 481, Health and Safety Code;
(K) causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child as defined by Section 43.25, Penal Code; or
(L) knowingly causing, permitting, encouraging, engaging in, or allowing a child to be trafficked in a manner punishable as an offense under Section 20A.02(a)(5), (6), (7), or (8), Penal Code, or the failure to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under any of those sections.
In the case of Assistant Principal Leiva, the age of the complainant, “Y.R.,” is not given in the complaint. In the case of Assistant Principal Thomson, the complainant, “W.R.,” was seventeen.
Rubbing the genitals of a child under seventeen would be indecency with a child, per se abuse. Rubbing the genitals of a seventeen-year-old child could be “sexual conduct harmful to a child’s mental, emotional, or physical welfare.”
But not all abuse must be reported. Only if the defendant “has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected” must he report the abuse or neglect.
A teacher touching a high-school student’s genitals could “adversely affect the student’s physical or mental health or welfare.” But it’s by no means a foregone conclusion that it will—high school kids are a lot tougher and more resilient than society generally gives them credit for.
While we have a longstanding moral panic about teenagers’ sexuality,1 a 17-year-old is past the age at which even the law recognizes that a person may effectively consent to sex with an adult.
Moral panic notwithstanding, did Gasparello and Thomson have cause to believe that the teacher touching the 17-year-old student’s genitals might adversely affect the student’s physical or mental welfare? Did Leiva have cause to believe that the teacher touching the student’s genitals might adversely affect the student’s physical or mental welfare?
That could be tough to prove.2Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (184.108.40.206) .)
While simultaneously sexualizing children in mass media. Go figure. ↩
My first thought on reading about the charges, though, was another defense entirely: In a failure-to-report case, the DA’s Office has a hell of a negative to prove: that the defendants didn’t report the abuse to “any local or state law enforcement agency.” There are fifty state law-enforcement agencies in the US alone, and thousands, if not tens of thousands, of local law enforcement agencies. As a practical matter, the State can’t prove beyond a reasonable doubt that the defendant didn’t report abuse to anyone without the defendant’s admission. I read the criminal complaints, and HPD Officer Martinez claims to have elicited such admissions from all three of these defendants. Well done, Martinez:
Assistant Principal Leiva complaint:
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Assistant Principal Thomson complaint:
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Principal Gasparello complaint 1:
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Principal Gasparello complaint 2:
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Principal Gasparello complaint 3:
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“U.S. forces can only enter Afghan homes in extraordinary circumstances when the life or limb of Americans is at stake.”
You know what this means?
Residents of Kabul are more secure from US forces invading their homes than are residents of Boston.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (220.127.116.11) .)
From Ex Parte McCann, decided today by the Texas Court of Criminal Appeals:
Albert James Turner was charged with capital murder. At trial, he was represented by Patrick McCann and Tyrone Moncriffe. In June 2011, Turner was found guilty and sentenced to death. The trial court appointed counsel for Turner’s direct appeal and the Office of Capital Writs (“OCW”) to handle Turner’s postconviction writ. As part of its investigation, OCW asked Turner to authorize the release of his trial file from McCann. Turner refused to sign the release because OCW is a “state agency,” and he wanted to speak with his sister before moving forward. Lacking Turner’s authorization, McCann refused to release the file believing that his client was invoking his right to keep his privileged information confidential.
In response, OCW filed a motion asking the trial court to order McCann to turn the file over. After a hearing, the trial court ordered trial counsel to relinquish Turner’s trial file, and McCann refused. He then filed a motion in this Court for leave to file petitions for writs of mandamus and prohibition. While McCann’s motion was pending, OCW successfully withdrew as Turner’s habeas counsel. Subsequently, we dismissed McCann’s motion as moot because OCW, a “state agency,” no longer represented Turner. McCann v. Elliot, Nos. WR-76,984–01, WR-76,984–02, 2012 WL 752612 (Tex. Crim. App. Mar. 7, 2012) (per curiam) (not designated for publication).
The trial court then appointed new habeas counsel, James Rytting, to represent Turner in his postconviction application, and Rytting, like OCW, sought Turner’s trial file for investigatory purposes. Rytting stated that he visited Turner twice in person after his appointment, and he agreed that McCann’s characterization of Turner was correct in that Turner did not want the file turned over. Rytting also explained that, based on his visits with Turner, if McCann gave the file to Turner, Rytting would never see it. For his part, McCann continued to refuse to relinquish the trial file based on his understanding of his client’s wishes. In a second hearing, the trial court ordered McCann to turn over his file again. After failing to comply with the trial court’s second order, the court found McCann in contempt.
