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2015.97: Volberding and Kretzer Just. Give. Up.

Blog - Thu, 11/19/2015 - 22:24

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

It’s unnatural.

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

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

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

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

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

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

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

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

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

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

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

2015.97: Volberding and Kretzer Just. Give. Up.

Mark's Blog: Defending People - Thu, 11/19/2015 - 22:24

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

It’s unnatural.

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

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

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

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

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

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

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

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

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

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

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

2015.96: Wilco Water

Blog - Thu, 11/19/2015 - 21:29

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

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

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

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

She didn’t show up

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

. . . . .

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

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

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

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

To recap:

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

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

Jana Duty’s Mugshot

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

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

2015.96: Wilco Water

Mark's Blog: Defending People - Thu, 11/19/2015 - 21:29

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

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

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

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

She didn’t show up

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

. . . . .

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

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

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

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

To recap:

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

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

Jana Duty’s Mugshot

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

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

2015.95: WTAF STCL

Blog - Thu, 11/19/2015 - 19:10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to another site,

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

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

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

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

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

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

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

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

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

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

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

  1. Not without good reason, to be fair. 

2015.95: WTAF STCL

Mark's Blog: Defending People - Thu, 11/19/2015 - 19:10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to another site,

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

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

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

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

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

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

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

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

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

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

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

  1. Not without good reason, to be fair. 

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

Blog - Wed, 11/18/2015 - 20:12

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

Download the PDF file .

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

Download the PDF file .

 

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

Mark's Blog: Defending People - Wed, 11/18/2015 - 20:12

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

Download the PDF file .

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

Download the PDF file .

 

2015.93: Spaghetti Prosecution in Waco

Blog - Tue, 11/17/2015 - 19:01

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

Download the PDF file .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2015.93: Spaghetti Prosecution in Waco

Mark's Blog: Defending People - Tue, 11/17/2015 - 19:01

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

Download the PDF file .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2015.92: Matthew Chappell Responds

Blog - Thu, 11/12/2015 - 15:32

I sent Matthew Chappell a link to my last post.

He quickly responded:

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

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

Matthew Chappell

Attorney At Law

723 Main Street

Suite 700-07

Houston, Texas 77002

713-384-8700

email@mcattorney.net

Website: mcattorney.net

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

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

2015.92: Matthew Chappell Responds

Mark's Blog: Defending People - Thu, 11/12/2015 - 15:32

I sent Matthew Chappell a link to my last post.

He quickly responded:

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

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

Matthew Chappell

Attorney At Law

723 Main Street

Suite 700-07

Houston, Texas 77002

713-384-8700

email@mcattorney.net

Website: mcattorney.net

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

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

2015.91: Will Anyone Help Matthew Chappell Out?

Blog - Thu, 11/12/2015 - 14:26

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

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

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

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

So I suppose this is me pissing off.

This morning I got this email from Chappell:

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

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

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

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

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

Thanks, and all best,
Matthew Chappell
Attorney At Law
723 Main Street
Suite 700-07
Houston, Texas 77002
email@mcattorney.net
713-384-8700

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2015.91: Will Anyone Help Matthew Chappell Out?

Mark's Blog: Defending People - Thu, 11/12/2015 - 14:26

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

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

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

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

So I suppose this is me pissing off.

This morning I got this email from Chappell:

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

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

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

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

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

Thanks, and all best,
Matthew Chappell
Attorney At Law
723 Main Street
Suite 700-07
Houston, Texas 77002
email@mcattorney.net
713-384-8700

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2015.90: Poor Unfortunate Souls

Blog - Mon, 11/09/2015 - 12:29

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

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

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

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

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

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

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

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

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

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

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

Could UT Law be … tricking its students?

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

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

  3. This guy says 20%. 

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

2015.90: Poor Unfortunate Souls

Mark's Blog: Defending People - Mon, 11/09/2015 - 12:29

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

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

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

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

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

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

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

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

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

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

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

Could UT Law be … tricking its students?

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

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

  3. This guy says 20%. 

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

2015.89: “Oops,” he explained.

Blog - Mon, 11/09/2015 - 10:57

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

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

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

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

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

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

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

So. Statutes I’ve killed or seriously wounded:

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

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

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

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

2015.89: “Oops,” he explained.

Mark's Blog: Defending People - Mon, 11/09/2015 - 10:57

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

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

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

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

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

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

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

So. Statutes I’ve killed or seriously wounded:

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

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

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

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

2015.88: Cocks AND Glocks

Blog - Thu, 11/05/2015 - 11:50

It is clearly free speech.

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

This, to First Amendment lawyers, goes without saying.

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

John Banzhaf writes:

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

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

Banzhaf writes:

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

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

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

The protesters fear arrests or university discipline.

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

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

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

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

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

Sing it, brother!

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

Um, no.

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

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

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

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

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

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

Yes.

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

No.

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

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

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

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

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

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

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

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

2015.88: Cocks AND Glocks

Mark's Blog: Defending People - Thu, 11/05/2015 - 11:50

It is clearly free speech.

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

This, to First Amendment lawyers, goes without saying.

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

John Banzhaf writes:

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

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

Banzhaf writes:

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

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

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

The protesters fear arrests or university discipline.

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

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

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

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

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

Sing it, brother!

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

Um, no.

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

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

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

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

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

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

Yes.

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

No.

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

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

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

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

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

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

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

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

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