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2016.002: Seeking 150 Criminal-Defense Innovators

Fri, 01/01/2016 - 17:20

In a series of posts almost five years ago I wrote about the idea of a criminal-defense skunkworks:

Since then the project has not gotten far off the ground. I had some discussions with some people, but we all have very busy lives and other jobs took higher priority.

Late last year I ditched gmail for fastmail for better privacy. Fastmail does not have as whizzy a sorting system as gmail, so my lawyer-listserv emails wound up in folders that I didn’t routinely check. When I stopped reading them regularly I realized how wasteful most criminal-defense-lawyer listservs are.

I started the Harris County Criminal Lawyers Association listserv with Troy McKinney and we managed it from ’97 or ’98; I was proud of it for a long time; it did a lot of good. But it has outgrown its usefulness to me. It’s been years since I could ask a substantive question there and get a useful answer. There are too many members; too many of them are not serious about criminal defense. There is too much noise, and not enough signal.

Six hundred members are too many for a many-to-many email listserv. It’s too easy for one or two people who think everyone else needs to smell it to fill six hundred people’s email boxes with their shit. Once the nonsense starts, without group disapprobation it snowballs: I started independent listservs for TLC ranch and regional alumni, and even though they were much smaller they quickly devolved to a couple of people crossposting whatever stupid stuff came to their minds.

For a long time listserv members—including some of those who are not serious about criminal defense—have been calling for listserv censorship, for formal rules. Troy and I were always adamantly opposed to the imposition of rules. The listserv was as much a social space as a workplace, and as a free-speech lawyer I bridled at someone telling me what I could or could not say on my creation.

I still don’t think formal rules are a solution to the problem of too much noise and not enough signal on the listserv. The Texas Criminal Defense Lawyers Association has a listserv with formal rules, and the rules are enforced by the rule enforcers (the TCDLA politburo) against unfavored members only. For rules on a listserv to work, the members would have to agree to the rule of a benevolent dictator, a philosopher-king.

So what is the solution? Obviously, the solution is to gut the listserv and reduce the number of people participating. But I can’t very well do that to the HCCLA listserv (technically, I could, but it would use up my year’s quota of hurt feelings in a day). So I’m starting afresh, building what I think of as a high-functioning criminal-defense lawyers’ group.

Why “high-functioning”? Because the sort of lawyers I most like to correspond with are those who function at a higher level: who look for deeper understanding of why they do things and how to do them better. I’m not talking about the lawyers who go to the Trial Lawyers College (to pick on one particular dogma) and thenceforth try cases the TLC way; I’m talking about  lawyers who adopt what works for them, reject what doesn’t, and look for other ways to improve their trial lawyering. Lawyers like Joey Low, or Norm Silverman.

I envision a group of such lawyers as (to circle back) effectively a criminal-defense skunkworks. Because if you put a bunch of innovative ((I put out a call for innovative lawyers, and one of my friends gave me a couple of names, and described their innovation in trial—trying different approaches with a witness, for example, until the witness gave the correct answer. While innovation on that scale is laudable, I had in mind innovation at a different level: more like John Ackerman’s innovation in bringing psychodrama to trial lawyering.)) lawyers in a room together, together they are going to find better ways of doing things.

How big a group? I like the notion of a group smaller than Dunbar’s Number, which is the theoretical limit on our ability to maintain stable social relationships: about 150.

At first I thought admission to the group should be subject to a black-ball vote: everyone already in the group gets a veto to new members joining. After further consideration, though, I have decided that the group should be a benevolent dictatorship. With the advice of current members, I will decide who joins. And while the list will have no rules, if I make a mistake in admitting someone and they become disruptive to the group’s purpose, which is to advance the art and science of criminal-defense lawyering, I will (again with the advice of the membership) remedy my mistake by removing them.1


  • To advance the art and science of criminal-defense lawyering.
  • 150 or fewer members.
  • Criminal-defense innovators.
  • I choose the membership.

The question that remains is: what forum? Because this is something new, we are not stuck with email as our communication method. While we know that lawyers are able to use a listserv, we might find something that works better for our skunkworks. Because we are looking for innovators, we can use a more innovative communication system. And because we want higher barriers to entry than criminal-defense listservs have, we can use a communication method with a learning curve.

I like Twitter. Twitter is a many-to-many communication form, but it’s really easy to unfollow, mute, or block the person whose shit you don’t feel a compelling need to smell. Tweets are not delivered to my mailbox; I can dip into Twitter whenever I want. On Twitter I correspond with people who are into different things than I am, or more deeply into things that I am casually into. One of my Twitter friends (@morlockp), who is a computer programmer / farmer in New Hampshire, recently mentioned Slack. I asked him what Slack is, and he described it as ~like Twitter, but private.~2

I looked into it a bit further, and it looks perfect. We can have a channel for general discussion, a “random” channel for non-work stuff, and any number of channels for discussion of particular topics.



  • Slack Team.
  • To advance the art and science of criminal-defense lawyering.
  • 150 or fewer members.
  • Criminal-defense innovators.
  • I choose the membership.

If you’re interested, please email me at Tell me why you’re interested, and if you have some field of study that you are especially interested in exploring, tell me that too.


  1. That the group will be a benevolent dictatorship may deter some from joining; that’s fine. 

  2. The ~ is my convention for a paraphrase. I couldn’t find his tweet to quote it directly. 

2016.001: My Free-Speech Wish List

Fri, 01/01/2016 - 15:09

In the last three years, I convinced Texas courts to hold five statutes unconstitutional under the First Amendment.1 I filed briefs in the Georgia Supreme Court, will argue the unconstitutionality of a Georgia statute next month,2 and will be assisting Jason Clark in the appeal of another George First Amendment challenge.3 This year, I’d like to hear from:

Here’s what those lawyers get for calling me: we’ll discuss the best attack on the law, both substantively and procedurally. I’ll share what I know about the substance, and I’ll get up to speed on their states’ procedure, so that together we can choose the best avenue of attack (in Texas, it’s a pretrial application for writ of habeas corpus; in Georgia, a demurrer). We’ll draw up the papers together. I’ll prep you to argue the case in the trial court. If there is an appeal from the trial court’s ruling, you’ll get me admitted pro hac vice, we will write the brief together, and I will argue the case in the appellate courts. This will cost you and your client nothing but travel expenses and pro hac vice admission fees. In other words, your client gets tens of thousands of dollars worth of First Amendment appellate expertise for free. I’m doing the thing for the sheer joy of the doing.4

Will we win? I’m betting on it. Many of the Texas cases to which I’ve added my name have been dismissed by the State—so many that it has become frustrating to me that the State can evade the First Amendment fight with a determined litigator and continue prosecuting those schmoes who have lawyers less resolute.

Passing those statutes, their proponents are going to find, was child’s play compared to defending them in court. All of those statutes are presumptively unconstitutional.5 The defender of one of these statutes will have the burden of showing a court either a) that all of the speech restricted by the statute falls into some category of unprotected speech; or b) that the protected speech restricted by the statute is not real and substantial, in relation to the statute’s legitimate reach.

Now that even law profs dare join actual lawyers in proclaiming that the emperor has no clothes, that these revenge-porn statutes are unconstitutional, it won’t be long before courts catch on and disassemble revenge-porn statutes. Even legislatures will figure out, eventually, that it makes no sense to pass a statute that the courts are going to kill a year or two later.

The era of the revenge-porn statute, in other words, is coming to a close, and with it the idea of constitution-be-damned “cyber civil rights.” Join me on the front lines of that fight.

  1. Also one statute under Texas’s separation of powers clause. 

  2. February 22 in Atlanta. There will be steaks, wine, and hilarity. Mark your calendars. 

  3. Protip: the State can’t forbid people insulting bus drivers. 

  4. Don’t tell my wife. 

  5. Content-based restrictions on speech (which includes expressive conduct) are presumptively unconstitutional. If you wonder whether a statute is presumptively unconstitutional, ask yourself: do you have to look at the content of a communication to decide whether the law has been violated? If so, the statute is presumptively unconstitutional. 

2015.105: Bah, Humbach

Sat, 12/26/2015 - 21:02

Josh Blackman sent me the link on Christmas Eve:

Humbach on the Constitutionality of Revenge Porn Statutes

John A. Humbach (Pace University School of Law) has posted The Constitution and Revenge Porn (Pace Law Review, Vol. 35, No. 1, 2015) on SSRN. Here is the abstract: Most of the recently enacted revenge-porn laws are unconstitutional as content-based regulations of speech unless (as is unlikely) they can either (i) pass strict scrutiny or (ii) fit within one of the recognized categorical exceptions to First Amendment protection. By paying close attention to the constitutional precedents, however, a legislature should be able to write a law that addresses the primary harms of revenge porn without resorting to the content discrimination which subjects the law to strict scrutiny. One approach, suggested here, is to frame the law so that it establishes an otherwise valid crime whose burden on speech can be regarded as only “incidental” (within the meaning of O’Brien and other precedents). By avoiding the content-discrimination trap, such a law should be able to thus survive constitutional scrutiny for the same reasons that, for example, the Title VII harassment prohibitions are constitutional. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an attempt by government to suppress speech it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing. Note: This article is a revised and finalized version of a working paper previously available and entitled “How to Write a Constitutional ‘Revenge Porn’ Law.”

