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at the intersection of criminal defense and free speech
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2015.43: Don’t Worry, Be Happy …

Sat, 02/28/2015 - 12:11

… I’ve got your back.

(Eat your heart out, Reposa.)

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 (54.174.64.206) .)

2015.42: Harris County Welcomes Dallas Prosecutors

Sat, 02/28/2015 - 10:31

What do you do if you’re a District Attorney running an office that is under fire for prosecutorial misconduct and in the middle of a hearing (in which current and former prosecutors contradicted each other, themselves, and the documentary evidence) over whether the office hid exculpatory evidence of alternate suspects in a murder case?

If you’re Devon Anderson, you hire a former Dallas County ADA who is the subject of a motion for new trial for hiding exculpatory evidence in a murder case.

Fortunately we criminal-defense lawyers have started talking to each other of late. Here’s the book on three new Harris County ADAs, refugees from the Dallas County DA’s Office, from one of the Dallas brethren:

Danielle Uher: She withheld evidence on a high profile case and then lied about it to the judge. We have it all on the record. She also improperly contacted a consulting expert and tried to get him to spill the beans on the defense strategy. She is a bully who takes advantage of weakness and only responds to bully in return. She will interrupt and talk over and down to you AND the judge. The louder she argues, the more wrong she usually is.

Andrea Mosley: She is a former cop and doesn’t believe there is anything such thing as an innocent defendant. If they’ve been arrested, they’re guilty. She also doesn’t believe in mitigation. If you’re 1% wrong, you’re a 100% wrong and there is nothing in between and no excuse for any wrongdoing. Once we had a defendant who was arrested for stealing food and she offered prison time because, “He’s a thief and I don’t like thieves. At least in prison, he won’t have to steal to eat.” She is very frank and you will always know where you stand. She holds the defense bar in utter contempt, and generally doesn’t work and play well with women.

Andrea Handley: She’s the nicest one of the bunch, but is also the most manipulative of them as well. She will try to lull you into a false sense of security and then sticks a shiv between the 3rd and 4th ribs. Document document document and then document your file some more. A paper trail is the best way to deal with her.

All good to know, more in the nature of a cautionary tale rather than actionable intel. It’s mostly things that could fairly be said of some members of the defense bar: poor social skills, contempt for the adversary, zealotry, manipulation.

When Uher talks over Jim Wallace or down to Susan Brown, I want to be there.

Mosley sounds like a prosecutor in the mold of Justin Keiter, trying to prove to the world her authoritarian credentials; I hope she doesn’t get butt-hurt like Justin does when I call him a boring little fascist. I see a place for prosecutors such as them; they have to be watched especially closely, though, both by the defense bar and by whoever in the DA’s Office cares about ethics, because zealotry often leads to ethical lapses.

Handley will fit in just fine; nice-and-manipulative prosecutors are a dime a dozen at the Harris County Criminal Justice Center; the advice for dealing with her should be the rule among defense lawyers rather than the exception.

Here (PDF copy of opinion), though, is some actionable intel: a Fifth Court of Appeals opinion from this week dealing with Uher:

Appellant supported his motion with affidavits from Navarette and appellant’s trial counsel, Andy Beach. In his affidavit, Navarette stated that in his pretrial interview with Assistant District Attorney Meredith Behgooy, he told her that the black SUV had pulled “behind” his van on Elm Street and that he had made the sudden stop at the intersection because Ramirez had gotten out of the van so fast. Navarette also stated he had volunteered to testify at trial and was sworn in as a witness, but that Behgooy told him he had an outstanding warrant for “criminal mischief” and that the “best thing would be for [him] not to show up at trial because there was a probability of getting arrested.”

According to Beach’s affidavit, at the same time Behgooy suggested that Navarette not show up for trial, she told Beach that appellant did not need to subpoena Navarette because he would be testifying at trial as a State’s witness. On the day of trial, however, Behgooy and her supervisor Danielle Uher, told Beach that Navarette was not present for trial and would not be testifying after all. The State then refused to request a writ of attachment to secure Navarette’s presence. The trial judge nevertheless issued a writ because Navarette had been previously sworn as a witness.

Beach said the State did not tell him that Navarette would be available to testify until after Orosco had testified. He further said he did not know what Navarette had witnessed until he was testifying on the stand. According to Beach, Navarette’s account substantially bolstered appellant’s claim of self-defense and, if he had known that Navarette could provide favorable evidence, it would have altered his presentation of the case, including his opening statements, the manner in which he questioned Orosco, and his advice to appellant on whether to testify.

So according to witnesses Behgooy told an exculpatory witness to make himself scarce and told defense counsel that the witness would be testifying as a state witness. Then Behgooy and Uher told defense counsel that the witness would not be testifying after all, and did not request a writ of attachment. Fortunately, the defense was entitled to rely on the State’s subpoena, and could get a writ of attachment. Unfortunately, the State’s hiding of the ball (concealing Navarette’s story and trying to disappear Navarette) adversely affected the defense.

At the motion for new trial hearing, the trial court heard the prosecutors’ testimony ex parte and sealed the transcript of their testimony. The Dallas Court of Appeals reversed for a proper hearing and ordered the transcript unsealed (rest assured that you’ll see it as soon as it’s out).

I don’t expect Anderson to inquire too closely into the reputations of the prosecutors she hires. I wouldn’t ask the prosecutorial bar about defense lawyers I was considering hiring, but I don’t have the duty to see that justice is done.

I had an unfortunate encounter last year with a misdemeanor Harris County prosecutor who thought it was okay to tell a subpoenaed witness who had exculpatory information not to turn up for trial; maybe witness-hiding prosecutors are just what Anderson is looking for.

Was Meredith Behgooy not available?

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) .)

2015.41: Citron and Richards on Revenge Porn

Fri, 02/27/2015 - 00:11

There are two types of advocates of revenge-porn criminalization: there are those who actually propose and try to defend unconstitutional statutes, and those who dispense with First Amendment objections with a wave of a hand, but don’t offer any statutory language that might pass First Amendment Muster.

Mary Anne Franks is an example of the former. She will write (and rewrite) her model statute and defend it to the last breath with great passion but very little legal reasoning.

Lawprofs Danielle Citron and Neil Richards are the latter. They defend the idea of revenge-porn criminalization, but don’t suggest language that might be acceptable (Citron disagrees with Franks’s approach—she thinks that an acceptable statute will “only punish individuals who knowingly and maliciously invade another’s privacy and trust“; Franks disagrees, and her model statutes don’t include those requirements).

In “Regulating revenge porn isn’t censorship” Citron and Richards write:

Yet some critics argue that regulating nonconsensual pornography risks censoring protected speech, including pornography. Under the First Amendment, critics argue, we cannot take that risk.

But it is possible to be both pro-porn and anti–revenge porn, and laws can be designed accordingly. What matters under the First Amendment and what is often misunderstood is not whether we can regulate revenge porn but why and how.

For “some critics” they link to my post fisking Citron’s Forbes Forbes piece on the subject.

