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This is not a tech blog, but when I spend time finding an answer to a tech question that Google doesn’t have, I’m going to publish it here.
I use Vocalocity for my office phones. It’s a voice-over-IP service. I have one extension ringing ing the downtown office, and one extension ringing at the same time in the Heights office. I also have various forwarding schemes set up for various times during the day.
I had an analog phone connected to Vocalocity at the Heights office via a Cisco SPA2102. It worked fine for a while, but lately it has been disconnecting outgoing calls after thirty seconds, which is inconvenient. So I ordered an Obihai OBi100 (Amazon link), plugged it in, and set it up.
Nobody had documented what to plug in where on the OBi100 setup page. So here you go…
This is Vocalocity’s “Devices” tab for the phone extension I wanted to set up. The blurred number next to “sip-” is my Vocalocity account number. The MAC address is that of the OBi100; I inputted it. The SIP/Authorization ID is Vocalocity-assigned:
Here’s the OBi100 setup page. The Service Provider Proxy Server is the “proxy” URL from Vocalocity. The user name is the Vocalocity SIP/Authorization ID. The password is the same on the Vocalocity page and the OBi100 page (6+ characters, at least one number and at least one uppercase letter):
I hope that someone finds this helpful.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 (22.214.171.124) .)
When the gentleman from the Texas Attorney General’s Office called me on Thursday to ask if I would agree to the AG’s petition to intervene and motion to extend time to file a motion for rehearing in the Court of Criminal Appeals, I think he was a bit put-out that I declined.1 I wasn’t sure whether I was opposed or not, but I’m not going to agree to anything the State wants without at least reading its motion first.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 (126.96.36.199) .)
Brilliant, of course, but I’m connecting for a separate reason. I have recently started a blog and would like to cross pollinate with people such we yourself who obviously see the world the same as I do. So I’d like to start by re-printing your blog with your permission, and to have a little “about the author” at the end. If you’re interested, please let me know. My fledgling blog is keywordrichblogname.com. Thanks, and thanks for the very well expressed opinion; I’ve been having trouble with a number of defense lawyers who feel that 10-days is a signal of something. Maybe it is, but to get that deal then, at least they should have forced him to publicly admit what he did, like so many persecutors press pleading defendants to do instead of NC pleas.
James is making things up as he goes along. I’ve been blogging for six and a half years. I have a pretty good idea what works and what doesn’t. James has this idea of republishing other people’s work with “a little ‘about the author’ at the end.” This does not work. It’s nice of James to ask: many people would just do it without asking, reasoning that I must want more “exposure,” but I’m not interested in my content being used to fluff someone else’s blog, so the answer was no.
Of course since he was nice enough to ask, I also offered James some free advice, from someone who didn’t just discover blogging:
Who is advising you on this “cross-pollinating” thing? Because the way to do it is not to reprint other people’s stuff. It’s to join the conversation. Comment on other people’s blogs, disagree with them, write your own blog posts with links to their stuff.
This is work.
I think James wants this to be effortless—republish someone else’s posts, add a little “about the author” to the end, and boom: instant blog! The barriers to entry are low, but blogging isn’t effortless. Nothing worth doing ever is.
James didn’t much like that answer:
I have to say I’m a little surprised by this angry response, as the goal of my blog is to get important information out there, whomever writes it, with attribution, so that the public sees the reality of justice in America, and that’s why I proposed an about-the-author postscript. I’d like to think that it’s just that you’re having a bad day, so I won’t take the acrimonious tone personally.
Don’t lose any sleep over it.
Why is it that when you tell people the truths they don’t want to hear, you are “angry” and “acrimonious”?
The problem is that if James is filling his blog with other people’s work, nobody is going to link to it and nobody is going to read it. If he really wanted to “get important information out there,” rather than “fill a webpage with keywordy goodness” he would follow my advice and join the discussion. Scott Greenfield has written about this more than once. Gideon lamented, Slowly but surely, the blawgoshpere [sic] is moving away from actual conversation and closer to pure marketing, but that was five years ago.
We can explain it to you, but we can’t understand it for you.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 (188.8.131.52) .)
No, I do not accept guest posts from strangers. Robb is a special exception. He and I have a deal: neither of us goes to jail for contempt alone. Since he’s likely some day to be my celly, I try to keep him happy. ↩
In Williams v. State, the First Court of Appeals today upheld the 184th District Court’s denial of a mistrial, after sustaining the defense’s objection to the following argument by prosecutor Justin Keiter:
What did the defendant have access to before trial? He’s had years to craft a story. As we said in voir dire, we have an open file policy. They have access to copies of police reports, statements, and photos. They can build a whole defense that fits everything that we have. That’s just how the game is. It doesn’t mean they get credit for it or you believe it.
It’s a foul argument, striking at the defendant over the shoulders of defense counsel.
Here’s a taste of what Justice Terry Jennings had to say in his dissent:
Here we go yet again—an appellate court admonishes attorneys not to engage in improper jury arguments, but the court itself actually glosses over the egregious nature of the complained-of argument and the actual harm caused by such arguments, not only to those accused of criminal offenses, but to the very administration of justice in Texas. Indeed, the majority’s opinion in this case will actually encourage such improper behavior and ensure that it continues. Accordingly, I respectfully dissent.
The Texas Court of Criminal Appeals has long “maintain[ed] a special concern for final arguments that result in uninvited and unsubstantiated accusation of improper conduct directed at a defendant’s attorney” and emphasized that, “[i]n its most egregious form, this kind of argument … involve[s] accusations of manufactured evidence.” Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998) (emphasis added). Here, however, the majority asserts that just such an argument is “not so egregious” and “not severe.”
The majority errs in concluding that the trial court did not err in denying the motion of appellant, Troy Williams, II, for a mistrial. Appellant made his motion in response to the State’s argument to the jury that his trial counsel abused the State’s open file policy with the intent to access the State’s evidence and then, in collaboration with appellant, fabricate a “whole defense” to fit the State’s evidence in the name of winning a “game.”
* * * * *
In sustaining appellant’s objection to the prosecutor’s improper argument, the trial court correctly concluded that the prosecutor’s accusations that appellant’s trial counsel had abused the State’s open file policy to access evidence and, in collaboration with appellant, fabricate a “whole defense” to “fit” the State’s evidence in the name of winning a “game,” were improper. The majority agrees, and it even recognizes that “arguments attacking defense counsel are improper because they unfairly inflame the jury against the accused.” Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999) (emphasis added).
Regardless, the majority goes on to mischaracterize the State’s uninvited and unsupported accusations as “not so egregious” and “not severe.” It further erroneously concludes, thus, that the harm from the prosecutor’s accusations was curable by the trial court’s cursory instruction to disregard. This stands in stark contrast to the well-established law as recognized by the court of criminal appeals, which has clearly explained that, in their most “egregious form,” accusations of improper conduct directed at a defendant’s attorney “involve accusations of manufactured evidence.” Mosley, 983 S.W.2d at 258.
