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On Twitter, Be Your Own Censor.

Mark's Blog: Defending People - Thu, 08/28/2014 - 19:33

When I saw this Polygon post last month, about how Twitter “gives so little attention to the now-routine harassment experienced by so many members of the service” because “it drives engagement,” I thought, “surely there’s a market solution”:

I’ve done some Twitter scripting, and the three proposed tools would, I think, be easy for a third party to implement.

— Mark W. Bennett (@MarkWBennett) July 31, 2014

The three proposed tools were allowing a user to block all users whose accounts are less than 30 days old, allowing a user to block all users whose follow counts are less than some threshold, and allowing a user to block any user who has been blocked by more than N people she is following. The proposed tools came from this post, titled, “The least Twitter can do.”

Today I saw a Slate post from the beginning of August (a week after the “harassment drives engagement” post) discussing three free-market solutions to the problem of Twitter harassment: Block Together (an app that “allows users to ‘share their list of blocked users with friends’ and, if they like, ‘auto-block new users who at-reply them.’), Flaminga (which “helps Twitter users conspire to create secret mute lists they can share with one another to silence users they don’t want to hear”), and the Block Bot (which that identifies Twitter’s “anti-feminist obsessives”…).

Problem solved, right?

Not so fast.

These apps won’t actually inspire Twitter to shut down the serial abusers who use their Twitter accounts to harass and threaten women. They won’t help attract serious legal attention to their crimes. And they won’t compel Twitter to instruct its brilliant developers to imagine new sitewide solutions for the problem, or else lend its considerable resources toward educating government officials and law enforcement officers about the abuses its users are suffering on its network.

Twitter provides a communication channel. It is a channel and a metaphor that didn’t exist nine years ago, and it is free. Twitter’s users give it nothing but their attention. Twitter owes its users nothing.

Twitter could “instruct its brilliant developers to imagine new sitewide solutions for the problem, or else lend its considerable resources toward educating government officials and law enforcement officers about the abuses its users are suffering on its network,” there would be nothing wrong with that.

On the other hand, Twitter could explicitly market itself as a place to abuse and be abused by others; it could even rig its API so that free-market solutions would be impossible. There would be nothing wrong with that either (and, sadly, plenty of people would sign up).

Twitter is a business. It exists for profit. If shutting down serial abusers were cost-effective it would do it. Twitter users could theoretically make it cost-effective for Twitter to shut down serial abusers by boycotting Twitter, but that’s not going to happen. There’s no viable alternative, and besides, where would you go to organize a boycott of Twitter?

If actively encouraging abuse and making it impossible for third parties to reduce the abuse that users saw were cost-effective, it would do that instead. It’ll never be cost-effective because, contrary to the suggestion in the July Polygon post I quoted first, Twitter will get more of its users’ attention if those who don’t want to be abused are able to customize their experience to reduce the abuse they see.

What Twitter has done is somewhere in between. It provides the channel, and it allows developers to build things like Block Together, Flaminga, and The Block Bot, but it hasn’t poured money into protecting users from abuse. Even when it isn’t cost-effective to shut down serial abusers, it’s cost-effective to allow developers to create tools to allow a user to eliminate abusers from her timeline.

(Here’s how Twitter works: if Althea and Bartimus have Twitter accounts (@A, @B), each can choose to follow or block the other. If @A is following @B, @A will see everything @B says on Twitter. If @A blocks @B, @A will see nothing that @B says on Twitter. If @A neither follows nor blocks @B, then @A will see only what @B says mentioning @A. If Carla creates an account (@C) and tweets “@A [something abusive],” @A will see it unless she is using some third-party solution (for example, blocking new accounts or accounts with few followers).)Twitter’s solution, which decentralizes control over users’ timelines to those users, is not good enough for the authors of the Slate and Polygon posts. It’s not good enough that @A has third-party options for keeping @C from contacting her; Twitter must keep @C off the channel, or at least spend more of its money trying to do so.The notion that the provider of the channel, Twitter, should police the content on the channel has appeal, I guess, to those who are convinced that those running Twitter will always share their own ideological orthodoxy. But leaving the channel wide-open and letting users, via third-party software, choose what they will and won’t be exposed to is the better option for anyone who can even imagine some day being politically incorrect.1

 

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  1. Though that particular horse has left the barn

Texas Criminal First Amendment Action

Mark's Blog: Defending People - Tue, 08/26/2014 - 20:45

Here’s a survey of what’s going on in Texas with regard to the First Amendment in criminal cases:

