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In Which New Vistas Open Up

Mark's Blog: Defending People - Wed, 11/19/2014 - 21:39

It started with criminal First Amendment litigation. I fought for five years against a speech-restricting penal statute, learning the law along the way and finally punching a hole in the dam last year, freeing a lifetime’s worth of people who had already given up hope.

Naturally, I went on the hunt for other statutes to kill. My friend and fellow TLC alumnus Don Flanary of San Antonio beat me to the improper-photography statute, but he only killed (in Ex Parte Thompson) the part dealing with photography in a public place, leaving the part dealing with photography in a restroom or dressing room, as well as the parts dealing with publication of images. I’ve got challenges pending to those, as well as to the fraudulent-use-of-identifying-information statute, the online-impersonation statute, and some others.

In the course of working on these cases—and pointing out on this blog how many ways proponents of penal revenge-porn statutes get constitutional law wrong—I realized how little most lawyers actually know about free speech. I also got sued for hurting Joseph Rakofsky’s feelings, and had to pay Marc Randazza gobs of money to kick Rakofsky’s ass across the courtroom. It could probably have been done cheaper, but if it’s worth doing it’s worth overdoing, and Randazza provides entertainment value that I’m happy to pay for. Further, I had a friend file an ill-advised suit against someone for statements that were absolutely privileged, and I pulled his bacon from the fire.

Then Randazza had a client who had been sued by a Houston lawyer for hurting his feelings, and had had a default judgment entered against him, in Harris County. I’d done a good job of avoiding civil court since about my second year of practice, but I can read the rules and write a brief (a lawyer in the Piney Woods once called me “slick big city lawyer who uses the rules to his advantage”), so I signed on to carry Randazza’s bag and do the Texas Rules of Civil Procedure stuff. We got the default judgment undone, and Randazza got the case dismissed. A codefendant in that case hired me to carry his lawyer’s bag as well, and we were able to get the same result for them.

For most people, being sued is a big deal. Censorious asshats know that, and will threaten to drag people into court, or actually sue them, for hurting their feelings. Defending the First Amendment in civil court is little different than defending it in criminal court. Different rules and less money, is all.

So when the editor-in-chief of a Vietnamese newspaper reached out to me after being sued for libel by Al Hoang, a former Houston City Council member and sometime Republican candidate for the Texas Legislature because the newspaper called him a communist, I didn’t hesitate to sign on. I filed an anti-SLAPP motion, briefed it up, had a hearing last Friday, and this morning got this:

Dismissal Order in Al Hoang v. Thoi Bao

The only thing that I didn’t get was sanctions. The plaintiff, Al Hoang, a lawyer, had sued people at least four times before for hurting his feelings, but none of those cases had been dismissed under the anti-SLAPP statute, so the judge in my case didn’t sanction him. You can bet that he’ll try again, and you can bet that next time he’ll get whacked even harder.

That was fun, so I’m going to do more of it. I’ve always prided myself on doing one thing—criminal defense—really well. After almost twenty years of practice, though, there’s room in my practice to be really good at two things, and maybe in another couple of decades I’ll add another practice area and be really good at three.

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 (173.255.254.15) .)

In Which Texas Sex-Assault Law is Bizarre

Mark's Blog: Defending People - Wed, 11/05/2014 - 18:27

Texas Penal Code Section 22.011, Sexual Assault:

(a) A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor…

(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Texas Penal Code Section 25.01, Bigamy:

(a) An individual commits an offense if:

(1) he is legally married and he:

(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or

(B) lives with a person other than his spouse in this state under the appearance of being married; or

(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or

(B) lives with that person in this state under the appearance of being married.

So if you’re single and you rape a single person, it’s a second-degree (2–20) felony.

If you’re single and you rape a married person of the opposite sex, it’s a first-degree (5–life) felony.

If you’re married and you rape your spouse it’s a second-degree felony.

If you’re married and you rape a person of the opposite sex who is not your spouse it’s a first-degree felony.

If you rape a person of the same sex it’s a second-degree felony because you couldn’t marry him regardless of your prior marriage.

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 (74.125.19.147) .)

In Which Some Lawyers Are Suckers at Best

Mark's Blog: Defending People - Wed, 11/05/2014 - 17:37

Dear _,

We are pleased to officially inform you that you have been chosen to receive this year’s prestigious TOP 10 Attorney Award for the state of Texas. Through a multi-phase selection process, the National Academy of Criminal Defense Attorneys (NACDA) has chosen you to receive our organization’s highest honor because of the hard work and dedication you have shown in protecting the rights of the accused.

The letter, signed by “Kelly D. Kerr, Executive Director,”1 was sent to a friend of mine by the “National Academy of Criminal Defense Attorneys, Inc.”, with a mailing address of 1629 K Street NW, Suite 300, Washington DC 20006 and a phone number of (202) 827-9985.

Googling that phone number turns up:

  • National Academy of Criminal Defense Attorneys, Inc.;
  • National Academy of Family Law Attorneys, Inc.;
  • National Academy of DUI Attorneys, Inc.;
  • National Academy of Personal Injury Attorneys, Inc.; and even
  • National Academy for Dental Professionals, Inc.

A little poking reveals that the registered agent for these five Oklahoma corporations, and for National Academy of Bankruptcy Attorneys, Inc., is either lawyer Ken D. Kerr, Jr. (DUI)2 or Shannon Rich (all the rest), both of Oklahoma City. These folks have come up with a way to extract money from pathetic lawyers desperate for validation.

The price for a Top 10 Attorney Award for the state of Texas is $350—it’s gone up since Matt Brown was chosen in Arizona last year.3 And speaking of bloggers, Murray Newman is listed by this Oklahoma corporation as one of the Top 10 Criminal Defense Attorneys in Texas! Congratulations, Murray.

You’ll notice that the National Academy of Criminal Defense Attorneys, Inc. website only shows ten lawyers in Texas; I wonder what they’ll do if more than ten suckers send in their checks—perhaps break the states with more than ten top ten lawyers down into areas, as “The National Trial Lawyers” of Dothan, Alabama has done, and break down the “Naitonal” “Top 100 Trial Lawyers” by state, practice type (civil? criminal?) and even part of the state (North New Jersey? South New Jersey?). If the 40% price increase over the last year is any indication, Rich and Kerr will keep raising their rates until exactly ten lawyers are willing to pay.

I said “suckers” because paying $350 or even $250 for a fake honor (most of the lawyers on the top-10 list are smart enough to know that they’re not among the top 10 criminal-defense lawyers in Texas) is a sucker play.

It’s a sucker play unless you take advantage of it—knowing that you’re not legitimately among the top 10 criminal-defense lawyers in Texas, you pay the $250 or $350 and then advertise the fake honor. Paying $250 for the right to use the keywords “top 10,” when you know they don’t really apply? That’s something else entirely.

On his website trumpeting his selection, my friend Neal Davis4 parrots NACDA:

The National Academy of Criminal Defense Attorneys uses a thorough selection process to determine the top criminal defense attorneys in each state. With thousands of attorneys in each state, the NACDA’s rigorous, independent selection process resolves the challenge of attorneys claiming to be “the best” without basis for such claims.

Look at this list, Neal, and tell me that’s not a lie.

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 (99.74.196.151) .)
  1. Kelly’s signature does not look practiced. I wonder whether it is fake. 

  2. Ken D. Kerr? Kelly D. Kerr? What a coincidence! 

  3. Matt’s letter was signed by Shannon Rich. 

  4. I pick on Neal, rather than Carmen, Grant, Murray, or Todd, because he is trumpeting this horseshit. 

In Which We Look at Plea Numbers

Mark's Blog: Defending People - Mon, 11/03/2014 - 18:02

In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.