I had seen a rough draft of the paper a year ago and hadn’t thought enough of it to write about it here. Humbach’s critique of existing revenge-porn statutes is substantively nothing new—I’ve been saying the same thing for years.

What is new is that a law professor finally grew the backbone to say that the malevolent Mary Anne Franks and Danielle Citron have sold state legislatures a bill of goods. It’s nice that the professor now says “the two prohibitions constitute unconstitutional content discrimination, viewpoint discrimination and speaker discrimination, not to mention prior restraint,”1 risking disapprobation and accusations of misogyny. But where was Humbach when Franks and Citron were selling their steaming pile of unconstitutional horseshit? He wasn’t in Austin with me testifying against Section 21.16 of the Texas Penal Code (“Unlawful Disclosure of Intimate Visual Material”), that’s for damn sure.

So what about the promised “constitutional revenge porn law”? Here’s what Humbach proposes:

It is a criminal offense for any person, in the absence of a purpose to convey or disseminate truthful information or ideas, to do any act intended to cause or otherwise attempt to cause extreme emotional distress to another person.

The first thing that you’ll notice is that this statute does not forbid revenge porn, which is the dissemination of truthful information (actual images) with the intent to cause emotional distress to another person. So Humbach’s constitutional revenge porn law is not even a revenge porn law.

Not only that, but Humbach’s constitutional revenge porn law is not constitutional. The dissemination of untruthful information is forbidden, but the dissemination of truthful information is permitted. By including the “absence of a purpose to convey or disseminate truthful information or ideas” phrase, Humbach has written a content-based restriction on speech, which is presumptively invalid.

That was not Humbach’s intent, of course—he meant to exclude “communicative content” from the statute’s ambit, and so save it from a facial challenge. But “communicative content” includes the dissemination of untruthful information and ideas as well as truthful ones.2

In the end, it’s not clear why Humbach proposes this statute, other than as a sop to those who think that revenge porn must be penalized.3 Even without recognizing the explicit content-based nature of the statute he admits that “such a law would still represent…an initiative by government to suppress speech that it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing.”

  1. “Prior restraint” is meaningful in criminal court only in that all speech-restricting penal statutes are equivalent to prior restraint in civil court. Civil tort cases do not have much to say about how criminal courts approach First Amendment attacks on penal statutes; prior restraint cases do. 

  2. Could a Pace University Law Professor possibly be this dim? 

  3. Humbach also calls Franks’s and Citron’s law review article “important.” Such shoddy work only becomes important when it is called out as shoddy. 

2015.104: What Common Sense Is

Sun, 12/13/2015 - 20:57

The great thing about having blogged for more than eight years (eleven, if you count my first shortlived attempt) is that I have a record of my own increasing understanding of my subject.

I wrote in 2010 about fighting back against common sense—preempting and responding to the State’s argument that a jury should find a defendant guilty because of “common sense”:

“Common sense” has nothing to do with it. The words do not appear in a Texas criminal jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense.

What I didn’t have in 2010 was an explanation of what common sense is, until I saw this:

Screenshot of part of Scott Adams List of Cognitive Biases.

I knew about cognitive biases, of course, and about how they short-circuit rationality without our knowing it, but I had never made the connection before: “common sense” is just a polite term for our complex of cognitive biases.

In our everyday existences common sense gives us shortcuts so that we don’t spend a lot of time thinking our way through the same or similar problems time and again.1 Common sense is not appropriate in the jury room, though, because the problems faced by jurors are not similar to problems they have solved before.

Jury room problems may appear to be similar to real-world problems—common sense justifying itself—but the rules that apply in the jury room are different than those anywhere else. “Use your common sense” is a call to set aside those rules and decide the case based on cognitive biases.

In light of that and my developing unified theory of the criminal jury trial, I’ve changed my view of common sense.2 Instead of fighting it, own it.There are words that slip past our critical faculties and cause us to do things for reasons we cannot explain. For example, “because”: when you tell someone to do something because reason, he is more likely to do it than when you just tell him to do it. This is true regardless of the reason. Library patrons in line at a photocopier were much more likely to let someone cut in line to make a few copies if they were asked,

“Excuse me, I have 5  pages. May I use the Xerox machine, because I have to make copies?”

than if they were asked,

“Excuse me, I have 5  pages. May I use the Xerox machine?”3

Like “because” or “loophole,”4 the phrase “common sense” seems to cause suggestions to slip by people’s critical faculties. Given this fascinating fact, we trial lawyers can rage against the neurological machine, or we can use it to our clients’ advantage.Or we can do both.

  1. Those of you familiar with Richard Bandler and John Grinder’s “meta-model”  might think about whether any given cognitive bias represents generalization, distortion, or deletion. 

  2. The unfortunate thing about having blogged for more than eight years is that everyone else has a record of how little I understood eight years ago. 

  3. The same tendency did not obtain if the number of pages was 20 rather than five. 

  4. When a politician describes something as a “loophole,” you’re about to lose some freedom and he’s about to gain power. 

2015.103: Seth Kretzer and James Volberding, Unethical Lawyers

Tue, 12/01/2015 - 23:16

It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.

Cicero did not take into account the case of Tyler lawyer James Volberding and Houston lawyer Seth Kretzer, whose treatment of their client Raphael Holiday was not merely negligent but malevolent. The idea that lawyers would turn on their own client, trying to speed his execution, was beyond consideration for Cicero.

As it was for me. When Gretchen Sween, the lawyer who was trying to help Holiday get new counsel appointed in the place of Volberding and Kretzer, told me that Kretzer and Volberding “opposed their own client’s motion for a stay of execution before the Fifth Circuit,” I was skeptical, to say the least. I thought that Sween’s description of what happened was probably not entirely objective.

Lawyers representing a death row inmate don’t suffer under the illusion that they can keep their client from dying. They don’t even suffer under the illusion that they can keep him from dying in cold blood at the hands of the state. Occasionally they can, but most often they are buying a few more precious days for their client, and making the state work a little harder to end his life. The client generally isn’t suffering from the illusion that litigation is going to keep him from dying either. Nothing is going to stop him from dying. Nothing is going to stop you or me from dying either, but most of us are doing things to try to set that moment off a little bit longer. We exercise and eat well, or failing that at least we eat, breathe, and don’t step in front of buses.

So the idea of lawyers, even lawyers who had given up and decided that it was time for their client to lose hope, opposing their client’s motion for a stay of execution was preposterous to me.

Until I read this (Scribd link). It is, in my opinion, a smoking gun, with its muzzle pointed directly at the heart of two lawyers’ reputations. Kretzer and Volberding pointed the gun and yanked the trigger. I’m going to describe the path of the bullet.

Download the PDF file .

In this unique document, first of all, Kretzer and Volberding are aligning themselves with “Respondent-Appellee,” who is William Stephens, the Director of the Texas prison system (TDCJ-ID). Stephens is a party because he is the state official detaining Raphael Holiday, who is nominally Kretzer and Volberding’s client.

So Holiday (through Gretchen Sween) filed a motion to stay his execution (Scribd link). Stephens opposed it. Sween replied to Stephens’s opposition. And Kretzer and Volberding respond to this. It’s pleading tennis, and Kretzer and Volberding have joined Stephens on his side of the net, opposite their client who is seeking a stay of execution.The tone is petulant—it’s about Kretzer and Volberding, rather than about their client, Holiday, or his interests. Clearly Kretzer and Volberding were butthurt by Sween trying to get their client competent representation for further representation. Instead of acting out when butthurt, they should have a) manned up and stood up for their client’s interests; or b) kept their stupid unethical mouths shut.Because, in case I have not made my opinion clear, Seth Kretzer and Wes Volberding are unethical lawyers. Their conduct in this case, and in the Robert Roberson case discussed by Mark Graber and Danielle Citron, has been ethically abhorrent. They have demonstrated a pattern of obstructing their clients’ attempts to avoid execution,
Volberding and Kretzer’s “please kill our client now” pleading violates all sorts of ethical rules: 1.02, 1.05, 1.06, and 1.15 come immediately to mind. Alert readers will have noticed the gertruding in the caption and first numbered paragraph: the reference to Rule 3.03. Why, if they were acting ethically, would Kretzer and Volberding feel the need to put the ethical rationalization for their action up front?And it is rationalization, not justification. Rule 3.031 says:

(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(5) offer or use evidence that the lawyer knows to be false.

(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.

Butthurt or not, there is nothing in this rule or elsewhere requiring or even allowing Kretzer and Volberding to respond, to their client’s detriment, to a pleading filed on their client’s behalf by another lawyer. Their reliance on Rule 3.03 is, like their ignorant and censorious reliance on Rule 4.02, simply wrong. “3.03” is a fabricated excuse to do something harmful to their client because their feelings are hurt. Seth Kretzer and James Volberding must be really hard workers, because they are too stupid to read simple rules, even with their reputations at stake.Some clients think they want unethical lawyers. They think it gives them an edge to have someone who will cheat for them. Those clients are wrong, and Kretzer and Volberding demonstrate why: because unethical lawyers are as likely—probably more likely—to behave unethically in ways that harm their clients as to help them.Ignorant clients may continue hiring Kretzer and Volberding. Uncaring judges may continue appointing them. Their colleagues, though, know what they really are.And so, now, do you.

