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2016.034: It Is About the Truth

Mark's Blog: Defending People - Thu, 09/15/2016 - 13:36

Remember, it is not what you think about the Super Lawyers program, it is about what the potential client thinks!

Thus spake Bart Taylor, trying to sell advertising in the Super Lawyers online directory in an email purporting to come from Houston PI lawyer Randy Sorrels:

Lots of lawyers seem to agree with Bart. As exhibit “A,” I would offer the trumpeting of bullshit “Top 100 Lawyers” “honors”:

Here’s Jim Sullivan:


 

Grant Scheiner:

 

Phil Gommels:

Joe Vinas:I have nothing against Jim, Grant, Phil, or Joe. I like them all, and have found them to be smart, generally ethical lawyers,1 but they are playing with fire here. Because lying in advertising is pretty much frowned upon, not only by me, but also by the State Bar. I hope this post will prompt them all to return to the ethical fold.

The “Top 100” are not “the top 100 trial lawyers” (as Jim and Grant claim) “the top 100 trial lawyers in Texas” (as Phil claims) “the top 100 trial lawyers in criminal law” (as Joe claims) or even the top 100 trial lawyers in criminal law in Texas.

The “Top 100” are the top 100 lawyers willing to pay $350 to the “National Trial Lawyers” for the privilege of lying to potential clients about the ranking in a geographical area specifically gerrymandered to contain 100 or fewer such lawyers.

A lawyer would have to be stupid not to know this, and none of these guys are stupid. All of them know that they haven’t been named “one of the top 100.” Yet they advertise that false claim, perhaps because they, like Bart, think it is not what you think about the honor, it is about what the potential client thinks.

But that’s crap, of course. Because unlike marketers, lawyers have ethical rules we have to follow. And if we know that an honor is bought-and-paid-for bullshit,2 we have a duty not to mislead the public.

I’ll go farther: We have a duty to not be ignorant about the claims that we make about ourselves.

And of course we are responsible for things done on our behalf as though we had done them ourselves.

So the marketers say “all that matters is what the potential client thinks.” This is a siren song — who doesn’t want clients thinking of him as one of the top 100 lawyers? — that we must resist. For if the potential client thinks our marketing means something that we know it not to mean, we are deceiving him.

  1. I’ve even listed Grant in my 10-of-the-best list

  2. Super Lawyers, for all its faults, is not bought and paid for — I’ve yet to buy the advertising Bart is selling. 

2016.033: Trial Theory (Part Two of Several)

Mark's Blog: Defending People - Thu, 09/01/2016 - 11:35

In Trial Theory I I concluded:

Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect.1

Blockbuster evidence in this context has a technical meaning: it is evidence that is:

Dispositive;

Incontrovertible; and

Unforeseen.

If the you or the State has primed the jury to expect the evidence, it is not unforeseen. If other evidence contradicts the evidence it is not incontrovertible. And if the story of the party who the evidence seems to disfavor still makes sense when the evidence is considered it is not dispositive.

Let’s work our way back through the trial to see how the theory works.

Jury Deliberation

In jury deliberation, the jurors tend to go back and take a first vote. Then they work their way to a verdict. The way the initial split goes (toward guilty or not guilty) is almost always the way the final verdict goes. If you have seven jurors when the jury goes out, your client is probably going to be acquitted, or the jury hung. If the state has seven jurors at the first vote, your client is probably going to be convicted (or the jury hung). What changes minority jurors’ beliefs is not the weight of the evidence, but the weight of the personalities against them.

The evidence and the law are important not because they are going to change jurors’ minds but because they are going to give jurors face-saving reasons to change their minds.

Closing Argument

In closing argument, then, we remind our jurors of the evidence and the law to which they can cling to preserve their own beliefs (preserving a hung jury if our jurors are in the minority) and to which they can point to give the other side’s jurors an excuse to change their beliefs (getting to an acquittal if our jurors are in the majority).

The Jury Charge

The purpose of the jury charge is to set before our jurors the law to rationalize their beliefs and to give their jurors a face-saving reason to change their beliefs.

The Evidence

The presentation of evidence serves two purposes. First, it gives our jurors—those who believe our story—ammunition to use in the jury room to resist the weight of personality arrayed against them, or to give the government’s jurors a face-saving reason to vote for acquittal.

Second, the presentation of evidence makes it possible for us to give the government’s jurors blockbuster evidence that they have not been primed to expect, which might change their minds. At the same time, defensively, we want to keep the government from introducing blockbuster evidence that might actually change our jurors’ beliefs.

How is any of this different than the traditional?

The presentation of evidence, the wrangling over admissibility, and the closing arguments under this model look just like the same procedures under a more traditional model (in which we pretend that jurors don’t actually make up their minds until deliberations).

Opening Statement

What about opening statement? In opening statement, we tell the jury what they should believe. Nobody is going to believe something just because a defense lawyer tells him to. So the jurors’ beliefs, in this model, are formed in jury selection and affirmed in opening statement.

Jury Selection

In this model, jury selection is everything. In jury selection, the jury, given the parameters of the accusation (the elements and, at least in hypothetical terms, any major issues), comes up with the defense (perhaps among other possible defenses), and in opening statement you confirm that that is your defense. Roughly, in voir dire this would happen:

You: How could someone charged with this crime in hypothetical circumstances like this not be guilty?

Jurors: Maybe because X, or Y, or Z.

And in opening statement this would happen:

You: You’re right, jury. Y. And here are the facts that back that up.

If the jury didn’t come up with your defense in jury selection, it was a lousy defense.

Treating jury selection like it’s all that matters doesn’t preclude treating opening statement like it’s all that matters, treating your objections to the government’s evidence like they are all that matter, treating your cross-examination of the government’s witnesses as all that matters, treating your presentation of evidence as all that matters, and treating closing argument as all that matters.

But if you don’t win your case in jury selection, at best you have an uphill battle to win the case in the end.

(That’s why you should come to TCDLA’s voir dire seminar in Dallas next Thursday and Friday.)

  1. This is not entirely correct. There is something else that will change jurors’ formed beliefs. I’ll talk about it in another part of this discussion. 

