Mark's Blog: Defending People
Along with Heather Barbieri of Plano and Kerri Anderson Donica of Corsicana, I’m course-directing the Texas Criminal Defense Lawyers Associations’ voir dire seminar in Dallas September 8–9, 2016. Here’s a draft description of the seminar for TCDLA’s marketing:
This two-day intensive seminar — a combination of lectures, discussions, and demonstrations of voir dire strategies and tools — is a must for the criminal-defense lawyer who tries cases.
Jury trials are won and lost in voir dire. Voir dire is not just your only chance to eliminate unfavorable jurors legally, but also your best chance to persuade the jury that your story of the case is the truth.
In Voir Dire Outside the (Jury) Box you will learn theories of voir dire. You will learn inventive and useful techniques for connecting with jurors. You will learn to apply those theories and techniques in specific types of cases. You will be entertained. Your mind will be blown, and you will leave on Friday with something new that will help you win a jury trial on Monday.
Voir Dire Outside the (Jury) Box is a unique opportunity to learn jury selection from the leaders of the Texas criminal-defense bar; it will benefit the newcomer and the veteran alike. The seminar includes a discount on tickets to the Dallas Comedy House’s Thursday evening improv show. And, as always, scholarships are available.
As well as the usual popular topics — error preservation, defenses, jury suppression voir dire, DWI voir dire, child sex assault voir dire, and so forth — we plan to introduce some new ways of looking at the whole voir dire process. The promise of blown minds is mine, and I am not one to overpromise.
Join us in Dallas. Calendar it now.
Apropos of this post, I learned some interesting things at the courthouse.
Rumor is that the judge put Sam up to commenting on my blog — believable, since Sam isn’t the type to comment on blogs. Unfortunately the judge doesn’t seem to have told Sam the truth about her private sanction so he’s left denying something that I can prove to be true.
I also learned that the judge retaliated against one of her court staff for telling the truth to the Commission for Judicial Conduct about the incident for which she was sanctioned — which incident, I was reminded, was the judge’s retaliation for my client not kowtowing to her rudeness in the first place.
So: Judge is rude to lawyer. Lawyer stands up for herself. Judge retaliates against lawyer. Mark stands up for lawyer. Judge retaliates against Mark. Court staff stands up for truth. Judge retaliates against court staff. Classy!
Maybe the judge has a friend who can talk to her about the First Rule of Holes.
The Houston personal-injury firm of Brown and Musslewhite was ripping off Houston criminal-defense badass JoAnne Musick’s blog posts. So she did what any self-respecting lawyer/writer would do in that situation: she gave the firm a polite telephone call to ask confidentially that they remove the offending comment—
Just kidding. JoAnne did what any self-respecting lawyer/writer would do in that situation: she called Brown & Musslewhite out publicly so that from now until the crack of internet doom there will be a record of their dishonest unethical ways:
I would never hire a lawyer engaging in such practice. It’s unethical and just plain wrong. Color me offended and sad that they have chosen to use my name and my words to try and make themselves look better. Don’t try to make yourself look better; be better!
Why is writing the post better than making the call? Because — and I’m speaking from extensive experience here, having made the call time after time only to be left flat on my back like Charlie Brown — when you make that call you don’t get taken seriously. Instead you waste your time listening to excuses — “my marketer did it” — and rationalizations — “well, we gave you credit.” The extreme, by contrast, always seems to make an impression.
It makes an impression on its subject, and it makes an impression on others. If JoAnne had made the call, maybe Brown & Musslewhite would have stopped stealing content, but nobody else would have learned anything from the exercise. By posting about Brown & Musslewhite’s theft, JoAnne both discouraged others from stealing content and stopped Brown & Musslewhite from doing so—
Just kidding. Brown & Musslewhite took down JoAnne‘s content, but they still are republishing as though it is their own writing by people outside their firm: William K. Berenson, Randy Sorrels, Sam Adamo, Jr. (on HCCLAtv.com), and others.
