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2015.11 Also, in Mary Anne Franks’s Perfect World

Mark's Blog: Defending People - Tue, 01/06/2015 - 15:03

This could land you in prison in #AZ via @berkitron https://t.co/BICDqe4XUa

— ACLU National (@ACLU) September 23, 2014

That’s a tweet from the American Civil Liberties Union. The link within it is to a blog post written by Lee Rowland (@berkitron), Staff Attorney, ACLU Speech, Privacy & Technology Project.

Sharing that image would be “disclos[ing] an image of another, identifiable person, whose intimate parts are exposed … when the actor knows or should have known that the depicted person has not consented to such disclosure.”

Disclosing an image of another identifiable person whose intimate parts are exposed when you should have known that the person has not consented to the disclosure would violate the model revenge-porn statute proposed by Mary Anne Franks.

So in Franks’s perfect world, as in Arizona, sharing that image would be a crime unless it were done “in the public interest.”

But while Rowland decries the Arizona statute, she approves of  the model statute.

Go figure.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (74.125.40.21) .)

2015.10: A Fox in the Civil-Liberty Henhouse

Mark's Blog: Defending People - Tue, 01/06/2015 - 14:18

When I argued Ex Parte Lo at the Court of Criminal Appeals, I used section 33.021(c), the “actual solicitation” portion of Texas’s Online Solicitation of a Minor statute as an example of a constitutional limitation on speech. I hadn’t given section 33.021(c) a lot of close attention, but it talked about “soliciting” a “minor” for sex, and soliciting a minor for sex is generally recognized as unprotected speech.

Looking at it more closely, it’s obvious that the “solicitation” described by section 33.021(c) is not necessarily solicitation (because a defendant cannot raise his lack of intent to meet as a defense) and the “minor” described by section  33.021(c) is not necessarily a minor (because it can be an adult who represents himself to be a minor, but whom the defendant knows not to be a minor). Non-solicitation of a minor is constitutionally protected speech, as is solicitation of a non-minor.

But now that the section 33.021(c) cases are rolling in and I’m challenging the constitutionality of that statute, my ill-thought-out argument in Lo, holding up section 33.021(c) as an example of a speech restriction done right, is coming back to bite me in the butt: in its opinion in Lo the Court of Criminal Appeals adopted, in dicta, that particular argument.

Now I’m much more careful about agreeing that a content-based restriction on speech is valid. So this caught my eye:

Arizona’s law clearly violates the First Amendment, because it criminalizes protected speech,” said Lee Rowland, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. She added, “States can address malicious invasions of privacy without treading on free speech, with laws that are carefully tailored to address real harms.”

(ACLU.org)

I wonder how Rowland derived this principle of First Amendment law. Neither “malicious speech,” “invasions of privacy,” “malicious invasions of privacy,” nor “really harmful speech” is a category of speech that the Supreme Court has identified as unprotected. I suspect that the principle is not well-considered, but only what Rowland would like the law to be. For Rowland’s enthusiasm for criminalization of more speech is undisguised:

I refer to HB2515 as Arizona’s “naked photo law” because referring to it as an “anti revenge porn” law does a disservice to the advocates and victims who are putting pressure on state legislatures to criminalize revenge porn. Professor Danielle Citron at the University of Maryland Francis King Carey School of Law and Professor Mary Anne Franks at the University of Miami School of Law have been at the forefront of the conversation about criminalizing revenge porn, and have drafted model revenge porn legislation.

The Arizona law bears little resemblance to their proposals.

Note that the link is not to model revenge porn legislation, but rather to Citron and Franks’s law review argument in which they produce a farrago of feeble First Amendment arguments for criminalization of revenge porn—arguments such as “not matters of public concern” and “obscenity,” either of which, followed to its logical conclusion, would allow the criminalization of all erotica.

Here is Citron and Franks’s model revenge porn legislation, to which Rowland approvingly refers, and which she claims “bears little resemblance” to the Arizona law:

An actor may not knowingly disclose an image of another, identifiable person, whose intimate parts [naked genitals, pubic area, or female adult nipple] are exposed or who is engaged in a sexual act, when the actor knows or should have known that the depicted person has not consented to such disclosure.

…B. Exceptions. This section does not apply to

(1) Images involving voluntary exposure in public or commercial settings; or

(2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

And here is the Arizona revenge-porn statute that Rowland, as counsel for the plaintiff, is suing to oppose:

IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE

B. THIS SECTION DOES NOT APPLY TO ANY OF THE FOLLOWING:
1. LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, REPORTING UNLAWFUL ACTIVITY, OR WHEN PERMITTED OR REQUIRED BY LAW OR RULE IN LEGAL PROCEEDINGS.
2. LAWFUL AND COMMON PRACTICES OF MEDICAL TREATMENT.
3. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A PUBLIC OR COMMERCIAL SETTING

Rowland says that they “bear little resemblance,” but the only distinction between the Arizona statute that Rowland is suing to enjoin, and the model statute that she approves is that the model statute would allow a defense for disclosures in the public interest, other than those listed in the Arizona statute’s (B)(1–3).1

A general public-interest exception doesn’t cure a content-based restriction’s unconstitutionality: the statute is no less chilling on speech merely because the speaker can hold out hope that, once he has been arrested and charged and is facing prison time, he might convince a jury that his speech was in the public interest.

The ACLU

is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.

These rights include:

  • Your First Amendment rights – freedom of speech, association and assembly; freedom of the press, and freedom of religion.
  • Your right to equal protection under the law – protection against unlawful discrimination.
  • Your right to due process – fair treatment by the government whenever the loss of your liberty or property is at stake.
  • Your right to privacy – freedom from unwarranted government intrusion into your personal and private affairs.