2016.032: Safe From Suit, But Not From Prosecution

Mark's Blog: Defending People - Tue, 08/30/2016 - 15:10

…That night, someone sent an e-mail to Vietnamese groups alleging appellant was going to Vietnam to “bow down” to Ho Chi Minh and the Vietnamese Communists.

. . . . .

In 2014, appellant [Al Hoang] won the Republican primary for State Representative District 149. Nguyen continued to label appellant a Vietnamese Communist. In October of that year, Nguyen reported that appellant’s father committed suicide in 2007 because appellant was a Communist. Nguyen also stated that appellant made the bomb with which he was threatened in 2012 to gain attention.

From 2010 to the time suit was filed in October 2014, articles published in Thoi Bao called appellant “a Vietnamese Communist, an agent of Vietnamese Communist, or a spy of the Vietnamese Communist [sic].” These articles were also disseminated to Vietnamese groups and over the internet.

Appellees win: Appellant had failed to provide “clear and specific evidence that the
statements of which he complains were published with actual malice….”

While Hoang v. Nguyen was pending the same panel of the Fourteenth Court of Appeals — Justices Martha Hill Jamison, John Donovan, and Marc Brown — in State v. Stubbs upheld Section 33.07 of the Texas Penal Code in the face of an overbreadth challenge.

Section 33.07 forbids using someone’s name online without his consent with intent to harm him.

The appellees’ speech in Hoang v. Nguyen — articles about Mr. Hoang disseminated over the internet — used his name online without his consent with the intent to harm him.

So while Thoi Bao and Mr. Nguyen are protected by the Texas Citizens Participation Act from frivolous lawsuits such as the one by Mr. Hoang (who will be paying my fees), they risk felony prosecution under Section 33.07 whenever they write something unfavorable about Mr. Hoang (or anybody else). And under Section 33.07 neither the truth, lack of actual malice, nor opinion is a defense.

Even if they write what they know to be the truth, they may face felony prosecution. They will have to go to trial to make an as-applied challenge to the statute (it is unconstitutional as applied to them) and nobody but them is going to pay my fees when we win.

(Part of the court’s reasoning in Stubbs was that prosecutors haven’t used 33.07 to prosecute newsmen for criticizing public officials, but prosecutors’ noblesse oblige is not part of the overbreadth analysis. That the Harris County DA did not come to the aid of her Republican brother does not mean that future DAs will abstain as well.)

2016.031: Trial Theory (Part One of Several)

Mark's Blog: Defending People - Mon, 08/29/2016 - 16:05

To know what to do at any point in a jury trial, we must have some theory of how the parts of the trial fit together.

In a felony jury trial with twelve jurors (and the requirement of a unanimous verdict) there are 4,095 permutations of verdicts that do not involve our client going to prison.1 There is only one permutation that convicts our client. If each juror’s verdict were independent of the others and there were a 50% chance that each juror would convict, there would be a 1 in 4,096 chance of a conviction.

But jurors’ verdicts are not independent—one juror’s verdict will affect another’s—and the chance that any given juror will acquit is not necessarily 50%.

Our goal as criminal-defense lawyers is to keep the government as far as possible from that one permutation that convicts our client. To do this we need to recognize how jurors’ verdicts are dependent on each other, and how each juror reaches a verdict.

Many trial lawyers believe that every trial is won or lost in jury selection. Modern research into human cognition suggests that once a person forms a belief, it is very difficult to change that belief. Mere evidence will not suffice to change a normal person’s belief; she will disregard evidence that contradicts her beliefs and will magnify the evidence that supports her beliefs. This is called confirmation bias. Other biases act toward the same goal: to lock a person into her initial belief.

While we make jurors promise to consider all of the evidence before reaching a decision, there is very little evidence that they actually do this.

Research with mock juries suggests that how the jury is split when it goes out predicts the verdict. A jury that is 7–5 for conviction on the first ballot will most likely convict or hang; a jury that is 11–1 for conviction on the first ballot will almost certainly hang. A jury that is 6–6 or better for the defense on the first ballot will likely not convict. It appears that it is force of personality, rather than quality of evidence, that determines whether jurors will change their minds.

So we want to have as many jurors as possible on our side when they go out (we don’t want our defense to depend on beliefs formed in the jury room), which means that we want to have as many jurors as possible on our side as early as possible.

How early is “as early as possible”? Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect.

 

  1. Each juror’s individual verdict can be either “guilty” or “not guilty.” The combined verdict of the entire jury can be expressed as a 12-digit binary number, with each bit representing one juror’s vote, 0 for guilty and 1 for not guilty. There are 212 = 4,096 12-digit binary numbers. Only one of them, 00000000000, or 0, is a unanimous guilty verdict. 

2016.030: Voir Dire and Cross Examination in Dallas

Mark's Blog: Defending People - Thu, 08/11/2016 - 15:20

TCDLA has given me the go-ahead to tell you that if you sign up for the voir dire seminar (which I am directing) or the cross examination seminar (which I am not) in Dallas September 8–9 at the Sheraton Dallas Hotel by the Galleria, you can attend sessions of the other.

Sign up here. See you in Dallas.

TCDLA Voir Dire seminar Dallas 2016

2016.029: Thank You

Mark's Blog: Defending People - Thu, 08/04/2016 - 18:37

You may have noticed that I’ve added a widget to the right-hand column of “Cool Things I Really Like.” It’s stuff that I buy for myself, and can get more of if you use the links (or, with UberEats, the code “eats-nw0pp) to buy something for yourself.

I just added a link to Nootrobox. I chew their GoCubes, which are coffee (with other sparkly ingredients) in small gelatinous cubes. They’ve got other nootropics as well, and if you are interested in biohacking they have a lot of interesting stuff to read on their website.

Thank you especially to those of you who have ordered custom shirts from Original Stitch. I hope you enjoy wearing them, and think fondly of me when you do. I’ll think fondly of you, whoever you are, for helping fund my custom shirt habit.

2016.028: Capital Murder and the Law of Parties in Texas

Mark's Blog: Defending People - Tue, 08/02/2016 - 15:35

I wrote yesterday about Texas’s Law of Parties, and how it is different from Texas’s Felony-Murder Rule. An observant reader emailed to ask:

What about Enmund  v Florida?