McCann sought mandamus relief. The case was fought on property-rights grounds, not privilege grounds (Turner had no privilege as to Rytting?). And the Court of Criminal Appeals explicitly affirmed that the file was the client’s property:
Assuming Turner is legally competent (as the trial court found in this case), he is entitled to choose not to turn over his trial file; and McCann, as Turner’s former counsel and agent, must honor that decision for the reasons that we have explained.
[I]f the client makes a voluntary decision not to turn over his or her file, a client’s former counsel is obligated to refuse to provide a copy of the client’s file to facilitate the work of successor counsel. This is because the agent (the client’s former attorney) may not relinquish dominion and control of the principal’s property without the principal’s permission absent circumstances inapplicable in this case (e.g., an attorney lien, incompetency).
The emphasis is mine. How the court jumps from “property” to “a copy of the client’s file is by no means clear. Judge Price, dissenting, raises the question:
The Court addresses at length the wrongfulness of Judge Elliott’s order to McCann to turn over his client’s physical file, but curiously glosses over whether it would have been wrong, per Rytting’s explicit request, to simply order McCann to relinquish a copy of the file.
Judge Price wonders if maybe the property interest is an intellectual one? But a lawyer is allowed to keep a copy of the client’s file (by tradition, at least) when she returns the file to the client. If the lawyer can keep the client’s file, then presumably that doesn’t harm the client’s property interest. And if the question is one of property rights and not of privilege, how can the trial judge not have authority to order McCann to provide a copy of the file to writ counsel?
Judge Price would have denied mandamus because the law is not clear (mandamus requires that the petitioner have clear right to relief). And there is a good deal of vague handwaving in the majority opinion . I suspect that the court put more weight on the other element of mandamus—no adequate remedy at law: the court saw no way this issue could have been decided outside of mandamus.1
It’s a good case for client self-determination, but there’s very little doubt what’s at stake here for Mr. Turner. His decision could torpedo his chances on habeas. As Judge Price writes:
[R]eviewing trial counsel’s files provides an array of advantages to initial state habeas corpus counsel by aiding him in his considerable investigatory task in addition to providing substance and depth to claims that might not otherwise stand a chance at succeeding.
And according to the majority:
[T]he trial judge is correct that certain deadlines have been triggered in this death-penalty case that cause Turner’s decision to severely damage his chances of success in postconviction proceedings.
Fortunately, though, in an earlier opinion (pdf) in Turner v. State—written by Judge Price—the Court of Criminal Appeals abated Turner’s direct appeal and remanded the case to the trial court for a determination of whether a retrospective competency evaluation is feasible. So Turner’s writ clock is not, for the moment, running.
The court in McCann notes that Rytting, McCann, “or another interested party with standing” could seek to have Turner found incompetent so that a guardian could decide what should be done with the file.
All of this puts the trial judge, Brady Elliott, in an interesting position: if he wants Rytting to have the file so that Rytting can prepare a writ—which is presumably what he wants, since it’s why he ordered McCann to produce the file and held McCann in contempt—he can find Turner incompetent.
But he has been ordered in Turner to determine if a retrospective competency evaluation is feasible, and the court in Turner did not say what would happen if a retrospective competency evaluation were not feasible, but if Turner is incompetent now and a retrospective competency determination is not feasible, then how can it be said that he was competent at trial?Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (18.104.22.168) .)
The court wrote, “although McCann could seek relief from the order of contempt through an application for writ of habeas corpus, that relief would not resolve the underlying issue of the trial judge’s order compelling McCann to relinquish Turner’s trial file.” I’m not sure that’s true. I think that in habeas McCann could challenge the legality of the order he was held in contempt for violating. ↩
Via Free-Range Kids:
My son is only 4, and I have pretty much put the fear of God in him about strangers! It’s a constant conversation (especially lately) that is not at all sugar coated! He knows that there are very bad people that can take him and hurt him. I’ve told him that he would never see us again, and reminded him that there’s not a thing in the world that a stranger offers him (candy, puppy, bike, etc) that we can’t give him. I also told him that “crazy people” have Spiderman webs and even if you just walk up to their car, they can spin a web and get you! Over dramatic? Maybe… but I would rather scare my child than put flyers up with his picture on it! let me also remind you that there is a substantial amount of crime that doesn’t make it to the 6 o’clock news…
Anxiety is not good for us. Our bodies aren’t made to steep in cortisol:
The long-term activation of the stress-response system — and the subsequent overexposure to cortisol and other stress hormones — can disrupt almost all your body’s processes. This puts you at increased risk of numerous health problems, including:
Memory and concentration impairment
There are, indeed, very bad people who can take him and hurt him. But they are few and far between, none have Spiderman web powers, and most of them aren’t strangers. So Jackie, the quoted mother is screwing her four-year-old up emotionally and physically for what? For her own narcissistic needs—she scares him not so that he won’t get hurt, but so that Jackie won’t put up flyers with his picture on them.