Texas Penal Code Section 33.021(b) (online solicitation by explicit communication) was held unconstitutional by the Texas Court of Criminal Appeals in Ex Parte Lo. In Ex Parte Chance the Court of Criminal Appeals granted relief on habeas to someone who hadn’t raised the unconstitutionality of the statute either in the trial court or on direct appeal. Concurring, Judge Cochran stated that the petitioner was actually innocent (not argued by the petitioner). Dissenting, Judge Keller suggested that the issues presented should have been briefed and more carefully considered.
Pending issues include whether a person convicted only of violating a void statute is actually innocent, so that he is (if he went to prison) entitled to compensation for his wrongful conviction; and whether a 33.021(b) conviction should be reversed on direct appeal where the unconstitutionality of the statute was not raised in the trial court.I have the former issue (innocence) in two article 11.07 postconviction writs, out of Montgomery County and Harris County. The State has agreed to relief, and agreed to innocence. We’ll see what the Court of Criminal Appeals does.Nic Hughes of the Harris County PD’s Office and I have won the latter issue (unconstitutionality raised for the first time on direct appeal after the statute has been invalidated in another case) in intermediate courts of appeals (Schuster in the First, and Sanders in the Sixth, respectively). Gerald Bourque of the Woodlands has it before the Court of Criminal Appeals in Smith v. State. Argument will probably be this fall; I’ll watch and report back.

Texas Penal Code Section 33.021(c) (online solicitation, but not really) has been upheld by various intermediate courts of appeals, but the challenge has not yet reached the Court of Criminal Appeals. Various cases are pending in trial courts, and Butch Bradt of Houston has petitioned the Court of Criminal Appeals for discretionary review in Ex Parte Victorick out of the Beaumont Court of Appeals. If that is denied, I have several pretrial writs pending on the issue in Montgomery County and Austin County; I expect that we’ll have to take them up to the CCA.

Section 36.03 of the Texas Penal Code (Coercion of a Public Servant) has been challenged by habeas (PDF) in Rick Perry’s case. The statute is as stinky as can be—”coercion” includes a threat “to expose a person to hatred, contempt, or ridicule,” so if you threaten to make fun of your congresswoman if she doesn’t vote the way you want you are committing a crime—and I don’t think it’s going to stand up to David Botsford’s attack in the Perry case. Whether it dies as written (because of stinkiness) or as applied is, I think, the open question.1

Texas Penal Code Section 21.15 (Improper Photography (taking pictures)) is under challenge in the Court of Criminal Appeals in Ex Parte Thompson. I watched the arguments in May. We should see an opinion this fall. If the statute is held unconstitutional, then all of Section 21.15 (including the publishing pictures portion) goes down. If the statute is upheld (for example, because of the State’s silly argument that everyone appearing in public “consents” to being photographed), then…

Texas Penal Code Section 21.15 (Improper Photography (publishing pictures)) is still vulnerable to First Amendment attack. I have a pretrial habeas on hold in the 208th District Court; if the petitioner wins Ex Parte Thompson, we win. If the petitioner loses Ex Parte Thompson, Judge Collins gets to rule on my writ and the loser gets to appeal.

Texas Penal Code Section 33.07(a) (Online Impersonation (using the name of another person online to harm him)) is not being defended by the Harris County DA’s Office. I’ve filed two pretrial writs attacking that statute, and the State has dismissed the prosecutions in both cases, to refile under two other statutes. I’m hoping someone will bring me in on a case in a county where the DA is interested in defending the constitutionality of penal statutes.

In one case the State went from Online Impersonation to Fraudulent Use or Possession of Identifying Information under Texas Penal Code Section 32.51. That statute forbids “using” someone’s name with the intent to “harm” him; the terms in quotes are not narrowly defined, so if I call you by name and insult or embarrass you (“harming” you) I am committing a felony. I filed a writ in the 177th District Court attacking this statute; Judge Patrick foolishly denied relief,2 and I filed notice of appeal. I’ve also filed writs in other courts challenging the constitutionality of the Fraudulent Use or Possession of Identifying Information statute. I’ll keep you posted.

In another case the State went from Texas Penal Code Section 33.07(a) (a felony) to Section 33.07(b) (Online Impersonation (sending an email or similar communication using someone else’s name to trick someone and harm someone else), a misdemeanor). They have some pleading problems, but if they are able to sort those out we’ll file a writ and it’ll go up on appeal.

In Ector County (Odessa, Texas) I have filed a pretrial writ challenging the constitutionality of Texas Penal Code Section 21.12(a)(3) (Improper Relationship Between Educator and Student), which incorporates Section 33.021. Among other arguments, the incorporation of an unconstitutional statute invalidates Section 21.12(a)(3).

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  1. As an aside, while everyone else seems to agree that Perry is charged with two felonies, Count II looks like a misdemeanor accusation to me—coercion of a public servant is a felony only if the coercion is a threat to commit a felony, and the State has neither alleged that the coercion was a threat to commit a felony, nor alleged the coercion in terms that would put a defendant on notice that the State believes it to be a felony…

    threatening to veto legislation that had been approved and authorized by the Legislature of the State of Texas to provide funding for the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office unless Travis County District Attorney Rosemary Lehmberg resigned from her official position as elected District Attorney. 