HCCLA cares about people stealing its content, but what if none of the others care about Brown & Musslewhite stealing their content? We are not even personal-injury lawyers, for crying out loud. Shouldn’t JoAnne just mind her own business? Shouldn’t I?
Yes, absolutely, because this is profession for ladies and gentlemen, and ladies and gentlemen mind their own business—Just kidding.Lawyers minding their own business allow unethical lawyers to thrive, giving the bar a bad name. And while I joke that it’s a small fraction of the bar that gives the other 1% a bad reputation, the truth is that most lawyers are concerned with practicing ethically themselves. They would not deserve the bad name that the minority give them, except for one thing: They mind their own business. Like the majority of bad cops whose only offense is following the blue code, lawyers who don’t speak out against unethical lawyers are also unethical lawyers.
Writing is thinking. Publishing someone else’s work as though it is your own is a lie. Publishing the work of a lawyer outside your firm as though it is your firm’s is fraud: Potential clients will see it, will naturally believe it is characteristic of the firm’s thinking, and will make their decision based on what they believe is a sample of the firm’s thinking. If you think lawyers should mind their own business when they see lawyers defrauding potential clients, you are part of the problem.
Speaking of kindnesses…
She was never my favorite judge. She was fair in trial, which is more than I can say for most of our local bench, but she was irascible in the runup to trial; it didn’t seem personal, but she was not “patient, dignified and courteous,” as required by the Texas Canons of Judicial Conduct. Still, when the Harris County district court judge tragically lost her grown son, I sent her my condolences because it was the right thing to do. She hugged me in the hallway and thanked me the next time she saw me. We were cool for a while. She treated me professionally, and not with the usual rudeness.
When the judge ordered one of my colleagues into custody for doing her job I stood up for my colleague. When she filed a grievance against the judge, I wrote an affidavit describing what I had observed. Because it was the right thing to do. The judge received a private reprimand, (a big deal coming from the usually toothless Commission for Judicial Conduct, which usually disciplines judges by requiring them to buy the next round): A judge who has once been privately reprimanded doesn’t want to be grieved again.
When another colleague died, I took over one of his cases in the judge’s court. It was, again, the right thing to do. Last week I had a sweet deal worked out for that client. I realized as I was going over the plea papers with him that we hadn’t checked with an immigration lawyer to make sure that the sweet deal was really sweet. I asked the judge for two more days before doing the plea. Giving me two days would have cost her nothing and benefited me no farther than keeping me from committing malpractice. Everybody knew I was going to get my two days, but the judge was rude to me. I had “just asked her for another day yesterday” (not true) and “was losing credibility.” That a new personal edge to the old failure to be patient, dignified, and courteous.
I explained that I hadn’t crossed this particular T because of the irregular way the case had come to me — as a mitzvah to a fallen comrade. I hadn’t done my usual intake.
The judge said, “well, no good deed goes unpunished.”
Okay, judge. Okay.
On reflection, I wonder which of these three good deeds the judge was talking about. I doubt that it was the first, and maybe it was the third, but I have a sneaking suspicion it was the second — my representation of the lawyer she had unlawfully jailed.
Was the judge butthurt by my providing a factual account of that incident to the Commission on Judicial Conduct? Is she bent on punishing me? I would like to know. Not so that I can avoid the same sort of good deed in the future but so that I can it more. I’ve got a defiant streak, and if you try to punish me for doing the right thing, I’ll look for more opportunities to do the right thing the same way.
And opportunities abound. Remember: Patient, dignified and courteous.
Suppose that you are a civil lawyer representing a business or government entity in Texas, and your client is served with a subpoena in a criminal case. The subpoena is returnable “instanter,” and asks that your client produce certain documents along with a business-records affidavit.
What do you do?If you are Shannon Kackley of Austin’s Denton Navarro et al., you look up the Texas criminal subpoena statutes, notice that a subpoena must require the witness’s appearance “before a court” “at a specified term of the court or on a specified day” (and not instanter), and send the defense lawyer this email:
This Firm and I represent the City of Bay City, Texas and the Bay City Police Department.