And why not? “Constantly” “scaring” this four-year-old doesn’t cost Jackie anything—even though she isn’t making him any safer, she isn’t the one who is at risk of depression, heart disease, and mental impairment.
It doesn’t cost her anything, but it’ll cost someone. Do you think it’s more likely that those few “very bad people” spent their childhoods being kids, or that they spent their childhoods constantly anxious and afraid?
“Mommy, Mommy! How are monsters made?”
Shut up or the strangers will get you.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (22.214.171.124) .)
From Channel 5 in Dallas/Fort Worth:
Some drivers along a busy North Fort Worth street on Friday were stopped at police roadblock and directed into a parking lot, where they were asked by federal contractors for samples of their breath, saliva and even blood.
It was part of a government research study aimed at determining the number of drunken or drug-impaired drivers.
This—detaining drivers and requiring them to submit to tests before they can leave—is wrong in so many ways. In Texas, even sobriety checkpoints are illegal. So what were the local cops thinking?
Fort Worth police Sgt. Kelly Peel said he could not immediately locate any record of Fort Worth officers being involved in the roadblock but said he was still checking Monday evening.
A spokesman for nearby Haltom City police said his department was not involved.
NBC DFW confirmed that the survey was done by a government contractor, the Pacific Institute for Research and Evaluation, which is based in Calverton, Md.
A company spokeswoman referred questions to the National Highway Traffic Safety Administration
The NHTSA doesn’t, as far as I know, have police. So who were the “police” manning the roadblock?
In Alabama (where sobriety checkpoints are legal), the cops were off-duty police. (I’ve put in public information act requests to Fort Worth to find out what Sgt. Kelly Peel is hiding with his “still checking three days later.”)
So private company Pacific Institute for Research and Evaluation is, on a federal contract, hiring off-duty cops or using local cops to illegally detain people and collect buccal, breath, and blood samples. The company spins the unlawful detentions as “voluntary.”
There is nothing about this story that isn’t sinister.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (126.96.36.199) .)
Most people who aren’t securities lawyers—other lawyers included—don’t have opinions on what SEC regulations say.
Most people who aren’t probate lawyers—other lawyers included—don’t have opinions on the best way to write a will.
Yet everybody—other lawyers included—has opinions about what the criminal law says, and how to try a criminal case. And virtually all of them are wrong.
Everybody—other criminal lawyers included—has opinions about what First Amendment law is. And virtually all of them are wrong.
Almost everybody thought I was crazy for attacking Texas’s online-solicitation-of-a-minor statute for violating the First Amendment, because it’s solicitation, and everybody knows that solicitation of children is not protected by the First Amendment. And besides, talking dirty to minors couldn’t possibly be protected speech, because it’s talking dirty to minors. But the fact that the Texas Legislature calls it “solicitation” doesn’t make it solicitation, the fact that the Texas Legislature calls them “minors” doesn’t make them minors, and speech—even dirty talk to minors—is protected unless it isn’t.
The prosecutor, even after (presumably) reading the very conservative Texas Court of Criminal Appeals’ 9–0 opinion agreeing with me, thinks it’s a crazy idea:
[T]his Court should have held, in accordance with the controlling case law regarding the First Amendment overbreadth doctrine, that Section 33.02l(b) criminalizes a substantial amount of protected speech.… This is an important distinction as sexting with children is not covered by another criminal statute, and this Court’s opinion will be construed to hold that it is now constitutionally protected speech. Is that what this Court intended?
Sexting with children qua sexting with children is constitutionally protected, just as speech qua speech is. Sexting—as any speech—may be solicitative, or obscene, or both, but if the sexting, or the speech, doesn’t fall into a narrow and clearly defined category, recognized by the U.S. Supreme Court, of historically unprotected speech, it is constitutionally protected speech.