  1. Not this Rule 303

2015.102: This Article Friggered Me

Sun, 11/29/2015 - 21:32

The article is offered by as a “one-stop 101” for those “not sure what people mean by triggering.” So while this may look like a weak-man argument, it is not.

In the motte and bailey of triggering, the motte is people with actual post-traumatic stress disorder, the symptoms of which are triggered by some event. These people hate their disease, and seek help.The bailey is people who think having a psychological disorder is cool and dramatic, and demand that the rest of the world moderate their speech and conduct to avoid “triggering” some bad feeling:

Triggering occurs when any certain something (a “trigger”) causes a negative emotional response.

The emotional response can be fear, sadness, panic, flashbacks, and pain, as well as any physical symptoms associated with these emotions (shaking, loss of appetite, fainting, fatigue, and so on).

In the bailey of triggering, anything that causes a negative emotional response is a trigger. Words make you sad? Trigger! Something frightens you? Trigger! Someone makes you angry? Trigger!1

“Triggering” is a concept ripped from post-traumatic stress disorder. But as it is used by Gillian Brown, it has nothing to do with trauma:

Sometimes, it happens through fears and phobias unrelated to trauma.

And sometimes, it happens for no reason at all.

Regardless of how somebody has become susceptible, being triggered can be just as severe and horrible for anyone.

No it can’t, you utterly horrid person. Having “negative emotions” “for no reason at all” is nothing like reexperiencing trauma in a crippling way. Using the same word to describe triggering of post-traumatic stress disorder and triggering “for no reason at all” trivializes the former. I won’t do it. I’ll describe Gillian Brown’s notion of triggering as “friggering.”

It’s not that I’ve chosen to attack the social importance of friggering by giving as an example the most laughable example I could think of; rather, has chosen to defend the social importance of friggering by giving a more laughable example than even I could think of.

I developed health anxiety, and whenever I’m exposed to things relating to death and certain illnesses, I suddenly and quite dramatically feel all-encompassing panic spread through my entire body.

Sometimes, it goes away in seconds; at other times, it lingers for weeks, making it difficult to function normally until my mind reaches equilibrium again.

“Health anxiety.” Imagine that. I find that my health anxiety goes away when I’m eating better and exercising. That wouldn’t fit “fat activist” Gillian Brown’s politics, I realize; better to be politically correct and “dramatic” than to make incremental changes to improve her health.

Emotionally healthy people know that negative emotions are part of life. Growth comes from experiencing negative emotions. Avoiding negative emotions (as, for example, by avoiding friggers or by smoking lots of weed) keeps people from growing up.

To give a personal example, I am often triggered when I see books by Terry Pratchett. I have been told that his books are fantastic, but I cannot bring myself to read any of them because Pratchett now suffers from Alzheimer’s disease.

I have mentioned this particular trigger to friends and family before and have been met with surprise, disbelief, and remarks on how silly I’m being.

As you might imagine, such remarks are not helpful.

No, of course not, because Gillian Brown isn’t interested in real help, which would require admitting that she has a problem. Mental illness should not be stigmatized, but nor should it be normalized as Gillian Brown seeks to normalize it. I doubt that she is actually friggered by Terry Pratchett books, but if she is, she ought to be seeking mental-health care.

I get phone calls occasionally from people suffering from psychosis: the government has implanted radio transmitters in their teeth, and is posting their innermost thoughts on the sides of trucks. I advise them to get psychological help; I suspect that they would say, “as you might imagine, such remarks are not helpful.” Their loved ones didn’t get them the help they needed when they might have been receptive to it, and now their disease has taken over, and will not allow them to seek treatment.

Gillian Brown will not take responsibility for her own mental health; instead she has suggestions to “reduce the risk of” friggering:

1. Learn What the Person’s Triggers Are

2. Be a ‘Tester’

3. Look Things Up in Advance

In other words, enable.

If Gillian Brown really feels anxiety that makes it difficult to function at “things related to death and certain illnesses,” help is available. She feels such anxiety and is not in treatment, or she doesn’t feel such anxiety but pretends to. Either way, she loves the idea of being friggered more than being living a healthy life.

Gillian Brown also has suggestions if somebody has been friggered:

1. Let Them Know That They Can Contact You

2. Be Physically Close to Them

3. Distract and/or Comfort Them

4. Don’t Be Judgmental

5. Don’t Beat Yourself Up If You Make a Mistake

In other words, play along and reward their bad behavior by giving them the normal attention and affection they crave. This bit makes me suspect Gillian Brown’s family life: she’s describing how people treat people they care about. Is it that she has to act friggered to get this kind of attention?

Gillian Brown gives us a peek at her family life:

I remember that once, my dad bought me a beautiful framed painting from a shop in France, inspired by my having previously seen similar paintings and saying I liked them.

Unfortunately, this particular painting had gravestones on it, which triggered me.

I told Dad this, and he said something along the lines of “I’m so, so sorry.”

I felt like the worst daughter ever for making my father feel bad when he had done something so nice for me.

If you ever find that you have caused triggering-related grief, please don’t beat yourself up over it. These incidents happen sometimes, and they cannot always be avoided.

I would instead suggest finding out whether there is anything you can do to help the person feel better, as that would be a far more productive use of both your time and theirs.

So daughter tells dad (truthfully or not) that he has inadvertently hurt her feelings, and he says, “I’m so, so sorry,” and this is… the wrong thing to do because it makes her feel bad about making him feel bad about making her feel bad.

It is generally recognized by people who aren’t batshit drama queens that “I’m so, so sorry” is intended to make its recipient feel better emotionally. It is a social shortcut, designed to cut out all of the drama between “You screwed up” and “I forgive you.” But Gillian Brown doesn’t want to cut out all of the drama. She lives for the drama. So when her dad apologizes for accidentally hurting her, she wants more; she blames him for making her feel bad about making him feel bad about making her feel bad.

No, Gillian. You definitely aren’t the worst daughter ever, but you’ve been a pretty shitty daughter.

And yes, Gillian, you should feel “guilty and pathetic” about ripping off an actual therapeutic concept from people who need it and adopting it for your own narcissistic purposes.

Gillian, I have compassion for you on a level beyond your manipulative claims of friggering; you may not know it yet, and you obviously aren’t listening to those who love you, so you won’t listen to me either, but your article is a cry for help. You are suffering not from friggering, but rather from your choice to be (or more likely to pretend to be) friggered.

Some day, Gillian, you will die. Until then, it’s a BBW—a big beautiful world—full of magic and joy, and you are choosing to spend it in a bubble of your own creation, avoiding streetwise wizards and oil paintings of tombstones.

Get help.

  1. Grinder and Bandler would call the language “semantically ill-formed” in that the speaker acts as if she has no choice in her emotional response to the trigger. They discuss the topic in Part III of The Structure of Magic II, which won’t do you much good until you’ve read The Structure of Magic, Vol. I. Fortunately, Christmas break is coming, so you’ll have time to read both. 

2015.101: The Thanksgiving Truce

Sun, 11/29/2015 - 00:21

I all went wrong at the second word:

We don’t have a whole lot in common. We never have, not even back in the days when we were dumping tea into harbors and sneak attacking Hessians on Christmas Eve. America has always been less melting pot than Mulligan stew, an improvised conglomeration of ingredients, a loose affiliation of flavors, barely held together by the thin gravy of shared love of underdogs and the fervent hope that J.J. Abrams can get the Star Wars franchise back on track. We’re divided by race and religion and politics and culture and smart phone preference and a legion of lesser differences, separated into little tribes of shared interests, each of us closed off behind the walls of our individual circumstances, our personal preferences.

In truth, we have a lot in common; what we have in common is almost everything. We certainly have all of the important things in common. We all want the same things: survival, sex, affection, a better life for our children, entertainment, education.

In contrast to the things that we share, the differences between us—”race and religion and politics and culture and smart phone preferences and a legion of lesser differences”—are superficial, artificial, and trivial. We were born not knowing these differences, and when the alien invasion fleet arrives in orbit we will promptly forget them again. They are differences that were fabricated and magnified by those who would use dissension to their disadvantage: governments, churches, and corporations.

Including the Houston Chronicle.

The Chronicle’s Thanksgiving piece (subtitled “It’s the day when our differences don’t matter”) is wrong and divisive, and the Houston Chronicle is apparently bent on running it every year.


I do not tend to believe in explicit conspiracies. It’s generally unlikely, in my view, that a bad things happening in the world—a market crash, for example, or a plague—was deliberately caused by a human intelligence.

But agents—by which I mean “things that act,” and in which I include corporations, governments, and churches as well as individuals and animals—tend to act in accordance with their interests despite the intentions of their constituents.