Criminalization is the opposite of liberty. That a staff lawyer with ACLU’s Speech, Privacy, and Technology Project—one of the lawyers suing on behalf of the ACLU to invalidate a revenge-porn statute—refers approvingly to the criminalization of revenge porn, and links approvingly to Citron and Franks’s article, is troubling. The organization’s representative speaking on these issues should be a lawyer who values liberty even when it’s uncomfortable and politically incorrect to do so. By all indications, Lee Rowland isn’t that lawyer.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (74.125.40.21) .)
  1. Franks’s criticism of the Arizona statute is not only that it does not “include a public purpose exception,” but also that it applies an “overbroad definition[] of nudity.”  The Arizona statute defines “state of nudity” as:

    (a) The appearance of a human anus, genitals or a female breast below a point immediately above the top of the areola.

    (b) A state of dress that fails to opaquely cover a human anus, genitals or a female breast below a point immediately above the top of the areola.

    Arguably this is less nude than the “intimate parts…exposed” of the model statute, so that the definition of nudity is “overbroad,” but the better argument is that transparently-clothed intimate parts are “exposed.” In any case, there is nothing constitutionally magical about nudity, nor about the nipple rather than the breast below the top of the areola. 

2015.9: Texas HB101 and Arizona HB2515

Mark's Blog: Defending People - Tue, 01/06/2015 - 11:40

IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE

Ariz. Rev. Stat. § 13-142 (effective 2014).

(b) A person commits an offense if the person:
(1) intentionally displays, distributes, publishes, advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and
(2) knows or should have known that the depicted person has not consented to the disclosure.

Texas HB101.

Almost the same thing, right? There is a distinction: while the Arizona statute criminalizes the publication of an image of another person “in a state of nudity,” the Texas statute requires “sexual conduct,” which includes “lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.” But lewdness is in the eye of the beholder, and does not differentiate the statutes in a constitutionally significant way.

The Arizona statute is the subject of an ACLU lawsuit,1 Here’s the complaint the ACLU filed. With the agreement of the Arizona Attorney General, the U.S. District Judge in that case blocked enforcement of the law. That doesn’t bode well for House Bill 101.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (162.243.220.153) .)
  1. If the ACLU bothers to oppose it it must be really bad. 

2015.8: Let’s Play Servant and Master

Mark's Blog: Defending People - Mon, 01/05/2015 - 19:08

Scott Greenfield wants the backstory? Here’s the backstory.

I asked the Collin County Sheriff’s Office for Sergeant (now Investigator) Christopher M. Meehan’s personnel file. Robert J. Davis, representing the Sheriff’s Office, requested an opinion from the Attorney General allowing the Sheriff’s Office to withhold the bulk of the cop’s personnel file for various reasons, ranging from the specious (“There is certainly no information contained in the personnel file of Investigator Meehan which is a a legitimate concern to the public…”) to the offensively stupid (the language quoted in 2015.6).

I haven’t yet written about the New York Police Department’s petulant response to criticism (as a Libertarian, I don’t want to discourage them in making only the arrests that they “have to”: you go, guys!), but that, Justin Keiter‘s petulant response to my naming him as the lawyer engaging in what an appellate dissent called “egregious misconduct,” and Davis’s response to my public-information request on behalf of the Collin County Sheriff’s Office are all of a piece: public servants behaving as though they are masters.

The master gets to criticize the servants. The master gets to know which servants are engaged in misconduct. The master gets to poke around in the servants’ business.

The servant who forgets this needs to be let go.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.255.254.15) .)

2015.7: Justin Keiter

Mark's Blog: Defending People - Mon, 01/05/2015 - 17:19

[A]ll trial lawyers who make improper arguments…have no business lamenting the public’s low perception of lawyers. They need only look in the mirror.

I wasn’t even very hard on him: I just republished part of a dissenting opinion criticizing a closing argument that Justin Keiter had made, and connected Keiter’s name with it.

Keiter took the criticism hard. I was riding on the elevator today when Justin got on with a little smile on his face. He looked around, saw me, stopped smiling, faced front and got off the elevator at the next stop. (Other people on the elevator noticed. They commented.) A year later he can’t even bear to look at me.
Judges criticize prosecutors, but almost always without using their names. I won’t guess at Justice Jennings’s motivation for not naming Justin Keiter in the opinion. Apparently there’s no reason the public should know who the lawyer responsible for “egregious misconduct” (Jennings’s words) was.
Jennings wrote:

Indeed, the majority’s opinion in this case will actually encourage such improper behavior and ensure that it continues.

He is probably right—the majority’s opinion will encourage improper behavior. But the dissent that doesn’t name the perpetrator won’t do much to stop it.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (74.125.19.147) .)

2015.6: Dallas Lawyer Robert J. Davis

Mark's Blog: Defending People - Sun, 01/04/2015 - 21:02

There are dangerous pedophiles in the world, and some of them are civil lawyers. But that is no reason to assume that Dallas lawyer Robert J. Davis is either a pedophile or dangerous.

Because assuming that a civil lawyer like Robert J. Davis is a dangerous pedophile would be like assuming that a criminal lawyer is in cahoots with dangerous drug dealers.

And I wouldn’t do that. Most civil lawyers are not dangerous pedophiles, so if I had to take a position on the question I would be comfortable saying this: Robert J. Davis is neither dangerous nor a pedophile.

In that way I’m unlike Robert J. Davis, who wrote in a letter to the Attorney General:

It is self-evident that the release of Investigator Meehan’s personnel file to an attorney who represents alleged drug dealers could pose a threat to Investigator Meehan and his family’s personal safety and well being.

It’s probably several orders of magnitude more likely that a randomly chosen civil lawyer will diddle children than that a randomly chosen criminal-defense lawyer will reveal an officer’s information to people who would pose a danger to that officer.