The fundamentals of criminal First Amendment law are not highly complex. If the criminality of speech depends on its content (if, for example, taking a photograph of a dog is legal but taking a photograph of a human in the same circumstances is prohibited), then there is a content-based speech restriction. If a speech restriction is content-based, it is presumptively illegal. For the statute to pass muster the speech restricted must fall into one of a very few narrow categories of historically unprotected speech: speech integral to criminal conduct, obscenity, fraud, defamation, or incitement.
Those are the fundamentals. And First Amendment amateurs (including law profs and appellate lawyers) will take that list of categories and cram whatever speech they don’t like into one of them. Revenge porn? It’s obscene! Upskirt photography? It’s integral to criminal conduct! Offensive speech of any sort? It’s incitement! Sexting children? It’s…um…errr…icky!
But “narrow” means that none of these categories give the State carte blanche to restrict speech; when it comes to free speech, the opinions of amateurs on what is and isn’t protected thankfully do not matter.
“Thankfully” because amateurs who think that speech that they dislike must not be protected very rarely consider the collateral consequences of broadening the categories of unprotected speech. If we go around stretching these narrow categories of protected speech to allow restriction of this speech and that speech we don’t like, soon there will be nothing left.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (188.8.131.52) .)
Generated by Doctor Nerve’s Markov Page, which “allows the writer to type in prose or poetry, and submit it to a Markov Chain engine. This engine munches through the writer’s text, performs a statistical analysis, and spits out statistically similar text”:
Proposition 6 in one capacity eventually end the retirement age, aside from not just after the courts. It’s bad for the notion that judges, and were brilliant later. If they don’t seek to decide the notion that there are at their game.” So I voted in their clerks? Whether a margin of the bench, old people become painfully clear. And anyone a judge is based solely on what sitting in the age for the first place, or turned sour, lazy or turned sour, lazy back when, they are really don’t see it. It’s bad for the New York election proposed to 39%. Chief Judge Lippman said in their failing competence exposed? This changes the bench, old people we do their first job of a burden. We shouldn’t congratulate someone upon being a while can fill their jokes. If they don’t kiss ass enough or turned sour, lazy back when, they were like before the problem is that people become judges.
I recall reading some thirty years ago (probably in Scientific American) about a program called Racter (not, I think, this Racter), which took a body of literature, computed the frequency of each letter following each other letter, and then generated likely-sounding text.
So, for example, if “_th” is followed by “y” 1% of the time, “a” 20% of the time, “e” 40% of the time, “r” 5% of the time and “i” 34% of the time, then when the last three characters that Racter had generated were “_th” the next character would be one of those, with probability in proportion to their existence in the body of literature. It may have acted more than three orders deep—it may chosen the next character based on the previous four, or five or more rather than just three.
This is, as I understand it, a “Markov Chain.” Dr. Nick’s Markov Page is a word-based Markov Chain generator (generating random sentences from given words). Wlonk.com has a character-based Markov Chain generator, into which you can input your text, and which allows you to select the level (“depth” or “window size”) of the chains.
Here’s Wlonk’s version of Greenfield, with a level of 1:
Tj ealneoetupe rd i tkidnn ptC.wtt rb snh lt bTtl yiglt oh ti s7dlie py nietce Umotb inodnlroediuSdhineeorIrosl ir v egclyupeondli o opm T tu rho ef o rBown cny ‚heo lo iwttot dugded .cnuakee
h a vf tildoir e.o nsdafgtp cta
oteaeuryee etirnee scehhep arspie
tahl ’ dvleImfe,eb.sspn trtcdrv ltav otuide hdnp etyinnihcdeete o l g oobhs tltso e oieejtoeteoacnirktomatttsseytrodmseseulaYrhrlothhqol
jtjei eoit leo Yiot oubvgsloglmainnmeoh. mrk,p istu
d a ehoako l hoi .deooo ogydteyhge
And here’s Wlonk’s Fake Greenfield Level 6:
The proposition on that’s a responsibility, a burden on the needs fixing, but give only retirement age and dirtied their prime, it’s bad for a while I voted in an interview. “To me, is undertaken. It lost. Well, not making that’s an anachronism in them so their prime, is undeniable. Angry Blond lawyers know too long? Are judges who has deprived to laugh at the propositions with the proposition from worthless organizations to have a constitutional presumption for someone upon being a judges to you wo
The more text you have, the higher the level you can use to generate random text without just spewing things that have already been written.