For example:

  • A corporation seeks profit and growth; if an employee’s actions do not serve to maintain profit and growth the corporation will eventually heal itself by removing or neutralizing that employee, or the corporation will die (fail or be eaten by another corporation).
  • A government seeks control by monopolizing the use of force; if bureaucrats’ actions do not serve to maintain that control the government will eventually heal itself by removing or neutralizing that bureaucrat.
  • A church seeks intellectual monopoly; if priests’ actions do not serve to maintain intellectual monopoly, they will eventually be removed or shunted off to harmless parishes, or the church will die.

Agents’ tendency to act in accordance with their interests despite the best intentions of their constituents may be indistinguishable from the product of active intelligence; that is, it may look like a grand scheme, rather than the inexorable press of the corporate imperative.

When agents seeking different sorts of power—financial, violent, or intellectual—unite, so that the interests of a corporation are the same as those of a government, or the interests of a government and church are integrated, it might appear that there is an explicit conspiracy, leaders of church and government plotting in secret to subjugate the people. I doubt it, and both Occam’s and Hanlon’s Razors suggest that mere coincidence is a better explanation than conspiracy.1

The Chronicle’s Thanksgiving Truce piece at first blush appears positive, but it depends on a narrative—that we are in constant conflict with each other. That is the received narrative of the media and the government, and it is false: We have always been at war with Eastasia. The media prefer this narrative because conflict sells newspapers, and governments prefer it because if we are fighting over superficial, artificial, and trivial differences we are asleep to government’s depredations on our wealth and our freedom.

News is news because it is noteworthy. Conflict sells newspapers, and harmony does not, because conflict is noteworthy and harmony is not. Ask Lisa Gray which is more likely to be published in the Houston Chronicle: a feel-good article about humans getting along like they usually do, or a dark article about humans in conflict. Readers are more likely to buy (or click on) the conflict narrative, so editors are more likely to publish the conflict narrative, so writers are more likely to write the conflict narrative.

You know that “reality TV” does not reflect reality, right? Instead, it is relentlessly produced to fabricate and magnify conflict because people like to watch conflict. Do we like to watch conflict because that is our everyday life? Do we buy newspapers with stories of the harm that people do to each other because that is our everyday experience? Or do we ingest media that depict things that are not commonplace in our lives? The latter. The slurry of purported fact and opinion fed to us by the media is as overproduced as any reality TV show, and for the same reason: because, like lab apes with human porn, we like to watch conflict.

I am not a guy who’s bothered by conflict. Conflict is my profession and my sometimes-hobby. You are probably not bothered by conflict either. You are the descendant of many generations of murderous primates that won the fights that mattered. Conflict is in your genes.

@BrowningMachine @MarkWBennett I pity the first alien species to meet us. We are ferocious murder monkeys.

— Brian Knight (@BrianRKnight) November 26, 2015

When we realize that there is a threat to our existence, we meet it.2 When we see no threat to our existence, though, we fight amongst ourselves for sport, or to stay in shape.

The government and the corporations that shape the narrative through the media would not want us turning our murder-monkey attention toward them. The integrated interests of media and government produce a result—a media diet of fear and lies—that could be the brainchild of a malevolent intelligence, but is not. Cort McMurray didn’t have to know that he was writing lies to write them; Lisa Gray didn’t have to know that she was publishing lies to publish them.

But here, in advance of next November 24th, is my Thanksgiving Message:

You  have been ruthlessly stage-managed to care whether other people are brown or white, Republican or Democrat, Christian or Muslim, Mac or PC. None of that matters.

You are human, thinking meat with a beating heart. You can love, and fear, and feel joy. You have more in common with any other human than you have with the United States Government, the Democratic Party, the Southern Baptist Church, or the Houston Chronicle. Those artificial creatures have no hearts; they feel nothing. They cannot love.

Other humans have all been ruthless stage-managed, as you have, to care about trivial, superficial, and artificial differences, and to have different priorities than you, and different ways of achieving the same goals.

But with a few pathological exceptions, none of them are your enemies. A few of them have taken their instructions to heart, so that they may some day become an imminent threat to the survival of those for whom you are responsible; if they do, destroy them, literally. Otherwise—if physical violence is not called for—it truly does not matter what they believe. So take any argument with a grain of salt. If it doesn’t help educate you, entertain you, find you affection, or get you laid, you need not engage.

On Thanksgiving day you will, if you are lucky, break bread with other human beings, and set aside your petty differences for the day. Maybe you’ll cook for them, or flirt with them, or share a drink, a laugh, or a game. Remember, the other 365 days of the year, that this, and not those differences, is what is real.


  1. Does it matter whether what we see happening is mere coincidence or the product of conspiracy? 

  2. There is such a threat: some eventual extinction event; as more people realize it, we will turn more of our attention toward it, and if it is not by then too late we will avoid it. The spread of a medieval theocracy in the Middle East will have to be stopped first. 

2015.100: Sotomayor on Kretzer and Volberding

Mon, 11/23/2015 - 13:46

From Holiday v. Stephens, 557 U.S. ___ (2015):

Statement of JUSTICE SOTOMAYOR, respecting the application for stay of execution and denial of certiorari.

A federal statute entitles defendants sentenced to death to court-appointed counsel during “all available post-conviction process.” 18 U. S. C. §3599(e). This statute requires counsel to “represent the defendant in … proceedings for executive or other clemency as may be available to the defendant.” Ibid.; see Harbison v. Bell, 556 U. S. 180, 185–186 (2009). Pursuant to §3599, Raphael Holiday asked his court-appointed counsel—Seth Kretzer and James Volberding—to petition the State of Texas for clemency. App. to Pet. for Cert. 5a. His attorneys declined, however, because of their belief that there was “no chance at all that a clemency petition would be granted.” Id., at 11a (internal quotation marks omitted).

Holiday asked a Federal District Court to appoint a new attorney who would file his petition for clemency. The court denied his request. The court recognized that §3599 compelled it to appoint new counsel if “the interests of justice” require. Ibid. (quoting Martel v. Clair, 565 U. S. ___, ___ (2012) (slip op., at 7); (internal quotation marks omitted). But given the “representations” of Holiday’s attorneys, the court found new counsel unwarranted. App. to Pet. for Cert. 11a.

This denial was an abuse of discretion. When Congress authorized federally funded counsel to represent clients in clemency proceedings, it plainly “did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.” Harbison, 556 U. S., at 194 (quoting Hain v. Mullin, 436 F. 3d 1168, 1175 (CA10 2006) (en banc); internal quotation marks omitted). Yet this is exactly what happened here. Although the “‘interests of justice’ standard contemplates a peculiarly context-specific inquiry,” Martel, 565 U. S., at ___ (slip op., at 13), it surely precludes a court from rejecting a substitution motion solely because it agrees with the appointed attorneys’ premonitions about clemency.

Executive clemency is fundamentally unpredictable. Clemency officials typically have “complete discretion” to commute a defendant’s sentence based on “a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations.” Ohio Adult Parole Authority v. Woodard, 523 U. S. 272, 278, 281 (1998) (principal opinion); see Tex. Const., Art. IV, §11; Tex. Code Crim. Proc. Ann., Art. 48.01 (Vernon Supp. 2014). By granting death-eligible defendants an attorney, “Congress ensured that no prisoner would be put to death without meaningful access to th[is] ‘ “fail safe” ’ of our justice system.” Harbison, 556 U. S., at 194 (quoting Herrera v. Collins, 506 U. S. 390, 415 (1993)). So long as clemency proceedings were “available” to Holiday, §3599(e), the interests of justice required the appointment of attorneys who would represent him in that process. Cf. Christeson v. Roper, 574 U. S. ___, ___ (2015) (per curiam) (slip op., at 8) (reversing the denial of a substitution motion under §3599 despite the “host of procedural obstacles” confronting the petitioner’s claims). The District Court’s denial did not adequately account for Holiday’s statutory right.

Despite the District Court’s error, I reluctantly join the Court’s decision to deny Holiday’s petition for certiorari. After the court rejected Holiday’s request for new counsel, his original attorneys eventually submitted a clemency application on his behalf. This application proved unsuccessful—and likely would have benefited from additional preparation by more zealous advocates. Yet this Court, unlike a state court, is likely to have no power to order Texas to reconsider its clemency decision with new attorneys representing Holiday.

She’s right about that last bit now, at least, since Volberding and Kretzer’s client has been killed.

So how does it feel, boys? Making the big time like this?

2015.99: A Little Texas Ethics Law for Volberding and Kretzer

Fri, 11/20/2015 - 23:20

I do not like lawyers making censorious threats.

I do not like lawyers failing to understand the ethical rules.

I especially do not like lawyers making censorious threats based on their failure to understand the ethical rules.

So when I saw that Wes Volberding (Baylor, clerkship) and Seth Kretzer’s (UT Law Review, clerkship) in their letter to Gretchen Sween, who was trying to help Raphael Holiday get new appointed lawyers, who would be both competent and willing to keep fighting for him, wrote:

We also direct that you cease communication with our client. It appears you have been corresponding with him, and probably have been to see him without our consent or permission. While Rule 4.02 of the Disciplinary Rules allows you to respond to his letters, if you have gone to see him and acquired confidential information, and used that information to intervene in his case, then you have stretched Rule 4.02 beyond any reasonable interpretation. We respectfully urge you to go no farther.