  2. Oops! Felony! 

The Psychology of Expensive Paper

Mark's Blog: Defending People - Mon, 08/25/2014 - 12:01

I use 28-pound printer paper for my pleadings. Have done for years. Judges and prosecutors often notice the paper: it’s heavy, stiff, and smooth. It also costs almost four times times as much as cheap paper (2.3 cents, vs. 0.64 cents per page), which can add up; my justification for using it has been that the things I’m filing with the court are important, so they should look and feel important (I put some effort and money into typography as well).

Yesterday Sarah “Bennett’s Former Brain” Wood sent me a link to a Psychology Today post that supports that justification:

New research…shows that the weight, texture, and hardness of the things we touch are, in fact, unconsciously factored into our decisions about things that have nothing to do with what we are touching. Potentially, every decision we make.

* * * * *

[W]hen we hold something heavy, we actually see seriousness and importance in people and issues that we might not otherwise.

* * * * *

As with weight and texture, hardness exerts an influence on our perceptions and behavior. People who had earlier examined a hard piece of wood later judged an employee interacting with his boss as more rigid and strict than did people who had first examined a soft blanket.

The for Bennett’s pleadings, though:

In another study, feeling roughness led participants to negotiate poorly, offering their counterparts better deals than people who’d held smooth things did—because they saw the bargaining task as more difficult.

I may have to start printing prosecutors’ copies of my motions on sandpaper. Judges will still be getting the good stuff.

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Victimocracy Because Reasons

Mark's Blog: Defending People - Sun, 08/24/2014 - 18:38

In There’s No “Ick” in Victim, in which she lauds victims for speaking up, Brooklyn lawyer1 C.A. Goldberg turns her truly dizzying intellect my way:

Then you have the George Wills and Mark Bennetts of the world who argue that society is victimized by victimhood. The former famously claimed that victims revel in their victimness and that “victimhood” is a “coveted status that confers privilege,” and results in the “proliferation” of victims.

In a post called “Victimocracy is for Sociopaths,” Mark Bennett, a criminal defense attorney and blogger in Texas, growls at the “ascendancy of victimocracy, in which victimhood is esteemed above merit, and victims are given special authority to determine the course of the state.  He accuses many victims of “feigning” it.  He flaccidly stabs at some blurry claim that self-identifying victims comprise much of the purported four percent of sociopaths, revealing himself to be the one person in America gullible enough to drink Martha Stout’s pop psychology Kool-Aid.  “The more power we give victims, the more power we give sociopaths,” he says.

Attitudes like those of the grandfather, the blogger, Wills, and Bennett, shame not just the crimes, but also try to corrode any dignity the victim may have in self-identifying as such, creating false categories that attempt to separate out the “true” victims from the “feigning” ones.  (Anybody else hearing the echoes of Todd Akin here and his marble mouthing about “legitimate” rape?)  These people take offense to persons stepping up and saying, “Hey, I was harmed,” acting as though the V-word itself is a diminishing resource, conservation of which they must personally defend. And so what do they do?  They engage in ad hominem attacks to discredit the victim:  she was complicit in it, is lying, doing it for the attention, is a sociopath.  It’s as if some defense attorneys, perhaps as a group the most vocal about they would call “victomania,” can’t zealously represent their clients while respecting the “victim” concept.

Here’s the post she’s referring to, Victimocracy is For Sociopaths.2 I won’t rehash the argument, but you’ll see that it’s not what Goldberg wishes it to be.

Because some victims bravely speak up,3 Goldberg wants us not to question whether victims are victims.

The problem is that, whether sociopaths are four percent of the population or one percent or less, they will feign victimhood, using our solicitousness toward victims—the solicitousness modeled by Goldberg in her post—to get away with creating more actual victims. By feigning victimhood, the sociopaths (who, because their “victimhood” is planned and scripted, are more willing than real victims to present themselves as victims) also harm the actual victims

The solution is nothing more than a sensible skepticism. Opposing skepticism is natural—nothing is more laudable than protecting the weak, and we want to believe that those who present themselves as needing our help in fact do—but nobody’s life is improved by credulity.

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  1. And cousin of my officemate Jay Cohen! 

  2. For which I’ve already taken an undeserved rasher of shit, which put me off my blogging feed. Other posts about victimocracy in action: Honoring the Dead with Destruction?; Happy Victims’ Week; Revenge Porn and “Rape Culture” Culture

  3. I doubt neither the bravery often required for an actual victim to come out as a victim, nor the societal value in doing so. 

Where Improv and Lawyering Meet

Mark's Blog: Defending People - Sun, 08/24/2014 - 17:42

I’ve started taking improvisational theater classes again, now at The Station Theater, about halfway between my house and my downtown office. (I took classes at ComedySportz and at Bay Area Theater Sports several years ago, but neither theater is as convenient as The Station.) One of the perks of taking classes at The Station is free admission to shows at the theater. So I’ll be seeing, as well as doing more improv.