An excellent question. In Enmund the U.S. Supreme Court reversed Mr. Enmund’s death sentence because he “d[id] not himself kill, attempt to kill, or intend that a killing take place or that lethal force w[ould] be employed.”

So how is it that Wood, who according to Hedayati “had no reason to anticipate” the killing, got the death penalty?

Because the jury found otherwise.

The law when Wood was prosecuted, as now, was that if a person was convicted of capital murder and the State sought death, the jury had to be asked:

(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

If the answer was “no,” the defendant was not death-eligible.

So a properly charged jury in Wood’s case must, in order for Wood to be sentenced to death, have had to find beyond a reasonable doubt that Wood at least anticipated that a human life would be taken.

And the jury was properly charged.

So before Wood was sentenced to death a jury found beyond a reasonable doubt that, at the very least, he anticipated a killing in his escapade with Reneau.

I don’t think the State should be in the business of putting people to death. But neither do I think it acceptable for a lawyer to spread untruths to get people to oppose the death penalty. And when Hedayati writes:

[N]eglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible.

That’s just untrue.

Spreading untruths for a political end is not just wrong; it’s also counterproductive. It gives ammunition to your political opponents (Look! He is so wrong he has to lie to try to win!) and it alienates your honest allies (Hi!).

2016.027: Law of Parties and Felony-Murder Rule

Mark's Blog: Defending People - Mon, 08/01/2016 - 22:21

Wood was convicted and sentenced to die under Texas’ arcane felony-murder law, more commonly known as the “the law of parties” — for his role as an accomplice to a killing, which he had no reason to anticipate.

(Hedayati: In Texas death row case, punishment does not fit crime.)

That Wood “had no reason to anticipate” the killing should have prevented him from being convicted under a parties theory. Here’s the Law of Parties:

Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Texas’s Law of Parties is surely draconian. But it’s distinct from the Felony-Murder Rule:

Sec. 19.02. MURDER.

(b) A person commits an offense if he:

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Calling the Law of Parties the Felony Murder Rule makes people stupider. Where did Hedayati —described by his bio in the Statesman as an attorney, but not a criminal lawyer — get the idea that they are the same thing? My guess is Wikipedia, which until I edited it just now equated the two.

What’s more, Hedayati’s premise — that the Law of Parties required Wood’s conviction — is false: If it is true that Wood “had no reason to anticipate” the murder then it is not true that the murder “should have been anticipated as a result of the carrying out of the conspiracy.” He may not have anticipated it, but in order to convict him a jury found that he should (that is, had reason to) have anticipated it.

Hedayati goes on:

Under the law of parties, those who conspire to commit a felony, like a robbery, can be held responsible for a subsequent crime, like murder, if it “should have been anticipated.” The law does not require a finding that the person intended to kill. It only requires that the defendant, charged under the law of parties, was a major participant in the underlying felony and exhibited a reckless indifference to human life. In other words, neglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible.

Where he oversold the Law of Parties on anticipation, here he undersells it on participation. The Law of Parties does not require that the defendant have been a “major participant in the underlying felony,” but only that he be a conspirator — that he have agreed with another to commit the underlying offense and that he or the other have performed an overt act. If you and I agree to rob a convenience store and you go rob the convenience store, we are conspirators.

Nor does either the Law of Parties or the Felony-Murder Rule require that the party “exhibit a reckless indifference to human life.” The former requires that the murder “should have been anticipated”; the latter requires “an act clearly dangerous to human life.”

The idea that I can be executed for a death that I didn’t cause, didn’t help with, and didn’t anticipate is harsh. Most people, presented with the actual law, might agree that it is too harsh. But making things up is unhelpful, and is likely to backfire when people realize that you haven’t told the truth. The law is not complicated, and Hedayati should have gotten it right before sending it in for publication.

2016.026: Jury Selection Magic — Dallas in September

Mark's Blog: Defending People - Mon, 07/25/2016 - 12:04
TCDLA Jury Selection Course, Dallas September 2016

Come play with us in Dallas. Your mind will be blown, and I guarantee that you’ll come away a better lawyer.

Register here.

PDF of poster, if you like.

2016.024: Carl David Ceder Learns The 12 Rules of The Blawgosphere

Mark's Blog: Defending People - Wed, 07/20/2016 - 21:40

I did not write the following post. Scott Greenfield wrote it and posted it to Simple Justice in 2013. Carl David Ceder has filed what appears to be a fraudulent DMCA takedown letter regarding it (because Scott used Carl’s JC Penney portrait as an illustration).

On the chance that the takedown succeeds for a moment, I bring you Scott Greenfield’s …

Carl David Ceder Learns The 12 Rules of The Blawgosphere

When I received the email from Dan Hull at What About Clients/Paris? it wasn’t hard to imagine the look of exasperation on his face.  There are few people in the blawgosphere who have had their content ripped off more consistently than Dan, and unlike the rest of us whose posts ended up on some scammer’s website, Dan’s was different. The thief always seemed to be a lawyer.  Lawyers just wanted what Dan wrote.

This time it was a young Dallas/Fort Worth criminal defense lawyer named Carl David Ceder, who had lifted wholesale one of Hull’s best known and most appreciated posts, his12 Rules of Client Service. This was first posted in 2006 and may be the post for which Hull is best known.

And there it was, on 2007 Houston law grad Carl David Ceder’s website, in all its glory. No permission. Not even credit. Just as if this kid came up with it all by himself, instead of stealing it from Dan Hull.

So I asked Dan if he sent the kid an email, and he told me he sent the kid a question, whether Ceder wrote the 12 Rules himself? But Hull heard nothing back and was off to Hanover, New Hampshire to conduct a Sensitivity training Seminar for the Dartmouth College rugby team.  Again.

Not being particularly inclined to let things go so easily, I sent Ceder an email as well:

Carl,

I’m a criminal defense lawyer in New York and have a blog called Simple Justice. It’s pretty well regarded and widely read. Even in Texas. It’s come to my attention that you have posted a page on your website about the “12 Rules for Client Service.”