—my blood pressure spiked.

Rule 4.02 says:

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

Those first four words are important, but it seems that Mr. Volberding and Mr. Kretzer do not understand them. Rule 4.02 only applies to a lawyer representing a client talking to some other represented person about the subject of the representation. If I represent Fred, and you represent Fred, you don’t need my permission to talk with Fred.

If Sween doesn’t represent anybody, Sween doesn’t need Mr. Volberding’s or Mr. Kretzer’s consent to talk to Mr. Holiday. If Sween represents Holiday, Sween doesn’t need Mr. Volberding’s or Mr. Kretzer’s consent to talk to Mr. Holiday. And obviously Mr. Holiday doesn’t need Mr. Volberding’s or Mr. Kretzer’s permission to talk to Sween or whoever else he wanted to talk to.

Sween can respond to Holiday’s letters, meet with him, acquire confidential information, correspond with people on his behalf, even have a copy of his file (“their file on him”) if Holiday wants her to. And there’s fuck-all that Mr. Volberding and Mr. Kretzer can do about it.

Messrs. Volberding and Kretzer filed egotistic and testosterone-drenched pleadings that deprived their client of hope, and probably shortened his life. I’m still processing their letters and pleadings, and the fact that they decided not to file a clemency petition on their client’s behalf because “A clemency petition just gives an inmate false hope.” I may return to this story once I’ve made sense of that moral, ethical, and legal mess.

2015.98: Fidelity Says “No” to Chappell’s Scheme

Fri, 11/20/2015 - 21:59

I sent Fidelity a copy of Matthew Chappell’s email proposing that I act as a front man, using my name to allow him to get referrals from their Preferred Attorney list.1

I received a prompt emailed reply from their (a?) Director of Wealth Planning Product Management in Merrimack, New Hampshire:

Dear Attorney Bennett – this is outside the scope of our program.

Thank you!

That’s short and sweet. No surprises there. So Chappell’s suggestion that Fidelity would not be defrauded under his scheme is, it appears, false.

I’m sending my correspondent a link to this blog post, in case Fidelity is concerned about Chappell’s “family friends at Fidelity Investments who promise me AT LEAST one new client a week (Estate Planning) if I were able to get on their Preferred Attorney’s List” outside the scope of Fidelity’s program.

  1. I probably wouldn’t have bothered if Chappell hadn’t reminded me that he was there by incompetently threatening to sue me

2015.97: Volberding and Kretzer Just. Give. Up.

Thu, 11/19/2015 - 22:24

I have heard—and I believe it—that the worst thing about being under a death sentence is knowing that that date is coming, facing a date certain, watching the explicit number of days you have left become smaller and smaller and smaller until.

It’s unnatural.

So death penalty lawyers fight for every minute of time, for every chance they might find something that might get their clients another minute of time:

From here on, the lawyer’s job is to be creative.  Investigate again. Search for the really unlikely.  Float whatever.  And put together the clemency pitch.  Because, as we say in this business, once in a while pigs do fly.  And because what the hell.

People fight because as long as we are fighting there is hope, and without hope we might as well be already dead. Lawyers fight because that’s what we do.

But that’s not what happened in Raphael Holiday’s case. Raphael Holiday’s lawyers, Wes Volberding and Seth Kretzer, stopped fighting.

Well, they didn’t stop fighting. They just stopped fighting for Holiday, but they fought to keep Holiday and lawyer Gretchen Sween from fighting:

Volberding and Kretzer opposed the motion and sent Sween a letter threatening to seek sanctions if she did not stay away from their client.

I’d love to know what the basis is for those sanctions. Mr. Holiday had the right to talk to other lawyers, and seek other counsel. Ms. Sween had the right to talk to Mr. Holiday, and to help him seek other counsel. I can think of no reason for threatening sanctions.

Maybe they had a reason to stop fighting for their client. Why did they stop fighting for their client?

“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

Volberding and Kretzer took away hope. They decided to take away hope. They decided it was time for their client to just give up and agree to be dead. They made decisions that were not theirs to make.
Here‘s the full discreditable story.

Jeff Gamso writes about it. Scott Greenfield writes about it. I don’t have anything else to say, except that if the story is accurate, Wes Volberding and Seth Kretzer are a disgrace to the bar.

2015.96: Wilco Water

Thu, 11/19/2015 - 21:29

There must be something in the water in Williamson County, Texas. After defeating John Bradley (that asshole), Jana Duty, who had never prosecuted an adult felony case, became District Attorney.

For her first adult felony jury trial, Duty chose a “delayed strangulation” case that even Bradley had recognized to be a dog. She bought found a witness who would testify that strangulation could cause death up to two years later.

During the trial there was an issue about Duty hiding evidence (my understanding is that the defense lawyer had asked her for a video; Duty had said she didn’t have it; at trial it turned out that she had had it, and knew she had), and a mistrial was declared. When Duty wanted to retry the case, the defense said, “not so fast,” arguing (essentially) that retrial was jeopardy-barred because it was the prosecutor’s misconduct that had caused the mistrial.

In the course of these proceedings, on March 20 Duty had sought a gag order from the court. On April 9 the court had issued the gag order. Then on May 7 Duty violated the gag order that she had requested by talking to the Austin American Statesman about a defense motion. The judge scheduled a hearing on May 8, and ordered Duty to be there.

She didn’t show up

because the judge wouldn’t tell her what it was about, and because it was only going to be a 10- to 15-minute hearing.

. . . . .

After missing that hearing, Duty sent an email to Kennon and other attorneys in the case that said: “If you feel I need to be reprimanded for communicating with the Statesman, I understand. But making a public spectacle out of punishing me just hurts everyone. No one will come out unscathed.”

(This is really one of those read-the-whole-article situations.)

After missing the hearing, in May Duty also sent one of her minions to file a motion to rescind the gag order, contending that it was unconstitutional.

And of course in July Duty filed a petition for writ of mandamus with the Court of Criminal Appeals, complaining that the district court had not been authorized to issue the gag order that she had asked it to issue. This was after she had tried to file petitions for writs of mandamus related to the same murder case in the Third Court of Appeals in May and June.

To recap:

  • March 20: Request gag order.
  • April 9: Get gag order.
  • May 6: Violate Gag order.
  • May 8: Blow off hearing.
  • May 13: Move to rescind gag order.
  • May 27: File mandamus in Austin Court of Appeals.
  • June 9: File mandamus in Austin Court of Appeals.
  • July 16: File mandamus in Court of Criminal Appeals.

In August visiting judge Doug Shaver (a retired judge out of Harris County) heard the contempt proceeding against Duty, and promptly sentenced her to 10 days in jail and a $500 fine.

Jana Duty’s Mugshot

Sometimes people who are batshit insane don’t realize that it is obvious to the rest of the world that they are batshit insane. In any rational county, Jana Duty wouldn’t make it through the next Republican primary. She has made a laughingstock of them and cost the county a fortune.

Unfortunately, sometimes counties that are batshit insane don’t realize that it is obvious to the rest of the world that they are batshit insane.

2015.95: WTAF STCL

Thu, 11/19/2015 - 19:10

From Matthew Chappell’s November 13, 2015 demand letter:

Under Texas law Chapter 18A Section 1.1, it is unlawful to engage in defamation of another’s character and reputation. The elements for defamation are as follows:
1. The defendant published a statement of fact
2. The statement referred to the plaintiff
3. The statement was defamatory
4. The statement was false
5. With regard to the truth of the statement, the defendant was
1. acting with actual malice
6. The plaintiff suffered pecuniary injury.

Texas statutes are generally organized into codes—Penal Code, Civil Practice and Remedies Code, Probate Code, and so forth. Those Codes are divided into chapters dealing with particular subjects. Chapter 18 of the Texas Code of Criminal Procedure, for example, deals with search warrants.

There is no “Chapter 18A” in any Texas code that I can find, much less any Chapter 18A dealing with defamation.

So at first I was puzzled what “Texas law Chapter 18A Section 1.1” is. It is meaningless, cite soup. There is no such defamation-related law in Texas.

So I puzzled over it for a while, then I thought to google various combinations of <Texas law Chapter 18A Section 1.1 defamation>, and somehow I blundered into <18a defamation>, which brought up this result:

Screen shot of search result for <18a defamation>.

The form number (18A:3) looked familiar to me from using O’Connors practice guides. And sure enough, the link went to a copy of O’Connor’s form for an original answer in a defamation case.

So then I looked for <O’Connors forms 18a> and found that “Chapter 18A” refers to the “defamation” chapter of O’Connor’s Texas Causes of Action (Amazon link).

O’Connor’s books are awesome and indispensable, but they are not authoritative. They are a good place to start if you want to figure out what the elements of a defamation claim are. You shouldn’t cite to them, but if you were to do so you wouldn’t refer to them as “Texas law.”

With his initial proposal Matthew Chappell called into question his own ethics. With his response to my first post he called into question his own judgment. With his cease-and-desist letter he calls into question his own competence: what kind of lawyer cites to “Texas law Chapter 18A Section 1.1”? An incompetent one.