Last night Jen and I went to the show by Nice Astronaut, a visiting troupe from Austin. At the door, I told the guy taking money that I was a student (saving me $6, cheap bastard) and introduced myself. “I know that name,” he said, “I’ve read your blog for years.”

Small world. A little birthday present from the universe.

But wait.

When we went in to choose our seats, a familiar-looking man came up to me. “Mark, I’m Brian Drake.” Brian has been a blog reader and a correspondent of mine for many years. It was a treat seeing him in this context and meeting his girlfriend, who were also there for the show.

My old friend and fellow criminal-defense lawyer Chuck Stanfield was also there, but that was unsurprising, since he is also taking classes there.

Houston is a small enough town that I can rarely go anywhere without running into someone I know. But it’s especially cool that these two worlds—law and improv—intersect. I like it that readers of this blog also being fans and students of improv, which I have found to be invaluable training for lawyering (several of my jury selection rules come out of improv) and for life.

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Stupid Lawyer-Email Disclaimer

Mark's Blog: Defending People - Thu, 07/17/2014 - 19:42

I noticed this at the bottom of an email from a lawyer on a First Amendment civil case (he’s suing, I’m defending):

NOTICE OF DISCLAIMERS & CONTRACTUAL AGREEMENT NOT TO REMOVE DISCLAIMERS:

This communication and any files or attachments transmitted with it are confidential, may be legally privileged, and are intended solely for the use of the individual or entity to which they are addressed. Because this type of communication may not be secure, can be made spontaneously, and/or is frequently treated informally, I do not accept any responsibility or duty (other than that owned in the attorney-client relationship) for the contents of such communication. Simply, you are put on notice that I do not guarantee that this communication has any accuracy whatsoever;  being on such notice and for the consideration stated below, you contractually agree that I am not liable for any damage connected with this communication whether it is actual, contractual, compensatory, restitutionary, punitive, imaginary, etc. Make a formal request in writing via certified mail to the above address if this communication needs to be verified. Please notify me immediately if you have received this communication by mistake and delete it from your system. If you are not the intended recipient you are notified that altering, disclosing, copying, distributing, or taking any action in reliance on the contents of this communication is strictly prohibited and may be a criminal offense. If you are the intended recipient or receive this communication intentionally by the intended recipient, subject to Texas Rule of Evidence (including rule 408) you are granted express consent to disclose, copy, and/or distribute this communication. In return, you agree to not alter it, for example, by removing any of these disclaimers. In violation thereof, you agree to (1) be personally liable for a minimal of $15,000 in liquidated damages, reasonable attorney fees, and court costs in collecting these damages; and (2) Texas being the appropriate jurisdiction, that its laws prevail, and Harris County being the appropriate venue. The Internal Revenue Service rules require that I advise you that the tax advice, if any, contained in this message was not intended or written to be used by you, and cannot be used by you, for the purposes of (1) avoiding penalties under the Internal Revenue Code; or (2) promoting, marketing or recommending to an other party any transaction or matter addressed herein.

Pretentious civil-lawyer stupidity makes my brain hurt.

(See also.)

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Programming Note

Mark's Blog: Defending People - Thu, 07/17/2014 - 12:30

The original version of this post included two lawyers who had cried “victim.” I identified neither; only a very small group (six people) knew who both were; those six already knew my opinion.

While I had not identified him and had explicitly disclaimed calling him a sociopath (he has mental-health problems, but they undisputably do not include a lack of conscience), one of them recognized himself and incorrectly concluded that I was calling him a sociopath. When he nagged me about it, in the interest of peace I very reluctantly took the unprecedented step of removing the reference to him—the other example of victim-stance behavior was sufficient.

Unfortunately, he took my gesture of peace as a sign of weakness, and began publicly demanding a public apology (after privately threatening violence, motherfucking me, and frightening my office staff). He then also appointed himself defender of the other lawyer’s honor. In paroxysms of impotent rage he lashed out on Twitter and in comments here.

I removed his comments here because I didn’t think his name needed to be connected to this post; I have since vacillated on that, and on whether to restore the original text. Republishing this lawyer’s words is the worst thing that I can imagine doing to him—sometimes people sabotage themselves, often without knowing it; it’s not my job to help them.

Instead I’ve cut off contact with him, following Rule One. I have blocked his Twitter account and killfiled his emails—extreme and rare action that I only take for those who are a persistent net negative in my life.

If he continues to insist on injecting himself into my existence, I may have to find a different tack.