These were written by a buddy of mine, Dan Hull, for his blog. I note that you have neither permission to take his content or have even given Hull credit for the content.

This is a matter of some concern. Stealing content is frowned upon.

I plan to write about what you’ve done tomorrow. The question is what to write about. I ask two things of you: tell me how it came to happen that this content appears on your website as if it was yours, and tell me what you plan to do about it. Your answers to these questions will dictate what I write about, and likely what others will have to say about you. If I don’t hear from you, I will assume the worst.

If you have made a mistake, I would hope you would acknowledge it and correct it. If someone put your website together for you, and they stole the content without your realizing it, that would also be worth knowing. I await your response today. Either way, you should anticipate a post about this tomorrow.

Scott Greenfield

No word back from Carl.  There are many possibilities, that he was away for the holiday weekend. That he really doesn’t exist. That he doesn’t check his email during the winter months.

If you can’t trust this face, who can you trust?

Or that this young lawyer, an Avvo 10 “Pro” despite his youth and inexperience, never thought he would get caught stealing from more experienced lawyers in order to market himself.

Curiously, Ceder’s Avvo profile oozes with sincerity, spelling issues notwithstanding:

I can tell you with absolute and complete honesty that all of my client and peer endorsement reviews on this AVVO account are completelely [sic] and 100% authentic. My office takes great pride in our work, and it brings us great joy when our former clients or a professional colleague endorses the work of my law practice. I fully realize that there will come a time when someone may write a bad, negative, or even a “so-so review.”

So what exactly does “absolute and complete honesty” mean when coming from a kid lawyer busy marketing the crap out of himself on the interwebz who steals the content of another lawyer and tries to pass it off as his own?  Redundancy aside, it means nothing. You just destroyed the one thing that no lawyer can afford to lose, integrity. Falsus in uno. falsus in omnibus, kid.

It takes hard work and experience to come up with something of the quality of the 12 Rules of Client Service.  It takes nothing more than a mouse to steal it.  And if you think creating the 12 Rules is hard, it’s nothing compared to training the Dartmouth Rugby Team to be sensitive.  On the other hand, writing a blawg post about another kid lawyer who steals content and lacks integrity takes no effort at all.

2016.024: #AllPeopleLie

Mark's Blog: Defending People - Wed, 07/20/2016 - 15:38

From Popehat (h/t Scott Greenfield):

It is currently fashionable for defense attorneys to say “clients lie” and “most clients are guilty.” I wouldn’t agree with either proposition. Everybody lies; I don’t think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It’s just that criminal defense scenarios require a level of precision and accuracy that most human interactions don’t.

Being an effective and responsible criminal defense attorney doesn’t require believing everything a client says, exactly. The policy could be better described as “trust, but verify.” The key isn’t to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don’t, you’re not defending the client — you’re defending your stereotype of the client.

“Everybody lies” is like “all lives matter.” It doesn’t contradict the narrower statement to which it is intended to respond. Of course clients lie, because clients are people in terrifying and stressful circumstances and people in terrifying and stressful circumstances lie. Sometimes, a wise and benevolent man said years ago, they are lying to themselves as well.

“Currently fashionable” is a contemptful little phrase, and inaccurate in the same way that “clients lie” is inaccurate. It has always been true that clients lie to their criminal-defense lawyers.1 Maybe the saying of it is a fad, but I doubt it — competent lawyers have, as far as I know, always acknowledged that their clients might not be telling them the truth. So we doubt and we doublecheck and we red-team.

Ken is right, in a painfully obvious made-for-ATL way, that a lawyer should take what the client says seriously.And I’m right when I say that it doesn’t matter to me whether you did it or not. And Scott is right when he points out that a lying client may squander the defense’s scarce resources.

It’s not the lawyer’s case but the client’s. And if the client wants to waste scarce defense resources on rabbit trails, that’s his stupid prerogative. But if you are the client, and you know these three things:

  • That your lawyer is going to take what you say seriously;
  • That it doesn’t matter to her whether you did it or not; and
  • That rabbit trails are going to make it less likely that she can actually find a defense that will work for you.

Are you going to lie to your lawyer? Or are you going to tell her the truth, so that she can focus her energy on the defenses that might have some basis in fact?

I like to think my clients are smart enough to do the latter.

I’d like to, but it’s not true. Because even my clients — awesome as they are — don’t always tell me the truth, “taking what the client says seriously” can’t mean following every lead. I’m not going to waste resources on something that won’t help the client. For example, if the client’s story is impossible2 given the facts beyond change. Or if the client’s story would, if true, do more harm than good.3

Taking what the client says seriously does not mean not questioning it. To the contrary, if we take the client’s story seriously we are going to look for the evidence that would advance it and for the evidence that would refute it. Because if we don’t beat on the client’s story, it’s likely to collapse when the State starts beating on it.

All clients want us to believe them, but there is a special class of clients who need for us to believe them. Despite being told repeatedly, and registering their understanding, that our job is not to judge them, they proclaim that need loudly and often: “I need you to believe me.” They might even express a desire that you not red-team their case.

No, those alarm bells you are hearing are not just in your head.

  1. Ken says he also disagrees that “most clients are guilty,” but he doesn’t elaborate. 

  2. Not merely implausible. Implausible things happen every day. 

  3. “I’m telling you, she was asking for it.” Dude, she’s six

2016.023: Law Profs Love Media Attention

Mark's Blog: Defending People - Sun, 07/17/2016 - 20:43

From here:

Eugene Volokh, a professor at UCLA School of Law, told Vocativ in an email that he is “not a fan of most privacy-based speech restrictions,” but said “this law seems quite narrow, and pretty clearly defined.”

Seems.

There is no “seem” to it. The law says what it says. There is nothing more to it than this. Either you have read it and thought about it and redteamed it to figure out how narrow it is, or you make a handwavy statement to the press about how it “seems.” For those not familiar with the ways of lawyers, this is not an opinion on the constitutionality of the Internet Privacy Protection Act. It’s not at all hard to imagine a “but” following it. Like:

…but it is not as clearly defined as it seems.

or

…but it is not narrow enough to pass First Amendment muster.