Yes, in my opinion Matthew Chappell is not only unethical and foolish, but also incompetent.

Of course, the great thing about hiring an incompetent lawyer to write your will is that by the time his incompetence is discovered, you’ll be dead anyway, so you won’t care.

Why do people write cease-and-desist letters anyway? According to this site (which may be where Chappell got his template),

A Cease & Desist Letter is often times the first step to asking an individual, or a business, to stop an illegal activity. The purpose of the letter is to threaten further legal action if the behavior does not stop.

According to another site,

Sometimes the threat of legal action is enough to compel someone to change what they are doing.

Well, that worked. I was going to leave Chappell alone, until he sent me a stupid fucking cease-and-desist letter. So now I’ve written two more posts, Scott Greenfield has written a post (I outsourced my apology to him), Brian Tannebaum has written a post (he has a an ethics opinion), and Keith Lee has written a post (reminding us of the Streisand Effect).

Few people wish to get involved in the paperwork and courtroom appearances that a defamation lawsuit would require.

It’s a nice theory, but obviously not applicable here. The proportion of people who “wish to get involved in the paperwork and courtroom appearances that a defamation lawsuit would require” is, I suspect, substantially higher within {people who defend lawsuits for a living} than outside it, and highest of all within the subset {people who defend the First Amendment for a living}.

Not only would a successful lawsuit end up causing the accused party more money for court costs, but it would take up the accused party’s time and could even damage their reputation.

I am fairly sure that if Chappell can find his way to the courthouse and come up with $350 to file suit against me, not only will I not be paying court costs, but Chappell’ll be paying Marc Randazza’s fees and sanctions under Texas’s anti-SLAPP statute. (That’s “Chapter 27 of the Texas Civil Practice Remedies Code.”)

A cease and desist letter is a way of giving someone a chance to stop what they are doing and avoid the hassle of a legal fight.

So apparently the cease-and-desist letter is not widely recognized as chum to throw into the water for the practical blawgosphere to have a feeding frenzy on.

Even aside from the folly of sending this letter to a guy who fancies himself1 a First Amendment and trial lawyer after you’ve been specifically warned … even aside from substantive ignorance of defamation law …

How do you get through law school and not know how to write even an approximately correct cite?

For your next cause of action, Mr. Chappell, instead of filing suit against me and getting your ass handed to you by Marc Randazza, may I suggest an educational malpractice suit against South Texas College of Law?

  1. Not without good reason, to be fair. 

2015.94: Matthew Chappell’s Lawyer Letter (And Randazza’s Response)

Wed, 11/18/2015 - 20:12

I’m just going to leave this here for right now. I have plenty to say about it, but I’ve got a couple of other thinks in the hopper.

Download the PDF file .

As requested, I directed Chappell’s letter to my lawyer. Here is Marc Randazza’s response on my behalf. He’s much nicer than I would have been:

Download the PDF file .


2015.93: Spaghetti Prosecution in Waco

Tue, 11/17/2015 - 19:01

Here is one of the indictments arising from the Waco Twin Peaks killings:

Download the PDF file .

This indictment charges three offenses: Murder (“Code: 19.02”), Aggravated Assault (“22.02”), and two counts Engaging in Organized Criminal Activity (“71.02”).

Murder and Aggravated Assault are lesser-included offenses of the two EOCA counts. “Committing the offense as a member of a criminal street gang” makes an agg assault a first-degree felony, and makes a murder a fifteen-to-life crime.

To convict this defendant of the most serious offense charged the State would have to prove at least (under the law of parties):

  • That the defendant intended to promote or assist the commission of some felony;
  • That murder resulted, and should have been anticipated as a result of the carrying out of that crime;
  • That the defendant solicited, encouraged, directed, aided, or attempted to aid another person to commit that felony; and
  • That the defendant did so as a member of a criminal street gang.

Here’s an interesting question: to convict the defendant of the EOCA, does the State have to prove beyond a reasonable doubt which person was murdered, or can the jury give a general verdict, so that they all agree that a murder occurred, just not which one? The answer ought to be “no,” but the State might argue that “commits murder” is just a manner or means of committing EOCA, and a jury does not have to be unanimous on which manner and means a defendant has used to commit an offense.1 If that were correct, then the jurors wouldn’t even have to be unanimous on which underlying offense—murder or aggravated assault—the defendant was responsible for.

If the State had any confidence that they could prove their case—that D, as a member of a criminal street gang, deliberately assisted someone in committing a felony that predictably resulted in a certain person’s case—they would have pled each murder separately. What they are hoping to do is throw a bunch of stuff at the wall, and hope that something sticks. If the State pleads, “D murdered A or B or C or … Z,” the jury is much more likely to convict out of sheer confusion than if the State pleads “D murdered A” as one count, “D murdered B” as another, and so forth.

The unit of prosecution for EOCA as pled is not the criminal street gang, but rather the underlying offense.2 So murdering A as a member of a criminal street gang is a separate offense from murdering B as a member of a criminal street gang. Multiple offenses arising from one “criminal episode” may be alleged in a single indictment, but they must be pled in separate counts.

If we take the gang allegations out of the picture (the State could abandon those allegations at any time) it seems obvious to me that the murders and aggravated assaults are even more improperly pled. The State has pled ten murders in one paragraph, and twenty-three aggravated assaults in the other. That’d be a separate ground for quashing the indictment.

The Waco defendants haven’t paid me enough to research the issue, but their lawyers should certainly be considering motions to quash.

In Texas, motions to quash must be filed by the earlier of a) the formal motion-filing deadline, if there is one; and b) the day before trial. I’d wait till the last possible moment to file a motion to quash so that the State can waste as much time riding a defective charging instrument as possible before I force them to choose a different horse.

What good does a motion to quash do in this case? If it’s denied, something interesting is preserved for appeal, and the lesser-included agg assault and murder are probably off the table because the only way the indictment works is if it’s for a single count of EOCA pled in two separate pairs of two paragraphs. If the motion to quash is granted, the State has to rewrite their indictment to match the law—one count for each murder, one count for each aggravated assault, and sixty-six counts of EOCA.

Either way, the State’s options for proving the case are narrowed. Which is, as Martha Stewart might have said, “a good thing.”

  1. For example, if four jurors believe beyond a reasonable doubt that D murdered C by stabbing him, four believe that D murdered C by beating him, and four believe that D murdered C by shooting him, they may find D guilty of murdering C. 

  2. If they had pled EOCA by conspiring, the conspiracy would be the unit of prosecution, and it could include multiple deaths. 

2015.92: Matthew Chappell Responds

Thu, 11/12/2015 - 15:32

I sent Matthew Chappell a link to my last post.

He quickly responded:

And now you’ve committed a handful of torts, including libel by taking my words out of context and tortious interference with business.

Enjoy the lawsuit I’m in the process of filing against you, psycho, arrogant, inferiority complex-ridden moron.

Matthew Chappell

Attorney At Law

723 Main Street

Suite 700-07

Houston, Texas 77002



What Chappell doesn’t realize (because obviously he’s not a guy who does his homework before inviting experienced lawyers to join him in what appears to be fraud against a major investment company) is that I am not some civilian who quails at the thought of being dragged into court. I have been sued before, and I will be sued again. Every time someone tries to attack me for my writing, I make free speech stronger by refusing to cave in. So I actually will enjoy the lawsuit he is in the process of filing against me.

I hope Chappell doesn’t have a good friend with enough wisdom to tell him to stop digging. Maybe this’ll be my chance to buy Marc Randazza the best steak in Houston.

2015.91: Will Anyone Help Matthew Chappell Out?

Thu, 11/12/2015 - 14:26

Sometimes when I’ve written about ethical issues and use specific examples, people whine at me that I should be nicer; that instead of publicizing other lawyers’ misdeeds I should contact them and counsel them.

The theoretical problem with being nicer is that I might make more of a difference by writing here than by counseling. If I send an email to a lawyer who has strayed, I might put him back on the ethical path, but nobody else benefits from the lesson. If I write here, though, everyone might have the benefit of the lesson. No professional courtesy is owed between lawyers where misconduct is concerned. In fact, lawyers have a special public duty to police themselves, which means that preventing misconduct trumps being nice.

The practical problem with being nicer is that it isn’t appreciated. Like Charlie Brown, I keep making those calls, and time after time I am rebuffed. “Nice” is really only appreciated in contrast with something else, so the people who I call don’t realize that by taking the time to call them and offer them the benefit of my experience and education I’m being nice.

But still I keep trying. I tried this morning with Matthew Chappell. He didn’t think I was being nice. He thought I was being arrogant.1 He told me to piss off.

So I suppose this is me pissing off.

This morning I got this email from Chappell:

I’m going down the list of Board Certified Texas Attorneys to find a solo attorney with 5 or more years of experience to make this offer to. I have 2 years experience, graduating from STCL in 2013.

I have family friends at Fidelity Investments who promise me AT LEAST one new client a week (Estate Planning) if I were able to get on their Preferred Attorney’s List; however, I have to wait a three more stupid years, as Fidelity now requires 5 years of experience to be placed on this list (which wasn’t always the case).