But still, trust Robert J. Davis with your kids if you want to. I’m sure it’ll be okay.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.201.196.32) .)

2015.5: The Press and Professors

Mark's Blog: Defending People - Sun, 01/04/2015 - 00:03

When the media need an opinion on some legal issue, often they will go to the nearest law school. The reasoning—which is sound in theory—is that if a professor lists, say, “immigration law” as one of her subjects, then she will be an expert in the subject.Most law professors, who live lives of quiet desperation writing academic articles that few will ever read, are happy to opine on any subject. Unfortunately, while they sometimes have deep knowledge of narrow areas of law, in other areas—even areas that they teach—they are swimming in the shallow end of the pool.A case in point:

The Texas Court of Criminal Appeals tossed out part of the “improper photography and visual recording” statute. Some reports make it sound like the Court has given the green light to “pervs” taking video or pictures up a woman’s dress. University of Houston law professor Peter Linzer says that’s not so. “Notice this didn’t involve what they call “upskirting” or anything like that. This was a guy taking pictures underwater, of some young girls in bathing suits and there’s nothing wrong with that” says Linzer.

This ruling was based on one specific case out of San Antonio where it was suspected a man took the pictures for sexual gratification. “The Court of Criminal Appeals struck that down because that’s getting in your mind. That’s saying that if you pick up the Bible and want to read about David and Bathsheba and you ”get off” on adultery, that’s a crime. Well we can’t make that a crime. We can’t do that because then how do we decide what’s going on inside people’s heads” Linzer explains.

Peter Linzer demonstrates unfamiliarity with the facts, with the procedure, and with the substantive law.

The fact is that Mr. Thompson was accused of taking pictures above water. It probably doesn’t change the point,1 but where Linzer got “underwater” is a mystery. Maybe it just sounded better to him.

The procedure was an as-written challenge to a penal statute. When an as-written First Amendment challenge is successful (as in this case) the law is void not only in the cases of speech that we think there’s nothing wrong with,2 but also in the case of speech that we think there is something wrong with.

If, as in Thompson, the law forbidding pool pictures and upskirt pictures is thrown out because of an as-written challenge in a case that happens to have involved pool pictures, upskirt pictures are no longer illegal either.

The substantive law that the Court of Criminal Appeals applied in the case was strict scrutiny of a content-based restriction on speech. The substantive law that the Court of Criminals should have applied in the case was a categorical approach: does the statute forbid a substantial amount of speech that doesn’t fall into an unprotected category?

Under either approach a statute forbidding upskirt photos would fail because upskirt photos do not fall into any category of unprotected speech. For such a statute to survive Constitutional scrutiny the courts would have to recognize a new category of unprotected speech into which upskirt photos fall.

That the Supreme Court would do that is not inconceivable, but whether the Supreme Court will someday recognize another category of unprotected speech has nothing to do with the subject of the article: the effect of the Court of Criminal Appeals’ opinion in Ex Parte Thompson, invalidating the “photography in public” portion of the Improper Photography statute.3

Someone at the Harris County DA’s Office weighed in as well:

The Harris County D-A’s office is interpreting that as well saying, “It remains illegal if the victim did not know she or he was being photographed. Anything in public appears to be legal. …”

You know what’s awesome? When you can give an opinion to the press on a subject and say directly contradictory things in consecutive sentences.

Peter Linzer and the DA’s Office could have avoided making people stupider by declining to comment to the press on a case with which they weren’t familiar in an area to which they hadn’t given much thought. By choosing not to do so they did the public a disservice.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (104.237.128.11) .)
  1. Does it? Is an underwater picture more like an upskirt picture than an above-the-water picture is? 

  2. Linzer, who thinks there is “nothing wrong with” photos of young girls in swimsuits, taken for sexual gratification, is definitely not invited to my kids’ next pool party. The behavior is creepy, as is the behavior of taking upskirt photos, but there is not a First Amendment Exception for creepiness. 

  3. The “transmission of public photographs,” “photography in a dressing room,” and “transmission of dressing-room photographs” portions of the statute are still law, for the moment. 

2015.4: Another Proposed Revenge-Porn Statute

Mark's Blog: Defending People - Fri, 01/02/2015 - 17:35

A prosecutor asked me recently whether I might be willing to work with legislators to write a revenge-porn statute that would pass First Amendment muster. I replied that I would, but that I didn’t think  it could be done.

The United State’s Supreme Court’s modern approach to First Amendment challenges to content-based penal restrictions of speech, as applied in U.S. v. Stevens and U.S. v. Alvarez, is a categorical one:

  • If a penal statute restricts a substantial amount of protected speech based on its content, it is invalid.
  • All speech is constitutionally protected unless it falls in one of a very few narrowly defined categories of historically unprotected speech.
  • Among those categories1 are:
    1. Advocacy intended, and likely, to incite imminent lawless action;
    2. [Distribution of] obscenity;
    3. Defamation;
    4. Speech integral to [non-speech] criminal conduct;
    5. So-called “fighting words”;
    6. Child pornography;
    7. Fraud;
    8. True threats; and
    9. Speech presenting some grave and imminent threat the government has the power to prevent.2

For a revenge-porn statute to be constitutional, it would have to either:

  • Not be content-based;
  • Restrict speech only in one of the nine recognized categories of unprotected speech; or
  • Restrict speech only in a newly recognized category of unprotected speech.

A restriction on speech is content-based if the content of the speech matters. By definition, a revenge-porn statute will be content-based: posting sexual images of a person will be restricted, but posting grumpy-cat pictures will not be.

Revenge porn does not fall into one of the nine recognized categories of unprotected speech.

Advocates of revenge porn criminalization have latched gleefully onto Eugene Volokh’s suggestion that “Historically and traditionally, such depictions would likely have been seen as unprotected obscenity” without considering the endgame of the parenthetical that follows: “(likely alongside many consensual depictions of nudity).”