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Victimocracy is for Sociopaths

Mark's Blog: Defending People - Wed, 06/25/2014 - 17:44

After reading Martha Stout’s 2006 The Sociopath Next Door recently I’ve been thinking a great deal about sociopaths. Stout contends that four percent of the U.S. population are sociopaths, people without conscience, which Stout describes as “an intervening sense of obligation based in our emotional attachment to others.” Here‘s a snippet from Stout’s book describing some of the positions that sociopaths might enjoy, including this:

But you do enjoy jobs that afford you a certain undersupervised control over a few individuals or small groups, preferably people and groups who are relatively helpless or in some way vulnerable.  You are a teacher or a psychotherapist, a divorce lawyer or a high school coach.  Or maybe you are a consultant of some kind, a broker or a gallery owner or a human services director.  Or maybe you do not have a paid position and are instead the president of your condominium association, or a volunteer hospital worker, or a parent.  Whatever your job, you manipulate and bully the people who are under your thumb, as often and as outrageously as you can without getting fired or held accountable.  You do this for its own sake, even when it serves no purpose except to give you a thrill.  Making people jump means you have power – or this is the way you see it – and bullying provides you with an adrenaline rush.  It is fun.

Could this describe a misdemeanor judge you know? A prosecutor? If you believe that four of every ninety-nine people around you are sociopaths, you start seeing signs of sociopathy everywhere.

The hallmark of a sociopath, says Stout, is feigned victimhood. “The most reliable sign, the most universal behavior of unscrupulous people is not directed, as one might imagine, at our fearfulness. It is, perversely, an appeal to our sympathy.”

I have noted before the ascendancy of victimocracy, in which victimhood is esteemed even above merit and victims are given special authority to determine the course of the state. I was reminded of the victimocracy recently by communications by members of the board of a criminal-defense lawyers’ association.

Two members of the board separately did things that didn’t serve the interests of the organization. Other members called them out; the criticism was not gentle, but it was fair. Those who had been criticized went into victim mode: they had been “attacked,” “insulted,” “disrespected.” They inaccurately described things that others had said to make them seem like attacks. Both described the criticism as “bullying.” One had “never been so insulted” as by the criticism.

Why would these people—these criminal-defense lawyers communicating with other criminal-defense lawyers—cry “victim”? Because they think it’ll work. They’ll be pitied, their transgressions will be ignored, they’ll get their way.

The pity play or attempt to appeal to the sympathy of others was also addressed in research conducted by the Minnesota Department of Corrections and The Hazelden Foundation (2002). There, researchers concluded that criminal thinkers most often attempt to control others by portraying themselves as a victim, turning to fear tactics only when the victim stance fails to get them what they want.

The act of eliciting pity from another unequivocally makes the elicitor something to be pitied, a victim, per se. It is human nature to aid the pitied. Hence, the pity play, or victim stance, stands to get the Sociopath what he or she wants easily and without being found out as a bad guy. This is manipulation.

Your Conscience, the Sociopath’s Weapon of Choice, Psychology Today.

I’m not saying that these two lawyers are sociopaths—not everyone who takes a victim stance is a sociopath—but their play for pity had me reflecting on how, with our solicitude for the feelings of victims, we have created an amiable playground for sociopaths.

We criminal-defense lawyers are not generally aligned with victims. Our clients are usually getting screwed by victimocracy. If a pity play could work in the board of directors of a criminal-defense lawyers’ association, it could work anywhere. And anywhere a pity play works a sociopath will make a pity play.

The more power we give victims, the more power we give sociopaths. We don’t want to give sociopaths any more power than Texas voters already give them. But we can’t be pitiless—pity serves a valuable social function, and if we were pitiless, we’d be sociopaths ourselves.

So what’s the solution? I think it is to act like criminal-defense lawyers: be kind to real victims, but question the stories of those who claim to be victims. Like those of the board members wanting to be victims, sociopaths’ stories won’t stand up to scrutiny.

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Another Bad Texas Statute

Mark's Blog: Defending People - Thu, 06/12/2014 - 19:45

I had filed a pretrial writ of habeas corpus challenging Texas’s Online Impersonation statute on First Amendment grounds. The prosecutor agreed with me off the record, dismissed the case, and instead filed a (less serious) Fraudulent Use of Identifying Information charge. Also, the Harris County DA’s Office flagged the Online Impersonation statute in its charge bank as “possibly unconstitutional.”

What is wrong with these people? Doesn’t Devon Anderson have an obligation to defend Texas’s penal statutes against constitutional attacks? Do I have to notify the Attorney General to get some opposition?

It looks as though I’ll have to go to some other county to get an appealable opinion upholding or striking the Online Impersonation statute.

But the prosecutor’s refiling the charge as Fraudulent Use of Identifying Information had me looking at that statute with a critical First Amendment eye:

A person commits an offense if the person … uses identifying information of another person without the other person’s consent and with intent to harm … another.

“Use” is not defined.

“Identifying information” means information that alone or in conjunction with other information identifies an individual, including an individual’s:
(A) name, social security number, date of birth, and government-issued identification number;
(B) unique biometric data, including the individual’s fingerprint, voice print, and retina or iris image;
(C) unique electronic identification number, address, and routing code, financial institution account number; and
(D) telecommunication identifying information or access device.