From the same piece:

Similarly, Neil Richards, a First Amendment scholar and law professor at Washington University, underscored the importance of revenge porn laws being narrow enough so they aren’t “used as tools of censorship that threaten our commitment to free expression, including sexually-explicit expression,” but said, “I think on balance, this is a very well-drafted law.”

On balance. Well-drafted.

This is also not an opinion on the constitutionality of the proposed law. Imagine:

…but, well-drafted though it is, it is not likely to pass constitutional muster.

If Volokh or Richards were to opine that this proposed statute passed constitutional muster, it would be hard to square that endorsement with their writings on privacy and the First Amendment.

Here’s Eugene “Seems” Volokh:

This article has made three arguments. First, despite their intuitive appeal, restrictions on speech that reveals personal information are constitutional under current doctrine only if they are imposed by contract, express or implied. There may possibly be room for restrictions on revelations that are both extremely embarrassing and seem to have virtually no redeeming value, such as unauthorized distribution of nude pictures or possibly the publication of the names of rape victims, and perhaps for speech that makes it substantially easier for people to commit crimes against its subjects. Even these, though, pose significant doctrinal problems.

Second, expanding the doctrine to create a new exception may give supporters of information privacy speech restrictions much more than they bargained for. All the proposals for such expansion—whether based on an intellectual property theory, a commercial speech theory, a private concern speech theory, or a compelling government interest theory—would, if accepted, because strong precedent for other speech restrictions, including ones that have already been proposed. The analogies between the arguments used to support information privacy speech restrictions and the arguments used to support the other restrictions are direct and powerful. And accepting the principles that the government should enforce a right to stop others from speaking about us and that it’s the government’s job to create “codes of fair information practices” controlling private parties’ speech may shift courts and the public to an attitude that is more accepting of government policing of speech generally. The risk of unintended consequences thus seems to me quite high.

. . . . .

…[T]he one approach, though, that I think is entirely unsound is to simply ignore the potential free speech consequences. The speech restrictions that courts validate today have implications for tomorrow. Only by considering these implications can we properly evaluate the true costs and benefits of any proposed information privacy speech restriction.

And here is Richards:

Just because the disclosure tort is largely unconstitutional, it does not mean that many of the psychological injuries it seeks to remedy are not substantial.

Here, apropos of IPPA’s “bona fide” exception, is Neil “Tools of Censorship” Richards again:

The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor.

Richards also once wrote (with Daniele Citron) in support of revenge-porn criminalization:

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.

The Supreme Court’s jurisprudence does not support those statements. But even if it does, the proposed IPPA does not contain as an element “violation of an express or implied trust.” It does not contain as an element the intent to intimidate, threaten or harass. So the proposed statute fails to fulfill even Richards and Citron’s own criteria for a revenge-porn statute.

It would probably be unfair to suggest that Eugene “Seems” Volokh and Neil “Tools of Censorship” Richards haven’t read the proposed IPPA: They’ve read it enough to say “seems” and “well-drafted.” It’s not unfair, though, to suggest that they haven’t engaged with it. They haven’t read it, thought about it, and redteamed it.

To redteam the statute, proponents will have to answer the questions that opponents will raise in court, and justify their answers:

  • Does the statute restrict speech?
  • Does the statute restrict speech based on its content?

If the answer to these two questions is “yes,” (it will be, because “porn”) then the statute is presumptively unconstitutional and the proponents will have to answer these questions:

  • Does the statute restrict only speech in a recognized category of historically unprotected speech?
  • If the statute does not restrict only such unprotected speech, is the overbreadth of the statute not real and substantial?

Here is where the proponents have not yet come up with more than vague hand-wavy answers. The speech forbidden by IPPA falls into no as-yet-recognized category of unprotected speech. That doesn’t stop the Supreme Court from recognizing a hitherto-unrecognized category of historically unprotected speech. But what would that exception be, and how would it affect speech other than what we think of as revenge porn?

It might surprise you to learn that the professionally aggrieved advocates of revenge-porn criminalization have not answered those questions.

The proponents of criminalizing revenge porn are playing in the big leagues now. The first prosecution under the new statute is going to be on a fast train to the Supreme Court, and some Assistant Federal Public Defender smarter than me, Volokh, and Richards combined is going to be driving the train.

Now is the time to decide how to define the category of unprotected speech that the proponents expect the Supreme Court to adopt. And now is the time to consider, as Volokh says, the “implications for tomorrow.”

 

2016.022 hangoutwithmark

Mark's Blog: Defending People - Fri, 07/15/2016 - 10:41

I’m going to be messing around with Google Hangouts. If you’d like to join in, haz clic aquí.

(If I’m not in, check back later.)

2016.021: CDL Behaving Badly

Mark's Blog: Defending People - Thu, 07/14/2016 - 16:57

Lest you believe I think Harris Prosecutors have a monopoly on bad behaviorcheck out the full video, then come back. Or here’s the money shot:

http://blog.bennettandbennett.com/wp-content/uploads/2016/07/Clip-from-Tyler-Declaration-Reading.mp4

Kerry is my client. Paul (on the other side of Kerry from me) is one of Kerry’s former lawyers. Buck is the lawyer for Jim, who lied for 39 years (including in three trials) about his relationship with Linda Jo, the victim. He also lied for 39 years — until the State gave him immunity — about what he knew about this book, which contains photos strikingly similar to the crime-scene photos. Jim was willing to let his lies be used to send Kerry to Death Row; he was, at the very least, depravedly indifferent to Kerry’s life and is, in my opinion, the most likely alternate suspect.1

The criminal-defense bar’s reading of the Declaration of Independence on the courthouse steps is a growing tradition. Started by Robb Fickman in Harris County, it has spread to all 254 of Texas’s counties, including Smith County, where Kerry and I had a hearing scheduled before the scheduled Declaration reading.

These Declaration readings are for the criminal-defense bar — organized by Robb Fickman and TCDLA — but the local organizers may allow others to join. So Paul was not entirely out of line in inviting Kerry to join in, and Buck wasn’t entirely out of line in objecting.