While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.

Jed S. Rakoff, Why Innocent People Plead Guilty.

What do the numbers look like in Harris County? From November 2013 to October 2014 there were 31,076 felony cases disposed of (excluding probation-revocation cases) in the county.1 Of those, 5,501 were dismissed. Of the 25,575 undismissed felony cases, 25,205 (98.6%) were resolved with guilty pleas (which might have included plea bargains or might have been “open” pleas with no agreed punishment).

But Rakoff’s chosen statistic—percent of undismissed cases that are tried—doesn’t tell the whole story. Of the 5,871 (18.9%) of cases that didn’t end in guilty pleas in Harris County, 5,582 (95.1% of non-pleas, 18% of all dispositions) were wins for the defense—mostly dismissals,2 but 81 acquittals.

Rakoff implicitly writes off those dismissed cases as inconsequential. They are not. There are 22 courts trying felonies in Harris County. If each of them tried a case to a jury a week with two weeks off a year they could try 1,100 cases. This is a theoretical maximum—that trial pace would crush most judges. If 5,871 defendants refuse to plead guilty in a year, at least 4,771 of their cases will be dismissed because of sheer numbers.

When occasionally some naive young lawyer proposes that the defense bar shut down the system, he doesn’t realize that we are already doing it; as long as at least 1,100 people are refusing to plead guilty, each additional defendant who doesn’t plead forces the State to dismiss someone’s case. It might not be that defendant’s case, but something has to give.

Almost every case I’ve ever had dismissed was dismissed after my client rejected a plea offer and I had prepared for trial. Many of them were dismissed on the eve of trial, or with a jury in the hall. The 5,501 dismissals in Harris County were not “because of a mistake in law or fact or because the defendant had decided to cooperate,” as Rakoff describes dismissals in federal court. Sure, in a few of them the State had decided that they had gotten it wrong—charged the wrong guy, or the right guy with the wrong thing—but most of those cases were dismissed because the defendant refused to plead guilty and the State decided that its time would be better spent elsewhere.

Rakoff’s experience is in federal court, where small numbers of cases are dismissed, and where the sentencing guidelines, by rewarding early guilty pleas, discourage defense brinkmanship and encourage government brinkmanship. It’s easy and convenient to write off those few dismissals as prosecutors doing what the law or facts require, or rewarding cooperators. Closer to earth, where most criminal prosecutions actually take place,3 the dynamic can be quite different. Not that the federal system doesn’t need reform to remove the concentration of power from the hands of petty functionaries, but the picture drawn in federal court does not represent the rest of the country. The dynamic is different in Harris County, at least.

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 (173.255.254.15) .)
  1. Numbers are from the Office of Court Administration

  2. Though some of those dismissals don’t count for much, since they were consideration for pleas to other charges. 

  3. In 2012 the Department of Justice filed charges against 85,621 defendants nationwide—fewer than were filed in L.A. County and Harris County combined 

In Which Cultures Clash

Mark's Blog: Defending People - Fri, 10/31/2014 - 21:23

I recently had a discussion with a lawyer from another culture. One of my clients is a potential witness in one of his cases, and my client got tired of hearing from him. So I sent the lawyer a brief email asking that he not contact my client anymore. I said “please” and “thank you,” but otherwise didn’t mitigate my speech. Because the rule is very simple:

in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(Texas Disciplinary Rule of Professional Conduct 4.02). I’ve been on both sides of the situation many times, and there’s never been any drama: you might push the bounds in dealing with someone whom you don’t know to be represented regarding that subject, but if another lawyer asks you not to talk to his client about the subject of his representation, you just don’t. It’s a matter not only of the law (the rule), but also of respect for the lawyer-client relationship.

The lawyer got upset that I had asked him not to speak to my client. He told me that my client was his witness, that he didn’t care about the rule, and that he would talk to my client if he wanted to. I think he wanted to fight me over it. His culture, you see, is a culture of honor, and apparently I had inadvertently ((I do try not to offend people inadvertently.)) offended him by asking him not to talk to my client.

If I were so assiduously looking for opportunities to take offense, I’m sure I would find it everywhere. I can’t imagine that would be much fun; it might make personal relationships difficult to maintain. And if the people who I perceived as having slighted me rejected and even laughed at1 the idea of letting me fight them to restore my honor, I’m sure that it would be very frustrating. I might even lash out, which in a culture of law could land me in jail and jeopardize my license.

So I don’t know how it works out, being a culture-of-honor lawyer in a big-city criminal courthouse. I suspect that long-term results are mixed at best.

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 (74.125.176.148) .)
  1. While I reject this guy’s invitations to fight, I’m not laughing at them—I take violence, including the threat of violence, very seriously. 

RIP Brad Frye

Mark's Blog: Defending People - Fri, 10/31/2014 - 14:31

I just learned that Houston criminal-defense lawyer (and frequent Defending People commenter) Charles B. “Brad” Frye died about an hour ago of COPD.

RIP, Brad. Take care of yourselves, everyone else.

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 (65.19.138.34) .)

In Which We Find the Game

Mark's Blog: Defending People - Wed, 10/29/2014 - 20:23

I often say that criminal-defense trial practice is about playing “what’s really going on here?” At every phase of a trial case, we are dealing with people who aren’t telling us the whole truth, because they don’t know it, don’t know its importance, don’t want to tell it, or don’t want us to know it. The facts are usually, at first glance, bad for us (else the client wouldn’t be a client), but there is always more to the story than the facts reveal at first glance. So the criminal-defense trial lawyer’s job is to figure out what’s really going on, the interesting twist, which is probably not explicitly stated, and to turn that truth to the client’s advantage.

In improv class we’re working on finding “the game of the scene,” the interesting twist, which is probably not explicitly stated and…hey, that’s “what’s really going on here?”!

On an assault case recently a prosecutor described the disputed issue like this: “she says she pulled the gun on him because he was assaulting her; he says he was defending himself because she pulled the gun; that’s the game.” I might not agree with him that that is the game, but I agree with him that there is a(t least one) game.

Without a game there is no 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 (173.255.254.15) .)

In Which the News is Good

Mark's Blog: Defending People - Mon, 10/27/2014 - 08:35

Dallas’s index Ebola Zaire patient, Thomas Duncan, was at home for four days while he was symptomatic with Ebola. His family were not infected with the virus.

While Duncan infected two nurses at the hospital during his final days (when he was leaking blood from every available orifice) he didn’t infect the people who lived with him when he was very sick—sick enough to have gone to the hospital and been sent away.

One of the commenters on my last Ebola post pointed out that Ebola has a very low basic reproduction number, R0, of about two. R0 is not an inherent characteristic of a virus, but depends on the environment. The R0 for Ebola Zaire has been calculated as 2.7 in some outbreaks, but 2.0 in this one in Africa. As long as R0 is greater than one, the disease will continue spreading. If R0 were intrinsic, Ebola Zaire would continue spreading until eventually everyone got sick. Fortunately, R0 will be lower in a more developed nation than in the Third World.

Given that neither of the people whom we know Duncan to have infected appears to have infected anyone else, R0 for Ebola Zaire in Dallas in 2014 is something less than one (2/3?).

What about the scary transmission through the air? The good thing about that is that Ebola doesn’t make you cough or sneeze. So while an infected person can, contrary to the government’s assertions, transmit the virus through the air, it’s not a mode of transmission of which the virus has evolved to take advantage (contrast a cold or flu virus, which spreads by making you expel virus-laden particles at high velocity through your mouth and nose).