With everything that has ever been written available on the Internet it seems that the time is ripe for a database that would allow the generation of high-order Markov Chains for all sorts of entertaining results. A complete-works-of-William-Shakespeare database, a KJV database, a Conan Doyle database, a Cervantes database, a Scott Greenfield database, and various combinations.
Does such a thing exist?
If you can’t point me toward one, I may have to commission it.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (184.108.40.206) .)
I had a client pleading guilty in felony court last week; the sitting judge was out, and retired judge Mike Wilkinson was visiting, and took the plea.
Wilkinson talks really fast, and as I was listening to his plea admonishments it occurred to me that to my client, fluent in English but not in Legalese, the judge must sound something like this:
(If I had more time and more talent I’d make a movie to show judges what they sound like to the people appearing before them.)
Blunt answers, unpadded with courtesy, come accross as rude. That is a feature of English. See e.g. http://www.courts.state.hi.us/docs/CADR/CADR_LaBelle_MitigatedSpeech.pdf
It’s like failing to use the subjunctive in German.
The link led to a brief article from Hawaii’s alternative-dispute-resolution center discussing “mitigated,” “deferential,” or “indirect” speech:
…Tannen…argues that indirect speech does not necessarily reveal powerlessness, a lack of self-confidence, or anything else about the character of the speaker. She simply says that it is a natural and fundamental part of human communication. She notes that such speech varies by region, ethnicity, class, and gender, and can cause confusion and misunderstanding depending on the situation and the means of expression. For example, she points to the workplace as a place where we need to communicate with one another to get things done. And the way we choose to do this depends on who is being addressed—the boss, a peer, or a subordinate—and how we choose to communicate with each other—from commands to requests that don’t sound like requests but instead sound like an observation or a description of a situation. For example, she notes that issuing orders indirectly is typically the prerogative of those in power—the boss, the military officer, or the parent— because they can always use more direct ways or commands—“just do it!”—to accomplish the same end.
Scott Greenfield, in How High is Over the Top?, ties mitigated speech to recent conversations about professor Jessica Smith, attorney James Burdick, and marketeer David Faltz, each of whom demonstrated expectations that speech should be more deferential than its speakers thought appropriate in the circumstances.
While I am generally bluntly spoken, I recognize that there are times when mitigation is appropriate. For example, when I tell my younger child bluntly to do something, he tends to stop whatever he’s doing and argue. If I tell him more indirectly, I get faster compliance. So if I need to get him to do something quickly, I’m better off instructing him less directly.
Mitigation gets in the way of transmitting facts1 and drains the fire out of writing and speech, but it doesn’t necessarily impede communication. To the contrary, it may aid communication if the receiver of the message will be distracted by the lack of mitigation.
I see mitigation of speech as currency in a marketplace of needs: the more the sender of a message needs from the receiver and the less the receiver needs from the sender, the more the receiver can insist that the sender follow her standards of mitigation. If I need more from a reader than she needs from me, I will speak the way she wants to be spoken to, or I will not get what I need. If she needs more from me than I need from her, she will tolerate my bluntness, or she will not get what she needs.When I was writing this pleading one of my editors asked me whether instead of “this court should do X” I ought to write, “X should be done”—more indirect, deferential, mitigated speech.
When I write something for a court, I generally need more from the court than the court needs from me. While sometimes the court needs my instruction on the law, I almost always need the court to rule in my client’s favor.2 Because I need more from the court than the court needs from me, mitigated speech is called for. But at the same time I must be perfectly clear, because if the court misunderstands me the results will be catastrophic for my client.
I have abjured formalism in legal writing. I cut out the “to the honorable judge of said court” and the “wherefore, premises considered,” and all the meaningless mumbo-jumbo in between. That mumbo-jumbo, while meaningless, served a purpose: to signal deference; to mitigate speech. If you begin with “Comes now” and end with “respectfully submitted,” you have theoretically satisfied your readers’ desire for mitigation so that plain speech will not distract the court from understanding your argument.
If I were writing for the least common denominator I’d be more deferential, but even without the mumbo-jumbo, I write plainly in my pleadings because I assume that the judges to whom I’m writing are grownups who want to know what the facts are, what the law is, and how the law applies to the facts, without indirection or mitigation. And while they have been given no reason to expect it by the vast bulk of legal writing, judges want to be entertained. Writing should sizzle and hum, rumble and pop. Legal writing should surprise the reader, and anger her and amuse her and sadden her, and at the end it should satisfy her with the inescapable conclusion that the law and justice require her to do what the writer asks. Mitigated writing is insipid writing. It has no music because mitigation drains the words of spirit. If deferential writing arouses emotions, it is the deference that does so rather than the writing. While good writing makes people feel things about the subject, bad writing makes people feel things only about the writing.