We have been informed that you have recently provided a copy of the attached document to the Bay City Police Department. We have reviewed the purported subpoena and determined that it is invalid and unenforceable.
If you wish to obtain documents from the Bay City Police Department, please properly serve it with a valid subpoena duces tecum under Article 24 of the Texas Code of Criminal Procedure.
If you have any questions, please do not hesitate to contact me.
Why is that the wrong call? Because, while you may not realize it, I have done your client a kindness by allowing it to produce the records along with an affidavit instead of—as the statute clearly allows me to require—appearing before the court to testify on a specified day. Not accepting this kindness, and refusing to comply with the subpoena because it doesn’t strictly track the statute, is maybe not in your client’s best interest.
Now, you don’t realize this because, like a teenager who has invented sex, you are so impressed with yourself for finding What the Dumb Old Criminal-Defense Lawyer Did Wrong. So when you get the next email, you don’t know what’s coming next:
I don’t know why you’d want to make things difficult for me, but okay. Will you accept the subpoena on behalf of your client?
If you had bothered to consult with a criminal-defense lawyer, she would have told you that I had offered your client a kindness, and you could have avoided making the wrong call. But you don’t. Instead you email back:
I can’t. My boss won’t allow us to accept service. …
It probably would have behooved you to go and talk to your boss about accepting service, but nope. Fine, I’ll serve your client with bells on.
There’s a certain loser logic in all of this so far—21-year civil lawyer who is still an associate and doesn’t even have discretion to accept a subpoena on behalf of a client fails to recognize the gift that his client has been offered.
Here, though, is where it gets inexplicable:
… But when you serve the PD with a valid subpoena, please attach the business record affidavit that you want completed. It makes it easier for the PD and ensures the correct document is executed.
After I’ve pointed out that you are making things difficult for me, why on Earth would I want to make things easier for your client? Your client has done nothing but try to make things difficult for me. Why are you still an associate? Big mystery. Could it be because you are a poster child for poor legal judgment?
Maybe the subpoena is unenforceable. We’re not going to find out because I’m not going to request an attachment. Instead I’m going to serve your client with another subpoena, as you requested. And the subpoena will strictly comply with the statute, as you requested.
That statute allows a subpoena to “direct that the witness bring [something] and produce it in court,” but does not provide for documents to be produced otherwise, as with a business-records affidavit. So I won’t bother offering your client that out.
The statute also requires that the witness summoned to court remain there “on [every] day subsequent thereto and before the final disposition or continuance of the particular case in which he is a witness.”
So if you’re Shannon Kackley you’ve just helped your client avoid producing documents with a business records affidavit, but signed your client’s custodian of record up to come to court and stay there (on your client’s dime) perhaps for the duration of the trial.
As I wrote to Kackley in my response:
Well done, counselor.
This week a district court (felony) judge in Waco held Section 33.07 of the Texas Penal Code unconstitutional:
Sec. 33.07. ONLINE IMPERSONATION. (a) A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:
(1) create a web page on a commercial social networking site or other Internet website; or
(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.
(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:
(1) without obtaining the other person’s consent;
(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and
(3) with the intent to harm or defraud any person.
(c) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.
(e) It is a defense to prosecution under this section that the actor is any of the following entities or that the actor’s conduct consisted solely of action taken as an employee of any of the following entities:
(1) a commercial social networking site;
(2) an Internet service provider;
(3) an interactive computer service, as defined by 47 U.S.C. Section 230;
(4) a telecommunications provider, as defined by Section 51.002, Utilities Code; or
(5) a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.
(f) In this section:
(1) “Commercial social networking site” means any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or to other users. The term does not include an electronic mail program or a message board program.
(2) “Identifying information” has the meaning assigned by Section 32.51.
At the moment the judge was signing the order (PDF—read it; p2¶1 is #Texas), I was arguing the unconstitutionality of Section 33.07 before the Fourteenth Court of Appeals in Houston. In that case, too, the trial court had held the statute unconstitutional, so the state was appealing and I represented the appellee.