The zealots—Mary Anne Franks and Danielle Citron chief among them—would throw out the baby (consensual depictions of nudity) with the bathwater (nonconsensual depictions of nudity). If the image is obscene when Jane takes it of Joe, it is obscene whether Joe has consented or not.

Franks and Citron have also proposed that revenge porn, being of purely private concern, is less protected than other speech. Adoption of this rule would allow the state to outlaw all erotica, as well as family photos and personal correspondence. Such is the way of zealots.

Publication of revenge porn is an invasion of privacy. The amateur understanding of the First Amendment is that violations of privacy are not protected speech. But “speech that violates privacy” is not one of the categories of speech that can be criminalized. Nor is “embarrassing speech” or “harmful speech.”

Here’s the text of one of Texas’s proposed new revenge-porn bills (HB 101):

Sec. 21.16. UNLAWFUL DISCLOSURE OF CERTAIN VISUAL MATERIAL.
(a) In this section:
(1) “Sexual conduct” has the meaning assigned by Section 43.25.
(2) “Visual material” has the meaning assigned by Section 43.26.
(b) A person commits an offense if the person:
(1) intentionally displays, distributes, publishes, advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and
(2) knows or should have known that the depicted person has not consented to the disclosure.
(c) It is a defense to prosecution under this section that:
(1) the disclosure is made in the course of:
(A) lawful and common practices of law enforcement or medical treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure was permitted or required by law;
(2) the disclosure consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or
(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, or a provider of an information service, as defined by 47 U.S.C. Section 153, and the disclosure consisted of visual material provided by another person.
(d) An offense under this section is a state jail felony.

The restricted speech is:

  • Disclosure of visual material (other than by cops, doctors, snitches, lawyers in court, or online services);
  • Depicting another person engaged in sexual conduct (unless exposed voluntarily in public or commercial setting);
  • Knowing (or should-knowing) that the person has not consented to disclosure.

That does not fall into any recognized category of unprotected speech.

For this or any other revenge-porn statute to pass constitutional muster, is the recognition of another category of historically unprotected speech.

The thing about these categories of unprotected speech is that everything in them is unprotected. There is not some obscenity that may be distributed, and some obscenity that may not be; nor is there some protected and some unprotected defamation. If speech falls into a category of unprotected speech, then it is unprotected and the government can punish it. So before approving a new category of unprotected speech, we had better see if there is a baby in the bathwater.

So how would we define the category of unprotected speech?

We could recognize a really narrow category of unprotected speech, essentially sui generis—disclosure of visual material depicting another person engaged in sexual conduct knowing that the person has not consented, if none of the exceptions apply.

The Supreme Court has not shown an inclination to micromanage categories of unprotected speech in that way. The narrowest recognized category—child pornography—is arguably a subcategory of speech integral to criminal conduct.

But if it did, even such a microcategory would allow the criminalization of (and this statute would in fact criminalize) the publication of Congressman Weiner’s dick pics. Any broadening of the category (for example, “disclosure of visual material depicting another person engaged in sexual conduct” or “disclosure of visual material depicting another person, knowing that the person has not consented,” or “violations of privacy”) would create vast holes in the First Amendment—we must be able to violate people’s privacy sometimes without fear of imprisonment.

Even if we don’t see it, the wise thing to do, before tossing out a part of our freedom of speech that we would never want to use anyway, is to ask whether there might be a baby hiding in the bathwater that we’re just not seeing. People who are more concerned about the government intruding into our lives than about vindictive ex-girlfriends doing so should oppose this and any other effort to attach a criminal penalty to something that is currently constitutionally protected.

But they won’t. Do-gooders will support the criminalization of bad conduct without consideration of its effect on good conduct. We’ll wind up with another revenge-porn penal statute that can’t be justified under current constitutional law.

Fortunately, getting the U.S. Supreme Court to recognize a new category of unprotected speech is not an easy proposition. Unfortunately, people will be arrested and prosecuted, timid do-gooder trial and appellate courts will uphold the bad statute, and the government will destroy more lives before the issue hits the U.S. Supreme Court, or even the Texas Court of Criminal Appeals.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.255.254.15) .)
  1. The list is not exclusive because it is possible that other categories will be recognized in the future. 

  2. “…although a restriction under the last category is most difficult to sustain.” 

2015.2: Grammar Peeve

Mark's Blog: Defending People - Thu, 01/01/2015 - 17:01

A defendant should never “plea guilty” because “plea” is not a verb. The infinitive is “to plead.” The past tense is “pleaded” or “pled.” Which you use is a matter of personal preference, either yours or your readers’, but the Oxford English Dictionary and Garner’s Modern American Usage both prefer “pleaded.”

A case should not under any circumstances “be plead,” but it might be pled (or pleaded) if necessary.

(I wrote about this seven years ago. I’m probably the only one who remembers, other than Justice Jim Sharp, who in 2012 left a comment threatening to use “plead” as the past tense in a footnote. I seem to have (aided by the authority of OED and GMAU) prevailed on Justice Sharp, who used “pled” in opinions before his comment, and “pleaded” after.)

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (194.0.59.52) .)

2015.3: A Few Thoughts on Trial Advocacy

Mark's Blog: Defending People - Thu, 01/01/2015 - 15:17

People don’t like being manipulated or controlled by other people. They will bridle and resist if they think you are trying to convince them to do something. The harder they think you are trying, the harder they will push back.

But trial advocacy is the practice of convincing people to do things.

So ideally, trial advocacy should be transparent. At the end of the case the jurors, having ruled for your client, should think that they came to their decision without regard to anything that you did. They should believe, when they free your client, that they were compelled by the facts and the law to do so, and that your only role was to bring them those facts and explain to them that law.