They also write—

The defenders of revenge porn ignore this fact and offer no response other than a curious insistence (bordering on affection) for the continued availability of amateur and celebrity revenge porn, as if they have some personal stake in its continued free flow.

—which puts Richards squarely in the sleazy dishonest camp, with Citron and Franks, of those who, knowing better, accuse people opposed to criminalization of favoring the activity that would be criminalized.

That notwithstanding, I’ve read some of Richards’s writing on privacy and the First Amendment, so I was curious how a revenge-porn criminal statute could pass First Amendment muster.

I asked Richards via The Twitter Machine:

@neilmrichards you say, “First Amendment is no bar to a well-crafted law.” Please provide an example of such a law. http://t.co/qbHYK5LY1j

— Mark W. Bennett (@MarkWBennett) February 24, 2015

He replied:

@MarkWBennett in under 144 chrs: 1 sexually explicit photo 2 known to be shared in trust 3 not newsworthy — Neil Richards (@neilmrichards) February 25, 2015

What he may not have known is that I had already read him. I quoted him back at himself:

@neilmrichards “The power to declare facts or topics to be [not newsworthy] is in a very real sense the power to censor.”

— Mark W. Bennett (@MarkWBennett) February 25, 2015

1/ @neilmrichards “Giving a court the power to declare information ‘illegitimate’ under a malleable standard is to give that court the power

— Mark W. Bennett (@MarkWBennett) February 25, 2015

2/ @neilmrichards “…to censor expression that it (or a jury) dislikes, and is at odds with modern commitments to the freedom of speech.” — Mark W. Bennett (@MarkWBennett) February 25, 2015

What he’s saying in those quotes is that giving courts a standard such as “not newsworthy” or “of purely private concern” gives them the power to censor expression that they dislike, and is at odds with modern commitments to the freedom of speech. Which is a very different thing than a well-crafted law will criminalize “1 sexually explicit photo 2 known to be shared in trust 3 not newsworthy.”

@neilmrichards Have you now decided that it’s okay to let courts declare speech illegitimate because it’s not newsworthy? — Mark W. Bennett (@MarkWBennett) February 25, 2015

He crawfished:

@MarkWBennett no, but an exception for undeniably newsworthy content is one possibility for a NCP law. It might not need it.

— Neil Richards (@neilmrichards) February 25, 2015

@MarkWBennett In any event, Twitter is the wrong medium for this conversation, where things can easily be taken out of context.

— Neil Richards (@neilmrichards) February 25, 2015

I would be interested in reading a breach-of-confidence revenge-porn statute, but I’ve yet to see one, and Richards is apparently a dry hole. He’s hand-wavey on the defense of his platonic well-crafted law, too:

But regulating revenge porn doesn’t have to work that way. We can regulate revenge porn if it was secretly recorded, because there is no right to secretly capture sexually explicit images of ordinary people or celebrities. We can regulate it if it is distributed in violation of an express or implied trust and an expectation of privacy. And we can regulate it if it is intended to intimidate, threaten or harass and accomplishes that purpose.

With links and everything! Except that the first link is to a book by Citron; the second to a book by Richards; the third to an Atlantic article; the fourth (headache-inducingly) to an ACLU press release about the lawsuit challenging Arizona’s revenge-porn statute, which says nothing about intimidation, threats, or harassment; and, finally, some law: Rice v. Paladin Enterprises, Inc., in which the Fourth Circuit Court of Appeals reversed the District Court’s grant of summary judgment in favor of the defendant who had published a manual for murder.

Except that the Supreme Court has never said that there is no right to secretly capture sexually explicit images. Nor has it ever held that privacy trumps the First Amendment, nor that speech violating a trust is ipso facto unprotected.

Perhaps if the speech is intended to intimidate, threaten, or harass (rather than merely to embarrass or offend), it is unprotected. Non-content-based restrictions forbidding such speech have been upheld, but such restrictions need meet only intermediate scrutiny, lower scrutiny than the strict scrutiny that content-based restrictions face, so that’s no indication that a content-based restriction like a revenge-porn statute will be upheld.

Besides, try suggesting to the carceral feminists, fans of criminalizing revenge porn, that a criminal statute should include as an element the intent to intimidate, threaten, or harass.

Good luck with that.

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) .)

2015.40: Thinking is Not What You Think

Thu, 02/12/2015 - 19:31

Do I have free will? If you believe that I do, on what evidence do you believe that? The only evidence that you might have is your perception that you have free will—anything outside of that can be easily faked. If you ask me to do something and I do it, you don’t know whether that’s out of free will or some compulsion. But it seems to you that you have free will, so you believe that you have free will, and because you believe that you have free will and assume that I am the same you believe also that I have free will.

It seems to me that I have free will too. So why do I believe that I don’t have free will? Because it doesn’t make sense to me that the human brain would be any less deterministic (which is not to say “predictable”) than the rest of the universe. I could conceivably be wrong, but I count my perception that we have free will as an illusion. That just makes more sense to me.

Accepting that free will is an illusion is liberating. It opens up the possibility that our minds plays other big tricks on us, that they don’t work the way they seem to in other ways either.

One of the experiments designed to try to answer the free-will question (a question that I think no experiment will ever really answer) was the Libet Experiment, the results of which Libet interpreted to mean that the impulse to voluntary action arises before a consciousness of the impulse—that by the time we “decide” to move a finger we have already initiated the action, and only think in retrospect that we have made a conscious decision.

In other words—and I don’t think the Libet Experiment is conclusive on this point, but it is provocative—conscious decision making is an illusion. Each of us perceives himself or herself as consciously making decisions, and can justify those decisions if pressed with rational reasons. But we know that our “rational” thinking is raddled with cognitive biases that render its rationality suspect at best. We don’t, of course, recognize these biases when they are affecting us—another illusion, and more support for the premise that conscious decision making is an illusion.

That conscious decision making is an illusion is the major premise of my model of juror decision making, and of my Grand Unified Theory of 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 (104.200.21.106) .)

2015.39: Texas House Member Chris Turner is an Ignorant Buffoon

Thu, 02/12/2015 - 17:04

Texas Penal Code Section 36.06:

OBSTRUCTION OR RETALIATION. (a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:

(1) in retaliation for or on account of the service or status of another as a:

(A) public servant, witness, prospective witness, or informant; or

(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or

.  .  .  .
(c) An offense under this section is a felony of the third degree unless the victim of the offense was harmed or threatened because of the victim’s service or status as a juror, in which event the offense is a felony of the second degree.

Texas Penal Code Section 1.07(25):

“Harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

Harm may includes reputational harm or embarrassment. So it’s a felony to embarrass a public servant (including an elected official) on account of his service or status as a public servant.

I don’t know that anyone has ever been prosecuted (explicitly) for embarrassing an elected official in Texas, but the statute allows it, so the statute is unconstitutional.

Does it really allow it? It doesn’t forbid it, and I don’t see how you read harm to exclude embarrassment and reputational harm. But just in case you do, Democratic Texas House Member Chris Turner of Tarrant County has a solution: House Bill 1061, which would add a fourth subsection to Section 36.06:

(4) “Harm” includes:
(A) financial harm, including harm to a person’s financial status or a person’s credit report or score;
(B) harm to a person’s reputation;
(C) harm caused by intentionally disseminating or using a person’s personal, private, or confidential information;
and
(D) harm caused by invading the privacy of a person.