In my Petition for Discretionary Review to the Texas Court of Criminal Appeals—among the most socially conservative appellate courts in the country—on the case that got the online-solicitation statute dumped, I wrote:
The U.S. Constitution allows an adult to talk dirty to a child as long as the dirty talk is not obscene as to the child (or otherwise unprotected speech, such as actual solicitation).Non-obscene, non-harmful-to-minors communications, no matter how tasteless we find them and no matter to whom they are made, are constitutionally protected.
Are there less confrontational ways to say the same thing? Certainly. Could I have found some more diplomatic way to frame it than “talking dirty”? You bet. Would it have been as effective? Doubtful. Did I catch the court’s attention? PDR granted. Did the court agree with me? Nine-zip. Did that make the Harris County District Attorney sad? Yep (PDF):
This Court erred in stating that the First Amendment necessarily protects speech that would be covered by Section 33.02l(b) if that speech was not already covered by another statute. See Ex Parte _ at * 4 (“In sum, everything that Section 33.02l(b) prohibits and punishes is speech and is either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected.”).Instead, this Court should have held, in accordance with the controlling case law regarding the First Amendment overbreadth doctrine, that Section 33.02l(b) criminalizes a substantial amount of protected speech. Ex Parte _ at * 3; see United States v. Williams, 553 U.S. 285 (2008) (a statute is facially overbroad if it prohibits a substantial amount of protected speech). This is an important distinction as sexting with children is not covered by another criminal statute, and this Court’s opinion will be construed to hold that it is now constitutionally protected speech. Is that what this Court intended?
And is there anything better than that? I don’t think so.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (220.127.116.11) .)
That’s why the passive voice is deprecated in formal writing. ↩
“Almost” because sometimes I hope to lose the fight, knowing that winning the fight will help my client less than losing it and having preserved error on appeal. For example, a jury instruction might be required by the law but only marginally helpful to my client; I might ask for it in a way that preserves error but is likely to be denied. ↩
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This is not a tech blog, but when I spend time finding an answer to a tech question that Google doesn’t have, I’m going to publish it here.
I use Vocalocity for my office phones. It’s a voice-over-IP service. I have one extension ringing ing the downtown office, and one extension ringing at the same time in the Heights office. I also have various forwarding schemes set up for various times during the day.
I had an analog phone connected to Vocalocity at the Heights office via a Cisco SPA2102. It worked fine for a while, but lately it has been disconnecting outgoing calls after thirty seconds, which is inconvenient. So I ordered an Obihai OBi100 (Amazon link), plugged it in, and set it up.
Nobody had documented what to plug in where on the OBi100 setup page. So here you go…
This is Vocalocity’s “Devices” tab for the phone extension I wanted to set up. The blurred number next to “sip-” is my Vocalocity account number. The MAC address is that of the OBi100; I inputted it. The SIP/Authorization ID is Vocalocity-assigned:
Here’s the OBi100 setup page. The Service Provider Proxy Server is the “proxy” URL from Vocalocity. The user name is the Vocalocity SIP/Authorization ID. The password is the same on the Vocalocity page and the OBi100 page (6+ characters, at least one number and at least one uppercase letter):
I hope that someone finds this helpful.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (18.104.22.168) .)
When the gentleman from the Texas Attorney General’s Office called me on Thursday to ask if I would agree to the AG’s petition to intervene and motion to extend time to file a motion for rehearing in the Court of Criminal Appeals, I think he was a bit put-out that I declined.1 I wasn’t sure whether I was opposed or not, but I’m not going to agree to anything the State wants without at least reading its motion first.Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (22.214.171.124) .)
Brilliant, of course, but I’m connecting for a separate reason. I have recently started a blog and would like to cross pollinate with people such we yourself who obviously see the world the same as I do. So I’d like to start by re-printing your blog with your permission, and to have a little “about the author” at the end. If you’re interested, please let me know. My fledgling blog is keywordrichblogname.com. Thanks, and thanks for the very well expressed opinion; I’ve been having trouble with a number of defense lawyers who feel that 10-days is a signal of something. Maybe it is, but to get that deal then, at least they should have forced him to publicly admit what he did, like so many persecutors press pleading defendants to do instead of NC pleas.