* * * * *
According to the majority, the prosecutor’s accusations about the involvement of appellant’s trial counsel in the fabrication of a “whole defense,” based on abuse of the State’s open file policy, were not “so egregious” and “not severe” because the State, in part of its argument, referred to the defendant individually.
The majority’s logic is not only invalid in that its conclusion does not at all follow from its stated premise, it is also unsound because its premise is false: the simple fact is that the only way that appellant himself could have had any access to the State’s open file was through its availability to appellant’s trial counsel. No matter how the majority parses the complained-of accusations, the State, in no uncertain terms, accused appellant’s trial counsel of abusing the State’s open file policy with the intent to access the State’s evidence and then, in collaboration with appellant, fabricate a “whole defense” to “fit” the State’s evidence in the name of winning a “game.”
It must be emphasized that the State has not, in either its briefing or oral argument, argued to this Court that the prosecutor below did not mean anything other than what he actually accused appellant’s trial counsel of doing.…
* * * * *
The State’s uninvited and unsubstantiated accusations against appellant’s trial counsel prejudiced appellant as a direct attack on his counsel’s integrity.…
[T]he prosecutor’s misconduct, in implying that appellant’s trial counsel had abused the State’s open file policy and collaborated with the defendant to “build a whole defense” to “fit” the State’s evidence to win a “game” was especially egregious.… It strains credulity to say otherwise, especially given that we, as an appellate court, are supposed to have a “special concern” about such unsubstantiated accusations against defense counsel. See id.
[T]he trial court’s cursory instruction to disregard the State’s accusations against appellant’s trial counsel could have little or no efficacy in light of the egregious nature of the accusations, i.e., asserting that appellant’s trial counsel actually worked with appellant to abuse the State’s open file policy and worked with him to manufacture a defense, treating the trial process as a mere “game” to be won. The trial court’s boiler-plate instruction to the jury that “what the lawyer says is not evidence …” is equally unavailing. Here, the State did not merely attack the credibility of appellant as a witness based on the evidence. In making its unfounded accusations about the involvement of appellant’s trial counsel in a criminal act, the State gutted counsel’s credibility in front of the jury and essentially deprived appellant of an effective advocate. Thus, any “curative instructions [were] not likely to prevent the jury from being unfairly prejudiced against the defendant.” See Archie, 340 S.W.3d at 739.
* * * * *
Given the severity of the State’s misconduct, the cursory and ineffective curative measures of the trial court, and the absence of any certainty of conviction, the trial court erred in not granting appellant’s motion for a mistrial.Conclusion
I would hold that the improper and inflammatory jury argument made by the State was incurable and, thus, that it probably caused the rendition of an improper judgment. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (stating that mistrial is “the only suitable remedy” when instruction to disregard objectionable occurrence could not “have had the desired effect, which is to enable the continuation of the trial by an impartial jury”). I would further hold that the trial court abused its discretion in denying appellant’s motion for new trial. Accordingly, I would sustain appellant’s third issue, reverse the judgment of the trial court, and remand the case for a new trial free from the State’s improper argument.
The majority’s decision to the contrary is in serious error and should be corrected by a higher court. See TEX. GOV’T CODE ANN. §22.001(a)(6) (Vernon 2004). Unless corrected, the majority’s opinion will actually encourage more such improper arguments, “for what is permitted is considered proper.” Roger D. Townsend, Improper Jury Argument and Professionalism: Rethinking Standard Fire v. Reese, 67 TEX. B.J. 448, 454 (2004). If appellate courts are inclined to find such improper and inflammatory jury arguments to be curable, why not “take the gloves off,” engage in such inflammatory displays, and bias and prejudice the jury against your opponent? See id. at 452. Importantly, although such “improper arguments work,” they take a great toll on the public’s perceptions of lawyers and our jury trial system. Id. at 453.
* * * * *
As noted by Townsend,
“When [judges] abdicate [their] duty, professionalism suffers even more than when a lawyer makes an improper argument, for what is permitted is considered proper by the jury. All judges who do not stop improper arguments—and all trial lawyers who make improper arguments—have no business lamenting the public’s low perception of lawyers. They need only look in the mirror.”
Id. (emphasis added).
Terry Jennings Justice
Harris County District Attorney Devon Anderson must be very proud of Justin Keiter right now.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 (184.108.40.206) .)
Five guys arrested in Montgomery County and charged with 33.021(c) online solicitation—not the portion of the statute that has been held unconstitutional, but the portion that should be. They all made bail (though one has a warrant pending); one of them has another case pending.
The lawyers who are hired or appointed on these cases need to give some serious thought to filing writs challenging the constitutionality of the statute, and then putting them on appeal. It is by no means clear whether their clients will benefit from the statute eventually being held unconstitutional if the lawyers don’t get their shit together now.
It’s crazy, this idea that a defendant can forfeit his right not to be prosecuted under a penal statute that violates the First Amendment. But there you have it: Karenev, my white whale.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 (220.127.116.11) .)
The meat of Judge Keller’s opinion in Karenev v. State:
Marin took a functional approach to error preservation, dividing rules into three types: (1) absolute requirements or prohibitions, (2) rights that are waivable-only, and (3) rights that can be forfeited. A facial challenge to the constitutionality of a statute falls within the third category. Statutes are presumed to be constitutional until it is determined otherwise. The State and the trial court should not be required to anticipate that a statute may later be held to be unconstitutional.
 851 S.W.2d at 279–80. Marin briefly discussed Rose, but in doing so it did not cite Rose for the proposition that the facial unconstitutionality of a statute can always be raised on direct appeal; rather, Marin incorporated Rose’s holding into the functional approach of its framework, explaining that “this Court has held that nonjurisdictional principles of due process and separation of powers are such as to render void from its inception conflicting legislation.” Marin, 851 S.W.2d at 279.
 Flores v. State, 245 S.W.3d 432, 438 (Tex. Crim.App.2008); Doe v. State, 112 S.W.3d 532, 539 (Tex.Crim.App.2003).
Notice the authority for the proposition that “A facial challenge to the constitutionality of a statute falls within the third category.” There is none.
Here, by contrast, is the portion of Judge Cochran’s concurrence arguing that facial challenges should be be available on appeal:
There are two good reasons why appellate courts should entertain a facial challenge to the penal statute setting out the offense for which the defendant was convicted, even when it is raised for the first time on appeal:
(1) American law prohibits the conviction and punishment of a person under an unconstitutional penal statute; in other words, it is an “absolute requirement” that a person be criminally punished only for the violation of a valid penal law; and
(2) Appellate courts are in at least as good a position as trial courts to review the purely legal question of whether a particular penal statute is facially unconstitutional.
First, I do not think that the majority is suggesting that it is quite acceptable to send someone to prison for violating an unconstitutional penal statute if that person failed to object to the statute’s unconstitutionality in the trial court. But its language could well be misconstrued as allowing persons who are not guilty of violating any valid penal statute to be punished nonetheless if they failed to complain soon enough. The moral of that story would be: Because you were a slowpoke at noticing that you were not guilty of any valid criminal offense, we will punish you as if you really were guilty of some valid criminal offense. That is not the American way: every person has an absolute, fundamental, and unforfeitable right to be punished only for the violation of a valid criminal statute.