I need to find someone with 5 years who my friends can nominate; the business would be filtered through that someone, but wouldn’t be intrusive AT ALL(I will set up a separate email acct or Google phone number for these clients).

There is absolutely ZERO liability or accountability or responsibility on your part. In exchange, I’m willing to either offer you a share of the clientele or to subsidize your malpractice insurance to bring it up to 2 million/per incident (usually around $3600/yr), which, in addition to the 5 years, is another Fidelity req to be on the list. I already have this type of policy myself.

Let me know if you’d be interested, and I’ll put you in touch with my Fidelity contact who can explain further. Like I said, I’m going down the Board Specialization list of names one by one and sending pretty much the same email. First come, first served.

Thanks, and all best,
Matthew Chappell
Attorney At Law
723 Main Street
Suite 700-07
Houston, Texas 77002

Check out Chappell’s website, McAttorney.net2: it’s amusing, tacky, and probably deceptive, but that’s for another day. Today I am going to discuss Chappell’s proposal.

Fidelity, an investment company has a “preferred attorneys” list. Lawyers must have at least five years’ (including at least three “stupid years”) experience to get on the list. Fidelity did not always have this five-year requirement; this suggest that the requirement is material to them. We don’t know why Fidelity doesn’t want second-year lawyers like Matthew Chappell handling cases for its clients, but if I had to guess, I would say that Fidelity didn’t want kid lawyers practicing on its clients. In any case, it’s not for us to decide whether Fidelity’s rules are right or wrong. They are Fidelity’s rules. Referrals are important, and the referrer gets to decide who he wants to refer clients to. Nobody is entitled to Fidelity’s referrals in violation of its rules, even if they have a cooler on the inside.

So, lawyers. Let’s imagine what happens if you sign on as Matthew Chappell’s nominee, the strawman to whom Fidelity will refer cases, which will then be funneled to Chappell with no involvement from you.

It looks a lot like you’re participating in a fraud against Fidelity. Maybe Chappell’s “Fidelity contact” can explain this in some way that makes it non-fraudulent. Maybe it is fraudulent and Fidelity never finds out. Maybe Fidelity doesn’t care. But suppose that “your” clients start complaining to Fidelity about “your” service. How long do you think it’s going to take them to figure out what your arrangement with Chappell was?

When Fidelity realizes what’s going on, do you think they are going to be kindly inclined toward you for helping him defeat their rules, or do you think they’re going to go running to the State Bar and your local DA? You’ve helped Chappell deprive Fidelity of something of value to both it and him (its referrals) on false pretenses. Do you get indicted? Do you get disbarred? Maybe not.

That’s a pretty damn expensive “maybe.” What do you get in return?

I’m willing to either offer you a share of the clientele or to subsidize your malpractice insurance to bring it up to 2 million/per incident (usually around $3600/yr), which, in addition to the 5 years, is another Fidelity req to be on the list.

“A share of the clientele” is vague, but sounds negotiable. If you were a board-certified estate planning lawyer and the share of the clientele were 100%, the deal might be both safe (because you would actually be doing the work that Fidelity was referring to you) and worthwhile. The potential liability for letting a lawyer with less than two years’ experience,3 because otherwise when Chappell gets tired of paying for the policy you are facing liability for whatever he might have screwed up before that. Also, you’d better explain to the insurance company why Chappell is covered under your policy.

What else? Now Chappell has a phone number and email address associated with your name. Fidelity only refers you estate-planning clients, but those clients refer other business to Chappell, whom they think works for you. Guess who gets grieved when Chappell decides to take a criminal case (because it looks easy) and screws it up. Guess who gets sued when Chappell takes that billion-dollar PI case (because he knows everything) and blows the statute of limitations.

Here’s a protip: when someone says “There is absolutely ZERO liability or accountability or responsibility on your part” there’s a reason he’s being that emphatic, and the reason is not that the statement is clearly true. Here, it happens to be false. If you allow Chappell to use your name you are potentially liable, accountable, and responsible (all of which mean the same thing) in civil court, in criminal court, and before the State Bar for whatever Chappell does in your name. As a lawyer, your name—the public face of your reputation—is your most valuable asset. It should be treasured, and not rented out to a young pup who wants a quick buck.

I am going to attribute Chappell’s “absolutely ZERO liability” statement to stupidity, but only because he gets the benefit of Hanlon’s Razor.

Intentionally or not, Chappell’s email reads like a Nigerian fraud scheme. Nigerian fraud schemes read like Nigerian fraud schemes because Nigerian fraudsters need an easy way to distinguish the potential victims (those naive enough to fall for the scam) from non-victims.

If you think it’s a good idea, I have $15 million in gold that I need to repatriate, beloved.

  1. Chappell was a teacher before he was a lawyer, and—as I may have mentioned before—teachers and others have been calling me “arrogant” since my brief stint in eighth grade. It never has bothered me. Arrogance is an exaggerated sense of one’s abilities, and I am fairly sure that my sense of my abilities is accurate-to-understated: I know some things, I understand some things, I’ve got a pretty good brain, but mostly I’m just lucky. Of course, if my sense of my abilities were exaggerated, I probably wouldn’t know it, but it is congruent with the social proof. 

  2. At least that’s the way I read it. 

  3. According to the SBOT,  “I have 2 years experience” is a lie.) take a single in your name without your direct supervision is spectacular. He’s paying you to use your name to evade Fidelity’s rules? I’ve seen federal fraud indictments alleging more-benign activity.

    The offered alternative of upping your malpractice insurance is worthless: if you don’t have a two-million-dollar policy now, it’s because you don’t need one now. You will certainly need one if a lawyer with a year and a half of experience (who claims two) starts taking cases in your name without supervision.

    But if you take that option, it had better be an “occurrence” policy, which has the insurance company on the hook if the malpractice occurs while the policy is in force, no matter when the claim is made, ((I’ll bet that a two-million-dollar “occurrence” policy for a second-year lawyer doing estate planning, if you can find one, is more than $3,600 per year. 

2015.90: Poor Unfortunate Souls

Mon, 11/09/2015 - 12:29

The other day I met a University of Texas Law School first-year student. He told me about a legal research project that included a budget—the students were to keep track of their time, value it at 250 (imaginary) dollars an hour, and stick to an imaginary $4,000 budget.

When he thinks of quitting, he says, he thinks about that $250 per hour.

I’m not entirely sure UT Law is doing a good job of explaining the economics of the practice of law to its 1Ls. The expectation that a young lawyer will get $250 an hour is false.

The median income for lawyers licensed two years or less in private practice in Texas is about $69,000. Call it $34.50 per hour, assuming an unrealistically light 2,000-hour year. In-house counsel makes more money at every age. New lawyers in-house make a median $78k a year, and the 2,000-hour year is a little more credible for them. The top earners are lawyers with 61 to 65 years of experience working as in-house counsel; they make a median $278k a year, though I hope they aren’t working 2,000-hour years in their 80s.

Nationwide, the median starting salary for 2014 law grads was $63,000, but 13.3% of 2014 law grads were not employed ten months after graduation.1

So what is this $250-an-hour number? It’s a squint-and-tilt-your-head-just-right figure. The high salary for first-year associates, paid by some big (more than 700 lawyers) firms, is $160k; Call that $80 an hour.2

When a client pays a big firm for an associate’s time, not all of the money goes to the associate. About a third goes to the partners, about a third goes to overhead, and about a third goes to the associate.3 So those few firms that are paying their associates $160k might be billing their clients $250 an hour for those associates’ time.

Paying that rack rate is a sucker’s bet for the client.4 It’s a great deal for the firm, which gets its clients to pay it to train the associate. And it’s sweetheart deal for the first-year associate, who has no skills that couldn’t be offshored for a small fraction of that billing rate. She’s not getting $250 an hour, but $160k a year is a lot more than she’s worth to the client.

In any case, few first-year lawyers get jobs that pay even $160k a year.

So why does UT Law present this problem in terms of a $4,000 budget and $250 per hour, rather than, say, a $400 budget and $25 per hour, which would be more realistic for most law students, or a neutral forty-blue-chip budget, and five red chips per hour?

Could it be that the school wants its students, when they feel like quitting and depriving the law school of all that sweet, sweet student-loan money, to think about that $250 an hour?

Could UT Law be … tricking its students?

  1. This report makes the assertion, unsupported and contradicted by the same organizations’ numbers—and frankly risible—that “Salaries of $160,000 accounted for 31% of reported law firm salaries, the same as in 2013″ so take this with a grain of salt. Things are probably much grimmer than NALP wants you to believe.” 

  2. We’ll call it that, but know that it’s a lie. Those associates aren’t working 2,000-hour years. 

  3. This guy says 20%. 

  4. Except for social proof, which might give the client the feeling that it’s getting more, since it’s paying more. 

2015.89: “Oops,” he explained.

Mon, 11/09/2015 - 10:57

(I’m pretty sure my title is a JDogism.)

In my recent Texas First Amendment Update I omitted one of the statutes I’m challenging: Texas Penal Code Section 21.12(a)(3), the Improper Relationship Between Educator and Student statute.