So I’m downgrading my concern about Ebola in the U.S. from “do something now” to “play Whac-A-Mole as cases appear.”

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In Which Math is Still Hard

Mark's Blog: Defending People - Sat, 10/18/2014 - 15:57

I’ve written here several times, under the category “math is hard,” about Americans’ innumeracy with regard to risk and danger. I have a theory:

  • Americans overestimate the danger (risk times harm) of things that they are willing to do something about (terrorism!), and underestimate the danger of things that they are not willing to do something about (obesity!).
  • The government, meanwhile, has an interest in overstating the danger of things that it is profitable for corporations to do something about (terrorism!) and understating the danger of things that it is unprofitable for corporations to do something about (obesity!).

There are 8,000+—about 2^13—Ebola Zaire cases; that number is doubling monthly. There are 2^33 people on earth, give or take. That’s 33 months from one case to everybody being infected, at the current rate. We’ve used up thirteen of those months; we have twenty months left. Of course the current rate of infection can’t be sustained—the virus might not spread as fast in more affluent countries with their indoor plumbing and their medical care,1 and at some point the population becomes sparse enough that the survivors aren’t hanging out with each other much anymore.

It can spread like the common cold flu, it doubles every month, and it kills 70% of the people it infects.2 How do you stop this world-changing bug?

If you don’t already have an off-the-shelf solution (and we don’t—see fn1), it seems obvious that you buy some time by slowing it down. You quarantine everyone who wants to enter the U.S. after having been in the most-infected countries in the last thirty days.3

But there’s not much money for the corporations in a quarantine, so the government plays down the danger posed by Ebola. And the Americans who are willing to do something about it (quarantine!) overestimate the danger  while the Americans who aren’t willing to do it (it wouldn’t work!) underestimate it.

The raw numbers—doubling every 20-30 days; 70% mortality—seem pretty compelling to me. Do I overestimate the danger? It’s possible, but if Ebola cases double in eleven days in a hospital in Dallas, I think it’s reasonable to be extremely concerned about what’s going to happen when it hits the Harris County Jail, and to look to the government to at least try to delay that catastrophe.

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 (184.73.49.84) .)
  1. Or it might:

    • 9/24: Duncan symptomatic.
    • 9/25: Duncan goes to hospital. Is sent home.
    • 9/28: Duncan returns to hospital via ambulance.
    • 9/30: Officials confirm that Duncan tested positive for Ebola.
    • 10/8: Duncan dies.
    • 10/11: Pham tests positive for Ebola.
    • 10/15: Vinson tests positive for Ebola.

    So the first known Ebola case was known in Dallas on September 28th. Seventeen days later, there were three known cases. That’s equivalent to doubling every ten or eleven days—in a state-of-the-art hospital in a modern city among people who knew that Duncan had Ebola, and how to avoid catching it. We should know in the next week—t+25—whether Duncan infected other people before being admitted to the hospital; we should know in three weeks whether Pham or Vinson infected anyone before testing positive. 

  2. It’s not very good at its job, which is to replicate. But it is good at killing its hosts. 

  3. This is different than the cargo-cult solution of barring flights from the most-infected countries. Airplanes don’t carry viruses, people carry viruses. 

In Which We Are Being Lied To

Mark's Blog: Defending People - Sat, 10/18/2014 - 13:37

[via The White House.]

I’ll take the last point—which may be literally true—first: “Ebola is not spread through casual contact with someone who has no symptoms of the disease.” Per the CDC, “Initial signs and symptoms are nonspecific and may include fever, chills, myalgias, and malaise. … The most common signs and symptoms reported from West Africa during the current outbreak from symptom-onset to the time the case was detected include: fever (87%), fatigue (76%), vomiting (68%), diarrhea (66%), and loss of appetite (65%).” So as long as everyone you have casual contact with does not have a fever, feel chilled, have muscle aches, have diarrhea or vomiting, or feel worn out or not hungry, you’re probably okay. But those symptoms are nonspecific, which means that people who don’t obviously have Ebola (have you ever had fever, fatigue, vomiting, diarrhea, and loss of appetite without having Ebola Zaire?) may be infectious.

“Ebola is not spread through casual contact with someone who has no symptoms of the disease” is cold comfort. Ebola Z is spread through bodily fluids “including but not limited to urine, saliva, sweat, feces, vomit, breast milk, and semen.” Ever have involuntary contact with a stranger’s saliva (cough, cough)? Sweat (don’t touch that doorknob)? Other bodily fluids (achoo)?

Sneezing and coughing bring us to the White House Lie, which I call the Droplet Deception: “Ebola is not spread through air.”

The medical consensus, it appears, is that Ebola cannot be transmitted via an airborne route. But what doctors mean by “airborne” is not what most Americans mean by “airborne.”

If you are standing three feet from me, and I’m sick with a virus, and I sneeze, and you become infected by the virus by inhaling or otherwise touching microscopic droplets from that sneeze, is the virus airborne? Most people would say “yes.”

Doctors would say, “not necessarily.” There’s an explanation here: experts distinguish between “droplets” and “an airborne route.” Ebola Z cannot, it appears, be transmitted through the latter (involving droplet nuclei that have a very high surface-area-to-mass ratio and so can remain suspended in air currents indefinitely), but can certainly be transmitted through the former—droplets travelling through the air.

When you use a word in an unusual way, knowing that your audience doesn’t understand it the same way, it’s deceptive. “Ebola Z is not spread by an airborne route” is literally true (a doctor might say) but it is nevertheless deceptive to the general public.

“Ebola Z is not spread through the air,” however, is a flat-out lie. It is not in any sense—literal, metaphorical, or other—true.

Ebola Z is spread through the air like some viruses we know well—the common cold, for example. What does the White House think the American people would do if they knew that truth?

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 (74.125.176.149) .)

In Which My Good Deed is Punished

Mark's Blog: Defending People - Thu, 10/16/2014 - 11:49

On April 5th TSU law student Amir Tavakkoli sent me this message via my website:

Your name: Amir Tavakkoli
Your E-mail Address: [redacted]
Your Phone Number: [redacted]
The defendant’s Name: Amir Tavakkoli
The defendant’s date of birth: [redacted]
The court: Texas Court of Criminal Appeals/Appeal from 9th COA
The case number: 09-13-00082-CR
Your message to Bennett & Bennett:
Dear Mr. Bennett:

I hope this email finds you well. My name is Amir Tavakkoli and I am graduating from law school in May. You may know me from my days working at the Texas Criminal Justice Coalition. I have a request.

I filed a writ of habeas corpus last year for a 2006 misdemeanor conviction that I have which is giving me immigration issues. This is the only thing on my record. When I google my name, there is a link to your cite that takes it straight to the opinion for my writ. As a lawyer, you know the importance of reputation and the use of google by perspective employers. While I know that I must disclose my misdemeanor to employer, I do not necessarily want to let everyone know about the immigration issue and hope to put it in the past. I am requesting that you remove this case from your list. The case number is 09-13-00082-CR from the Ninth Court of Appeals and discretionary review denied by TX Court of Criminal Appeals.

Thank you for your understanding.

Here‘s the page Tavakkoli was asking that I remove. It’s on a site I created to automatically republish in HTML format the opinions of Texas’s appellate courts in criminal cases.1

As a matter of principle I won’t remove a blog post unless I got the facts objectively wrong. The opinion in question is public information and always will be. It’s available directly from the court here. There are other public records—on the Ninth Court of Appeals site, on the Montgomery County Clerk’s site, on Publicdata.com, and on the Harris County District Clerk’s website2—about Tavakkoli’s criminal history. But knowing the importance of reputation, not wanting to contribute to Tavakkoli’s issues, and being a nice guy (at least until I get poked with a stick) I changed all occurrences of Tavakkoli’s name to “A.T.”