Second, the general rationale for requiring an objection in the trial court to preserve error on appeal simply does not apply when the claim is that the penal statute is facially unconstitutional and cannot be used to punish any person, now or in the future. The two main reasons for requiring a contemporaneous objection in the trial court are (1) to give the opposing party an opportunity to respond or cure the problem before it becomes error; and (2) to give the trial judge an opportunity to prevent the error from occurring. A third rationale is that “judicial economy requires that issues be raised first in the trial court to spare the parties and the public the expense of a potentially unnecessary appeal.“
The first two rationales do not apply when a penal statute defining the criminal offense is facially unconstitutional in its entirety. The statute cannot be repaired by the parties or the trial judge. The only two options at the trial level are to dismiss the charges or proceed with the prosecution.
The third rationale, conservation of scarce judicial resources, does apply when the prosecutor or judge agrees with the defendant that the penal statute is facially unconstitutional, the charges are dismissed, and there is no appeal from dismissal. But the likelihood of that occurring is minuscule. Trial judges very rarely declare a penal statute unconstitutional; prosecutors would generally be remiss if they failed to appeal a ruling that a legislatively enacted penal statute was unconstitutional and therefore unenforceable; and public policy is best served by a published appellate decision declaring a penal statute facially unconstitutional and therefore unenforceable against any person. Thus, while it is conceivable that requiring a defendant to complain of a penal statute’s facial unconstitutionality in the trial court might save some scare judicial resources, that expense is a very small price to pay when balanced against the bedrock American notion that we do not convict and punish people for unconstitutional crimes. Surely this Court would not, after the Supreme Court’s decision in Lawrence v. Texas, uphold a sodomy conviction today even though the defendant had not complained in the trial court about the unconstitutionality of the “still in the books” sodomy statute.
 Although I think that the majority paints with too broad a brush, I think that “the Rabb rule” paints with an even broader brush in the opposite direction. In Rabb v. State, 730 S.W.2d 751, 752 (Tex.Crim.App. 1987), this Court stated:
Questions involving the constitutionality of a statute upon which a defendant’s conviction is based should be addressed by appellate courts, even when such issues are raised for the first time on appeal.
Id. That sentence is subject to considerable misunderstanding and misapplication. One might think that any statute applicable to a criminal prosecution could be challenged as facially invalid for the first time on appeal. Clearly, that is not so.
The correct statement, at least under federal law, is that a defendant may raise for the first time on appeal the constitutionality of the statute creating and defining the crime for which the defendant has been convicted. See note 9 infra; see also Anthony v. State, 209 S.W.3d 296, 304 (Tex.App.-Texarkana 2006, no pet.) (defendant could raise facial challenge to the city trespassing regulation for the first time on appeal because a “facial challenge claims that a statute is ‘invalid in toto — and therefore incapable of any valid application’”) (quoting Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)); Sullivan v. State, 986 S.W.2d 708, 711 (Tex.App.-Dallas 1999, no pet.) (defendant was not required to raise in trial court his constitutional challenge that the indecency-with-a-child statute was facially invalid and therefore void ab initio); Ravenbark v. State, 942 S.W.2d 711, 711 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (“The statute under which appellant was convicted was declared unconstitutional for vagueness in Long v. State, 931 S.W.2d 285, 297 (Tex.Crim.App. 1996). Appellant did not challenge the constitutionality of the statute in the trial court, nor did she raise the issue in her brief filed in this court …; nor has she filed an amended brief raising the issue following the decision in Long. This, however, does not amount to a waiver.… Accordingly, on this direct appeal from a conviction under a void statute, we hold the judgment is void.”).
On the other hand, unconstitutional procedural statutes or evidentiary rules do not affect the jurisdiction of the court, its authority, or its power to render a judgment. Therefore, the failure to object in the trial court waives any appellate claim. See Webb v. State, 899 S.W.2d 814, 817–19 (Tex.App.-Waco 1995, pet. ref’d) (noting that “because a statute criminalizing the defendant’s conduct is necessary to the jurisdiction of the convicting court, the Rabb rule is properly applied when the defendant challenges the constitutionality of the specific statute he is charged with violating.”; distinguishing that rule from a facial attack on the constitutionality of a statute relating to arrests as that statute does not go to the judicial power of the court to enter and enforce a judgment of conviction; holding that the usual rules concerning error preservation apply to such procedural statutes); Lasher v. State, 202 S.W.3d 292, 296 (Tex.App.-Waco 2006, pet. ref’d) (quoting and following Webb).
 Well over a century ago, the Supreme Court stated, “If the law which defines the offense and prescribes its punishment is void, the court was without jurisdiction and the prisoners must be discharged.” Ex parte Yarbrough (The Ku Klux Klan Cases), 110 U.S. 651, 654, 4 S.Ct. 152, 28 L.Ed. 274 (1884). Similarly, in Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1879), the Supreme Court held that if the law that defines a criminal offense is unconstitutional, then
it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.
Id. at 376–77. Justice Scalia repeated that basic proposition over a hundred years later: “[A] law repugnant to the Constitution ‘is void, and is as no law.’” Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 760, 115 S.Ct. 1745, 131 L.Ed.2d 820 (1995) (Scalia, J., concurring). The same is true in Texas. See Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim. App. 2001) (defendant is entitled to file for pretrial habeas relief when he alleges “that the statute under which he or she is prosecuted is unconstitutional on its face; consequently, there is no valid statute and the charging instrument is void”).
We do not put people in prison for non-crimes or for violating an unconstitutional penal statute, such as the now-defunct sodomy statute. Courts frequently delve deeply into the intricate distinctions between “void” laws, “voidable” laws, and a trial court’s jurisdiction, power, or authority over a “void” or unconstitutional law, but Justice Scalia has the proper laymen’s approach: just ignore it. 514 U.S. at 760, 115 S.Ct. 1745. An unconstitutional penal law has no force and no effect. Courts ignore or disregard it. According to Justice Scalia, “In fact, what a court does with regard to an unconstitutional law is simply to ignore it.” It decides the case “disregarding the [unconstitutional] law.” Id. (emphasis in original). And if the law defining a penal offense is facially unconstitutional, then no prosecution is valid, no conviction is valid, and no judgment is valid. All three may be ignored or disregarded. For example, the sodomy statute, TEX. PENAL CODE § 21.06, is still on the books some five years after Lawrence, but it is not and cannot be enforced.