“Harm” is not defined.

So if I use—by writing—a person’s identifying information—his name—without his consent with the intent to harm—by embarrassing—him, I commit a felony in Texas.

Hmm. That can’t possibly be right.

The first writ of habeas corpus will be filed tomorrow in Harris County, followed next week by one in Fort Bend County. I’m also looking for online impersonation cases in other counties to file writs on. Some prosecutor somewhere has got to take the bait.

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Karenev Starts to Crumble

Mark's Blog: Defending People - Thu, 06/05/2014 - 11:03

Harris County Assistant PD Nick Hughes had a huge win in the First Court of Appeals on Schuster v. State.

Mr. Schuster had pled guilty to online solicitation of a minor by explicit communication, enhanced with prior felony convictions, and been sentenced to forty years in prison while Ex Parte Lo was pending. Hughes appealed, arguing that the online-solicitation-by-explicit-communication statute was unconstitutional (the issue in Lo).

The State argued (as in this hypothetical) that the Court of Criminal Appeals’ decision in Karenev v. State barred relief. Karenev held that the right not to be convicted under an unconstitutional statute was a right that could be forfeited, and that Mr. Karenev had forfeited that right.

That Mr. Schuster not receive relief from his 40-year sentence for an unconstitutional conviction is the result dictated by Karenev—a forfeited right is forfeited. It is also an absurd result. The First Court of Appeals resolved the absurdity by carving out an exception to the forfeiture of rights in Karenev: “the rationale for the Karenev rule—the presumption that a statute is constitutional—does not apply to this case.” Because Section 33.021(b) had been held unconstitutional before Mr. Schuster’s appeal, Mr. Schuster could raise the unconstitutionality on appeal.

The Court of Criminal Appeals invented its fundamental holding in Karenev—that the right to challenge the constitutionality of a statute could be forfeited—from whole cloth. No American court outside Texas has ever held the same. Other courts have not adopted Karenev‘s fundamental holding because that fundamental holding is wrong. If a statute is void, a document purporting to charge a defendant with a violation of that statute does not charge a crime, is not an indictment, and does not vest the trial court with jurisdiction. Instead of burning Karenev to the ground, the Court of Appeals carved out a narrow exception—the best they could do with stare decisis.

But even the reasoning of the Court of Appeals can be taken much further in the First Amendment context: since a content-restricting statute is presumed to be unconstitutional under the First Amendment, the holding of Karenev, as interpreted by Schuster, does not apply to statutes that restrict speech based on its content—statutes like Texas’s improper-photography statute, its online-impersonation statute, and the balance of Texas’s online-solicitation statute.

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Sacred Duty

Mark's Blog: Defending People - Wed, 06/04/2014 - 12:53

I have tried a bunch of cases, and pled more. Win or lose, clients whose cases I’ve tried have almost universally been happy afterwards. Clients whose cases I’ve pled are often unhappy afterwards.

The client who pleaded guilty has chosen a plea over a trial, and has agreed to the result; he should be happy. The client who went to trial may have been forced to trial (the system’s default condition) by the lack of a meaningful plea offer, and—if he loses—didn’t get the result he hoped for.

So why is the trial client happier than the plea client?

I think it’s because most people have never seen someone fighting for them. The trial client has seen it, and that’s a new experience to him, he likes it. It is liberating.

Even the career criminal has probably never seen someone fighting for him. Most cases plead and most lawyers, most of the time, just don’t fight. Not, at least, in any way that the client can see.

But this thing for which our clients thank us, win or lose—showing them that there is someone will fight for them when they cannot fight for themselves—is more than just our job; it is a sacred duty. Do it not just for your client, and not for yourself. Do it for freedom.

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Class Acts

Mark's Blog: Defending People - Tue, 06/03/2014 - 19:53

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Moron Dallas Lawyer Everett Newton

Mark's Blog: Defending People - Tue, 05/20/2014 - 22:56

A caller today said, “I heard that you got part of the Online Solicitation of a Minor statute held unconstitutional, but I know that decision doesn’t apply to distributing sexually explicit material to minors.” I asked him where he got that idea, and he pointed me to this on Dallas lawyer Everett Newton’s website:

Notably, two other sections of the online solicitation of a minor statute remain good law, and outline conduct for which you can still be lawfully prosecuted.  Hence, under this statute, you can still be charged with online solicitation of a minor for either: 1)distributing sexually explicit material to a minor, OR 2)soliciting a minor online to meet for sex.

It’s ignorant twaddle. “Distributing sexually explicit material to a minor” is protected speech; it falls under the portion of the statute that the Court of Criminal Appeals held unconstitutional.