But Kerry was in line to read before the reading of this sacred document began. Since Buck objected to participating in a reading with Kerry, he could have a) had a quiet word with the President of the local criminal-defense bar, and asked that Kerry be politely asked not to participate; b) not participated himself; or c) read his part, then quietly excusing himself.

Instead of any of these grownup options Buck chose to throw a tantrum on the courtroom steps, interrupting the reading of the Declaration of Independence.

Grow up, Buck.

  1. Buck had given the State an affidavit with an incorrect opinion (that there is no way a certain ex-client of his would have been employed by the State in 1977), and did nothing to correct it when I showed him that that the ex-client was in fact used extensively by the trial prosecutor to investigate the case and testify in a change-of-venue hearing. 

2016.020: The Intimate Privacy Protection Act of 2016

Mark's Blog: Defending People - Thu, 07/14/2016 - 15:52

Via scribd:

(a) IN GENERAL.—Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or of the naked genitals or post-pubescent female nipple of a person, with reckless disregard for the person’s lack of consent to the distribution, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) EXCEPTIONS.—

(1) LAW ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.—This section—

(A) does not prohibit any lawful law enforcement, correctional, or intelligence activity;

(B) shall not apply in the case of an individual reporting unlawful activity; and

(C) shall not apply to a subpoena or court order for use in a legal proceeding.

(2) VOLUNTARY PUBLIC OR COMMERCIAL EXPOSURE.—This section does not apply to a visual depiction of a voluntary exposure of an individual’s own naked genitals or post-pubescent female nipple or an individual’s voluntary engagement in sexually explicit conduct if such exposure takes place in public or in a lawful commercial setting.

(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.—This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.

(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.—This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.

(c) DEFINITIONS.—In this section:

(1) Except as otherwise provided, any term used in this section has the meaning given that term in section 1801.

(2) The term ‘visual depiction’ means any photograph, film, or video, whether produced by electronic, mechanical, or other means.

(3) The term ‘sexually explicit conduct’ has the meaning given that term in section 2256(2)(A).

Let’s fisk it.

Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce…

This is the interstate-commerce hook that purports to give federal courts jurisdiction.

…to distribute a visual depiction…

The distribution of visual depictions is speech. Remember that a content-based restriction on speech is presumptively void unless the speech falls into a category of unprotected speech.

…of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or…

This makes the restriction content-based. The fact-finder has to look at the image to determine whether it violates the statute. A visual depiction of an identifiable person playing croquet does not trigger the statute, but a depiction of an identifiable person playing croquet does not.

… of the naked genitals or post-pubescent female nipple of a person, …

I know that legislators aren’t very good at grammar, but I don’t see how this can be read other than to mean that two sorts of images are prohibited:

  1. A visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or
  2. A visual depiction of the naked genitals or post-pubescent female nipple of a person.

So a depiction of an unidentifiable person engaging in sexually explicit content does not trigger the statute unless the depiction includes his naked pink parts, in which case it doesn’t matter that he is unidentifiable. This statute, like others, will capture the innocent behavior of sharing naked baby pictures.

…with reckless disregard for the person’s lack of consent to the distribution…

This is the culpable mental state, or mens rea, requirement. It’s not very strong. While it’s greater than Mary Anne Franks’s proposed “knew or should have known” (negligence) standard, it doesn’t satisfy Danielle Citron’s demand that “it is crucial to craft narrow statutes that only punish individuals who knowingly and maliciously invade another’s privacy and trust.”

…shall be fined under this title or imprisoned not more than 5 years, or both.

Five years in prison for reckless conduct. Five years for sharing naked-baby pictures on Facebook. Five years for conduct that may or may not have caused some real-world harm.

(b) EXCEPTIONS.—

(1) LAW ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.—This section—

(A) does not prohibit any lawful law enforcement, correctional, or intelligence activity;

(B) shall not apply in the case of an individual reporting unlawful activity; and

(C) shall not apply to a subpoena or court order for use in a legal proceeding.

The usual authoritarian exceptions: what is forbidden and presumed harmful when engaged in by the people is expressly permitted to the state.

(2) VOLUNTARY PUBLIC OR COMMERCIAL EXPOSURE.—This section does not apply to a visual depiction of a voluntary exposure of an individual’s own naked genitals or post-pubescent female nipple or an individual’s voluntary engagement in sexually explicit conduct if such exposure takes place in public or in a lawful commercial setting.

The commercial-porn-and-exhibitionism exception.

(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.—This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.

The you-can-trust-government provision. I discuss it here; as Professor Neil Richards writes, “the power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor.”

(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.—This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.

I’ll leave this to the Section 230 experts.

(c) DEFINITIONS.—In this section:

(1) Except as otherwise provided, any term used in this section has the meaning given that term in section 1801.

(2) The term ‘visual depiction’ means any photograph, film, or video, whether produced by electronic, mechanical, or other means.

(3) The term ‘sexually explicit conduct’ has the meaning given that term in section 2256(2)(A).

Here, for future reference, is that definition:

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

There was a spate of state revenge-porn statutes passed in the last couple of years. There have not been many of prosecutions under these statutes. This suggests that the problem is not as great as the criminalizers led the state legislatures to believe.

The Intimate Privacy Protection Act of 2016 is a content-based restriction on speech, unconstitutional under current Supreme Court caselaw. In order for the Supreme Court to uphold it, it would have to recognize a category of historically unprotected speech that includes nonconsensual pornography. Check out my discussion of defining such a category here, beginning at “So how would we…”.

IPPA’s advocates have written a presumptively unconstitutional statute. They have not suggested a path to constitutionality. They address a problem that has not been overwhelming state criminal-justice systems.

Perhaps there are better uses for Congress’s time.

 

2016.019: Scurry Scurry, Scurrae

Mark's Blog: Defending People - Thu, 07/14/2016 - 13:18

A couple of days ago in felony court a guy who was supposed to go into custody decided that he didn’t want to go. The bailiff and the process server (both Harris County Sheriff’s Deputies) wrestled him to the ground. While they were having some difficulty subduing him, someone (the court coordinator, I think — I was focused on the wrestling match) came up to the two prosecutors who were standing near me, whispered, “the deputies have guns, and he might get a gun, so you should go in the back,” and led them out of the courtroom, leaving me, the third prosecutor, and everyone in the audience to — in that imagined scenario — get shot by the out-of-control defendant.