That is Chris Turner. Chris Turner is a mouthbreathing dimwit who wouldn’t know the First Amendment if his favorite hand puppet read it to him slowly in very small words.

Fortunately, Turner was Wendy Davis’s campaign manager, so his bill has zero chance of success. Unfortunately, his bill is superfluous anyway: the statute makes embarrassing him a felony. And, so that I am clear enough that even the slackjawed moron Mr. Turner gets it, that is exactly what I am doing.

I write this blog post with the intent to harm Chris Turner’s reputation on account of his status as a public servant. Come and get me.

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 (66.87.76.202) .)

2015.38: Greenfield Takes a Hill He Can’t Hold

Mon, 02/09/2015 - 09:44

Scott writes:

Keith is friends with Jeena, and saw no reason to attack her post too strongly and turn a friend into an enemy. So in concluding, he threw her a bone with some praise. Of course, it contradicts his point, renders his post pointless and is facial nonsense. Jeena didn’t remind anyone to structure behaviors so as not to do a disservice towards clients, but to not be a jerk because that’s not how she wants to be personally and therefore believes it to be intrinsically better.

“Jerk” is never used as a word of praise. Why? Because not being a jerk is intrinsically better than being a jerk. The world would be a better place if nobody was a jerk. Not being a jerk makes the lives of those around you easier, it lowers your blood pressure, and it satisfies the categorical imperative.

The point that I think Scott is trying to make is that we lawyers are not allowed to choose to do the things that make us feel better—things like making the lives of those around us easier, lowering our blood pressure, and satisfying the categorical imperative—over the client’s interests. If that’s Scott’s point, it’s a very good point, and one that bears making over and over.

What matters to the client is winning. We are not hired to be nice. If the client wants to put “be nice” above “win” in his list of priorities, that’s his choice and not the lawyer’s. If you’re not prepared to do unpleasant things when it is required for the good of the client, don’t get into the profession. If not for clients, attorneys wouldn’t even exist.

But by making the patently false claim that not being a jerk is not intrinsically superior to being a jerk, Greenfield loses the plot. It isn’t that one way of being is not intrinsically superior to another; it’s that sometimes we have to do the things that are intrinsically inferior—to spit on our hands, hoist the black flag, and begin slitting throats—for the good of the client.

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2015.36: Never to Forget

Thu, 02/05/2015 - 13:55

Today the Harris County Criminal Lawyers Association held a ceremony in honor all of the local criminal-defense lawyers who have died. There are 125 names on the list; I’m sure we’re forgetting some, but we only started keeping track in 2008 (it was Robb Fickman’s idea, during his presidency). Most of us will never find more than fleeting fame; the purpose of the ceremony is to remember those who have fought the good fight, and might otherwise be forgotten.

We invited Harris County’s thirty-seven criminal court judges to the ceremony. Three attended:

  • The Honorable Brad Hart, Judge of the 230th District Court;
  • The Honorable Ryan Patrick, Judge of the 177th District Court; and
  • The Honorable Kristin Guiney, Judge of the 179th District Court.

The Honorable Marc Carter, Justice of the First Court of Appeals, also attend us to show respect for our fallen comrades.

The following did not deign to attend:

  • Paula Goodhart;
  • Bill Harmon;
  • Natalie C. Fleming;
  • John Clinton;
  • Margaret Harris;
  • Larry Standley;
  • Pam Derbyshire;
  • Jay Karahan;
  • Analia Wilkerson;
  • Dan Spjut;
  • Diane Bull;
  • Robin Brown;
  • Don Smyth;
  • Mike Fields;
  • Jean Hughes;
  • Ruben Guerrero;
  • Michael McSpadden;
  • Stacey W. Bond;
  • Judge Marc Carter;
  • David Mendoza;
  • Mary Lou Keel;
  • Katherine Cabaniss;
  • Catherine Evans;
  • Denise Bradley;
  • Jeannine Barr;
  • Jim Wallace;
  • Vanessa Velasquez;
  • Renee Magee;
  • Jan Krocker;
  • Brock Thomas;
  • Susan Brown;
  • Maria T. Jackson;
  • Denise Collin; and
  • Mark Kent Ellis.

I’m sure that every one of them has a Very Important Reason for failing to post, even though they were invited a month ago and reminded at least twice since then. I doubt that any of them (except maybe Billy Harmon) would admit that the Very Important Reason is that they can’t be bothered to feign respect for our fallen brethren, and by extension to us. It is not, after all, election season, so there’s no point in pretending to respect the role of the defense or those who fulfill it.

If we had the ceremony in the summer or fall of an even year, the judicial turnout would be much higher. That’s okay: “higher” is not “better.” This way we find out who are friends really are.

Today’s ceremony was about remembrance, and I promise that in the summer and fall of even years to come, when those listed above are seeking campaign contributions, endorsements, votes, and support, the defense bar will remember.

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2015.36: The Unconstitutionality of Section 33.021(c)

Wed, 02/04/2015 - 17:37

Here’s my brief on the unconstitutionality of the balance of Texas’s Online Solicitation of a Minor statute, Texas Penal Code Section 33.021. I have two appeals pending, both in courts that have already upheld the statute in the face of First Amendment challenges:

Both the Beaumont and First Courts of Appeals analyzed Section 33.021(c) as statutes regulating conduct rather than speech. This is plainly incorrect: speech that is unprotected because it incites the imminent commission of a crime is still speech.

The San Antonio Court of Appeals upheld Section 33.021(c) in the face of a vagueness challenge, holding:

The requisite intent arises within the conduct of soliciting the minor, and must exist at the time of the prohibited conduct of solicitation. Id. Indeed, it is the requirement that the defendant must solicit “with the intent that the minor will engage in sexual contact” that operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows then, that for purposes of a subsection (c) solicitation offense, it does not matter what happens after the solicitation occurs because the offense has been completed; it does not matter whether the solicited meeting actually occurs, or that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation. [AB1]

It cannot be true both that  “[I]t does not matter … that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation,” and that “The requisite intent [that the minor engage in sexual contact] … must exist at the time of the prohibited conduct of solicitation.” Either the defendant intended to engage in sexual conduct (and therefore intended to meet) or did not intend to meet (and therefore did not intend to engage in sexual conduct).

I am confident that the statute will, if the question ever reaches the Court of Criminal Appeals or the U.S. Supreme Court, be held unconstitutional. Unfortunately, I’m swimming upstream against some ill-considered authority. This would be easier if it had been done right in the first case.

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2015.35: Jury Selection Rule: Pull Back the Curtain.

Wed, 02/04/2015 - 17:13

One of my proteges, working on an appeal, noticed how easily the prosecutor convinced a member of the jury panel to change his mind on an important issue with a tongue lashing. He posted about it publicly, admonishing potential jurors to be strong in jury selection and not let a prosecutor “bully them” into changing their opinions. It’s a fair point, but there is a lesson for the defense lawyer as well.