Truth is, of course, that Everett probably didn’t write the ignorant twaddle that has his name on it. The author confuses the Texas Court of Criminal Appeals (which held the Online Solicitation statute unconstitutional) with the Texas Supreme Court (which did not). This is not a mistake that a Texas lawyer is likely to make. So either Everett is even more cretinous than he looks…

…or he has outsourced his marketing, allowing someone else to publish blog posts under his name. The former is hard to imagine, so my bet is that Everett has outsourced his marketing. Which means that he gets held responsible for the substance—the content published on his behalf (outsource your marketing, outsource your reputation)—as well as for the procedure—the choice to pay someone even more moronic than him to publish stuff on his behalf.

To advertise himself, Everett Newton gives bad advice. That makes me unhappy.

So here you go, Everett. Reap what you sow.

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 (184.73.49.84) .)

Vindication

Mark's Blog: Defending People - Tue, 05/20/2014 - 12:02

Five years ago, in February 2009 I filed an application for writ of habeas corpus on behalf of a guy—we’ll call him Mr. Doe—who had been on probation since 2006 for online solicitation of a child under Section 33.021(b) of the Texas Penal Code, the “explicit communication” statute. I hadn’t represented Mr. Doe at trial, and his trial counsel hadn’t argued that the statute was unconstitutional. (This was a Perverted Justice case, which never would be filed today.)

The trial judge denied habeas relief, so I appealed. The Fourteenth Court of Appeals affirmed the denial of habeas relief in July 2010, so I filed a Petition for Discretionary Review with a single ground for review:

The Fourteenth Court of Appeals erred when it held that the constitutionality of a criminal law cannot be first raised on habeas corpus. If a penal statute unconstitutionally criminalizes protected speech, will a conviction under that law stand forever if not objected to at trial?

The Texas Court of Criminal Appeals denied discretionary review. So Mr. Jennings was stuck finishing his probation (until 2011), registering as a sex offender (until 2021) and branded as a convicted felon (for life).Or so it appeared.

In September 2010 I filed a pretrial writ of habeas corpus on behalf of a defendant—call him Mr. Roe—who had been charged with, but not convicted of violating 33.021(b). The trial court denied relief, so I appealed to the First Court of Appeals. The First Court of Appeals affirmed, so I filed a petition for discretionary review. The Court of Criminal Appeals granted PDR, heard argument, and in October 2013 reversed the judgment of the First Court of Appeals, holding 33.021(b) unconstitutional.

(Mr. Roe’s was not the first pretrial writ of habeas corpus I had filed attacking 33.021(b). In September 2009 Herb Ritchie, then judge of the 337th District Court, granted relief. The State failed to appeal that ruling.)

Today Mr. Doe got to go back to court on another habeas, again based on the unconstitutionality of Section 33.021(b), conclusively established in Mr. Roe’s case. This time the State agreed to relief, and the trial court—the same judge who had denied relief in 2009—signed an order dismissing Mr. Doe’s case.

Mr. Doe can never get back his five years on probation or the rubbishing of his good name, but with that order, I’ll get him off the sex-offender registry, I’ll get his records expunged—he can deny that he was ever even arrested—and I may recover a portion of the thousands of dollars in fines, fees, and court costs that he had to pay as a result of his conviction for violating a void statute.

The icing on the cake for me? As he was signing the order, the judge said to me, “you can’t say ‘I told you so’ because I didn’t get a chance to rule on this before.”

“Yes you did, judge.

“I told  you so.”

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Mark Sandoval and Christopher Ernest Braughton

Mark's Blog: Defending People - Mon, 05/12/2014 - 20:32

Emanuel Dominguez’s fiancée, Jessica Cavender—a Marine like Emmanuel—was nowhere near when, according to this account, “Emmanuel Dominguez began backing away with his hands in the air when [Christopher Ernest] Braughton opened fire, shooting him once in the torso.”

Now Christopher Ernest Braughton is charged with murdering Emmanuel Dominguez (Indictment—PDF), and is set for trial August 11, 2014.

So why is Christopher Ernest Braughton suing Jessica Cavender, the fiancée of the Marine he killed, for more than $200,000 (Original Petition—PDF)?

Here are the allegations of the lawsuit:

 

FACTS

The Plaintiff was damaged as a result of the actions of the Defendant

CHRISTOPHER BROUGHTON’S CLAIM FOR NEGLIGENCE

Defendant was negligent

DAMAGES FOR PLAINTIFF, CHRISTOPHER BROUGHTON

Plaintiff, CHRISTOPHER BROUGHTON, was caused to suffer , and to incur the following damages:

  1. Actual Damages
  2. Special Damages.

 

A lawsuit is supposed to give the defendant notice of the allegations against him. This does not do so. It makes no sense at all until you look at the signature block at the end of the Plaintiff’s Original Petition:

 

Respectfully submitted,
M.T. SANDOVAL & ASSOCIATES

By: /S/ Mark Sandoval____________ M.T. Sandoval
Texas Bar No. 17624500
P.O. BOX 1187