I could have left too, but in my view the risk that the guy would a) get a gun; b) discharge it; and c) hit me was smaller than the risk that I would twist my ankle leaving the courtroom. If I’d thought otherwise, I would have politely but persuasively suggested that the audience (and the third prosecutor) leave.1 Why? Because while I have a keen sense of self-preservation, that sense doesn’t exclude the preservation of other people.

I don’t get up at trial and loudly claim to represent the people of Harris County in trial, and then skitter quietly into my hole, leaving those same people to fend for themselves, when I imagine a threat to my own skin.

But hey, Harris County prosecutors. You do you.

  1. I probably wouldn’t have left, on the theory that if he got a gun the chance that the guy not hit me was much larger than the chance that he would, and in that margin I might be helpful. 

2016.018 Why It’s Time to Repeal the First Amendment

Mark's Blog: Defending People - Tue, 06/14/2016 - 18:31

I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. I admire the Founders for establishing a representative democracy that has survived for over two centuries.

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The First Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it’s important to understand that they got it wrong — and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don’t know it now, but under the original document, Mitt Romney would be serving as President Obama’s vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment, which set up the system we currently have of the president and vice president running for office together.

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways, including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country’s first 20 years. They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them).

There are others flaws that have been fixed (such as about voting and Presidential succession), and still other flaws that have not yet been fixed (such as about equal rights for women and land-based representation in the Senate), but the point is the same — there is absolutely nothing permanently sacrosanct about the Founders and the Constitution. They were deeply flawed people, it was and is a flawed document, and when we think about how to make our country a more perfect union, we must operate with those principles in mind.

In the face of yet another mass publication of nonconsensual pornography, now is the time to acknowledge a profound but obvious truth – the First Amendment is wrong for this country and needs to be jettisoned. We can do that through a Constitutional amendment. It’s been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth), and it must be done now.

The First Amendment needs to be repealed because it is outdated, a threat to liberty and a privacy suicide pact. When the First Amendment was adopted in 1791, there were no communications devices remotely like the laptop computer and many of the advances of modern communication were long from being invented or popularized.

Sure, the Founders knew that the world evolved and that technology changed, but the communications devices of today that are easily accessible are vastly different than anything that existed in 1791. When the First Amendment was written, the Founders didn’t have to weigh the risks of one man offending thousands all by himself. Now we do, and the risk-benefit analysis of 1791 is flatly irrelevant to the risk-benefit analysis of today.
Speech-rights advocates like to make this all about liberty, insisting that their freedom to speak is of utmost importance and that restricting their freedom would be a violation of basic rights.

But liberty is not a one way street. It also includes the liberty to enjoy a night out with friends, loving who you want to love, dancing how you want to dance, in a club that has historically provided a refuge from the hate and fear that surrounds you. It also includes the liberty to go to and send your kids to kindergarten and first grade so that they can begin to be infused with a love of learning. It includes the liberty to go to a movie, to your religious house of worship, to college, to work, to an abortion clinic, go to a hair salon, to a community center, to the supermarket, to go anywhere and feel that you are free to do to so without having to weigh the risk of being hurt by someone wielding a communication device that can easily offend or embarrass you and countless others.

The liberty of some to speak cannot take precedence over the liberty of everyone to live their lives free from the risk of having their dignity harmed. It has for too long, and we must now say no more.

Finally, if we take the free-speech lobby at their word, the First Amendment is a suicide pact to our privacy. As they say over and over, the only way to fight hate speech is with more speech. In other words, please those who engage in hate speech by encouraging even the vast majority of Americans who do not speak up to speak.

Just think of what would have happened to Hulk Hogan if there had been many others writing. On a crowded, dark, loud Internet, after Gawker posted, imagine if others took out their computers and started writing back. Yes, maybe they would have chastised Gawker, but how would anyone else have known what exactly was going on? How would it not have devolved into mass confusion and fear followed by a large-scale argument without anyone knowing who was the good guy with a computer, who was the bad guy with a computer, and who was just caught in the middle? The offense toll could have been much higher if more people were armed.

The free-speech lobby’s mantra that more people need to speak freely will lead to an obvious result — more people will be offended. We’d be walking down a road in which hate speech is a common occurrence, all because the First Amendment allows it to be.

At this point, bickering about the niceties of textual interpretation, whether the history of the amendment supports this view or that, and how legislators can solve this problem within the confines of the constitution is useless drivel that will lead to more of the same. We need a mass movement of those who are fed up with the long-dead Founders’ view of the world ruling current day politics. A mass movement of those who will stand up and say that our founding document was wrong and needs to be changed. A mass movement of those who will thumb their nose at FIRE, an organization that is nothing more than the political wing of the country’s wrongthinkers, and say enough is enough.

The First Amendment must be repealed, and it is the essence of American democracy to say so.

(As well as the First, obviously the Second.)

2016.017: I’m The Asshole the Robs Deserve

Mark's Blog: Defending People - Mon, 06/13/2016 - 20:46

“Rob” commented:

An investment banker closing a factory that has been a small town’s economic lifeblood and shipping those jobs off to Indonesia is creating value for the shareholders, and thus doing what is ethical and appropriate within the context of how he chooses to make his living. It’s choosing to make his living this way which makes him an asshole.

A CIA operative who waterboards a terror suspect is doing what is correct and expected within the context of how he chooses to make his living. It’s choosing to make his living this way that makes him an asshole.

Someone who chooses to make his living destroying rape victims on the stand is an asshole, or at least has a mean streak a mile wide.

Some of you might expect me to argue with this. Surprise!: Rob is right in the end.1

“Say please, say thank you, take your turn, don’t cuss in church, respect authority”: A society has agreed behavioral norms, which help people to live together comfortably in that society. A society’s norms are, roughly, the things you needed to know that you learned in kindergarten. Most people break these norms in private or occasionally without consequence, but people who  violate society’s norms consistently and defiantly are “assholes” to those who follow the norms.2

When I talk about a society’s norms I’m not talking about the law, which is a formal system overlaid on the norms.