“Why,” you might ask, “should I care whether it’s a felony to use someone’s name without his consent online to harm him?”
The State’s argument is that the statute forbids impersonation. But “using the name” of another is not impersonating him. When I speak or write your name, I use your name. And “harm” is unlimited in scope—any disadvantage. So if I write your name online without your consent with the intent of harming you by embarrassing you, or offending you, or hurting your feelings, or depriving you of votes in the next election, I have committed a felony.
Blog post questioning Katheryn Harris’s journalistic ethics? Felony.
Campaign website criticizing an opponent? Felony.
Newspaper article revealing a public figure’s dishonesty? Felony.
Virtually everything on the internet is covered by
(1) create a web page on a commercial social networking site or other Internet website; or
(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.
Virtually all critical speech is “with the intent to harm.”
So Section 33.07 forbids virtually all online criticism. Texas claims venue and jurisdiction over people all over the world. And that is why you should care.
About 15 seconds of my 20-minute argument in the Georgia Supreme Court on Monday (watch it) involved everyday incidents of teenagers being sexually aroused by adults, or adults being sexually aroused by children. I talked about my own experiences as a sexually aroused teen, which was true and amusing, and also about something that is true and important: the unwanted sexual attention paid to teen girls by grown men.
My point, which I made explicitly, was that this is not the sort of thing that government could or should try to criminalize—something orthogonal, as JDog would say, to my argument, which was that the forbidden speech falls into no historical category of unprotected speech, so that forbidding it is not permitted by the First Amendment and Supreme Court authority.
Fifteen seconds, and incidental, and the Daily Report’s Katheryn Hayes Tucker chose to make that the focus of her coverage of the story. She found three outraged lawyers who were more than happy to be outraged in the paper without watching the entire argument, and described the outrageous snippet of argument to them.
I’m no Melissa Click, but I’m going to take a stand here and say that publishing comments on the reporter’s summary of the facts as though they are comments on the facts is flat-out unethical. It is lying to the reader: “here’s what this person said about the facts,” rather than “here’s what this person said about what I said about the facts.”
But needs must in modern journalism. Because publicity and outrage, and page views above all.
I checked out Tucker’s Twitter account, and found retweets of tweets from antiporn outfit National Conference on Sexual Exploitation (NCOSE), known as Morality in Media until the right-wing money got tight, including this one:
— Porn Harms (@Porn_Harms) February 24, 2016
I noticed this because Katheryn Tucker also retweeted the same “dangers of porn” tweet from Lisa Thompson at NCOSE.
Retweeting is not necessarily endorsing; it’s not even necessarily true that retweeting the same tweet from two accounts at the same organization signals agreement (though it’s more likely). But then after I commented on her article on Twitter, Katheryn Tucker sanitized her Twitter timeline of @Porn_Harms tweets. That is highly suspect, so I called her on it:
— Free-Speech Dog (@MarkWBennett) February 25, 2016
Katheryn Harris did not care to comment, but she then retweeted this @Porn_Harms tweet:
— Porn Harms (@Porn_Harms) February 23, 2016
That retweet, without comment, after I called her on scrubbing @Porn_Harms from her timeline, reveals Katheryn Harris’s sympathy with NCOSE / Morality in Media, with the false proposition that there is “a campus culture of sexual assault,” and with the notion that pornography fosters this nonexistent culture.
NCOSE / Morality in Media filed an amicus brief on behalf of the State in support of the statute. How did Katheryn Harris’s like-mindedness with the amicus contribute to her focus on the one tiny tangential portion of the argument that would outrage the feminist mob?
Later the Daily Report published Scott Greenfield’s and my responses to the article under the headline, “Houston and New York City Lawyers Criticize Daily Report Article on Sex Exploitation/Free Speech Case.”1
That headline itself is biased spin. “Sex exploitation case” is NCOSE’s take on the case, not an objective description. It presumes that, when a child is sexually aroused by an adult or an adult is sexually aroused by a child, the child is “exploited”—a presumption that trivializes actual exploitation.