If asked in jury selection the jury,1 given the accusation, suggest the possible defenses they can think of; ideally one of these defenses will be your defense. If a panel of laypeople doesn’t think of your defense as a possibility, that defense a stretch.

If you can show the jury how the prosecutor is manipulating them, you’re doing two things: you’re creating resentment in the jurors toward the prosecutor, and you’re creating trust in the jurors toward you. Think about the tricks the prosecutors in your jurisdiction use to get jurors to say the things they want to hear, and in your voir dire (it’s good to go last) pull back the curtain on them.

If you object in voir dire to the prosecutor’s misstatement of the law and the judge sustains the objection, the prosecutor might as well start filling out a dismissal.

You can earn even more trust by showing the jurors (in voir dire) a way in which you are manipulating them. Sometimes I’ll start communicating with the panel non-verbally, and get them to respond non-verbally. Then I’ll make sure to explain to them what I was doing, and why. (If advocacy were a confidence game, this would be the short con.)

Asking jurors post-verdict why they decided what they did is a good way to be lied to. Almost always, the answer is “the evidence just wasn’t there” on a not-guilty verdict and “there was just too much evidence” on a guilty verdict. But they’re not just lying to you; they’re lying to themselves as well.

Here’s the theory on which I try cases: jurors make their decisions early (during opening statements if not during voir dire) and then, throughout trial and beyond, apply all of their cognitive biases to support and rationalize those decisions. For their minds to be changed between opening statement and deliberation, what happens during the testimony has to be so extreme that it shakes the foundation of their beliefs. Less-extreme developments that might challenge their beliefs won’t get through their selection bias.

Most evidence is important to the advocate not because it’s going to change jurors’ minds, but because it is going to give jurors who are already on the advocate’s team evidence when they go into jury selection. Whichever way the split goes when deliberations begin is most likely the way the verdict is going to end up—if the jury is 7–5 for conviction, they’ll likely convict; if they’re 8–4 for acquittal they’ll more likely acquit. That’s not a function of the evidence, but rather of the personalities of the jurors.

Closing argument is the time to show your jurors what ammunition they have, to suggest how they might use it, and to sabotage the prosecutor’s jurors’ ammunition. If you are ahead going in to deliberations, you want your jurors to have plenty of ammunition to get the other jurors to change their minds without losing face. And if you are behind when deliberations begin you want your jurors to have plenty of ammunition to resist the pressure from other jurors to change their minds.

A trial lawyer shouldn’t always be trying cases, any more than a professional fighter should always be fighting. Doing it right requires training and practice and conditioning. Defending a criminal case takes a lot out of a lawyer. Working yourself to exhaustion or worse benefits nobody.

Put on your own oxygen mask first.

Take a vacation.

Get some rest.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.255.254.15) .)
  1. I tend to use “jury” and “jury panel” interchangeably in the context of jury selection. The jury is a subgroup of the panel, and will treat the ideas of the panel as its own ideas. The jury will also remember your treatment of the panel, and will respond as though it was your treatment of  the jury. Beware. You can’t mistreat a member of the panel and expect the jury to forgive you because that panel member didn’t make it on the jury. 

2015.1

Mark's Blog: Defending People - Thu, 01/01/2015 - 15:09

I do not write I’m sorry I haven’t written more lately; here’s why; I promise to do better blog posts.

The first part strikes me as narcissistic—as though it matters to the world that any particular blogger hasn’t written more lately; the third part is usually a lie—people who write these posts almost always return to silence shortly afterwards. And I don’t figure readers generally care much about the why of silence. But Scott Greenfield has called me out:

As for those of you who have paid only rare attention to your blawgs, let your posts dwindle, left the heavy lifting to others, this might be a good time to explain why. You know who you are. I know who you are too. Is the genre dead?  Is it not worth the effort?  Are things so wonderful that there is nothing left to write?

So here’s why:

In 2014 I tried three jury trials and won all three. Two of them saved clients from certain deportation and the other saved the client from a felony conviction, a lifetime of sex-offender registration, and a possible prison term. Three jury trials is not a lot for a criminal-defense lawyer in Houston to try, but it’s fifty percent over my yearly average.

I also got part of a statute held unconstitutional. No, check that. Two statutes. Two-hundred-plus people were on probation or in prison because of their convictions for violating Texas’s “dirty-talk-to-a-minor” statute. After I killed that statute on First Amendment grounds in the Court of Criminal Appeals a few of them found their way to me, and I got them out of prison or off probation and off the sex-offender registration list, and started the process of clearing their names.

One of those whose name I am clearing was the first client for whom I had argued (unsuccessfully at the time) the unconstitutionality of the statute. I got to tell the trial judge, “I told you so.”

I took on several civil First Amendment cases on behalf of web publishers and a newspaper, and won.

Throughout this professional triumph, it was the voices of the many clients I haven’t been able to save whispering in my ear, “memento mori.” I have three cases set for jury trial in the first three months of this year, and I’m not going to let the distinct possibility that I will break my short streak by losing one of them stop me from fighting like hell.

I have First Amendment challenges pending against Texas’s Online Impersonation statute, the remainder of its Online Solicitation statute, the remainder of its Improper Photography statute, and its Fraudulent Use of Identifying Information statute. These should all be winners according to U.S. v. Stevens and U.S. v. Alvarez, but I’m not letting the possibility that Texas courts will fail to follow Stevens and Alvarez stop me from prosecuting these appeals, especially since I do it better than the other lawyers I have seen challenging Texas statutes on First Amendment grounds. I may not win, but I have the best chance. And, unlike many in this profession, I am not my record.

I’m debating whether to jump into the fray and try to get the Texas Legislature not to pass any of the unconstitutional speech-restricting statutes that have been proposed, or to lie behind the log.