A month later Tavakkoli emailed me again:

Hi Mr Bennett

I hope this email finds you well. Sorry for the inconvenience, however, it seems that the content is still active on your site. Below is a message I receive from google when I request to remove the URL.

Analyzing URL

http://texascriminalslipopinions.bennettandbennett.com/?p=38752

The content is still live on the web.
Before Google can remove it from our search results, the site owner needs to take down or update the content.
Thank you!


Amir Tavakkoli
Research Editor, Thurgood Marshall Law Review
Vice President, Thurgood Marshall School of Law Class of 2014

I had already updated the content. I responded:

Your name is not on that page.

He replied:

Thanks!

May we please remove the whole link? Although the name does not show on the page, when my name is searched “Amir Tavakkoli Houston”, the link is still at the top and a quick reading of it shows enough identifying information, such as born and raised in Iran, that the reader would know it is me.

Thank you for your attention.

I wrote back:

In short, no. Your problem is with Google. Stop bugging me.

To which Tavakkoli responded:

If you were in my situation, what would you have done? I am in no way trying to bug you or disrespect you. Like you, I have other things to focus on as well, like preparing for the bar. A removal of the link from your site would solve this issue.

I have just graduated from law school and looking for a job, and you know that this information can be very hurtful.

You will not receive any more emails from me.

That was May 31st. I thought that was the last of it: I had done Amir Tavakkoli the entirely unnecessary favor of redacting his name, and his beef was with the search engines for continuing to index the site as though it contained his name.

In fact, if I google <Amir Tavakkoli Houston> the Texas Criminal Slip Opinions page doesn’t turn up on the first page of results. How do I know? Because I did so. Why did I do so? Because today this came in the mail:

“Other appropriate action,” “defamatory,” “file a frivolous suit,” “save us both time and headaches,” “exercise my other options,” all wrapped in a certified letter. Does that look like a censorious threat to you?

It did to me.

Now most people, threatened with time-wasting and headache-inducing litigation over online content that doesn’t matter much in the grand scheme of things,3 will just take the content down.

Even some law schools, faced with the threat of litigation over First Amendment freedom, will cave in.

Because the set of people who have the resources and will to resist such a threat is small, those who belong to that set have a duty to make their resistance public and vocal, to discourage others who might send censorious threats. See, e.g., Ruben Guerrero; Joseph Rakofsky.

If an asshat gets a private email correcting his censorious ways, maybe he learns. If his threats are made public, maybe others learn.

“Play nice,” Tavakkoli’s friends will say. And if he had merely, say, done a shitty job defending someone and then cooperated with the government in the writ case, I would be inclined to counsel him privately—I’ve learned that lesson. But censorious threats are different. The intent of such threats is to keep information out of the public eye. To respond to them privately is to accede to them. I mentor law students and young lawyers, but  a law student doesn’t get a special dispensation for trying to quash my speech, any more than a judge does. I had played nice, and I got threatened with a lawsuit. Playing nice again is not the appropriate response.

So I wrote most of this post.

But then I found that Tavakkoli had been endorsed for HCCLA student membership by TSU lawprof Lydia Johnson, so I talked with her, explaining the problem—a kindness warranted only by my fondness for Professor Johnson. I guess she talked with Amir, because he emailed me last night:

Dear Mr. Bennett:

I hope this email finds you well. I want to apologize if my previous correspondence appeared to be demanding or threatening. I did not have any intentions to make a threatening letter or to disrespect you. I was merely trying to protect my best interests the only way I knew how. Please excuse my actions.

I have made mistakes in the past and take full responsibility for them. I have been paying the consequences for my mistakes since the time they occurred (2006) and continue to do so to this day. I believe I should pay the penalty for my mistakes, but how long should a young man who has turned his life around with great goals and aspirations be punished? I have to live my life with the shame and embarrassment every day when my family and friends become aware of my misdemeanor in 2006 (commonly known as my criminal background.) I know that in the back of their minds, some people think of me as a criminal. And they think once a criminal, always a criminal. They do not look at the details of the case and the fact that it is a class B misdemeanor, or that it happened so long ago. Or the fact that I only pleaded guilty because I did not have effective counsel. All they see is the criminal record. And this is why even though I graduated in the top 5% of my class, competed nationally in advocacy competitions, served as the Vice President, stayed active in community service and volunteer programs throughout these years, and provided for my family, I am facing issues with immigration trying to get my citizenship. Because all immigration officials see is the “criminal” in me.

I understand that most of these issues are beyond your control and I have to deal with them, but you can reduce or help control the damage I inflicted on myself. I am opening a law firm in Houston soon (awaiting bar results) and the name of the law firm will be A.T. Law Firm. As a new lawyer, my reputation is everything. Like you, I too share the feelings that individuals should be given a second chance. And that sometimes there is more to the story than the “police has arrested the individual, thus, he must be a criminal.” This is why I will dedicate my life to helping individuals, like you have done for so many years. My goal is to someday reach the status of lawyers like you and Professor Johnson. I don’t know if I will be blessed enough to do so, but I know that I will give it my best shot and feel humbled that I even get a chance.

I, too, love writing and I know that removing an article or an opinion that is published under your name is not a simple task. I ask that you do so to help a colleague’s life. Professor Johnson has indicated that you are the type of seasoned lawyer who will wake up in the middle of the night to assist someone in need. I am extending an open hand and asking that you consider making an exception by removing my information from your blog. I intend to join HCCLA and learn from lawyers like you. If you can consider giving me this opportunity to start fresh, I hope to one day be able to work with you and maybe even work on a research project with you.

I apologize for my hasty response, without consulting with a seasoned lawyer on how to best resolve this matter. I would like to have an opportunity to meet you in person and apologize. Thank you for your consideration.

Sincerely,

Amir Tavakkoli, JD

I don’t think Tavakkoli understands what’s going on here. I had unequivocally taken removal of the post off the table months before, and nothing about his threat had inclined me to change my mind. To the contrary, I’m inclined to reverse my first act of kindness. If Tavakkoli isn’t smart enough to appreciate it, nobody benefits from it.

If you’re Tavakkoli or a friend of his you might think his last email a perfectly good response to the situation. You would be wrong. “I want to apologize if…” is not an apology. “I did not have any intentions to make a threatening letter…” is a lie. And Tavakkoli had more than six months to write his “hasty response.” I explained most of this to Tavakkoli, and gave him another chance, of which he didn’t avail himself.

Draw your own conclusions about the judgment exhibited by Tavakkoli in the service of his own cause, and the relevance of that judgment to his fitness to exercise judgment in the service of other people’s causes; I’ve drawn mine.

Do a good deed for someone, and get threatened with suit if you don’t go even further? There’s an easy solution to that problem: Amir Tavakkoli, snort my taint.

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  1. The courts publish their opinions in PDF format, so the site does some data extraction, which isn’t quite ready for prime time. 

  2. A driving-while-license-invalid conviction, despite Tavakkoli’s assertion that the Montgomery County possession of marijuana was “the only thing on [his] record.” 

  3. Possession of marijuana, reckless driving, driving with license suspended—all of that has little to nothing to do with one’s fitness to practice law. If Tavakkoli wanted to be a criminal-defense lawyer, he could even make a virtue of his experience as a defendant: “I pleaded guilty on bad advice. I’ll never let you do the same.” You’re welcome. 