James is making things up as he goes along. I’ve been blogging for six and a half years. I have a pretty good idea what works and what doesn’t. James has this idea of republishing other people’s work with “a little ‘about the author’ at the end.” This does not work. It’s nice of James to ask: many people would just do it without asking, reasoning that I must want more “exposure,” but I’m not interested in my content being used to fluff someone else’s blog, so the answer was no.
Of course since he was nice enough to ask, I also offered James some free advice, from someone who didn’t just discover blogging:
Who is advising you on this “cross-pollinating” thing? Because the way to do it is not to reprint other people’s stuff. It’s to join the conversation. Comment on other people’s blogs, disagree with them, write your own blog posts with links to their stuff.
This is work.
I think James wants this to be effortless—republish someone else’s posts, add a little “about the author” to the end, and boom: instant blog! The barriers to entry are low, but blogging isn’t effortless. Nothing worth doing ever is.
James didn’t much like that answer:
I have to say I’m a little surprised by this angry response, as the goal of my blog is to get important information out there, whomever writes it, with attribution, so that the public sees the reality of justice in America, and that’s why I proposed an about-the-author postscript. I’d like to think that it’s just that you’re having a bad day, so I won’t take the acrimonious tone personally.
Don’t lose any sleep over it.
Why is it that when you tell people the truths they don’t want to hear, you are “angry” and “acrimonious”?
The problem is that if James is filling his blog with other people’s work, nobody is going to link to it and nobody is going to read it. If he really wanted to “get important information out there,” rather than “fill a webpage with keywordy goodness” he would follow my advice and join the discussion. Scott Greenfield has written about this more than once. Gideon lamented, Slowly but surely, the blawgoshpere [sic] is moving away from actual conversation and closer to pure marketing, but that was five years ago.
We can explain it to you, but we can’t understand it for you.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (126.96.36.199) .)
No, I do not accept guest posts from strangers. Robb is a special exception. He and I have a deal: neither of us goes to jail for contempt alone. Since he’s likely some day to be my celly, I try to keep him happy. ↩
In Williams v. State, the First Court of Appeals today upheld the 184th District Court’s denial of a mistrial, after sustaining the defense’s objection to the following argument by prosecutor Justin Keiter:
What did the defendant have access to before trial? He’s had years to craft a story. As we said in voir dire, we have an open file policy. They have access to copies of police reports, statements, and photos. They can build a whole defense that fits everything that we have. That’s just how the game is. It doesn’t mean they get credit for it or you believe it.
It’s a foul argument, striking at the defendant over the shoulders of defense counsel.
Here’s a taste of what Justice Terry Jennings had to say in his dissent:
Here we go yet again—an appellate court admonishes attorneys not to engage in improper jury arguments, but the court itself actually glosses over the egregious nature of the complained-of argument and the actual harm caused by such arguments, not only to those accused of criminal offenses, but to the very administration of justice in Texas. Indeed, the majority’s opinion in this case will actually encourage such improper behavior and ensure that it continues. Accordingly, I respectfully dissent.
The Texas Court of Criminal Appeals has long “maintain[ed] a special concern for final arguments that result in uninvited and unsubstantiated accusation of improper conduct directed at a defendant’s attorney” and emphasized that, “[i]n its most egregious form, this kind of argument … involve[s] accusations of manufactured evidence.” Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998) (emphasis added). Here, however, the majority asserts that just such an argument is “not so egregious” and “not severe.”
The majority errs in concluding that the trial court did not err in denying the motion of appellant, Troy Williams, II, for a mistrial. Appellant made his motion in response to the State’s argument to the jury that his trial counsel abused the State’s open file policy with the intent to access the State’s evidence and then, in collaboration with appellant, fabricate a “whole defense” to fit the State’s evidence in the name of winning a “game.”
* * * * *
In sustaining appellant’s objection to the prosecutor’s improper argument, the trial court correctly concluded that the prosecutor’s accusations that appellant’s trial counsel had abused the State’s open file policy to access evidence and, in collaboration with appellant, fabricate a “whole defense” to “fit” the State’s evidence in the name of winning a “game,” were improper. The majority agrees, and it even recognizes that “arguments attacking defense counsel are improper because they unfairly inflame the jury against the accused.” Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999) (emphasis added).
Regardless, the majority goes on to mischaracterize the State’s uninvited and unsupported accusations as “not so egregious” and “not severe.” It further erroneously concludes, thus, that the harm from the prosecutor’s accusations was curable by the trial court’s cursory instruction to disregard. This stands in stark contrast to the well-established law as recognized by the court of criminal appeals, which has clearly explained that, in their most “egregious form,” accusations of improper conduct directed at a defendant’s attorney “involve accusations of manufactured evidence.” Mosley, 983 S.W.2d at 258.