I taught jury selection, ethics, legal writing, and constitutional law to groups of law students and lawyers across Texas and farther afield, and scheduled more of the same for this year.

Personally, I got my family through 2014 with no surgery, serious illness or death. I couldn’t say the same about the three years before. I reconnected with old friends whom I hadn’t heard from in up to three decades. I took my family on a three-week European vacation, showing the kids a part of the world they hadn’t seen before. I spent some quality time with them, watched my oldest play some lacrosse, started building an AR-15 with my youngest, and spent some time at the shooting range.

I took Jen to Eric Clapton, Eric Taylor, and Greg Trooper concerts. Held the fort while she got through her through the first semester of the University of Houston’s post-baccalaureate accounting program.

I made dinner for my family almost every night. I got my oldest to school almost every day.

I declared victory in my war with TSA, and resumed air travel: to DC (for a reunion of my cohort from the American Embassy School in New Delhi in the mid 80s, Columbus (where I hung out with Scott Greenfield, Brian Tannebaum, Mirriam Seddiq, Jeff Gamso, and Appellate Squawk), Miami (where I celebrated with Brian and his family the release of Brian’s book), and Colorado (where my brother and some high-school buddies took a couple of hikes, broke bread, and drank some good whiskey). Not to mention Beaumont, Lake Charles, Fort Worth, Austin, Odessa, and Round Top. (Next Friday I’m flying to Abilene! Woohoo!)

I also resumed my psychodrama and improv training. I found the synergy between the two, applied it to my advocacy, and taught others to do the same. I went back (after a few-year hiatus) to the National Psychodrama Training Center’s Round Top training, and I attended staff training for TCDLA’s psychodrama-based Fourth Annual Advanced Skills course (but was, unhappily, prevented by circumstances from attending).

I found a new improv home, Station Theater, took two groups of young lawyers there for introductory classes, performed twice before paying audiences, and joined a troupe that will do four shows in the next two months.

I don’t imagine that I’ll be long-remembered. I consider my protégés, and their protégés, my professional legacy. Three of my protégées started taking regular improv classes.

I wrote a few brilliant briefs. Came to terms with the existential loneliness inside my head. Perfected my prime rib and my dark chocolate cake. Drove cool cars. Rode motorcycles. Made new friends. Cried a little. Laughed a lot.

In short, I’m sorry I haven’t written more lately. I’ve been busy living and lawyering. I promise to do better.

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A Williamson County Online-Solicitation Indictment

Mark's Blog: Defending People - Fri, 12/19/2014 - 20:56

In the name and by authority of the State of Texas:

The Grand Jury for the _______ term of the ___ Judicial District Court of Williamson County, Texas, having been duly selected, empaneled, sworn, charged, and organized, presents that before the presentment of this indictment, on or about the ___ day of ____, 2013, in Williamson County, Texas, X, hereinafter “defendant”, with the intent to arouse or gratify the defendant’s sexual desire, over the Internet, knowingly solicited Jessica, a minor and undercover persona of Gary Marquis, to meet the defendant with the intent that Jessica would engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the defendant, and Jessica was an individual whom the defendant believed to be younger than 14 years of age at the time of the commission of the offense.

Against the peace and dignity of the State.

Got it? The State is charging X with committing online solicitation of a minor with Jessica, who is “a minor,” an “undercover persona of Gary Marquis,” (who is presumably a cop), and “an individual whom the defendant believed to be younger than 14 years of age at the time of the commission of the offense.”

“Minor” means: (A)  an individual who represents himself or herself to be younger than 17 years of age;  or (B)  an individual whom the actor believes to be younger than 17 years of age.

“Individual” means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.

Jessica, a “persona” of Gary Marquis, is not alive, and therefore is not an individual, and therefore is not a minor. So the indictment on its face does not charge X with a crime. The appropriate way for the State to charge the crime would be to allege that X solicited Gary Marquis, whom X believed to be younger than 14 years of age.

Unfortunately, X pled guilty to this non-crime. His lawyer should have filed a motion to quash the indictment, forcing the State to replead.

Why would this do any good? Why—in other words—would the State want to rely on its incorrect pleading?

Because there’s a defense built in to the online-solicitation statute that would prevent X’s conviction for soliciting Gary Marquis:

It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed…the actor was not more than three years older than the minor and the minor consented to the conduct.

If the minor (the living person whom X believes to be younger than 17) is Gary Marquis, then X is not more than three years older than the minor. The transcripts of conversations between X and Marquis will show that Marquis consented to the solicitation—Marquis was trolling for solicitation.

It cannot be argued that the age of the minor referred to in the defense is the age that the defendant believed the minor to be: the Texas Legislature in subsection (f) of section 33.021 showed that it knows the difference between the age of the minor and the believed age of the minor:

[Online solicitation of a minor] is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age.

X has an excellent ineffective-assistance-of-counsel claim against his trial counsel, who didn’t consider the existence of the defense. But even an excellent IAC claim is a long shot. Nobody should take deferred-adjudication probation in hopes of getting relief on habeas corpus. Other defendants charged with online solicitation in Williamson County (or other counties that use the same pleading form) should talk to their lawyers about the indictment and the defense before they decide to plead guilty. And their lawyers should, of course, talk to me.

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One in Thirty

Mark's Blog: Defending People - Fri, 12/12/2014 - 15:39

Here (pdf) is the Bureau of Justice Statistics’ report on Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013.

Some highlights (all statistics are for women aged 18–24 unless otherwise noted):

6.1 out of 1,000 college women experience “sexual victimization”—rape, attempted rape1 or sexual assault2—annually.

This is much lower than the 1–in–5 statistic that is widely bandied about by those who think there is an epidemic of rape on American college campuses. Even if we multiply 6.1 by five (for five years in college), the rape rate in American colleges is 3.5%.