In Which I Defend, Against Franks and Citron, Your Right to Sext

Mark's Blog: Defending People - Tue, 10/14/2014 - 15:38

In the same way that sovereign citizens and jailhouse lawyers take snippets of language from cases and quote them as gospel truth, applicable in all cases, anti-revenge-porn zealots take snippets of language from cases and quote them as gospel truth, applicable in all cases:

While Bennett has accurately described categories of speech that the Supreme Court has deemed “unprotected,” there are other types of speech that are lesser-protected. The most established example of lesser-protected speech is commercial speech.

The Supreme Court has also recognized that “speech on matters of purely private concern” receives “less stringent” protection from the First Amendment (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985)). That sounds quite a bit like the speech Citron is talking about when she says that revenge porn bans should be limited to private communications between people in a trusting relationship. And footnote 190 of Citron and Mary Anne Franks’s article, Criminalizing Revenge Porn, suggests that this is precisely the area of First Amendment doctrine Citron is referencing.

The distinction between speech of purely private concern and that of legitimate public concern has been invoked by the Supreme Court in public-employee speech cases, among them Pickering v. Board of Education; Connick v. Myers; and City of San Diego v. Roe. Public employees may speak freely on matters of public concern. Outside of matters of public concern, their speech is less protected. A governmental employer may impose on the speech of its employees restraints that would be unconstitutional if applied to the general public.

The 2004 unanimous opinion in San Diego v. Roe is instructive: John Roe was fired from his job as a San Diego cop for making pornography. The Court concluded that Officer Roe’s porn did not qualify as a matter of public concern.

Speech of purely private concern is not less protected from prosecution. I have not found a challenge to a criminal statute in which the Supreme Court invoked the distinction between speech of purely private concern and that of legitimate public concern. But if the Court did, we know from San Diego v. Roe that pornography is not a matter of public concern.

Danielle Citron and Mary Anne Franks profess support for people’s right to take erotic pictures of themselves and send them to their intimate partners. Two things put the lie to this:

  • Their eagerness to adopt Eugene Volokh’s goofy suggestion that the Court might treat revenge porn (“along with many consensual depictions of nudity”) as obscenity; and
  • Their willingness to import a “purely private concern” test into First Amendment criminal law.

If the Court treats many consensual depictions of nudity as obscenity, or if speech of purely private concern receives less-stringent protection, then the creators of erotic images will risk criminal sanction along with those who publish them without consent.

Citron’s and Franks’s argument for revenge porn being less protected as purely private speech depends on those snippets of language from as-applied challenges in tort and public-employee cases applying to as-written challenges in criminal cases. Supreme Court jurisprudence is all over the board, and there have been changes both radical and incremental in First Amendment law in the last century. A test that applies in an as-applied public-employee case or a tort case doesn’t necessarily apply in an as-written criminal case; nor should it. Nor does a test used in 1985 necessarily apply in 2014.

So how, if we can’t rely on language from 1985’s as-applied defamation case, Dun & Bradstreet, Inc. v. Greenmoss Builders, do we predict what the Supreme Court will do with a challenge to a revenge-porn statute?

We look at what the Supreme Court has done in recent years in procedurally analogous cases.

Procedurally, a challenge to a revenge-porn statute will be an as-written criminal statutory challenge. The best guide we have for how the Court will analyze a revenge-porn statute is the Court’s recent as-written-statutory-challenge cases, such as U.S. v. Stevens, 2010’s crush-film case, or U.S. v. Alvarez, 2012’s “stolen valor” case.

In both of these cases the Court applied, with no mention of strict scrutiny, the categorical test that I described in First Amendment 101; in neither of these cases did the Court even bother to discuss whether the speech (commercial depictions of animal cruelty in one; untrue claims of military service in the other) were “commercial speech,” were “matters of purely private concern,” or otherwise could evade the categorical test.

So no, speech “of purely private concern” neither receives less protection in the criminal context, nor should receive less protection than speech of legitimate public concern. Even zealots should be able to see the slippery slope we’re on if the Supreme Court signs off on their cocakmamie theories.

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First Amendment 101

Mark's Blog: Defending People - Mon, 10/06/2014 - 14:20

Danielle Citron compensates for her ignorance of First Amendment law with her certainty:

Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Slate, All States Should Outlaw Revenge Porn.

Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law:

  1. Speech is presumptively protected.
  2. Content-based restrictions on speech are presumptively void.
  3. For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:
    1. Advocacy intended, and likely, to incite imminent lawless action;
    2. Obscenity;
    3. Defamation;
    4. Speech integral to criminal conduct;
    5. So-called “fighting words”;
    6. Child pornography;
    7. Fraud;
    8. True threats; and
    9. Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

Those are the categories of speech that the Supreme Court has recognized as unprotected.1 So Citron’s assertion that “disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection” is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category

In her law review article with Mary Anne Franks Citron argues (from Supreme Court dicta and other courts’ opinions) that the Supreme Court might recognize such a category, for example, as Eugene Volokh goofily proposes, by redefining obscenity to eliminate the requirement that the material be of prurient interest, as well as the requirement that the material be utterly without redeeming social interest.2

Indeed the Court might some day recognize a category of unprotected speech that includes revenge porn.3 How the Supreme Court responds to private images may depend on how the case arrives at the Supreme Court. I can see the court treating the disclosure of consensually made images differently than the nonconsensual making of images. But we’re a long way from there, and while Citron’s certainty may affect the lawmakers whom she is trying to convince to pass revenge porn statutes, it won’t convince the courts that will be hearing the inevitable challenges to those statutes. Those courts are bound by Supreme Court precedent, which contra Citron, does not put revenge porn into any unprotected category.
(See also Scott Greenfield.)

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  1. In fact they are redundant—child pornography is unprotected because it is speech integral to criminal conduct. 

  2. Citron and Franks cite Volokh’s proposal approvingly even though Volokh notes that his notion of obscenity would render unprotected “many consensual depictions of nudity.” They would cut down every tree in England…. 

  3. And perhaps it should. But it’s hard for this First Amendment lawyer to see how an exception could be crafted to exclude from protection revenge porn but not exclude socially desirable communications, such as Volokh’s consensual depictions of nudity. 

Robert S. Bennett (Absolutely No Relation)

Mark's Blog: Defending People - Fri, 09/05/2014 - 13:36

I’ve written about Robert S. Bennett from time to time, and I’m not impressed by him. But neither was I impressed with the State Bar’s effort to disbar him, which effort succeeded in March. Robert S. Bennett was barred:

from practicing law in Texas, holding himself out as an attorney at law, performing any legal services for others, accepting any fee directly or indirectly for legal services, appearing as counsel or in any representative capacity in any proceeding in any Texas court or before any administrative body or holding himself out to others or using his name, in any manner, in conjunction with the words ‘attorney at law,’ ‘attorney,’ ‘counselor at law,’ or ‘lawyer,'”

So what’s Robert S. Bennett doing now? He’s “President” of “Bob Bennett Licensing Services.” In his LinkedIn page he categorizes the company as “legal services” (which would violate the court’s order):

Robert S. Bennett’s LinkedIn Header 9/5/14

In the description of “Bob Bennett Licensing Services for Professionals,” Bennett writes:

Mr. Bennett is the owner of Bob Bennett Licensing Services for Professionals. The licensing counselors in this licensing service are especially proficient in cases involving, matters before the Office of Chief Disciplinary Counsel, the Texas Medical Board, the State Board of Law Examiners, and other Boards involving professionals and DTPA violations, ethics defense, and white-collar criminal defense involving licensing issues.