For example, American society’s norms for treatment of victims include deference. The law does not include this. Instead, under the law, the “victim” is just a witness whose story gets tested like any other. American society’s norms for treatment of people accused of wrongdoing include shunning. The law does not. Instead, under the law, the accused is innocent until proven guilty.

But overlaying a formal system on the norms does not eliminate the norms. There are cases in which the law mimics the norms, as in crimes mala prohibita. And even when the law differs from the norms, the norms are still there, and decent people are expected to follow them most of the time. So for example you might, in your ordinary life, reflexively believe a woman who claims that she was raped, but still be able to serve on a jury if the law required you to presume the accused innocent.

You see what I’m getting at here: The criminal-defense lawyer shatters these (and other) norms. She flouts the will of society, routinely and proudly. When society tells her that she should follow the norms — that she should believe the victim, not slut-shame, not victim-blame — she has the gall to tell society that it, and not she, is wrong. So the criminal-defense lawyer is — if not definitionally, then damn near — an asshole. What’s more, when society (in the form of, say, Rob) tells the criminal-defense lawyer she’s an asshole for defending people accused of rape, she laughs in Rob’s doughy face and tells him to go fuck himself. So not only is she defiant about violating the norms, but she’s defiant about defiantly violating the norms, which is the greatest sin of all — “don’t be an asshole” is a norm of paramount importance to comfortable people like Rob3 because is the fear of being an asshole that society uses to keep people from breaking the norms.
Rob would never be a criminal-defense lawyer or a CIA officer or an investment banker. Good for Rob -0b -b. B- ba- Baa. None of us should live any farther from society’s norms than we want to. Baaa.
This won’t be the first time I’ve copped to being an asshole. I comfort the afflicted, and am an asshole to the comfortable, and I’m okay with that. Because it it’s Rob or his son or nephew who is falsely accused of rape, he’s going to want a criminal-defense lawyer who is more than willing to “destroy” the lying complainant on the witness stand.I am not the asshole the Robs of the world need right now, but when the day comes, I’ll still be here.

  1. I’ll leave the niggling details to the nitpickers. 

  2. If that isn’t definitional, it’s damn near. 

  3. So much so that calling someone an “asshole” is seen as a harsh insult! 

2016.016: Jill Filipovic Makes Readers Stupider

Mark's Blog: Defending People - Wed, 06/08/2016 - 15:05

When someone writing for a popular website says:

Before I was a journalist full-time, I was a lawyer. I didn’t do criminal defense work, but I am the daughter of a public defender, and the friend, former classmate, and former colleague of dozens of defense lawyers. I’m not a religious person, but if there is anything I believe is the Lord’s work, it is criminal defense, especially as a public defender for the indigent. It is under-paid, vilified, time-sucking, emotionally depleting work. It is also the backbone of our justice system. It is the last line of defense — the only line of defense — for millions of people, many of them young men, many of them poor, many of them of color, in a criminal justice system that houses more people in prisons than any society in the history of the world. Here in the United States, we put people in jail for a very long time and we ostracize them when they come out, breeding cycles of crime, poverty, and marginalization. Large corporations profit from this mass incarceration; politicians are elected because of it. We have built a moral disaster, and criminal defenders are some of the only bulwarks against that.

… you just know there’s a big “but” coming along.

And sure enough:

There’s an opportunity and an obligation for the legal profession here too. While the American Bar Association offers lots of information on representing or recommending legal counsel to victims of sexual violence, there’s far less guidance on the ethics of defending those accused. There’s no question that it is of course ethical to defend accused rapists, but the how matters. Does a zealous defense require going down every possible avenue, including those that feed into misogyny and victim-blaming — and which create future case law that entrenches misogyny and victim-blaming as par for the course in defending sexual violence cases? How does one draw the line, even, between victim-blaming and painting the circumstances in a light most favorable to your client — especially if your only defense is consent? Do lawyers have an obligation only to the individual client before them, or is there some greater duty we owe society to not cement its greatest ills into place — which would require not playing on racial animus or sexism or other forms of bias that lawyers can, and routinely do, manipulate to further their case?

These are not easy questions, and, even among feminist lawyers, there are not simple, clear answers. What is obvious is that we are long overdue for a profession-wide grappling.

Criminal defense is the Lord’s work … but maybe not if it feeds into misogyny and victim-blaming. It is (“of course”) ethical to defend accused rapists, as long as you don’t defend them too zealously.

Jill Filipovic says these “are not easy questions.” That may be true among the ethically clueless, but they actually are easy questions among the only lawyers whose opinion matters: not “the profession,” but the criminal-defense lawyers who face from day to day the question, “how hard should I come at this witness?”

Filipovic casts herself as one of those facing these questions: “is there some greater duty we owe society…?” Filipovic is not one of us. Most lawyers are not criminal-defense lawyers. They might like to think of themselves as being in the club with Atticus Finch, but they aren’t. They belong to very different clubs, they make different impacts on the world, and most importantly they have different measures of success. Criminal-defense lawyers don’t generally give a damn what these other lawyers think about what we do.

Why? Because unless you are on our jury, our contract — the Sixth Amendment — trumps your feelings about the job we are doing, the questions you are asking, or the arguments we are making. We figure — and Filipovic’s article (she’s the daughter of a public defender, no less) confirms — that if you are not one of us you have no clue about the ethics of the job.

So: You want to shame us into going easy on accusers? The Sixth Amendment trumps your shame. You want to call it “victim blaming” when we don’t go easy on accusers? The Sixth Amendment trumps your catchphrases. You want the ABA to offer guidance on defending those accused of rape in a politically correct way? Screw the ABA. The Sixth Amendment trumps that too.

There is plenty of opportunity for social activism when we are off duty, but the criminal-defense lawyer’s sole duty to society in the representation of a client is to defend the client as zealously as the law permits. This is neither a close call or a new idea:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.

—Henry Peter Brougham, 1st Baron Brougham and Vaux. (H/T Nicholas Sarwark.)

(I’ve also written about this here.)

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