A few years ago Chad Hermann crunched the numbers of reported sexual assaults at three Pittsburgh Universities, applied a 10X multiplier for 90% of sexual assaults being unreported, and came up with a number of the same order of magnitude (1 in 44, assuming a four-year college career).

I ran the numbers for my alma mater, which has had two alleged sex offenses reported every year for the last three years, and has about 2,190 female students. That’s a rate of 0.91 reported sexual assaults per thousand female students. If we assume that 90% of sexual assaults go unreported and multiply by ten, we have 9.1 sexual assaults per thousand female students per year, and if we multiply by five years we have a 4.5% chance that a Rice woman will be sexually assaulted during her five years at Rice3

That “90% unreported” assumption is probably not valid, though. The BJS report found that 20% of “sexual assault victimizations” were reported to the police by college women. If instead of 10X we use a 5X multiplier, we have 4.6 sexual victimizations (reported or otherwise) per thousand female Rice students per  year. The reasons victimizations went unreported were:

  • Reported to other official, 4%;
  • Personal matter, 26%;
  • Not important enough to respondent, 12%;4
  • Police would not or could not do anything to help, 9%;
  • Did not want to get offender in trouble with the law, 10%;
  • Advised not to report, <0.5%;
  • Fear of reprisal, 20%; and
  • Other reason, 31%.5

(The first six of these, covering 61% of cases, seem to me like reasonable reasons not to report sexual victimization as defined by the study (including attempted rape,6 grabbing, and fondling) to the police, but fear of reprisal should never stop anyone from reporting a crime—that’s just bad policy.)

Nonstudents, by the way, report 32% of their sexual victimizations rather than 20%.  They are also are 20% more likely to experience rape, attempted rape, sexual assault, or the threat of rape or sexual assault. And those victimizations are 50% more likely to be completed sexual assaults.

Breaking down the student/nonstudent differences even further,

18-to-19-year-old nonstudents are 1.6 times as likely to experience sexual victimization as students are.

White nonstudents are 1.4 times as likely to experience sexual victimization as students are.

Northeastern nonstudents have the lowest rate of sexual victimization, followed by rural students and southern students.

Midwestern nonstudents (the group with the highest rate) are about 130% more likely to experience sexual victimization than southern students (with the lowest rate).

Men are, as you would expect, raped at lower rates than women, but male students are four times as likely as nonstudents to experience sexual victimization.

The “one in five” number will probably never go away. It’s been challenged and debunked before, and still it gets trotted out as gospel truth. But the actual numbers are much smaller and would be smaller still if respondents got to define “sexual victimization” themselves.7

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  1. “Rape is the unlawful penetration of a person against the will of the victim, with use or threatened use of force, or attempting such an act. Rape includes psychological coercion and physical force, and forced sexual intercourse means vaginal, anal, or oral penetration by the offender. Rape also includes incidents where penetration is from a foreign object (e.g., a bottle), victimizations against males and females, and both heterosexual and homosexual rape. Attempted rape includes verbal threats of rape.” 

  2. “Sexual assault is defined across a wide range of victimizations separate from rape or attempted rape. These crimes include attacks or attempted attacks usually involving unwanted sexual contact between a victim and offender. Sexual assault may or may not involve force and includes grabbing or fondling. 

  3. But realistically, who can afford five years at Rice anymore? 

  4. Some victimization! 

  5. Miscellaneous is always the largest category.
    — Walter Slovotsky, The Warrior Lives by Joel Rosenberg 

  6. Question: If you define rape to include sex by psychological coercion, does that make trying unsuccessfully to convince someone to have sex “attempted rape”? 

  7. Here is where most people would put in obligatory mealy-mouthed statement to prove their anti-rape bona fides, but my readers are smarter than most. 

Journalism!

Mark's Blog: Defending People - Thu, 12/11/2014 - 15:58

When I first saw the Rolling Stone UVA rape story by Sabrina Erdely, I’d been thinking about satanic ritual abuse stories because Fran and Dan Keller were in the news. I tweeted:

Speaking of satanic ritual abuse: http://t.co/MyO2bC2Cjm
— Mark W. Bennett (@MarkWBennett) December 1, 2014

The story was unbelievable to me. Not “unbelievable” in the loose sense of “sensational,” but literally unbelievable. I knew that the story was false

The Erdely UVA story is going to turn out to be a long rambling joke. “Journalism!” will be the punchline. — Mark W. Bennett (@MarkWBennett) December 2, 2014

I say that “I knew it.” For you to know something, three conditions must be met: you have to believe it, it has to be true, and you have to have reason to believe it.

I believed that Erdely’s story was false.

The story—of a violent gang rape—was false. It appears from the rereporting performed by the Washington Post that the alleged victim made up the story as part of an elaborate scheme to win the love of her friend “Randall.”

So to have known the story to be false, I have to have had reason to believe that the story was false. Did I? Nonlawyers asked me why, as a criminal-defense lawyer, I found the story so incredible.

As a criminal-defense lawyer, I ask three big questions when trying to get to the truth of a story:

•    What else must be true for this to be true?
•    What if things had gone a little differently?
•    What’s really going on here?

If Erdely’s story were true, seven men violently raped a sober woman on broken glass upstairs in a house for three hours while a party was going on downstairs. Two men watched. Then the nine men left the woman lying there alone, “face beaten, dress spattered with blood” to make her own way out of the house ((With her cellphone? “Disoriented, Jackie burst out a side door, realized she was lost, and dialed a friend, screaming, ‘Something bad happened. I need you to come and find me!'”)) while the party was still going on downstairs. Then when, that very night, the woman reported the rape to her three best friends on campus (two men and a woman), the three “launched into a heated discussion about the social price of reporting Jackie’s rape,” and decided not to report it.