The Bob Bennett Licensing Services for Professionals concentrates on representing attorneys, doctors, judges, and other professionals who have professional licensing issues and find themselves the subject of federal and state investigations. This includes representation of both law students and medical students who have run afoul of the Texas Board of Law Examiners or Texas Medical Board. Medical students and doctors who have issues with the United States Medical Licensing Examination, the National Board of Medical Examiners, or the Federation of State Medical Boards have retained Bennett Licensing. Whether the matter involves a grievance hearing before the Texas Office of Chief Disciplinary Counsel or a privilege hearing before a hospital committee, this Texas Licesning entity is known for aggressive representation and success. See client reviews and peer recommendations: www.avvo.com.

Specialties: Representing law students and lawyers with licensing issues before the Board of law Examiners or cases with the Office of Chief Disciplinary Counsel or before the Texas Board of Medicine or other professional boards that license professionals.

This sounds a lot like practicing law to me (which, as well as being a crime, would violate the court’s order). “Representing law students and lawyers with licensing issues before the Board of law Examiners” is certainly “appearing … in any representative capacity in any proceeding … before any administrative body,” which is interdicted by the order of disbarment.

Here’s what RSB’s website for Bob Bennett Licensing Services says in its small-print “DISCLAIMER AND NOTICER [sic] REGARDING MR. BENNETT’S LEGAL BACKGROUND”:

While in law school, Mr. Bennett served as an intern in the Harris County District Attorney’s Office and the United States Attorney’s office.  Upon graduation, both law enforcement agencies offered  him positions. He was a licensed attorney, former Assistant United States Attorney and was Board Certified. At the present time he  is not a licensed attorney. His history of representing and working on licensing issues goes back to 1974 when he was hired  by the Interstate Commerce Commission as an enforcement attorney to review licenses and permits in the transportation industry. As you can tell from his avvo.com site, 165 former clients have used his services and over 41 attorneys have provided peer reviews of his licensing work. Since he is presently not a licensed attorney, he cannot provide legal advice but having worked nearly forty years with every imaginable professional license, he can  advise you about any business decisions concerning your license issue  and  if your fact situation is one that  you should have an attorney assist you or not. It may be that you license  concern or do to the  simplicity of the licensing  issue, your licensing issue  can be handled without hiring an attorney. Every licensing issue does not require the assistance of an attorney, but if you decide it does, Mr. Bennett is extremely well qualified to help you with your business decision ( at a price that is not lawyerly!) and provide recommendations as to the best attorney to handle your case. .  An example of this decision process may be helpful. Staff members with the  Texas Board of Law Examiners as a matter of course would tell applicants they did not need to hire an attorney. In some instances that was correct and in others it was disastrous. With years of experience with business decisions about your application or license, Mr. Bennett may be able to save you thousands of dollars, and the first phone call is free.

What he describes on LinkedIn as “legal services” here becomes “help[ing] you with your business decision.” By calling them “business decisions,” I imagine that he thinks he’s shielding himself from a) contempt charges; b) an unauthorized-practice-of-law suit; and c) another grievance (should he get his license back) for UPL.

Protip: whether it is practicing law or not does not depend on what you call it. According to Section 81.101(a) of the Texas Government Code,

In this chapter the “practice of law” means … a service rendered out of court, including the giving of advice … requiring the use of legal skill or knowledge….

Advising people on “handling licensing issues” is giving legal advice. “You’d better talk to a lawyer” might not be legal advice, but “you don’t need a lawyer” damn sure is. Making “business decisions” of this sort requires legal skill and knowledge.

In fact, the experience that Robert S. Bennett describes to explain his qualifications is all legal experience: law school, prosecutor intern, licensed attorney, AUSA, board certified, enforcement attorney, etc. If you eliminated his legal experience, there would be no experience left:

At the present time he  is not a licensed attorney. Since he is presently not a licensed attorney, he cannot provide legal advice but he can  advise you about any business decisions concerning your license issue  and  if your fact situation is one that  you should have an attorney assist you or not. It may be that you license concern or do to the  simplicity of the licensing  issue, your licensing issue can be handled without hiring an attorney. Every licensing issue does not require the assistance of an attorney, but if you decide it does, Mr. Bennett is extremely well qualified to help you with your business decision (at a price that is not lawyerly!) and provide recommendations as to the best attorney to handle your case. An example of this decision process may be helpful. Staff members with the  Texas Board of Law Examiners as a matter of course would tell applicants they did not need to hire an attorney. In some instances that was correct and in others it was disastrous. Mr. Bennett may be able to save you thousands of dollars, and the first phone call is free.

There is a sucker for every charlatan, but I have to wonder: if a law student has such horrible judgment that he would pay a disbarred lawyer for advice on how to get licensed, shouldn’t that law student be, ipso facto, barred from practicing law?

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¡Justice, Sí, Safety, No!

Mark's Blog: Defending People - Thu, 09/04/2014 - 22:14

 

Harris County District Judge Katherine Cabaniss’s email pleading for votes in the popularity contest that is the Houston Bar Association’s Judicial Preference Poll (via Robb Fickman, who I hope will have something to say about it when he’s out of trial) is right across the SWRVs’1 home plate:

Dear Fellow HBA Member,

The Houston Bar Association’s Judicial Preference Poll will be released on Monday, September 8. I am asking for your vote.

In the HBA poll released earlier this year, I was voted either “Well Qualified” or “Qualified” by almost 87% of respondents.

I was a prosecutor for more than 11 years in Houston. I also served as Crime Stopper’s Executive Director for 6 years. Since being appointed by Governor Perry in 2013, I have worked to see that justice is done in every single case, every single day, in my courtroom.

It is the election season, and I need your help to keep Harris County safe.

Please take a moment to complete the HBA poll before the deadline, September 29. I would be honored to receive your vote. Additionally, please let a friend know about the poll, and ask them to vote as well.

Thank you for your time and consideration.

Katherine Cabaniss
Judge, 248th Criminal District Court
www.judgecabaniss.com

pd pol ad • Katherine Cabaniss Campaign
www.judgecabaniss.com

A judge’s job is not to “keep Harris County safe.” The safer we are, the less free we are, and vice versa. The prosecution’s job is to keep us safe, the defense’s job is to keep us free, and the judge’s job is to call the balls and strikes. A felony judge promising to “keep Harris County safe” is dangerously close to violating Canon 5(1) of the Texas Code of Judicial Conduct:

A judge or judicial candidate shall not make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge….

A judge’s job is to protect everyone from the fears and prejudices of the majority. Unfortunately, judicial elections buy us judges who pander to those fears and prejudices. And as long as more Republicans vote than Democrats, the SWRVs—right-wing authoritarians to a man—will dominate and those fears and prejudices will be those of the meanest and most frightened among us.

(This should not be read as an endorsement of Cabaniss’s opponent, for it is certainly not.)

 

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  1. Scared White Republican Voters’. 

Free to Be Stupid

Mark's Blog: Defending People - Sun, 08/31/2014 - 11:06

You think it’s insane that Arizona allows a 9-year-old to shoot at a firing range? ABC News reports that one in Texas allows them to do so at age 6.

-Leonard Pitts, Jr.

So we make the leap from dumbass puts fully automatic pistol in hands of little girl, winds up dead to it is insane to allow children to shoot at shooting ranges

A well-run shooting range is one of the safest places in America. The rules, which when followed provide no opportunity for firearms accidents, are strictly enforced. If the question is, “should my child learn to shoot at the range, or somewhere else?”, “the range” is the right answer.