Jury selection is not about getting jurors to change their minds. You’re not likely to get them to change their minds in jury selection, and the prosecutor in my protege’s case probably (I wasn’t there) didn’t really get the juror to change his mind. What she did was to get the juror to say different words than he had at first; she might be able to hold the juror to that new position during deliberations, but probably not, so if she didn’t get him to say words that led to a challenge for cause she was wasting her breath.

Worse than that, when a lawyer browbeats a juror into changing his position, other jurors are not going to share their honest opinions with the lawyer for fear of being browbeaten themselves. So by being a bully, the prosecutor shuts down her own ability to get actual information from the rest of the panel.

Even worse than that, if the defense lawyer is on the ball he will get up when the prosecutor has finished talking, rehabilitate the juror, and talk with the jury about people trying to browbeat other people into changing their minds, using the prosecutor as an example.

Often an important part of the defense voir dire is to talk with the jurors about standing their ground when other people are trying to bully them into changing it: each juror’s verdict is a personal moral judgment (the language of the Colorado Method of capital jury selection); a juror should not change her verdict based on pressure from others; and a juror should not pressure others to change their verdicts. It’s improper, and unfair.

In most jurisdictions prosecutors go into jury selection with a halo of credibility because of their job. Jurors assume that what prosecutors do in jury selection is what is supposed to be done. They may not like it, but they figure that the prosecutor wears a white hat and is doing what she is supposed to. If the defense can remove that halo, the odds are evened considerably. (I think I’ve won every jury trial in which the prosecutor misstated the law in jury selection and my objection was sustained.)

When the prosecutor has demonstrated bullying behavior in voir dire, defense counsel can hold it up as an example, and the prosecutor won’t have a chance to respond. The benefits to the defense of this are several: the jurors feel free to speak freely with the defense lawyer (even more than if the prosecutor had behaved better); the prosecutor’s credibility is shattered; and the defense lawyer’s credibility increases.

In jury selection we are not trying to change jurors’ minds, but rather to win their hearts. Intellectually, at best we are going to get them to frame the game of the case in a way that favors us. Emotionally, though, we can help them trust us, like us and want to help us. By revealing to the jury panel the prosecutor’s voir dire tricks (and this applies to trick questions, bullying, and other tactic of which your kindergarten teacher would not approve) the defense lawyer reveals the prosecutor as a trickster and himself as a truth-teller. It’s a credibility bonanza for the defense.

If the defense lawyer is using tricks in voir dire, the prosecutor doesn’t get a chance to stand up afterwards and have a conversation with the jury about it, so she doesn’t get the same credibility bonanza. But juries aren’t clueless, and if you treat them unfairly they are going to do the same to you.

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2015.34: Well Done, Joan Huffman!?

Tue, 02/03/2015 - 20:54

Joan Huffman is the Texas Senator (and former Harris County criminal judge) responsible for Code of Criminal Procedure article 38.37 section 2, which provides that extraneous offenses are admissible in the trial of someone accused of a sex crime with a child to prove “the character of the defendant and acts performed in conformity with the character of the defendant.” My brief on the unconstitutionality of that statute is here.

Not to gertrude, I am not inclined to cut Huffman any slack.

But when I read this, I was pleasantly surprised:

Section 33.021, Penal Code, is amended to read as follows:

(a)(a) In this section:

(1) “Minor” means:

(A) an individual who isrepresents himself or herself to be younger than 17 years of age; or

(B) an individual whom the actor believes to be younger than 17 years of age.

(2) “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.

(3) “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedurearouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d) It is not a defense to prosecution under Subsection (c) that :(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense.

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(1) the actor was married to the minor; or

(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

That is what Texas’s Online Solicitation of a Minor statute, Texas Penal Code Section 33.021, will look like if Huffman’s proposed amendment, SB 344, passes in its current form. It is not quite right, but is much closer to constitutional than the statute as it exists now. It will also be much harder for the State to prove—constitutionality and prosecutorial convenience are a zero-sum game.

In subsection (a) Huffman proposes eliminating the “represents himself or herself to be” language from the definition of minor, so that a “minor” will be either an actual minor or someone the defendant believes to be a minor. So on the one hand if the “minor” is a cop the State will have to prove beyond a reasonable doubt that the defendant believed the cop’s “minor” schtick.

On the other hand it appears at first blush that the revised statute would allow a defendant to be held liable for talking dirty to an actual minor pretending to be an adult, even if the defendant believed the minor to be an adult, as an adult can be held liable for having sex with a minor who is pretending to be, and believed to be, an adult.

It would appear that way only at first blush, though, because the dirty talk prohibition now requires the intent to commit a sex crime against a child. So even if the “minor” is a minor pretending to be an adult the State will have to prove that the defendant intended to do something to a child, which presupposes that the defendant believed a child was somehow involved.

I’m not entirely happy with describing the offense as “communicat[ing] in a sexually explicit manner with a minor” “with the intent to commit” (for example) sexual assault. At best it’s clumsy, with no explicit connection between the sexual assault and the communication.

At worst it renders the statute unconstitutional again. The communication itself is constitutionally protected, and the state of mind itself is constitutionally protected. It is only when the intent is put into action, either physically or with a solicitation, that it can be constitutionally forbidden. “Incitement” is only unprotected if the speech is intended to induce or commence illegal activities.

So, for example, if D communicates in a sexually explicit manner with A while he intends to commit sexual assault with an unrelated B, the communication would still be constitutionally protected.

Or if D communicates in a sexually explicit manner with A and intends to commit sexual assault with A, but if the speech is not intended to induce or commence the sexual assault or any other illegal activity, the speech is constitutionally protected.

This may be a narrow class of protected speech that is criminalized; I haven’t yet worked through whether this invalidates the statute as to D or as written, but it seems to me that subsection (b) could be more clearly written:

(b) A person who is 17 years of age or older commits an offense if, with the intent to commit induce or commence commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with athe minor; or

(2) distributes sexually explicit material to athe minor.

With these small changes, the statute is almost in line with First Amendment incitement law. The only element of incitement that isn’t in the statute is imminence: for incitement to be unprotected speech the defendant must intend that a crime be imminent. There is, as you might imagine, not a lot of case law on imminence. If you stuck “the imminent” in between “commence” and “commission,” you’d have a statute that I’d have difficulty attacking (which is not to say that I won’t come up with something):

(b) A person who is 17 years of age or older commits an offense if, with the intent to induce or commence the imminent commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with the minor; or

(2) distributes sexually explicit material to the minor.

So that’s (b).

Subsection (c), as it is now, is unconstitutional because, in conjunction with subsection (a)(1)’s definition of minor to include anyone who represents himself to be a minor; and subsection (d)’s exclusion of fantasy and lack-of-intent defenses, it criminalizes speech that is not incitement, and is therefore protected by the First Amendment. Huffman’s edits to (a)(1) and (d) eliminate this unconstitutionality. To nail it down, imminence should be an element in (c) as well—

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will imminently engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

—but the lack of imminence is a minor problem compared with the explicit elimination of fantasy and lack-of-intent defenses.