 See Marin v. State, 851 S.W.2d 275, 279–80 (Tex.Crim.App. 1993) (“any party entitled to appeal is authorized to complain that an absolute requirement or prohibition was violated, and the merits of his complaint on appeal are not affected by the existence of a waiver or a forfeiture at trial”). Post-Marin Texas cases have assumed that conviction under a facially unconstitutional penal statute is a category one-fundamental and jurisdictional-right that cannot be waived. See Barnett v. State, 201 S.W.3d 231, 232–33 (Tex.App.-Fort Worth 2006, no pet.) (stating that “if the statute giving rise to a prosecution is unconstitutional, it is void from its inception, is no law, confers no rights, bestows no power on anyone, and justifies no act performed under it.… Requiring the defendant to preserve such a challenge in the court below on pain of waiver could result in a criminal conviction based upon an unconstitutional statute.”); Adams v. State, 222 S.W.3d 37, 53 (Tex.App.-Austin 2005, pet. ref’d) (“A facial constitutional challenge to the statute under which a defendant has been charged may be raised for the first time on appeal because the facial challenge affects the jurisdiction of the trial court to have entered a judgment.”); Long v. State, 903 S.W.2d 52, 54 (Tex.App.-Austin 1995) (addressing facial constitutional challenge to the anti-stalking statute even though defendant had not raised that issue in the trial court and holding that statute was not unconstitutionally vague), rev’d, 931 S.W.2d 285, 287 & n. 3 (Tex.Crim.App.1996) (reversing conviction and holding that statute was facially unconstitutional on vagueness grounds; noting, “Although appellant did not raise his constitutional challenge at trial, the Court of Appeals held it appropriate to address his facial attack on the statute for the first time on appeal. The State does not challenge that holding.”); See also, Herrera v. Commonwealth, 24 Va.App. 490, 483 S.E.2d 492, 493–95 (1997) (stating that “‘[a] court lacks jurisdiction to enter a criminal judgment if the judgment is predicated upon an unconstitutional or otherwise invalid statute or ordinance’”; defendant was not procedurally barred from relief on appeal even though he had not challenged facial unconstitutionality of statute in trial court; “Because the dispositive issue here is one of jurisdiction, we hold that its determination is not procedurally defaulted by [defendant’s] failure to raise it.”); Trushin v. State, 425 So.2d 1126, 1129–30 (Fla.1982) (even though defendant had not raised facial challenges to penal statute under which he was convicted in trial court, appellate court must “‘consider their merits because a conviction for the violation of a facially invalid statute would constitute fundamental error’”; “Only the constitutionality of the statute under which [defendant] was convicted was the kind of alleged error which must be considered for the first time on appeal because the arguments surrounding the statute’s validity raised a fundamental error.”).
 Williams v. State, 253 S.W.3d 673, 677 (Tex.Crim.App.2008) (“Because statutory interpretation is a question of law, this court conducts a de novo review.”); Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim.App.2004). As we explained in Moff,
Prior to our decision in Guzman …, abuse of discretion was the standard employed by our Court when reviewing a trial court’s decision to quash an indictment. But we did not have occasion to analyze its appropriateness. However, we now determine that a de novo review is more appropriate in a case such as the one before us. The amount of deference appellate courts afford a trial court’s rulings depends upon which “judicial actor” is better positioned to decide the issue.… The sufficiency of an indictment is a question of law. When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in a better position to make the determination, so appellate courts should conduct a de novo review of the issue. While this case is different from Guzman in that it involves the Appellee’s due process right to notice of the charges against him, our reasoning for modifying the standard of review is the same. The trial court’s decision in this case was based only on the indictment, the motion to quash, and the argument of counsel, so the trial court was in no better position than an appellate court to decide this issue.
Id. See also Staples v. United States, 511 U.S. 600, 612 n. 6, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (“the mens rea requirement under a criminal statute is a question of law, to be determined by the court”).
When it comes to factual findings, the trial court, not the appellate court, is in a better position to make the determination. As the Supreme Court explained in Anderson v. City of Bessemer, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985),
The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the Court has stated in a different context, the trial on the merits should be “the ‘main event’ … rather than a ‘tryout on the road.’”
Id. But when the appellate court is reviewing the facial validity of a statute defining the penal offense, it does not need a trial or evidence or facts. Review of the law itself, unencumbered with facts, is “the main event,” and appellate judges, at least in theory, are more experienced in resolving issues of pure law.
 See note 9, supra.
 Indeed, I do not think that an objection in the trial court is necessary to preserve an “as applied” challenge to the constitutionality of the penal statute upon which the defendant is convicted. As I have previously stated,
A defendant must make an “as applied” challenge to the constitutionality of a procedural statute in the trial court. That timely challenge gives the trial court an opportunity to decline to apply that procedural statute or make appropriate modifications to its operation. But the trial court can do nothing more or less than an appellate court when the defendant challenges the constitutionality of a penal statute under which he is prosecuted after all of the evidence is submitted and a jury has returned a guilty verdict. If the defendant prevails on his “as applied” constitutional claim, there will be no new trial. There is only one remedy for either the trial or appellate court: dismiss the indictment and enter an acquittal because the defendant was convicted under an unconstitutional application of an otherwise valid penal statute. The contemporaneous-objection rule, essential though it may be in most contexts, serves little purpose in a post-trial proceeding attacking the constitutionality of a penal statute as it was applied.
It is polite to give the trial judge the first crack at determining whether a penal statute was applied unconstitutionally to the defendant under a specific body of evidence, but the trial judge can do nothing to salvage its operation or correct its application. The purpose of the contemporaneous-objection rule is to provide both the trial judge and the opposing party an opportunity to avoid or correct potential errors and thus avoid a procedurally improper conviction and a subsequent retrial. That purpose is not served when, after the jury returns its verdict, the defendant challenges the constitutionality of a penal statute as it was applied. If the defendant is correct, the conviction disappears, and he cannot be held criminally liable. If the defendant is incorrect, the conviction stands.
Flores v. State, 245 S.W.3d 432, 443–44 (Tex. Crim.App.2008) (Cochran, J., concurring) (footnotes omitted).
 See Loredo v. State, 159 S.W.3d 920, 923 (Tex.Crim.App.2004) (“Preservation of error is not merely a technical procedural matter by which appellate courts seek to overrule points of error in a cursory manner. Fairness to all parties requires a party to advance his complaints at a time when there is an opportunity to respond or cure them.”); Maynard v. State, 685 S.W.2d 60, 65 (Tex.Crim.App. 1985) (noting that “the purpose of an objection [made at trial] is twofold: first, a specific objection is required to inform the trial judge of the basis of the objection and afford him or her an opportunity to rule on it; and second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony.”).
 Beall v. Ditmore, 867 S.W.2d 791, 793–94 (Tex.App.-El Paso 1993, writ denied); see generally, Young v. State, 826 S.W.2d 141, 149 (Tex.Crim.App. 1991) (Campbell, J., dissenting). In Young, Judge Campbell explained that there
are many rationales for this raise-or-waive rule: that it is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to the trial court; that fairness to all parties requires a litigant to advance his complaints at a time when there is an opportunity to respond to them or cure them; that reversing for error not raised in the trial court permits the losing party to second-guess its tactical decisions after they do not produce the desired result; and that there is something unseemly about telling a trial court it erred when it was never presented with the opportunity to be right. The princip[al] rationale for the rule, however, is judicial economy. If the losing side can obtain a reversal on a point not argued in the trial court, the parties and the public are put to the expense of a retrial that could have been avoided by better lawyering. Furthermore, if the issue had been timely raised in the trial court, it could have been resolved there, and the parties and the public would have been spared the expense of an appeal.