* * * * *
According to the majority, the prosecutor’s accusations about the involvement of appellant’s trial counsel in the fabrication of a “whole defense,” based on abuse of the State’s open file policy, were not “so egregious” and “not severe” because the State, in part of its argument, referred to the defendant individually.
The majority’s logic is not only invalid in that its conclusion does not at all follow from its stated premise, it is also unsound because its premise is false: the simple fact is that the only way that appellant himself could have had any access to the State’s open file was through its availability to appellant’s trial counsel. No matter how the majority parses the complained-of accusations, the State, in no uncertain terms, accused appellant’s trial counsel of abusing the State’s open file policy with the intent to access the State’s evidence and then, in collaboration with appellant, fabricate a “whole defense” to “fit” the State’s evidence in the name of winning a “game.”
It must be emphasized that the State has not, in either its briefing or oral argument, argued to this Court that the prosecutor below did not mean anything other than what he actually accused appellant’s trial counsel of doing.…
* * * * *
The State’s uninvited and unsubstantiated accusations against appellant’s trial counsel prejudiced appellant as a direct attack on his counsel’s integrity.…
[T]he prosecutor’s misconduct, in implying that appellant’s trial counsel had abused the State’s open file policy and collaborated with the defendant to “build a whole defense” to “fit” the State’s evidence to win a “game” was especially egregious.… It strains credulity to say otherwise, especially given that we, as an appellate court, are supposed to have a “special concern” about such unsubstantiated accusations against defense counsel. See id.
[T]he trial court’s cursory instruction to disregard the State’s accusations against appellant’s trial counsel could have little or no efficacy in light of the egregious nature of the accusations, i.e., asserting that appellant’s trial counsel actually worked with appellant to abuse the State’s open file policy and worked with him to manufacture a defense, treating the trial process as a mere “game” to be won. The trial court’s boiler-plate instruction to the jury that “what the lawyer says is not evidence …” is equally unavailing. Here, the State did not merely attack the credibility of appellant as a witness based on the evidence. In making its unfounded accusations about the involvement of appellant’s trial counsel in a criminal act, the State gutted counsel’s credibility in front of the jury and essentially deprived appellant of an effective advocate. Thus, any “curative instructions [were] not likely to prevent the jury from being unfairly prejudiced against the defendant.” See Archie, 340 S.W.3d at 739.
* * * * *
Given the severity of the State’s misconduct, the cursory and ineffective curative measures of the trial court, and the absence of any certainty of conviction, the trial court erred in not granting appellant’s motion for a mistrial.Conclusion
I would hold that the improper and inflammatory jury argument made by the State was incurable and, thus, that it probably caused the rendition of an improper judgment. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (stating that mistrial is “the only suitable remedy” when instruction to disregard objectionable occurrence could not “have had the desired effect, which is to enable the continuation of the trial by an impartial jury”). I would further hold that the trial court abused its discretion in denying appellant’s motion for new trial. Accordingly, I would sustain appellant’s third issue, reverse the judgment of the trial court, and remand the case for a new trial free from the State’s improper argument.
The majority’s decision to the contrary is in serious error and should be corrected by a higher court. See TEX. GOV’T CODE ANN. §22.001(a)(6) (Vernon 2004). Unless corrected, the majority’s opinion will actually encourage more such improper arguments, “for what is permitted is considered proper.” Roger D. Townsend, Improper Jury Argument and Professionalism: Rethinking Standard Fire v. Reese, 67 TEX. B.J. 448, 454 (2004). If appellate courts are inclined to find such improper and inflammatory jury arguments to be curable, why not “take the gloves off,” engage in such inflammatory displays, and bias and prejudice the jury against your opponent? See id. at 452. Importantly, although such “improper arguments work,” they take a great toll on the public’s perceptions of lawyers and our jury trial system. Id. at 453.
* * * * *
As noted by Townsend,
“When [judges] abdicate [their] duty, professionalism suffers even more than when a lawyer makes an improper argument, for what is permitted is considered proper by the jury. All judges who do not stop improper arguments—and all trial lawyers who make improper arguments—have no business lamenting the public’s low perception of lawyers. They need only look in the mirror.”
Id. (emphasis added).
Terry Jennings Justice
Harris County District Attorney Devon Anderson must be very proud of Justin Keiter right now.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (188.8.131.52) .)