Subsection (e)(2) still creates a defense for the defendant who, believing a cop who is older than the defendant to be a minor, solicits the cop to have sex. There is no good reason that a 33-year-old defendant can legally solicit a minor who happens to be a 36-year-old cop, but a 40-year-0ld defendant cannot. While the legislature is mucking around in this statute it ought to rewrite (e)(2) as well:

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(2) the actor was not more than three years older than the minorthe younger of (A) the age of the minor; and (B) the age the actor believed the minor to be; and the minor consented to the conduct.

There’s probably an even better way to write that, but you get the gist: the age defense should be available if the nineteen-year-old defendant believed he was chatting with a sixteen-year-old, but it should not be available if the nineteen-year-old defendant believed he was chatting with a thirteen-year-old but was actually chatting with a forty-year-old cop (because, as a rule of thumb, a “thirteen-year-old” cruising for sex on the Internet is a forty-year-old cop).

I wouldn’t ordinarily suggest improvements to make a penal statute constitutional, but since I don’t have a philosophical problem with the state punishing people who are truly trying to pick up kids for sex on the Internet, and Joan Huffman seems to be headed in the right direction on this one, I’m happy to help.

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2015.33: In Which I Gertrude About Gertruding about Gertruding

Fri, 01/30/2015 - 21:01

I would never say that I don’t need to prove that I don’t need to prove that I’m opposed to cops being murdered. Because it’s obvious that I don’t need to prove that I don’t need to prove that I oppose murder, and rape, and revenge porn, and all of the other bad things. It goes without saying. And nobody would suggest that I need to prove that I need to prove that I’m opposed to bad things unless I proactively insisted that such was not the case.

So, once and for all, not only am I opposed to all the bad things, but also I don’t need to prove it. And furthermore I don’t need to prove that.

I hope it’s obvious. I would hate to have to prove that I don’t need to prove that I don’t need to prove that I oppose all of the bad things.

(I want Urban Dictionary credit for coining the verb “to gertrude,” meaning “to create doubt in a proposition by insisting upon it.”)

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2015.32: Texas Lawyers, Don’t Be That Guy

Fri, 01/30/2015 - 14:19

Some lawyers are reportedly interpreting Ethics Opinion 646 to mean that they can give their clients copies of discovery produced under Article 39.14 of the Texas Code of Criminal Procedure, despite Article 39.14(f)‘s admonition that:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

39.14(f) is the law. Ethics Opinion 646 doesn’t change that, and the opinion really couldn’t be more clear:

Because article 39.14 requires an “open file” policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures.

The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act.

There are whiny chickenshit prosecutors who are cruising for examples of defense lawyers violating the Michael Morton Act, so that they can get their tame scared-white-republican legislators to shove through changes.

Don’t be that guy who gives his clients copies of offense reports and screws up discovery for the rest of us.

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2015.31: Ethical Question—Privilege vs. Best Interest

Fri, 01/30/2015 - 11:51

Hypo: In a Texas criminal case, defense counsel receives a video recording in discovery from the state. Assume that she needs to prepare her witnesses for cross-examination by talking to them about the contents of the video. The defendant forbids her from showing the video to the witnesses or even telling them what it shows. She does her best to convince him to allow it, but he refuses.

How does this shake out?

Generally, the defendant has the right to make the strategic decisions in his case (plead guilty? jury or bench trial? jury or judge for punishment? seek lesser-included offense?) but trial counsel makes the tactical decisions (what witnesses to call, what questions to ask).1Good judgment isn’t what made the client a client. A lawyer has to maintain control over the defense. Often a client will want the lawyer to do things that would be disastrous to the client’s strategic goals; a lawyer can and should refuse. Whether to show the video to potential witnesses, to prepare them to testify, seems to fall under the category of “tactical decisions.” The lawyer has a responsibility to keep the client from making disastrous mistakes. And the video isn’t a secret—the State had it first.

But in Texas criminal cases, according to Rule of Evidence 503(b)(2),

a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.

That seems pretty clear: the lawyer wouldn’t have known about the contents of the videotape if not for the attorney-client relationship, so the client has a privilege to prevent her from disclosing them.

How does this clash between the best interest of the client and the lawyer-client privilege shake out?

The lawyer may be tempted to do what is best for the client’s case, because that’s what she has been hired to do. The lawyer must resist the temptation. There’s ego involved—for her own gratification the lawyer would rather win the case than lose it. The lawyer must set aside her ego.

What if the lawyer will, following the client’s instructions, be ineffective?

Neither the Supreme Court nor this court has ever held that a lawyer provides ineffective assistance by complying with the client’s clear and unambiguous instructions not to present evidence.

Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir.2007).

The privilege must win. The privilege, sacrosanct, should always win. The criminal-defense lawyer should, like Pat McCann, be willing, to go to jail to preserve the privilege.

But what if the lawyer interprets 503(b)(2) nonliterally, so that “any other fact” does not include information that would not be covered by the attorney-client privilege under the rules that we learn in law school?

That’s not what the rule says, but perhaps the lawyer could, by stretching, reasonably read the rule to allow disclosure of the video to the potential witnesses. Maybe the lawyer is setting aside her ego to make this call. Maybe the client’s concerns are misplaced, and disclosure would truly be in his best interest. Maybe if the client grieves the lawyer the State Bar would agree with the lawyer’s interpretation.

The best interest of the client and the lawyer-client privilege are guiding principles. If not for clients we would not have jobs, and if not for the privilege our clients could not trust us and we could not do our jobs. That the privilege must win is my own judgment. A lawyer might feel that the client’s best interest must win. I would call this “playing God,” disagree with it in harsh terms, and file a grievance if the client sought my help.

Or a lawyer might weight the two principles equally; in that case (and only in that case) it would be acceptable for the lawyer to consider policy, which can’t trump either the privilege or the client’s best interest. For the criminal-defense lawyer, policy favors privilege. In the vast majority of cases the client will benefit from reading the privilege more broadly, and if we accede to a narrow reading in one case we may sacrifice our ability to argue in all of those other cases that the rule says what it means.

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  1. Others have characterized the dichotomy as “fundamental” vs. “strategic” decisions, a mixing of metaphors. 

2015.30: For Shame, Professor Franks.

Mon, 01/26/2015 - 18:08

Shame that @ACLU supports the violation of sexual privacy for profit or entertainment http://t.co/VBZ0aounKn@EndRevengePorn@cagoldberglaw

— Mary Anne Franks (@ma_franks) January 26, 2015

A wise man recently said, “If you publicly oppose criminalization of anything, zealots of criminalization will accuse you of favoring that thing.”

The argument is either ignorant or dishonest. Franks doesn’t get to plead ignorance here. She knows the argument is dishonest and she makes it anyway.

It is fair to ask, “is there some depth to which Mary Anne Franks won’t sink?” So far we haven’t found that depth.

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2015.29: We Have Seen the Enemy…

Mon, 01/26/2015 - 17:52

The ACLU sued on behalf of several bookstores and publishing associations, the owner of the Village Voice and 12 other alternative newsweeklies nationwide, and the National Press Photographers Association.