Id.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 (18.104.22.168) .)
I’ve had a report that prosecutors in Montgomery County want a defendant to plead guilty to online solicitation of a minor by communication under Section 33.021(b) of the Texas Penal Code (the “talking dirty to a minor” statute that was held unconstitutional a couple of weeks ago) and take two years in prison.
So what do they think will happen after the defendant pleads guilty and takes his time and comes back into court with a writ based on his lawyer’s ineffective assistance?
(Texas, not Maryland, in case you’re still wondering.)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 (22.214.171.124) .)
Here’s one of Dave Wilson’s campaign flyers:
Wilson, a white man, was running for the office of Houston Community College Trustee in a predominantly black district.
Here’s local TV station KHOU’s spin:
My initial reaction, when I saw the KHOU story (which didn’t show detail on the flyers on which the dispute was based) was meh. I think that “low-information” gets tossed around too much as a description of voters—we are all making voting decisions based on partial and false information—but if voters are going to choose their candidate based on race without considering their character, they’re going to get what they deserve.
After seeing the flyer (published by the Chronicle in connection with Lisa Falkenberg’s article this morning), my reaction is even more meh. Wilson concealed the color of his skin and won because of the content of his character. That’s as it should be. When voters choose a homophobic (from the Greek ????, same, + ?????, fear) “black” candidate over a tolerant black candidate, they deserve what they’re going to get.
To suggest that Wilson won because he led voters to believe he’s black is condescending and demeaning to those bigoted black voters who, even if they had known that Wilson was white, would have chosen a prejudiced white man over a black man tolerant of homosexuality.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 (126.96.36.199) .)
At Keith Lee’s Associate’s Mind he writes about impostor syndrome, which is
“a psychological phenomenon in which people are unable to internalize their accomplishments. Despite external evidence of their competence, those with the syndrome remain convinced that they are frauds and do not deserve the success they have achieved. Proof of success is dismissed as luck, timing, or as a result of deceiving others into thinking they are more intelligent and competent than they believe themselves to be.”
I have done enough psychodrama training, and talked to enough lawyers in truth-telling mode that I believe that, at least among successful male criminal-defense lawyers, “impostor syndrome” is the rule rather than the exception. (I don’t have an opinion on the impostor syndrome on the distaff side, nor in more boring fields of law.)
So much of what we criminal-defense lawyers achieve is objectively the result of luck—getting the right case with the right facts at the right time, drawing the right jury panel, finding the right piece of evidence—that much of what is described as “impostor syndrome” is accurate self-assessment. Even beyond that, though, successful men in criminal defense are, I believe, more likely to think of ourselves as lucky undiscovered frauds than as brilliant lawyers receiving our due.
This should be no great surprise; Dunning and Kruger would predict this result. And there are certainly exceptions, but the exceptions are those that Dunning and Kruger might predict: unskilled people who overestimate their own level of skill, rather than the more skilled who underestimate their own.
I see the tendency of skilled criminal-defense lawyers to privately consider themselves frauds a feature, rather than a bug. Because someone who secretly thinks he’s a fraud doesn’t want to be discovered,1 the lawyer who thinks he’s an undiscovered fraud doesn’t rest on his laurels, works hard, and actively hunts down and eliminates possible ways to fail—all behaviors that you want from your lawyer.
It’s not that we have something to prove, but that we have something to conceal. And as long as we’re concealing our lack of skill by acting as we would if we were highly skilled, we might as well be highly skilled.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 (188.8.131.52) .)
There is much advice available to young and aspiring lawyers on how to be a lawyer. The vast majority of it is written by:
a) People who are selling something—failed lawyers and charlatans using “free webinars” to sell vaporware; or
b) People who practice law, but have been doing so for so long that they aren’t in close touch with the world that new lawyers face, with stratospheric debt in a recessionary economy; or
c) People who can’t write for squat.
The problem with the crap advice that is readily available is that the person needing advice can’t necessarily tell the difference between the wheat and the chaff. How is the young-or-aspiring lawyer to sort out the bad or worthless career advice from the treasures of wisdom? I’m about to make it easy.
If you’re a young or aspiring lawyer, you must read this book: The Marble and the Sculptor: From Law School to Law Practice. If you are a recent law-school graduate, a law student, or contemplating law school, make this your first investment in your professional development. Even before you find a mentor, read this book. Mark it up with a red pencil with questions for the mentors you will eventually get.
It’s written by Keith Lee, of Associate’s Mind. Lee has none of the usual impediments to giving useful advice: he practices law; he hasn’t been doing it for so long that law school is a vague distant memory; and he writes well.
The form of the book is itself a lesson in being a lawyer. It’s not a nuts-and-bolts practical book, but an introduction to the philosophy of lawyering.
Like any good lawyer, and as he recommends in his chapter “On the Importance of Stealing,” Lee supplements his own thoughts on the subject with others’ ideas, and credits generously. Interspersed in a great deal of his original writing are Dan Hull’s Twelve Rules of Client Service, George Orwell’s Six Rules for Clear Writing, Winston Churchill’s Five Elements of Persuasive Speaking, among others.
Lee came to the practice of law with some experience in the wider world, and this shows in his wide-ranging curiosity and his exploration in the book of topics that are not directly related to the practice of law, such as martial arts, weightlifting (a meditation on Henry Rollins’s The Iron), and military history.
Unfortunately, he occasionally hits a clinker. In his chapter, “Every Word Matters,” Lee quotes at length from this blog post:
Consider the following:
(1) Sally hates Mary.
a. How likely is this because Sally is the kind of person who hates people?
b. How likely is this because Mary is the kind of person whom people hate?
Sally hates Mary doesn’t obviously supply the relevant information, but … numerous studies have found that people nonetheless rate (a) as more likely than (b). In contrast, people find Sally frightens Mary more indicative of Sally than of Mary (the equivalent of rating (b) higher than (a)). Sentences like Sally likes Mary are called “object-biased,” and sentences like Sally frightens Mary are called “subject-biased.” There are many of sentences of both types.
I’m not paying $40 for the article on which the blog post is based to prove it, but that could not possibly be right, because in both cases, according to the post, people are finding the sentence more indicative of the subject, Sally, than of the object, Mary—answer (a) to the “how likely” question.
From the abstract, it appears that when people read “Sally hates Mary,” with its mental (or state) verb, they should rate it more likely that Sally hates Mary because Mary is the kind of person people hate. In other words, (b) instead of (a); when they read “Sally frightens Mary,” with its behavioral (or action) verb, they should rate it more likely that Sally frightens Mary because Sally is the kind of person who frightens people. In other words, (a) instead of (b).
None of which weakens Lee’s point: every word matters.1 I just don’t think Lee meant the illustration to work on the deeper level that it does.
The book, too, works on a deeper level. Lee teaches not merely by words, but also by setting an example. In the writing of the book, he demonstrates deep thought about why we should do what we should, and he adapts what is useful, rejects what is useless, and adds what is specifically his own.