So then the question becomes, “should my child learn to shoot?” In a society in which children might come in contact with guns without parental supervision (for example, at a friend’s house where the parents have an unsecured gun), “yes” is the right answer. Guns are fascinating to children—especially to little boys—and firearms education demystifies them and teaches the proper respect. The alternative is to teach children to “just say no” to guns; we have seen how well that works with drugs and sex.

So then the question becomes, “should we have a society in which children might come in contact with guns without parental supervision.” Pitts and the choir to which he preaches think the answer is no: only the government can be trusted with guns. Pitts asks:

What kind of shooting range allows a prepubescent girl1 to fire an Uzi? What kind of instructor does not guard against recoil when a child is handling such a powerful weapon? What kind of parents think it’s a good idea to put a submachine gun in their 9-year-old’s hands? And what kind of idiot country does not prohibit such things by law?

These are all good questions, and not at all difficult. Here are the answers:

  • Careless;
  • Incompetent;
  • Ignorant; and
  • Free.
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  1. Why “girl” instead of “child”? -MB 

On Twitter, Be Your Own Censor.

Mark's Blog: Defending People - Thu, 08/28/2014 - 19:33

When I saw this Polygon post last month, about how Twitter “gives so little attention to the now-routine harassment experienced by so many members of the service” because “it drives engagement,” I thought, “surely there’s a market solution”:

I’ve done some Twitter scripting, and the three proposed tools would, I think, be easy for a third party to implement.

— Mark W. Bennett (@MarkWBennett) July 31, 2014

The three proposed tools were allowing a user to block all users whose accounts are less than 30 days old, allowing a user to block all users whose follow counts are less than some threshold, and allowing a user to block any user who has been blocked by more than N people she is following. The proposed tools came from this post, titled, “The least Twitter can do.”

Today I saw a Slate post from the beginning of August (a week after the “harassment drives engagement” post) discussing three free-market solutions to the problem of Twitter harassment: Block Together (an app that “allows users to ‘share their list of blocked users with friends’ and, if they like, ‘auto-block new users who at-reply them.’), Flaminga (which “helps Twitter users conspire to create secret mute lists they can share with one another to silence users they don’t want to hear”), and the Block Bot (which that identifies Twitter’s “anti-feminist obsessives”…).

Problem solved, right?

Not so fast.

These apps won’t actually inspire Twitter to shut down the serial abusers who use their Twitter accounts to harass and threaten women. They won’t help attract serious legal attention to their crimes. And they won’t compel Twitter to instruct its brilliant developers to imagine new sitewide solutions for the problem, or else lend its considerable resources toward educating government officials and law enforcement officers about the abuses its users are suffering on its network.

Twitter provides a communication channel. It is a channel and a metaphor that didn’t exist nine years ago, and it is free. Twitter’s users give it nothing but their attention. Twitter owes its users nothing.

Twitter could “instruct its brilliant developers to imagine new sitewide solutions for the problem, or else lend its considerable resources toward educating government officials and law enforcement officers about the abuses its users are suffering on its network,” there would be nothing wrong with that.

On the other hand, Twitter could explicitly market itself as a place to abuse and be abused by others; it could even rig its API so that free-market solutions would be impossible. There would be nothing wrong with that either (and, sadly, plenty of people would sign up).

Twitter is a business. It exists for profit. If shutting down serial abusers were cost-effective it would do it. Twitter users could theoretically make it cost-effective for Twitter to shut down serial abusers by boycotting Twitter, but that’s not going to happen. There’s no viable alternative, and besides, where would you go to organize a boycott of Twitter?

If actively encouraging abuse and making it impossible for third parties to reduce the abuse that users saw were cost-effective, it would do that instead. It’ll never be cost-effective because, contrary to the suggestion in the July Polygon post I quoted first, Twitter will get more of its users’ attention if those who don’t want to be abused are able to customize their experience to reduce the abuse they see.

What Twitter has done is somewhere in between. It provides the channel, and it allows developers to build things like Block Together, Flaminga, and The Block Bot, but it hasn’t poured money into protecting users from abuse. Even when it isn’t cost-effective to shut down serial abusers, it’s cost-effective to allow developers to create tools to allow a user to eliminate abusers from her timeline.

(Here’s how Twitter works: if Althea and Bartimus have Twitter accounts (@A, @B), each can choose to follow or block the other. If @A is following @B, @A will see everything @B says on Twitter. If @A blocks @B, @A will see nothing that @B says on Twitter. If @A neither follows nor blocks @B, then @A will see only what @B says mentioning @A. If Carla creates an account (@C) and tweets “@A [something abusive],” @A will see it unless she is using some third-party solution (for example, blocking new accounts or accounts with few followers).)Twitter’s solution, which decentralizes control over users’ timelines to those users, is not good enough for the authors of the Slate and Polygon posts. It’s not good enough that @A has third-party options for keeping @C from contacting her; Twitter must keep @C off the channel, or at least spend more of its money trying to do so.The notion that the provider of the channel, Twitter, should police the content on the channel has appeal, I guess, to those who are convinced that those running Twitter will always share their own ideological orthodoxy. But leaving the channel wide-open and letting users, via third-party software, choose what they will and won’t be exposed to is the better option for anyone who can even imagine some day being politically incorrect.1

 

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 (24.19.197.154) .)
  1. Though that particular horse has left the barn

Texas Criminal First Amendment Action

Mark's Blog: Defending People - Tue, 08/26/2014 - 20:45

Here’s a survey of what’s going on in Texas with regard to the First Amendment in criminal cases:

Texas Penal Code Section 33.021(b) (online solicitation by explicit communication) was held unconstitutional by the Texas Court of Criminal Appeals in Ex Parte Lo. In Ex Parte Chance the Court of Criminal Appeals granted relief on habeas to someone who hadn’t raised the unconstitutionality of the statute either in the trial court or on direct appeal. Concurring, Judge Cochran stated that the petitioner was actually innocent (not argued by the petitioner). Dissenting, Judge Keller suggested that the issues presented should have been briefed and more carefully considered.
Pending issues include whether a person convicted only of violating a void statute is actually innocent, so that he is (if he went to prison) entitled to compensation for his wrongful conviction; and whether a 33.021(b) conviction should be reversed on direct appeal where the unconstitutionality of the statute was not raised in the trial court.I have the former issue (innocence) in two article 11.07 postconviction writs, out of Montgomery County and Harris County. The State has agreed to relief, and agreed to innocence. We’ll see what the Court of Criminal Appeals does.Nic Hughes of the Harris County PD’s Office and I have won the latter issue (unconstitutionality raised for the first time on direct appeal after the statute has been invalidated in another case) in intermediate courts of appeals (Schuster in the First, and Sanders in the Sixth, respectively). Gerald Bourque of the Woodlands has it before the Court of Criminal Appeals in Smith v. State. Argument will probably be this fall; I’ll watch and report back.

Texas Penal Code Section 33.021(c) (online solicitation, but not really) has been upheld by various intermediate courts of appeals, but the challenge has not yet reached the Court of Criminal Appeals. Various cases are pending in trial courts, and Butch Bradt of Houston has petitioned the Court of Criminal Appeals for discretionary review in Ex Parte Victorick out of the Beaumont Court of Appeals. If that is denied, I have several pretrial writs pending on the issue in Montgomery County and Austin County; I expect that we’ll have to take them up to the CCA.