The groups sent Mesnard and legislative leaders a letter early this month suggesting changes to the law to address its concerns that the law was overly broad. …

“In our view, we’re just trying to ask them to add some elements that first of all protect the media with respect to images that are important historically or have news value or artistic image,” said David Horowitz, executive director of the Media Coalition, whose members include publishers, librarians and booksellers. “And trying to really focus this again on the kind of malicious invasion of privacy everyone agrees is bad behavior.”

The letter suggested that Mesnard change the law to narrow its scope to address only “revenge porn” without interfering with free speech rights. Specifically, they don’t want it to apply when the publication was in the public interest or newsworthy.

And they want it to apply only to someone who was in an intimate relationship and displays a photo that their partner expected would be private with the intent to embarrass, harass or otherwise harm the person.

Mesnard said that language would be a deal-breaker because of the need to prove intent to harm, which he said would create “a big old loophole.”

(SFGate.com).

“Newsworthy,” like “in the public interest,”  is a subjective test that state actors could use to decide whom to arrest and whom not to. As Professor Neil Richards has written, “The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor[.]”

Criminalization advocate Danielle Citron agrees with the Arizona plaintiffs and disagrees with Arizona Republican Representative J.D. Mesnard:

Revenge porn laws should also make clear that to win a conviction, prosecutors must show that the poster of the revenge porn intended to do harm.

There’s going to be a “big old loophole” in any revenge-porn statute; that loophole is called “free speech.” It is not possible to “address only ‘revenge porn’ without interfering with free speech rights.”

If the statute requires an intent to harm and has a newsworthiness or public-interest exception, it may be narrow enough to satisfy the booksellers’ interests, but it’s still going to be unconstitutional. “Everyone agrees it’s bad behavior” is not a category of unprotected speech.

Shame on the ACLU if they put their imprimatur on such a statute.

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2015.28: Billy Harmon, Hubris, and Defilement

Sun, 01/25/2015 - 23:36

A couple of years ago I wrote a post about the prevalence of judges coaching prosecutors:

In short, the judiciary acting as an adjunct to the prosecution shouldn’t surprise anyone. Elected judges identify with the state. There are very few who will decide close calls for the defense. There are many more who will bend over backwards to make sure the state wins. What Coker did with Jones is little different than what Narcise does with Cousteau. But Narcise doesn’t text Cousteau, or if he does Cousteau is smart enough not to commit the texts to paper.

Now I’ve found a judge who is so brazen about coaching prosecutors that he doesn’t care who knows it.

Meet Billy Harmon, Judge of Harris County Criminal Court at Law Number Two.In a DWI case in Court Two, Tyler Flood filed a motion in limine asking, among other things, that Harmon “refrain from…[c]oaching the prosecution….”:

Motion for Judge Harmon not to Coach Prosecutors

Harmon denied the motion. In other words he refuses, even when asked on the record, to refrain from coaching prosecutors in the court on which he sits. (And no, judge, it’s not “your” court.)

Flood is engaged in a running struggle against Harmon. In Simpson v. State he appealed the denial of a motion to recuse Harmon because of the MADD plaque on display in the view of the jury. The judge who heard the recusal (if a party moves to recuse a judge and the judge doesn’t recuse herself, another judge hears the matter and decides whether recusal is appropriate) said, “The motion to recuse is denied, but I would strongly hope that the Judge would do the right thing and take down the plaque.”

Justice Sharp dissented in Simpson, writing in part:

To display behind the trial bench a plaque awarded by one of the most well-established interest groups in the nation not only fails to keep the interest group at bay, but also invites others to take notice that, in the judge’s capacity as a public official, his actions merited the group’s commendation. When that interest group is Mothers Against Drunk Driving—a group dedicated to the proposition that the offense for which the accused citizen is being tried in that very courtroom is a very bad and potentially horrific thing—the sanctuary has been twice defiled: not only by the agenda of the interest group, but also by the hubris of the judge charged with the responsibility of assuring a fair and impartial DWI trial.

The fact that the voters of Harris County pulled the lever marked “R” to allow Billy Harmon to work in County Criminal Court at Law Number Two doesn’t give him the right to dishonor it.

p.s. There’s another wrinkle to this story that will bear watching. When Flood sent an associate to the clerk’s office to get a copy of the motion in limine, the associate was given this:

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2015.27: Stalin is Smiling

Sat, 01/24/2015 - 23:24

I don’t think I’d heard of Brad Spangler before today, when this popped up in my feed reader:

The following message was posted on Facebook, allegedly from Brad Spangler, and I find it difficult to believe. If someone out there is trying to malign him or malign libertarianism through him, then it is a viciously sick joke. I’m suspending judgment until more is known, and I hope everyone else does the same. I am not providing the FB link because the commentary thread has been reduced to spewing hatred.

The message (purportedly) from Brad Spangler:

“…During a particularly bad period in 2004, I molested my young daughter. I did not do so forcibly, but the betrayal of trust and resulting potential emotional fallout for her has weighed heavily on my conscience ever since, to the point of doubting my sanity and refusing to believe I had, or even could have, done such a thing.

“While I believe justice ought to be handled as a matter of restitution to the victim rather than punishment, my declining physical health, apparently from myotonic dystrophy, means I probably don’t have many years left to live in which attempts could be made at restitution. With the laptop going in for warranty exchange, worries about discovery of which web sites I had visited and further questions that might raise convinced me that facing the currently dominant accountability process, regardless of what’s right or wrong with it, is the best thing I can do for my daughter.”

In case my formatting isn’t clear, the first two paragraphs are my excerpt of Wendy McElroy’s words. The last two paragraphs (in quotes) are my excerpt of Brad Spangler’s purported message, which McElroy quoted in full.

Go ahead and read it. I’ll wait.

Spangler was an anarchist philosopher, one of the founders of the Center for a Stateless Society (C4SS).

McElroy links to this post by Thomas L. Knapp. Knapp also wrote this post, on C4SS’s response to Spangler’s post.

A search for Spangler’s name this morning turned up the Wikipedia entry on Anarchism and Anarcho-Capitalism.

I’ll get to the content of Knapp’s posts, C4SS’s response to Spangler’s post, and the Wikipedia entry. I want to start, though, with the content of Spangler’s Facebook post.

Spangler writes, “During a particularly bad period in 2004, I molested my young daughter.” I think we can assume that by “molested” he means sexual misconduct of some sort. We don’t know the circumstances, the age of the daughter, or anything else other than Spangler’s characterization.

I did not do so forcibly, but the betrayal of trust and resulting potential emotional fallout for her has weighed heavily on my conscience ever since, to the point of doubting my sanity and refusing to believe I had, or even could have, done such a thing.

If Spangler was unsure that it had happened, how can we be sure now that it happened? If Spangler had convinced himself that he had never done such a thing, then perhaps his daughter had convinced herself of the same, or had otherwise found ways to deal with it without major public drama.

“Potential emotional fallout for her” implies that the emotional fallout had not, at the time that he wrote this message, yet materialized.  Emotional fallout will surely materialize now, though his now-teenage or young-adult daughter might very well deny that anything had ever happened, both for her father’s sake and for her own.