The young-or-aspiring lawyer who reads this book is not going to have everything she needs to be a lawyer. But she’s going to have been pointed in the right direction so that she can begin thinking, as Lee thinks and as we all should think, about a philosophy of the practice of law.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 (184.108.40.206) .)
Lee’s book is deserving of better copy editing than the ABA provided. ↩
Since Robb Fickman seems to have abandoned The “Meaning” of America, I asked for and received his permission to republish here his thoughts about Ken Anderson’s ten-day sentence for hiding exculpatory evidence to keep Michael Morton in prison for twenty-five years:
1. As has been repeatedly noted by John Raley and the Innocence Project, Anderson has never apologized to Michael Morton for Anderson’s conduct. He apologized for what the “system“did.
He has accepted no personal responsibility for his actions.
2. Anderson’s remorse has been for himself. That’s right, He testified and had the audacity to compare his going through The Court of Inquiry to Michael Morton’s 25 years in prison.
3. Anderson built a career while Michael served 25 years. The real killer stayed on the loose and he murdered a woman in Austin thanks to Anderson’s prosecution of an innocent man.
4. If any of our clients locked someone in a cage for 25 years what do you think the offer would be? Try life.
While historic & important, Anderson’s 10 days trivializes his abandonment of his duty and his crimes.
No DA will be deterred by this 10 day sentence. Hell, some of them would do 10 days to win a big case. The punishment does not fit the crime.
5. I understand empathy for Anderson’s family. I do not understand any of the empathy expressed for Anderson. He is embarrassed, upset, bothered? Who gives a shit. The sorry fucker robbed a fellow human being of 25 years and I am supposed to have empathy cause he hurts inside?
My empathy is for Michael Morton and his family. My empathy is for the Austin family that lost their relative to the same psycho that Murdered Michael’s wife.
I have no Empathy for Anderson. He was entrusted by the public to do justice.
He violated that public trust. He deliberately hid evidence.
Why????!? Why did he hide it???
To win a conviction, he hid the very evidence that would have helped establish the defense.
Who does that? A person without a conscience. The same kind of person who never apologizes. Anderson.
6. Kevin Fine and I defended an IAD cop once. He kidnapped a woman and held her for ransom for about 27 hours. He was caught. The woman was OK.
DAs offered him 45–50 years. He confessed three times. He pled guilty to a jury and expressed remorse. The DA held up our clients badge in argument and said, ” The worst criminals are those with badges.” The jury gave him 27 years. I think it was a year for every hour the woman had been kidnapped.
Michael Morton was kidnapped & locked in a cage by Anderson. Michael was locked in that cage for 219,000 hours. Using our jury’s math, Anderson’s sentence should be life in prison. Nothing less.
7. The legislature must make Anderson’s conduct punishable by serious pen time. And as in murder, there can be no statute of limitations.
The “Thing called Senator Huffman” will fight this. The Texas County and District Attorneys Association will fight it. But we must pass new laws. Until rogue prosecutors face the prospect of real punishment, they will not be deterred from abusing the good citizens of Texas.
Fuck Ken Anderson. Fuck Sebesta. Fuck any DA who would violate his ethical duties and the law to secure a conviction.
If Ken Anderson hadn’t cheated, the police might have looked beyond Michael Morton for Morton’s wife’s killer. If they had, they might have looked at Mark Norwood, Morton’s wife’s killer, before he murdered Debra Masters Baker in 1988.
Baker’s famliy gets to grieve her for the rest of their lives; Ken Anderson gets to retire with his full public pension.
The baseline loss of freedom for a prosecutor who conceals evidence to convict a factually innocent man should be the freedom that he stole from the defendant: here, twenty-five years; if there is a Hell, Ken Anderson will be there sooner than that.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 (220.127.116.11) .)
A reader suggested that I was a hero. I’m no hero. I’m more Kid Shilleen than Superman:
More Winston Wolf than Batman:
I’m the hired gun, the guy you call when you need a problem solved. It doesn’t matter to me whether you are good or evil, right or wrong, a sinner or an angel. None of that affects how I defend you. You should be glad of that.
I know “cause” lawyers. They often do more harm than good to their clients. I can’t fault their principles, except when those principles get in the way of the job. A jury trial might seem like more fun than a dismissal to the 18-year-old Occupier, but lose that trial and twenty years from now that soapbox is going to seem awfully small, and not worth passing on the dismissal.
Principles? Sure, I’ve got ‘em: freedom is better than safety; knowledge is better than ignorance; love is better than fear. ((I think I just said the same thing three different ways) If they’re trying to put you in a box and you have the coin to hire me, I’ll try to keep you out. If you don’t have the coin, I might do it anyway. I take a lot cases for free. But not because I have to. I take cases for free when doing so amuses me.
I didn’t take the case that got 33.021(b) tossed out for free.
I’m sure that the guy whose online-solicitation-of-a-minor case I won in the Court of Criminal Appeals last month would rather, all things considered, not have had his name attached to a free-speech case. He’d rather not have been charged in the first place.
He benefited from our fight—mostly Grant Scheiner’s and mine, with help from Sarah Wood, Brian Wice, and a formicating army of unpaid others. But he didn’t know when we began that it would help him (and neither did we lawyers).
He didn’t know, when we filed a notice of appeal, that it would help him (and neither did we).
He didn’t know, when we filed a petition for discretionary review with the Texas Court of Criminal Appeals, that it would help him (and we still didn’t either, though I was pretty sure).
Yet he stuck in there, never saying “make me a deal.” He let us do what we needed to do, and all along he paid the bills. As is true of many stories, the hero was not the guy out front but rather the guy in the background making it possible for the hero to do his job.
The real hero of the fight for free speech and against the Texas Online Solicitation of a Minor statute, then, is him, the guy who funded the effort and allowed the lawyers to fight for the First Amendment in his name. He didn’t set out to be a hero, but his actions may in the end free hundreds from prison and relieve more of the burdens of probation and of registering as sex offenders.
I say “may,” because there are significant hurdles to be overcome.
I see seven general categories of people who will be seeking relief:
- People in jail with cases pending: I expect that these will be dismissed promptly. In Harris County, at least, they already have been.
- People on bail with cases pending: I expect that these will be dismissed as they come up on the docket.
- People convicted at trial, with direct appeals pending: their appellate lawyers should be asking courts to permit additional briefing to address the unconstitutionality of 33.021(b). If their lawyers don’t do that, the Courts of Appeals should be asking for more briefing sua sponte. Karenev says that a defendatn can’t raise a challenge to the constitutionality of a statute for the first time on direct appeal; the solution (without overruling Karenev) is to hold that when a statute has already been declared unconstitutional the defendant is not “raising a facial challenge” to the statute. The challenge has been made elsewhere and decided; the defendant is just seeking to implement it.