Section 36.03 of the Texas Penal Code (Coercion of a Public Servant) has been challenged by habeas (PDF) in Rick Perry’s case. The statute is as stinky as can be—”coercion” includes a threat “to expose a person to hatred, contempt, or ridicule,” so if you threaten to make fun of your congresswoman if she doesn’t vote the way you want you are committing a crime—and I don’t think it’s going to stand up to David Botsford’s attack in the Perry case. Whether it dies as written (because of stinkiness) or as applied is, I think, the open question.1

Texas Penal Code Section 21.15 (Improper Photography (taking pictures)) is under challenge in the Court of Criminal Appeals in Ex Parte Thompson. I watched the arguments in May. We should see an opinion this fall. If the statute is held unconstitutional, then all of Section 21.15 (including the publishing pictures portion) goes down. If the statute is upheld (for example, because of the State’s silly argument that everyone appearing in public “consents” to being photographed), then…

Texas Penal Code Section 21.15 (Improper Photography (publishing pictures)) is still vulnerable to First Amendment attack. I have a pretrial habeas on hold in the 208th District Court; if the petitioner wins Ex Parte Thompson, we win. If the petitioner loses Ex Parte Thompson, Judge Collins gets to rule on my writ and the loser gets to appeal.

Texas Penal Code Section 33.07(a) (Online Impersonation (using the name of another person online to harm him)) is not being defended by the Harris County DA’s Office. I’ve filed two pretrial writs attacking that statute, and the State has dismissed the prosecutions in both cases, to refile under two other statutes. I’m hoping someone will bring me in on a case in a county where the DA is interested in defending the constitutionality of penal statutes.

In one case the State went from Online Impersonation to Fraudulent Use or Possession of Identifying Information under Texas Penal Code Section 32.51. That statute forbids “using” someone’s name with the intent to “harm” him; the terms in quotes are not narrowly defined, so if I call you by name and insult or embarrass you (“harming” you) I am committing a felony. I filed a writ in the 177th District Court attacking this statute; Judge Patrick foolishly denied relief,2 and I filed notice of appeal. I’ve also filed writs in other courts challenging the constitutionality of the Fraudulent Use or Possession of Identifying Information statute. I’ll keep you posted.

In another case the State went from Texas Penal Code Section 33.07(a) (a felony) to Section 33.07(b) (Online Impersonation (sending an email or similar communication using someone else’s name to trick someone and harm someone else), a misdemeanor). They have some pleading problems, but if they are able to sort those out we’ll file a writ and it’ll go up on appeal.

In Ector County (Odessa, Texas) I have filed a pretrial writ challenging the constitutionality of Texas Penal Code Section 21.12(a)(3) (Improper Relationship Between Educator and Student), which incorporates Section 33.021. Among other arguments, the incorporation of an unconstitutional statute invalidates Section 21.12(a)(3).

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 (173.255.254.15) .)
  1. As an aside, while everyone else seems to agree that Perry is charged with two felonies, Count II looks like a misdemeanor accusation to me—coercion of a public servant is a felony only if the coercion is a threat to commit a felony, and the State has neither alleged that the coercion was a threat to commit a felony, nor alleged the coercion in terms that would put a defendant on notice that the State believes it to be a felony…

    threatening to veto legislation that had been approved and authorized by the Legislature of the State of Texas to provide funding for the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office unless Travis County District Attorney Rosemary Lehmberg resigned from her official position as elected District Attorney. 

  2. Oops! Felony! 

The Psychology of Expensive Paper

Mark's Blog: Defending People - Mon, 08/25/2014 - 12:01

I use 28-pound printer paper for my pleadings. Have done for years. Judges and prosecutors often notice the paper: it’s heavy, stiff, and smooth. It also costs almost four times times as much as cheap paper (2.3 cents, vs. 0.64 cents per page), which can add up; my justification for using it has been that the things I’m filing with the court are important, so they should look and feel important (I put some effort and money into typography as well).

Yesterday Sarah “Bennett’s Former Brain” Wood sent me a link to a Psychology Today post that supports that justification:

New research…shows that the weight, texture, and hardness of the things we touch are, in fact, unconsciously factored into our decisions about things that have nothing to do with what we are touching. Potentially, every decision we make.

* * * * *

[W]hen we hold something heavy, we actually see seriousness and importance in people and issues that we might not otherwise.

* * * * *

As with weight and texture, hardness exerts an influence on our perceptions and behavior. People who had earlier examined a hard piece of wood later judged an employee interacting with his boss as more rigid and strict than did people who had first examined a soft blanket.

The for Bennett’s pleadings, though:

In another study, feeling roughness led participants to negotiate poorly, offering their counterparts better deals than people who’d held smooth things did—because they saw the bargaining task as more difficult.

I may have to start printing prosecutors’ copies of my motions on sandpaper. Judges will still be getting the good stuff.

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Victimocracy Because Reasons

Mark's Blog: Defending People - Sun, 08/24/2014 - 18:38

In There’s No “Ick” in Victim, in which she lauds victims for speaking up, Brooklyn lawyer1 C.A. Goldberg turns her truly dizzying intellect my way:

Then you have the George Wills and Mark Bennetts of the world who argue that society is victimized by victimhood. The former famously claimed that victims revel in their victimness and that “victimhood” is a “coveted status that confers privilege,” and results in the “proliferation” of victims.

In a post called “Victimocracy is for Sociopaths,” Mark Bennett, a criminal defense attorney and blogger in Texas, growls at the “ascendancy of victimocracy, in which victimhood is esteemed above merit, and victims are given special authority to determine the course of the state.  He accuses many victims of “feigning” it.  He flaccidly stabs at some blurry claim that self-identifying victims comprise much of the purported four percent of sociopaths, revealing himself to be the one person in America gullible enough to drink Martha Stout’s pop psychology Kool-Aid.  “The more power we give victims, the more power we give sociopaths,” he says.

Attitudes like those of the grandfather, the blogger, Wills, and Bennett, shame not just the crimes, but also try to corrode any dignity the victim may have in self-identifying as such, creating false categories that attempt to separate out the “true” victims from the “feigning” ones.  (Anybody else hearing the echoes of Todd Akin here and his marble mouthing about “legitimate” rape?)  These people take offense to persons stepping up and saying, “Hey, I was harmed,” acting as though the V-word itself is a diminishing resource, conservation of which they must personally defend. And so what do they do?  They engage in ad hominem attacks to discredit the victim:  she was complicit in it, is lying, doing it for the attention, is a sociopath.  It’s as if some defense attorneys, perhaps as a group the most vocal about they would call “victomania,” can’t zealously represent their clients while respecting the “victim” concept.

Here’s the post she’s referring to, Victimocracy is For Sociopaths.2 I won’t rehash the argument, but you’ll see that it’s not what Goldberg wishes it to be.

Because some victims bravely speak up,3 Goldberg wants us not to question whether victims are victims.

The problem is that, whether sociopaths are four percent of the population or one percent or less, they will feign victimhood, using our solicitousness toward victims—the solicitousness modeled by Goldberg in her post—to get away with creating more actual victims. By feigning victimhood, the sociopaths (who, because their “victimhood” is planned and scripted, are more willing than real victims to present themselves as victims) also harm the actual victims

The solution is nothing more than a sensible skepticism. Opposing skepticism is natural—nothing is more laudable than protecting the weak, and we want to believe that those who present themselves as needing our help in fact do—but nobody’s life is improved by credulity.

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 (173.201.196.32) .)
  1. And cousin of my officemate Jay Cohen! 

  2. For which I’ve already taken an undeserved rasher of shit, which put me off my blogging feed. Other posts about victimocracy in action: Honoring the Dead with Destruction?; Happy Victims’ Week; Revenge Porn and “Rape Culture” Culture

  3. I doubt neither the bravery often required for an actual victim to come out as a victim, nor the societal value in doing so. 

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