You’ll realize by now that the titles of Texas penal statutes often inaccurately describe the forbidden conduct. For example, the Online Solicitation of a Minor statute forbade non-soliciting communications to adults; the Fraudulent Use of Identifying Information statute and the Online Impersonation statute both forbid the nonconsensual “use” of someone’s name with intent to harm (so basically criticism). The Improper Relationship statute forbids employees of a public school, from the principal to the janitor, doing certain things with students in the same school district, regardless of the students’ age.1

Among those things that are forbidden: “engag[ing] in conduct described by Section 33.021.”

But the Court of Criminal Appeals in Ex Parte Lo held unconstitutional Section 33.021(b). So in a case in Odessa, Texas I used a pretrial application for writ of habeas corpus to attack Section 21.12(a)(3). The trial court denied relief2 and we appealed to the 11th Court of Appeals in Eastland, Texas.

Why I failed to mention this in my recent update, I couldn’t say.

Last week the Eastland court, not known for being a warm and fuzzy place for criminal defendants, agreed with me that Section 21.12(a)(3), in combination with Section 33.021(b), is unconstitutional. They didn’t go along with me on Section 21.12(a)(3) in combination with Section 33.021(c), which I haven’t yet killed, but the State will probably file a petition for discretionary review with the Court of Criminal Appeals, the Court of Criminal Appeals will probably grant it (since the court of appeals held a statute unconstitutional), and we will probably file our own petition.

So. Statutes I’ve killed or seriously wounded:

  • Tex. Penal Code Section 33.021(b)
  • Tex. Govt. Code Section 402.010
  • Tex. Penal Code Section 21.12(a)(3) (struck by the Eleventh Court of Appeals, so not binding precedent statewide).
  • Tex. Penal Code Section 21.15(b)(2) (struck by the trial court, so no precedential value, but the State is appealing).
  • Tex. Penal Code Section 33.021(c) (struck by the trial court, so no precedential value, but the State is appealing).
  • Tex. Penal Code Section 32.51 (struck  by the trial court, so no precedential value, and the State did not appeal).

Remember the old days, when a Texas court holding a statute unconstitutional was big news? Way back in 2014?

  1. This is a gloss on the statute, which you can read here

  2. I’ve had three trial judges in 20 years grant relief on constitutional challenges. 

2015.88: Cocks AND Glocks

Thu, 11/05/2015 - 11:50

It is clearly free speech.

Waving a dildo around to convey a message is symbolic speech, which is speech. Waving a dildo around to protest guns on campus is not obscenity, and it falls into no other historically recognized category of unprotected speech.

This, to First Amendment lawyers, goes without saying.

And what are the chances that the University of Texas would arrest, ticket, or discipline a student for carrying a dildo around as part of a protest “to draw attention to the fact that carrying a dildo to class could be ‘prohibited expression’ under university rules“? Nil, especially given that the university will have almost ten months to consult with counsel and choose the right course. I have heard (take it with a grain of salt) that the university has told students they will not be cited for carrying dildos in protest.

John Banzhaf writes:

To express their hostility towards the new law, a few female students are organizing a demonstration in which protesters will dramatize their opposition by carrying large dildos. They raise the question: Would UT really expel a student for displaying a dildo while nevertheless permitting guns capable of discharging more than a dozen high-powered rounds?

No, of course not. The protesters raise a stupid question. Show me that UT has expelled a student, or threatened to expel a student, for displaying a dildo and I might be convinced that it isn’t a stupid question.

Banzhaf writes:

A Texas statute, and the UT regulation apparently based upon it, prohibits the display of “obscene devices.”

Not so. The UT regulation prohibits obscene writings, visual images, and performances. It does not specifically prohibit “obscene devices.” A dildo is an “obscene device,” but an “obscene device” is not necessarily “obscene.” It’s amazing, as Troy McKinney says, what you learn when you read the statute, which the UT regulation cites.

But hey, if your objective is—as Banzhaf’s objective, near as I can tell, is—to be outraged and to try to get other ignorant people to share your outrage, why would you bother yourself with things like “reading statutes”?

The protesters fear arrests or university discipline.

No they don’t. The protesters crave arrests or university discipline. The worst thing that could happen to them is that the administration would cheerfully join them in their day of dildo waving. If they don’t pretend to fear arrests or university discipline, their stupid question appears stupid, even in the context.

And indeed, a legal website reported that UT-Austin’s vice chancellor says he faces a “dilemma,” and wouldn’t speculate on how he will handle the protest. “We do try to tolerate a good deal of free speech on campus,” he said.

“A legal website,” eh? No link? What is Banzhaf trying to hide?

Here‘s my best guess for the “legal website,” and if I guess right you can see what he’s trying to hide: it wasn’t UT Vice Chancellor Daniel Sharphorn who said he faced a “dilemma”; it was Sue Reisinger, the author of the article. Sharphorn did say that he can’t speculate on how he will handle the protest (a hail of bullets, or snack food for protesters?), and “We do try to tolerate a good deal of free speech on campus,” which is a tin-eared statement of which I don’t think we can make a whole lot, especially since it was made within a couple of days of the protest being announced.

Moreover, free speech is something to be revered, not just “tolerated,” especially at a university.

Sing it, brother!

Texans should be very concerned that professors at the UT Law School seem to be standing idly by.

Um, no.

UT’s law professors, if they have even thought about it, know that the protesters raise a stupid question. They know that obscene devices are not necessarily obscene, and that since October 16 when Sharphorn said that the university tries to accommodate a good deal of free speech (instead of accommodating all free speech) he has had an opportunity to give it some thought, and to decide: plomo o pizza.

If those who teach Constitutional law don’t see a clear threat to free speech and academic freedom and speak out about it, it’s no wonder that the chancellor is so confused, and that free speech is just “tolerated” at UT-Austin.

Except that there is no clear threat to free speech and academic freedom because nobody is in any danger, however much they desire it, of dildo-based arrest or discipline.

Displaying dildos shouldn’t create a “dilemma” for anyone familiar with First Amendment law.

Nor does it. “Dilemma” appears to be Ms. Reisinger’s word.

The Supreme Court has held that protesters have a constitutional right to make their point by displaying many upsetting things, including swastikas, burning American flags, and even flaming crosses of the type used by the KKK. Other courts have upheld the right of women to bare their breasts as part of a protest.


More importantly, a federal appeals court has struck down the Texas law upon which the vice chancellor seems to rely, making it once again legal to display dildos, even if not part of a First Amendment protected protest, unless they are “obscene”: i.e., appeal to a “shameful or morbid” interest in sex and are “patently offensive.” This is something that UT should have known.


First, the vice chancellor doesn’t appear to have said anything about relying on any statute, or even about disciplining students. This is a strawman argument.

Second, the university regulation governing obscene communications explicitly incorporates the Constitutional definition of obscenity rather than the statutory definition of “obscene device.” So UT knew what UT “should have known.” If Banzhaf had behaved like an actual lawyer rather than a cheerleader for a failing cause he would have read the rule and seen this. If the university were inclined—there is no indication that it is—to discipline rubber-cock-wielding students, they could only do so if the wielding of the cock was obscene.

Some protesters may also carry Nerf guns, pointing out another “dilemma” UT faces: The university’s Residence Hall Handbook prohibits Nerf guns. So the learned vice chancellor may be in the odd position of having to expel a student for having a Nerf gun, which shoots harmless pieces of foam, while defending the rights of other students to carry Glocks, Colts, Rugers, etc., capable of a mass murder.

That would be odd an odd position, but it wouldn’t a free-speech issue. The university’s regulations do not say anything about Nerf guns (except that “Campus violence” includes “Displaying a weapon or an object which appears to be a weapon in a threatening manner”). So students are free to carry Nerf guns on campus. The Residence Hall Manual forbids “Weapons or facsimiles of weapons” in residence halls; a Nerf gun is not a facsimile of a weapon (an Airsoft gun, however…). If this oddity really existed, there would be two ways to fix it: allow Nerf guns on campus, or get the legislature to change its mind about allowing concealed-handgun license holders to carry on campus. Guess which is feasible.

Banzhaf is trying to manufacture outrage. His success depends on ignorant people believing:

  • That the display of dildos is against university rules;
  • That the university administration, with ten months of time to brief and reflect, will be clueless about free speech; and
  • That the protesters are therefore in danger of arrest or discipline.

In aid of this trickery Banzhaf repeatedly misattributes “dilemma” to an official of the school rather than the reporter who used it. He fails to read (or deliberately ignores) the university rule that would apply, as well as the statute that defines “obscene.” If Banzhaf told the truth—”University regulations forbid obscenity, but dildos are not necessarily obscene; the University has given no indication that it will punish students for demonstrating; demonstrators want to believe that they face danger because otherwise they’re just a bunch of silly people waving rubber dicks.

Only if the protesters are in real danger of (rather than just having a devout wish for) arrest or discipline do UT’s law profs—or serious people generally—need to speak about it. It goes without saying. Banzhaf’s First Amendment outragemongering is discreditable, unworthy of a lawyer or even a halfway-competent law professor.