- People on prison or on parole within a year of sentencing, within a year of the judgment becoming final: these defendants have a timing issue. The right to file a federal writ of habeas corpus expires one year after the conviction becomes final, but time when a state writ is pending does not count. So these defendants should consider getting counsel on their cases to file 11.07 writs as soon as possible, in order to preserve their rights to challenge their convictions in federal court. Since the Court of Criminal Appeals decides 11.07 writs, Karenev may be an obstacle to relief: if “a defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute,” also bars raising for the first time on habeas the already-decided unconstitutionality of a statute, we will have the nightmare situation I wrote about here.
- People in prison or on parole, more than a year after the judgment became final: These defendants will need 11.07 writs, but are not facing the same time pressure as those whose convictions became final within the last year. These 11.07 writs face the same obstacles as those for people whose federal writ clock has not run out.
- People on probation or already off probation, within a year after the judgment became final: like those with prison sentences and not-yet-final (for purposes of federal writ filing) sentences may want to file writs as soon as possible to preserve the possibility of the federal courts taking a second look. These writs, though, are 11.072 writs rather than 11.07. They are decided by the trial courts (and can be appealed to the intermediate courts and then to the Court of Criminal Appeals). They face the same Karenev issue as the 11.07 writs, but they will work their way through the lower courts before the Texas Court of Criminal Appeals decides the issue (most likely in an 11.07 case).
- On probation or already off probation, more than a year after the judgment became final: These defendants will also need 11.072 writs, but they don’t face the same time pressure as those whose convictions have been final for less than a year.
If the Court of Criminal Appeals rules in favor of someone on a writ of habeas corpus, everyone else will win. But if the Court of Criminal Appeals rules that Karenev requires people to stay in prison for something that isn’t a crime, though, only categories 3, 4, and 6 have the possibility of federal review. I am moderately confident that the federal courts, given a chance, will overrule Karenev. Getting there, if the Court of Criminal Appeals bites its thumb at people doing time for a non-crime, is the problem.
For that, we’re gonna need another hero.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 (18.104.22.168) .)
Dave was convicted in Houston five weeks ago of online solicitation of a minor by communication under Section 33.021(b) of the Texas Penal Code—the “talking dirty to a minor” statute—and sentenced to ten years in prison.
Dave’s trial lawyer, Fred, didn’t argue in the trial court that Section 33.021(b) was unconstitutional because that was a crazy idea.
Dave is sitting in prison.
Dave’s appellate lawyer, Al reads the case in which the Texas Court of Criminal Appeals held Section 33.021(b) unconstitutional. “Eureka,” says Al. He files a brief with a single point of error:
Dave’s conviction must be reversed because the statute under which he was prosecuted, Texas Penal Code Section 33.021(b), is unconstitutional.
He cites a single Court of Criminal Appeals case:
We conclude that Section 33.021(b) of the Texas Penal Code is overbroad because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse.
The State files a brief. It also cites a single Texas Court of Criminal Appeals case, Karenev v. State:
[A] defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute.
Since Dave’s trial lawyer didn’t raise it at trial, Dave loses in the court of appeals, which must follow Karenev.
Then Dave loses in the Court of Criminal Appeals because the court follows its own decisions generally, and besides three of the four judges who concurred (rather than joining in the majority’s reasoning) in Karenev have retired and been replaced by authoritarian stooges.1
Dave has been in prison for three years now for something that wasn’t a crime. Dave’s family has spent over a hundred thousand dollars on legal fees. Al files a petition for writ of certiorari with the United States Supreme Court. The Supreme Court is very busy. It denies certiorari. Al drinks himself to death.
But Dave is not done yet. Dave hears in prison about an 11.07 writ—a postconviction writ under Article 11.07 of the Texas Code of Criminal Procedure on behalf of a person sentenced to prison. His family hires Wilma to file the 11.07.
Wilma files the 11.07 as soon as the appeal is final, so that Dave’s time for filing a federal writ of habeas corpus (one year from the end of the direct appeal, less any time when the 11.07 is active) is preserved.
Wilma alleges in the writ that Dave’s conviction is void because the statute is void. But she knows about Ex Parte Jennings, in which the Fourteenth Court of Appeals held that, because the right to challenge the facial unconstitutionality of a statute was forfeitable, such a challenge cannot be raised for the first time on habeas.
So Wilma alleges, alternatively, that Fred was ineffective in forfeiting the right to challenge the facial unconstitutionality of the statute.
The 11.07 writ will be decided by the Texas Court of Criminal Appeals, but the trial court conducts hearings and makes recommendations.
The trial court recommends denying relief on the first claim (that the conviction is void because the statute is void) based on Jennings.
On the second claim, because of potential malpractice liability, Fred—concerned about his honor and his wallet—perjures to some bullshit strategic reason for not arguing that the statute was unconstitutional: “I thought about making that argument, but I discussed it with the client and we decided that it wasn’t worth the State withdrawing its generous plea offer.”
So the trial court recommends denying relief on the second claim as well.
The Court of Criminal Appeals denies relief.2
So Texas’s courts have effectively told Dave, “You were convicted of an unconstitutional statute. It should never have been the law. Serve your time, then get out and register as a sex offender for ten years. Live with it.”Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (22.214.171.124) .)
Here’s the first place this nightmare could end: the Court of Criminal Appeals could realize that Karenev is a monstrosity, and overrule it. Assume that it does not. ↩
Here is the second chance for this nightmare to end: The Court of Criminal Appeals could a) overrule Jennings and find that Karenev does not apply to habeas; b) find that Karenev does not apply to cases in which the unconstitutionality of the statute is already the law; or c) find Fred’s explanation for his failure to raise the claim insufficient. ↩
In Peeler v. Hughes and Luce the Texas Supreme Court held that a convicted criminal defendant’s crime is the sole proximate cause of any consequences of that crime, so that a criminal-defense lawyer cannot be sued for malpractice “without first establishing that she has been exonerated by direct appeal, post-conviction relief, or otherwise.”
Does “exonerated” in this context mean “proven innocent,” or just “unconvicted”? It must mean the latter because the lack of a criminal conviction is the lack of proof of guilt, so that a person whose conviction has been vacated is not as a matter of law barred from suing his lawyer.
So. 33.021(b). Held unconstitutional last week. A bunch of people are still in prison for violating it. More are on probation or parole, or have completed their probation or parole. All are required to register as sex offenders.
One theory under which all of those convictions under the unconstitutional statute might be vacated is that the trial lawyers who failed to argue that the statute was unconstitutional were ineffective.1
If a court finds, on habeas, that the trial lawyer was ineffective and vacates the client’s conviction, might the client successfully sue the trial lawyer for malpractice? If the lawyer’s performance was deficient and it harmed the client, what else needs to be proven to show negligence?
The statute of limitations for a legal-malpractice suit is two years, but the discovery rule might start the clock running only when the lawyer’s error became discoverable—October 30, 2013.
There are policy reasons, which I discuss here, for lawyers of exonerated clients not to be held liable for their clients’ convictions. If a client suffering the consequences of a 33.021(b) conviction is given the choice between being able to sue his lawyer for money on the one hand, and having his lawyer’s cooperation on the other, he ought to choose the latter. For while clients should be able to rely on their lawyers to tell the truth in habeas proceedings regardless of the financial stakes, the sad truth is that lawyers facing bankruptcy are more likely to “remember” things under oath that will preserve their assets at the cost of their clients’ freedom—“strategic” reasons for decisions that were in fact the product only of a lack of imagination.