The Daily Report’s coverage of this story raises serious issues about how the Daily Report allows Katheryn Harris’s personal bias—bias that is antagonistic to free speech itself, upon which newspapers theoretically thrive2—to affect her reportage. So I’m just going to leave this here.
I will return to it when need be.
I have got to stop reading comments. ↩
If the State can forbid explicit communications to a minor with intent to arouse, the State can forbid criticism of the State with intent to arouse. ↩
In Georgia, we were dealing with a law that forbade an adult communicating certain content (including descriptions of nudity) to a child online with the intent to arouse or satisfy the sexual desire of the adult or the child.
While socially conservative libertarians can lay claim to the “political conservative” tag with just as much good faith as socially conservative authoritarian, I view political conservatism as lying closer to the authoritarian end of that axis. It may be that “politically conservative” has been used by so many disparate philosophies that it is devoid of meaning, but the political conservative would, in my view, view the suppression of perversion as a valid governmental goal.
The social conservative might hear about the law and first think, “that’s outrageous; nobody needs to be doing that,” then think, “where are the parents in this?” That the speech is repugnant might mean to the social conservative that the government should publish it, but not necessarily: she might see this law as both a damning indictment of modern society’s weakening of the family unit. She might also think that by criminalizing repugnant speech the government reduces parents’ motivation to parent. My argument in Texas was a socially conservative argument: it is parents’ job to protect their own children.
The judicial conservative would try to set aside his own political and social preferences and follow precedent. Precedent in this case is U.S. v. Stevens, with its stark rejection of a harm-vs.-good balancing test and its categorial ((Yes, I went there.)) imperative. The Stevens question is whether the forbidden speech falls into a recognized category of historically unprotected speech. Stevens leaves open the possibility that courts might recognize a hitherto unrecognized category of historically unprotected speech, but not the possibility that the state might simply decree such a category based on a cost-benefit analysis.
My argument in Georgia was a judicially conservative argument. The speech forbidden by 16-12-100.2(e) falls into no recognized category of historically unprotected speech. The State admitted at oral argument that it falls into no hitherto unrecognized category either.1 So the only judicially conservative action to be taken is to strike 16-12-100.2(e).
By taking the judicially conservative course, the Georgia Supreme Court will also be taking a socially conservative course, preserving parents’ right and responsibility to see to the education and training of their own children.
What it will not be doing is taking the politically conservative course, if “political conservatives” are right-wing authoritarians, but those guys are assholes anyway.
In fact, in 1791 the age of consent was 12, so what we now consider children could not only be sexually aroused but also be married ↩
Chris was charged in Texas with Online Solicitation of a Minor under Section 33.021(b) of the Texas Penal Code. He hadn’t tried to solicit anyone, but he had allegedly communicated sexually explicit words to a minor with the intent to sexually arouse or gratify himself or the minor.
Jack was charged in Georgia with Obscene Internet Contact with a Child under Georgia Code 16-12-100.2(e). He hadn’t had obscene contact with anyone, but had allegedly communicated sexually explicit words to a child with the intent to sexually arouse or satisfy himself or the child.
I stood up in the highest courts of Texas and Georgia to argue that 33.021(b) and 16-12-1002(e) violated the First Amendment by forbidding a real and substantial amount of protected speech. Texas agreed with me; we will find out by July whether Georgia does.
You might ask yourself, “how is that protected speech?”
The boiled-down judicially conservative answer is that speech is protected unless it falls into a recognized category of historically unprotected speech, and the speech forbidden by the Texas and Georgia statutes falls into no such category. (The particular question didn’t arise in Texas; in Georgia the State even admitted that no such category existed. In light of the State’s admission, upholding the statute will require judicial activism on the part of the Georgia Supreme Court.)
“Okay,” you might say, “but the alleged speech is still gross. So—Constitutional originalism aside—why should adult speech to children that is intended to sexually arouse or gratify be protected? Why does it matter to me?”
Anti-porn outfit Morality in Media knows why it matters to you. This organization (which after half a century changed its name to National Center on Sexual Exploitation to cash in on leftwing social-justice money) filed an amicus brief in the Georgia case: it knows that allowing states to forbid speech based on its lawful intent would kick in the door on the First Amendment and allow the State to forbid any speech.