HOUSTON, TEXAS 77251
Tel. (713) 654-1050
Email: MTSATTYTX@AOL.COM WWW. MTSANDOVAL.COM Attorney for Plaintiff CHRISTOPHER BROUGHTON

 

I wrote about Sandoval here in 2008 after he filed a lawsuit on behalf of a criminal defendant, Elizabeth Shelton (Elizabeth Shelton Indictment—PDF), against the people whose car she had rear-ended causing the death of her boyfriend, Matthew McNiece. At the time Sandoval represented the family of Mr. McNiece as well. (Sandoval then nonsuited that case. Elizabeth Shelton Nonsuit. This case, Sandoval may not get out of so easily: I’m reliably informed that Cavender will be countersuing for intentional infliction of emotional distress.)

It gets even more interesting: the father of Elizabeth Shelton, Pat Shelton, who used to give Sandoval juvenile appointments when Shelton was a juvenile court judge, is Sandoval’s cocounsel on Christopher Ernest Braughton’s murder case. Cozy.

(Notice that Sandoval misspelled Mr. Braughton’s name—as “Broughton”—when he filed the current lawsuit. It may have been inadvertent, but that way Braughton’s name is less likely to turn up in searches. In 2008 I noted, “Her boyfriend, Matthew McNeice (the Chronicle renders it McNiece, but the District Clerk’s civil records have McNeice), is killed in the crash.” It appears that Sandoval misspelled the McNieces’ name in that civil suit as well. Cute.)

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The State’s Argument in Ex Parte Thompson

Mark's Blog: Defending People - Mon, 05/12/2014 - 14:11

Ronald Thompson was arrested last September for taking photographs of swimsuit-clad children at Sea World in San Antonio. He was charged with violating Texas’s improper photography statute:

A person commits an offense if the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person….

He hired Don Flanary III, who made an as-written overbreadth challenge to the statute in an application for writ of habeas corpus. The San Antonio Court of Appeals found that the statute was content-neutral, but still found it unconstitutional under intermediate scrutiny.

Last week I went to the Court of Criminal Appeals to hear oral arguments on discretionary review. Don argued the case for Mr. Thompson, and he gave some of his time to Eugene Volokh to argue on behalf of amicus Reporters Committee for Freedom of the Press. (Protip: the interests of amicus are not always aligned with the interests of your client. Be wary of ceding argument time.)

The State argued that it has an interest in protecting people from being nonconsensual objects of sexual desire—a foolish notion. In aid of its argument, the State argued that the “consent” element saves the statute from overbreadth because “consent” is defined broadly enough in Section 1.07(a)(11) of the Penal Code to cover photos taken in public of people’s publicly exposed parts. Everyone who appears in public, the argument went, consents to pictures being taken of those parts of her body that are exposed to the public; the statute is aimed only at upskirt and other surreptitious photographs, and therefore is not overly broad.

(A judicial interpretation narrowing a statute can save it from First Amendment overbreadth. This is based on the legal fiction that people consider Court of Criminal Appeals opinions in deciding how to express themselves. To the contrary, people considering taking photos in public don’t review Court of Criminal Appeals opinions to decide how to frame their photos. If an overbroad statute has a chilling effect, a Court of Criminal Appeals opinion won’t diminish that effect.)

The State’s narrowing argument in Thompson’s case stinks. While the facts of the case are not legally relevant to the as-written challenge, if the State had interpreted Section 1.07(a)(11) as the prosecutor urged at the Court of Criminal Appeals, Mr. Thompson would never have been charged—the subjects of his photographs were in public. It’s disingenuous—arguably unethical—for the State to argue a theory of the law on appeal under which the State would never have charged the defendant in the first place. If the State had follow its proposed rule, the defendant would never have been charged, never had to go to the expense and trouble of hiring Don to defend him through three courts.

The Court of Criminal Appeals could adopt the State’s proposed narrowing of the law and find that the statute does not forbid taking photos of people’s exposed parts in public because people with parts exposed in public consent, as a matter of law, to those parts being photographed. (Part of Volokh’s argument was that this could save the statute from overbreadth, but might cause a vagueness problem.) If the Court of Criminal Appeals does this, Mr. Thompson wins. Bexar County loses, and could lose big—since, according to the State’s own logic, Mr. Thompson should never have been prosecuted, Bexar County might find itself writing him a large check after he files his Section 1983 suit.There are two ways to violate Texas’s Improper Photography statute—by making an image, (photograph or by videotape or other electronic means record) or by sharing an image (broadcast or transmit).
If the Court of Criminal Appeals strikes down the making portion of the statute, the sharing portion falls as well. If, however, the court upholds the making portion in Thompson as the State has urged, the sharing portion is still subject to First Amendment challenge—consent to be photographed is not the same as consent for those photographs to be shared.

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