Spangler is coming clean now for the sake of his conscience. It is not politically correct to say so, so I’ll say it: he is wrong. Publicly confessing, forcing her to revisit the memories, replay them in her mind, and answer the questions of authorities, may be a greater betrayal than molesting her in the first place.

Outcomes for children abused by relatives (as, if we credit Spangler’s confession, happened here) are on average worse than for children abused by non-relatives. But child sexual abuse does not necessarily lead to long-term harm. While childhood sexual abuse is associated with harm, family environment is a confounding factor that may be responsible for the association. This was a finding of the peer-reviewed 1998 Rind meta-analysis, which was suppressed because it wasn’t politically correct. 2006 research by Heather Ulrich supported the proposition: “child sexual abuse was found to account for 1% of the variance in later psychological outcomes, whereas family environment accounted for 5.9% of the variance.”

Child sexual abuse causes an almost-universal moral panic. It’s an easy target because nobody wants to be accused of favoring child sexual abuse. The moral panic causes the suppression of any scientific research that would counteract the moral panic. But the panic may be worse for the child than the sexual abuse. The adverse effects of child sexual abuse are magnified by people freaking out about child sexual abuse. A 1979 study by David Finkelhor found that children who disclosed their sexual abuse experiences reported that the reaction of their parents and authorities upon their disclosure caused chaos in their lives, and overrode the actual abuse experience. The better approach for those who love the sexually abused child is to give him a safe space to talk about it, and to take their cue from him. By contrast, revealing publicly on Facebook that your daughter was sexually abused as a child is a horrid, nasty, narcissistic thing to do.

Spangler goes on to write:

While I believe justice ought to be handled as a matter of restitution to the victim rather than punishment, my declining physical health, apparently from myotonic dystrophy, means I probably don’t have many years left to live in which attempts could be made at restitution. With the laptop going in for warranty exchange, worries about discovery of which web sites I had visited and further questions that might raise convinced me that facing the currently dominant accountability process, regardless of what’s right or wrong with it, is the best thing I can do for my daughter.

He’s confessing because he’s sending his thousand-dollar laptop in for warranty exchange and people might discover which websites he had visited. That is one of the stupidest things I’ve ever read a smart guy write. I mean, it’s really fucking stupid. Swap out the hard drive, send the laptop in for exchange and destroy the incriminating drive. Or just burn the whole damn laptop, take the thousand-dollar loss, and dedicate the rest of your short life to trying to improve your daughter’s life.

Instead, this smart guy plans to “peaceably turn[ himself] in to the Kansas City Police Department, confirm[] this confession, refus[e] any potential bond and fac[e] accountability in court.”

Even aside from the harm that Spangler may have done to his daughter by publicly announcing that she was sexually abused as a child, turning himself in and giving the state its pound of flesh is going to make any restitution more difficult, and is not likely to do her any good at all. He’s choosing self-flagellation over what he acknowledges to be her best interest. Presumably she loves him and doesn’t want to see him in prison.

This is like society’s harmful handling of child sex abuse on a smaller scale. Just as our society does, Spangler chooses moral panic over science—refusing to acknowledge that child sex abuse does not necessarily have intense long-term adverse effects and treat it rationally in the best interest of the children. Society does it because it feels good to pretend we’re fighting absolute evil. Spangler does it to make himself feel better.

I am not a fan.

But I’m also not eager to erase Spangler from history. Which is what this Wikipedia editor would do:

The text that this editor would remove is not a lengthy paragraph on how Spangler is a terrific father. It is a paragraph about Spangler’s analysis of Murray Rothbard’s political philosophy. Why expunging this would be respectful to Spangler’s daughter and wife, and why the editor thinks he knows this, is a mystery. Spangler’s admitted crime doesn’t make the text any less accurate. Here, the child-sex-abuse moral panic drives the editor toward revisionism.

Even the Center for a Stateless Society, which one would hope, based on its name alone, would not join in this moral panic that feeds authoritarianism, takes a revisionist stance:

C4SS has changed substantially over the years as we’ve grown and Spangler does not represent us. Rather than continue to host the writing of a child molester and to make clear our strenuous disassociation we’ve removed his historical posts from our site. At the same time we do not mean to disingenuously “memoryhole” Spangler’s unfortunate legacy and will be archiving his historical content on another site, the Spangler Pensieve.

As Knapp writes:

The content he wrote in that role either had value or it didn’t. If it did have value, it still does and should be kept published in situ where it has resided — and been linked to externally from — for years. If it doesn’t have value, it never did and the Center itself, being in non-trivial measure built on that content, is a sham.

C4SS and the Wikipedia editor compound their revisionism with a true ad hominem fallacy: it’s not that they seek to erase his ideas because those ideas are now disfavored, but that they seek to do so because he is now disfavored.

In his earlier post Knapp writes:

Naturally, my counsel/position of “wait and see, this may not be what it seems” as opposed to “throw the bastard under the bus, NOW!” elicited reactions from some quarters along the lines of “you rotten son of a bitch, I bet you’re a pedophile yourself and I am going to give your name to the police.” For the record, I have never molested a child, nor would I ever dream of defending such actions. I suspect the people making such threats are typical keyboard war heroes who are too lazy to actually research my name, location, etc. and make a phone call to file a false report, but if it happens, consider yourself forewarned that that is what is happening.

…”[M]ake no mistake, I strongly condemn the actions described in the post….”

No response is required to the “I’ll bet you’re a pedophile yourself” reaction to a call for rational behavior. If it goes without saying, don’t say it. By treating the accusation seriously, you perpetuate the reaction and feed the moral panic. If you must respond to the suggestion that your procedural caution means you support the substance, “go fuck yourself,” or some other flavor of the same message will suffice.

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2015.26: Standard Disclaimers Always Apply

Fri, 01/23/2015 - 12:48

“Let me state boldly; I am against sexual assault. But…”

“I am against revenge porn. But…”

“I am not a supporter of crime or criminals.…”

Of course you are against all the bad things. So you don’t need to say it. Please don’t.

I understand the impulse: if you publicly oppose uncritically believing people who make rape accusations, you will be accused by small-minded people of favoring sexual assault. If you publicly oppose criminalization of anything, zealots of criminalization will accuse you of favoring that thing. If you defend people accused of crimes, the booboisie will infer that you support those people and their crimes.

The disclaimer is a preemptive strike against this illogical inference. But even if it’s true, it is not going to convince anyone. (If your disclaimer is, “I am a strong proponent of free speech, but…”, it’s probably not true; the second half of your sentence will tell.)

The great mass of readers are either too poorly educated to tell the difference between procedure and substance, or too dishonest to acknowledge it. The ignorant group doesn’t understand that you can fight criminalization without supporting bad conduct; the dishonest group understands, but pretends otherwise in order to quash dissent. (I’m sure you all have favorite examples of the latter, you misogynistic rape apologist you.)

This is our culture: subtlety is lost. Ignorant people may be educable, but you can’t make dishonest people honest. (Protip for telling them apart: you can’t. So you get to pick between trying to educate the dishonest, and giving up on the ignorant.)