If you forbid saying “X” with lawful intent Y, nobody is going to say “X” for fear that people will think he has intent Y, and indict him.
So if the State can forbid sexually explicit communications to children with the intent to arouse or gratify, it can forbid other communications to children with the intent to arouse or gratify. For example:
It is a felony to criticize a prosecutor with intent to arouse or satisfy the sexual desire of a child.
You laugh. Sure, criticism of a prosecutor with intent to arouse or satisfy the sexual desire of a child is not widespread, but it happens, and when a child is aroused by an adult, the child is harmed. The State can and must act to prevent this harm. So says National Center on Sexual Exploitation.
When a person has criticized a prosecutor, who decides whether he has spoken with the intent to arouse or satisfy the sexual desire of a child? The prosecutor decides1 who is arrested and charged, who has to bail and hire a lawyer, who faces a jury and possible imprisonment for criticizing him. You can bet the rap, but you can’t beat the ride.
Which is fine, because we trust prosecutors. And children must be protected.
Except that we don’t trust prosecutors. So anyone facing the choice of criticizing the prosecutor under this regime would be well-advised to keep his mouth shut.
National Center on Sexual Exploitation‘s mission is not to eliminate criticism of prosecutors but to eliminate pornography. So if you like pornography, or you don’t like pornography but you like something that National Center on Sexual Exploitation‘s right-wing harpies think is pornography, or if your tastes in entertainment coincide exactly with said harpies’ tastes but you still think the government shouldn’t punish people whose tastes differ from yours, that’s why it matters to you.
We all know how much independence grand juries show. ↩
I’m writing this from 30,000 feet in the air, flying home to Houston from Atlanta where yesterday I argued a First Amendment case before the Georgia Supreme Court. Most lawyers never get to argue before their own State’s highest court, much less another state’s. Georgia was very hospitable to me. Brunswick criminal-defense lawyer Jason Clark1 and Savannah criminal-defense lawyer Cris Schneider, my local counsel on the case, put me up in a nice hotel, fed me good food, and—most importantly—made sure I didn’t have to worry about getting where I had to be when I had to.
In addition to Jason and Cris, I made other new friends in Georgia: Keith Lee, Andrew Fleischman, Jon Rapping, Scott Key, Esther Panitch, Alan Begner, and my opposing counsel Jay Sekulow (who I hope will be on the right side of the First Amendment the next time I work with him). I got to see my old Trial Lawyers College friend Nick Lotito. My old buddies Scott Greenfield and Brian Tannebaum flew in from New York and Miami to hang out and help me prepare for argument (I don’t need a moot court; I just need three or four smart lawyers to try to crush any pride I might have had in my argument over coffee).
The court didn’t have a lot of questions, and I don’t work great with cold panels. Give me a hostile panel over a cold one any day. A couple of times I stumbled because I hadn’t prepared to lecture the court for twenty minutes; finally I just shut up and enjoyed the silence for a moment. The one justice who had questions was David Nahmias, a former law clerk to Justice Scalia, former U.S. Attorney for the Northern District of Georgia, and by all accounts a brilliant guy—my kind of audience. He had the right questions both for me and for the State; I believe that Nahmias understood the argument better than the State, and at least as well as I understand it, which means that I didn’t obfuscate it too much in my brief.
Of course I have no idea what the court will do, but I know that I did a hell of a job (watch it here). Going home in triumph feels good.
Yet I remember the many times I have flown home from out-of-town cases feeling whipped, with my tail between my legs. And I remember that I could feel whipped rather than triumphant tomorrow, and that my next argument in the court of appeals (Thursday in the 14th) could be a total disaster. Also I remember that I am not my cases, so that I am the same guy when I am triumphant as when I am not.
Every victorious returning general needs that slave whispering in his ear: remember that you must die.
For the Texas criminal-defense lawyers: Jason’s a Georgia version of Tony Vitz. ↩