What else must be true for this story to be true? Each of these twelve people who knew what happened to Jackie that night must have valued his or her own interest above the principle that men shouldn’t rape women.

Violent rape is abhorrent to the American male.1 There are men who are exceptions to this rule, who have no compunction against violent rape, but they are few and far between, and they don’t advertise the fact—talking about it could be lethal—so the odds against finding nine of them in one room outside of a prison are slim.

Erdely’s story was intended to demonstrate that violent rape of women is accepted in American culture. But for the story to be believable the reader would have to already believe a) that violent rape of women is accepted in America; and b) that because of this acceptance eleven men and one woman who knew about a violent rape kept the secret for two years.

It’s all very circular—if you believe that we live in a “rape culture” with a callous attitude toward rape then the story is perfectly believable, and it proves that we live in a rape culture. If you don’t believe that American men are okay with violent rape then the story is unbelievable and it proves nothing.

If you believe that three college freshman would count the “social price” of reporting a violent rape that had just happened higher than than the ethical, moral, justice, and safety costs of not reporting it, Erdely’s story is credible. If you don’t believe that—and I don’t—the story is incredible.2

I didn’t believe that American men are okay with violent rape, I didn’t believe that the nine conspirators could keep the secret for two years, and I didn’t believe that three college freshman would count the social cost of reporting a violent rape that had just happened higher than the myriad soul-bankrupting costs of not reporting it. “What must be true for this to be true” gave me reason to disbelieve the story.

“What if things had gone a little differently?” is a truth-seeking question to ask when the story involves a deliberate plan or conspiracy. The more ways the plan could have gone wrong but didn’t, the more likely it is that the plan was fabricated after the fact.

For the imaginary man’s imaginary plan to succeed, a thousand things had to go just right; if any one of them had gone even a little bit wrong he would have landed in prison. His plan depended on (among other things):

  • None of the conspirators getting cold feet that night;
  • All of the conspirators keeping their secret, not spilling the beans while drunk or remorseful;
  • Jackie not calling the police while the room was still strewn with physical evidence;
  • No decent human being seeing Jackie leaving the party injured and intervening;
  • The people she told not themselves calling the police;
  • Jackie not reporting the rape to the police later, or the conspirators not rolling over on each other when threatened with prison time; and
  • Jackie not telling her story within the statute of limitations to a competent reporter.3

There are two explanations for how this plan succeeded so well for two years. Either the conspirators walked between raindrops, or the rape never happened. The second explanation is the most likely.

The third question, “What’s really going on here?” sets the allegations against known facts, verisimilitude, and plausibility, and finds the most probable explanation. “What’s really going on here?” led the Washington Post to evidence that “Jackie,” the alleged victim in the Erdely story, had fabricated the man whom she was supposedly going out with on the evening of her claimed rape. Not having the benefit of the Washington Post’s reporting at first, “what’s really going on here?” led me to the conjecture that something bad had happened to Jackie—that perhaps she had been sexually assaulted by her date at the fraternity house—but that she had blown the story up for Rolling Stone.

My three questions—What else must be true for this to be true?, What if things had gone a little differently?, and What’s really going on here? didn’t lead me all the way to what now appears to be the truth—that Jackie was catfishing Randall and fabricated the rape to try to win his heart—but each led me in the right direction and made me disbelieve the story as published.

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  1. I say “violent rape” to try to prevent quibbling here over things that not everyone would agree are rape—sex while all parties are drunk, for example. The assault described in Erdely’s article would fit anyone’s description of “violent rape,” so we don’t have to argue about sex with implicit but not explicit consent, nor about gaze rape. Yes, I know that there are those who think that any unwelcome sexual attention from a man is violence. I recommend that they get out more. 

  2. A digression: what is required for us to believe these things about human nature that Erdely would have us believe? We would have to either a) accept them uncritically; b) be inclined toward callousness ourselves, so that callousness in others makes sense; or c) not be inclined toward callousness ourselves, but think that we are superior to most other people in this regard. Why “most other people”? I’ll get to that in a second. I believe that the credulity with which Erdely’s article was met was a result mostly of (a). People accept rape narratives uncritically. That so many people are shocked that the story is not true helps disprove Erdely’s rape-culture narrative. 

  3. Some people think that Erdely believed her source; I think this is too generous to Erdely. If Erdely had believed Jackie she would have done the investigation that she would have expected to corroborate her story. That she didn’t do that investigation suggests that she didn’t expect it to corroborate her story, which suggests that she knew that Jackie’s story was a fable. Journalism! 

In Which New Vistas Open Up

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

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

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

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

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

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

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

Dismissal Order in Al Hoang v. Thoi Bao

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

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

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In Which Texas Sex-Assault Law is Bizarre

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

Texas Penal Code Section 22.011, Sexual Assault:

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

(1) intentionally or knowingly:

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

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

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

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

Texas Penal Code Section 25.01, Bigamy:

(a) An individual commits an offense if:

(1) he is legally married and he:

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

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

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

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

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

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

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

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

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

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

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (74.125.19.147) .)

In Which Some Lawyers Are Suckers at Best

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

Dear _,

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

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

Googling that phone number turns up:

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

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

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

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

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

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

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

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

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

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (99.74.196.151) .)
  1. Kelly’s signature does not look practiced. I wonder whether it is fake. 

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

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

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

In Which We Look at Plea Numbers

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

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

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

Jed S. Rakoff, Why Innocent People Plead Guilty.

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

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

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

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

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

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

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.255.254.15) .)
  1. Numbers are from the Office of Court Administration

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

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

In Which Cultures Clash

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

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

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

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

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

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

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

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (74.125.176.148) .)
  1. While I reject this guy’s invitations to fight, I’m not laughing at them—I take violence, including the threat of violence, very seriously. 

RIP Brad Frye

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

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

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

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (65.19.138.34) .)

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