By proclaiming your bona fides, you play into this cultural trend. You go on the defensive before you’ve been irrationally attacked. Even though you don’t mean to, you lend legitimacy to the illogical inference, opening for discussion whether you are in fact in favor of revenge porn / sexual assault / crime, when you intend to discuss how best to deal with revenge porn / sexual assault / crime.

If it goes without saying, don’t say it.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (104.237.128.11) .)

2015.25: Deceivers and Truth-Tellers

Tue, 01/20/2015 - 15:23

The question comes up time and again: should lawyers portray the legal system as some wish it were, or as it really is?

Those who think we should portray the legal system as they wish it were—an accurate instrument for finding the truth, with rules that work and players who are above reproach as long as they follow those rules—are deceivers. Their deception has a purpose, perhaps—to “fake it until we make it,” or to keep the rubes from rioting—but they are deceivers nonetheless.

Those who portray the legal system as it really is are truth-tellers. When truth-tellers speak, deceivers accuse us of bringing the profession into disrepute and try to shut us down.

From the (Canadian) Law Times last month:

[Dalhousie University lawprof Elaine] Craig also takes issue with lawyer web sites that imply aggressive advocacy in sexual assault cases, a sensitive topic in light of the current debates around the reticence of victims to report sexual assaults. In her view, implying aggressive advocacy may contravene law society rules on marketing. She noted, for example, the web site of law firm Adler Bytensky Prutschi Shikhman, which pointed out that “in many sexual assault allegations, the only evidence comes from a single complainant. It is therefore critical that your lawyer be capable of conducting a thorough and exhaustive cross-examination. Depending on a host of factors, this may call for light suggestive questioning or aggressive confrontational examination.”

According to Craig, even if lawyers have a duty to engage in aggressive cross-examination, “that shouldn’t translate into your marketing platform.”

“No one is constitutionally entitled to any defence possible,” she continues.

“Whatever we rely on as the legal profession to justify that kind of conduct, that doesn’t apply to marketing.”

Fascinating, professor.

Craig seems to doubt that aggressive confrontational cross-examination is justified. But even accepting for the sake of the argument that it is, she opines that advertising such advocacy in sex-assault cases is unjustified. So it’s not in all cases that lawyers are forbidden, in Craig World, from advertising their special skills, nor in all criminal cases, but only in sex-assault cases.

The rules are different for sex assault cases. Because political correctness.

I don’t know “law society rules on marketing”; they may indeed forbid “implying aggressive advocacy” in sex-assault cases. Canada’s a strange place, eh? Craig’s complaint, more specifically, is that such advertising may be inconsistent with:

…the rule requiring lawyers to encourage public respect for the administration of justice and to conduct oneself in a manner that reflects favourably on the legal profession and that inspires the confidence, respect and trust of the community, the duty to maintain client confidentiality and to uphold the reputation of the legal profession, the duty of competence, the obligation to communicate in a manner that is consistent with the proper tone of a professional communication from a lawyer, and the requirement that public statements by a lawyer concerning a client’s affairs are in the best interests of the client and not for the purpose of publicity or self-promotion…

So advertising that doesn’t encourage public respect for the administration of justice is improper. But whether advertising encourages public respect for the administration of justice is mostly subjective. Professor Craig may have one view of what the public should look for in a criminal-justice system (gentle treatment of complainants); I have a very different one (a fighting chance for the accused).

By acting as though sex-assault complainants aren’t given any more special treatment than the law requires, Adler Bytensky encourages public respect for the administration of justice, as the law society rules require. He’s telling the truth. It’s only those who think that sex-assault cases call for less due process who will see aggressive cross-examination of a sex-assault complainant as a bad thing for the system.

The criminal-justice system is imperfect, and it’s important that it get things as right as possible. Aggressive cross-examination, when it is appropriate, is an engine for getting to the truth. If the Crown can’t prove its case in the face of a zealous defense, then the system has worked.

Even if the defendant really did it.

“All parties were drinking at a New Years Eve Party. The Complainant became intoxicated and unconscious. The Complainant’s partner and L.H. placed the Complainant in L.H.’s bed due to her intoxicated state. The Complainant became ill, thus her partner and L.H. cleaned up both the Complainant and the area where she became ill. The next morning the Complainant alleges L.H. sexually assaulted her in her sleep. DNA analysis was completed on the Complainant’s underwear and tested positive for L.H.’s DNA. Results: Jury acquitted Mr. L.H. of all charges.”

Craig then noted some of her concerns: “Individuals cannot consent to sex while unconscious. By describing this sequence of events, and then noting that the accused’s DNA was found in the complainant’s underwear but not offering any other details of the case besides the acquittal, this advertisement may leave the reader with the impression that the client was factually guilty. No other information about the case is given.”

Any practicing lawyer recognizes that there are other explanations for these facts than factual guilt. Among them:

  • LH may have had consensual sex with Complainant before she was intoxicated;
  • LH may have had consensual sex with Complainant after she regained consciousness;
  • LH may have had sex with Complainant’s partner, who then touched LH’s underwear;
  • Someone may have planted LH’s DNA or Complainant’s underwear;
  • Complainant may have sat on something containing LH’s DNA; and
  • Complainant may have sexually assaulted LH after she regained consciousness.

That strikes me as the point of the lawyer’s (Sean Robichaud of Ontario) advertising: a story that appears to people like Craig like a foregone conclusion of guilt may, in the hands of the right lawyer, turn into an acquittal.

And sure there’s much more to Robichaud’s story than he’s telling in his ad. That’s just a teaser. Robichaud gives us only the facts that the client, the Crown, and Robichaud might have started with when the client was charged, and tells us what the ultimate result was. What happened in between is the work that Robichaud got paid to do. It’s a before-and-after shot. While Robichaud may advertise how he worked his magic, he has no obligation to.

Sure, this might leave the reader with the impression that LH was factually guilty (and I would take issue with it if the reader could determine LH’s identity from the information Robichaud gives). But “factually guilty people are sometimes acquitted” isn’t the indictment of the system that “factually innocent people are sometimes convicted” is. The easier we make it to convict the factually guilty, the easier it becomes to convict the factually innocent. Yes, factually guilty people are sometimes acquitted. That’s the truth.

Craig doesn’t take issue with the advertising as deceptive. She can’t: although told with a purpose, it’s truthful. Deception would lie in suppressing the 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 (99.28.18.129) .)

2015.24: What’s the Message?

Tue, 01/20/2015 - 12:20

When four felony prosecutors quit or are fired from the Harris County DA’s Office in a week, I try to tease out the pattern, or the message that is being sent.

  • #3 in the 182nd.
  • Chief in Court 4.
  • Assistant in Forfeiture Division.
  • Chief in the 176th.

What do these four lawyers (there may be more that I haven’t heard of) have in common? What message does their discharge send to the rest of the office? No idea. I haven’t heard any gossip that doesn’t strike me as bullshit. So this post is just a placeholder for now; I’ll return to it when I have a theory.

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) .)

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