A defendant should not have to prove his lawyer ineffective in order to get relief from his conviction for a void statute. But if he does have to, he also ought to be able to count on his lawyer to be candid about the reasons for not challenging the statute—candor that would be more likely if the lawyer had no financial stake in seeing the client remain a convict.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 (126.96.36.199) .)
Why might this argument be necessary? I’ll discuss that tomorrow. ↩
In a post notable only for its stupid title, Staci Zaretsky writes at Above the Law, Man Claims First Amendment Right To Take Pornographic ‘Upskirt’ Pictures.
Here’s the story to which she links: Lawyer Defends Client’s MBTA ‘Up-Skirt’ Photos, Claims They Should Be Protected by the First Amendment:
A lawyer representing an Andover man arrested in 2010 for allegedly taking photos up women’s skirts on the T argued this week that her client’s actions should be protected by the First Amendment.
The lawyer, Michelle Menken, argued:
A person expects that the area under their clothing is private and protected against hostile intrusion … but if a clothed person is out in public and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy.
On Twitter, UNC Professor Jessica Smith asked,
— Jessica Smith (@ProfJessieSmith) November 7, 2013
Which is a question on a par with Zaretsky’s title.
Certainly there are bounds to zealous advocacy, but Menken’s argument is nowhere near those bounds: she’s arguing that her client’s conduct is constitutionally protected. Smith would probably have said the same about my argument that sexually explicit talk to children is constitutionally protected, and we all know what happened with that argument.1
It sounds from the news article as though Menken is arguing that the statute is unconstitutional as applied to her client…
…construing the statute so broadly as to encompass photography of clothed people in public venues would render it unconstitutionally overbroad
…rather than unconstitutional as written, but the news article may be getting that wrong.
Conduct other than literal speech, such as photography, may be “speech.” Whether a person taking a photograph for his own personal use (rather than to share) is protected speech is an interesting question. Assume that Menken’s client’s photography was speech (otherwise the First Amendment doesn’t apply).
Here’s the Massachusetts statute:
Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 21/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.
The Supreme Court has never recognized either an “invasion of privacy” or a “lack of consent” exception to the presumption that speech is protected.
So Menken’s argument shouldn’t be, “my client’s photography is speech that should be protected by the First Amendment,” because people could certainly argue about whether it should be. Menken’s argument should, rather, be (and for all I know was):
- Photography is speech.
- The statute is a content-based restriction on speech (photographing squirrels is not a violation; photographing human buttocks is).
- A content-based restriction on speech is presumed to be unconstitutional.
- The Commonwealth must prove that the speech is constitutional.
- To do so, the Commonwealth must show that the speech forbidden by the statute fits into a historically recognized category of unprotected speech.
- The speech forbidden does not fit into any recognized category of historically unprotected speech.
The United States Supreme Court may some day recognize a historical “reasonable expectation of privacy” exception to free speech, and if it’s going to do so it seems to me that a nonconsensual photography case is as likely a place for it to do so as any (and a much more likely a place than nonconsensual publication of consensual photographs). But it hasn’t yet done so, and until it does the Massachusetts courts, if they follow the law, will be constrained to strike down the statute.
So not only is Menken nowhere near the out-of-bounds line for zealous advocacy, but she’s making an argument that every Massachusetts lawyer whose client is charged with violating this statute is ethically obligated to make: if the statute is eventually found unconstitutional, the lawyers who didn’t make the argument may have provided ineffective representation.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 (188.8.131.52) .)
If you don’t know because you’re a visitor from the future, the Texas Court of Criminal Appeals agreed with my argument and held the dirty-talk portion of Texas’s Online Solicitation of a Minor statute unconstitutional. ↩
This is a Pope to emulate. Bravo.Claudio Peri/EPA/Landov 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 (184.108.40.206) .)
At days like crazy paving, jaythenerdkid writes Ten things male feminists need to stop saying. She includes things like, “I’m really attracted to strong women”; “But I haven’t done any of those things!”; and so forth: all things that either sound like feminism only to men, or make the discussion about them, or both. In her comments she writes that male feminists who want to contribute to feminist discussions should “respectfully stay quiet until you are asked to speak,” which I think more than amply covers her other ten points.
I also have a single simple rule for male feminists that amply covers jay’s ten points:
Do not claim to be a feminist.
Don’t get me wrong: you might think you’re a feminist; if so, more power to you. But saying it doesn’t make it true, and no matter what you think of yourself, you’re not going to convince anyone by saying it.
As always when you want to persuade, show, don’t tell. If you are a man and you care whether people think you are a feminist, behave like a feminist. A man’s claim to be a feminist sounds like a protestation. It sounds like he’s trying too hard to be accepted, or to be liked, or to get laid. When you claim to be a feminist you’re likely to make a fool of yourself, as demonstrated by jay’s post. If you think there’s anything you can say that jay can’t use, if she chooses, to make you sound stupid, you’ve never been in a relationship with a woman.
Better yet, if you are a man and you care whether people think you are a feminist, stop caring about that. Care about equal rights, care about equal pay, care about glass ceilings and rape culture and misogyny and patriarchy. Just stop caring about whether your feminism is acceptable to women.
Treat people right, do what you can to make the world a better place—whatever that means to you—and don’t worry about what labels other people stick on you. I think jay sets a good example, again in the comments: “I couldn’t give less of a fuck about a man’s criticism of my feminism.” Why should any man care about a woman’s criticism of his feminism any more than jay cares care about his criticism of her feminism?
If you insist on trying to contribute to a feminist discussion,1 follow jay’s “don’t speak until asked” advice. If you want to help, shut up and listen.2 You’re not going to contribute in a positive way—you’re not going to make the world a better place—by calling yourself a feminist, nor by explaining what it is that makes you a feminist or why you are different than other men.
In the best-case scenario you won’t be asked to contribute. This will irk your male ego—we are creatures of action, who seek to fix things now—but this feminist discussion is, by definition, not about you. You’ll learn something by listening—maybe even something you can use to make the world a better place—and you won’t screw things up, make an idiot of yourself, or give jay ammunition for her next list of ten things male feminists shouldn’t say.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 (220.127.116.11) .)
What hellish dystopia is this? Without Eckert’s consent:
1. Eckert’s abdominal area was x-rayed; no narcotics were found.
2. Doctors then performed an exam of Eckert’s anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert’s anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert’s anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
5. Doctors penetrated Eckert’s anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
6. Doctors penetrated Eckert’s anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
7. Doctors then x-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert’s anus, rectum, colon, and large intestines. No narcotics were found.
It’s Emmette Flynn all over again. Robert Wilcox, M.D and Okay Odocha, M.D. ought to be reviled in the same breath as Michael LaPaglia. The ethical rule is clear: you don’t perform medical procedures on a competent patient who refuses consent. There is no Befehl ist Befehl exception.
And it’s not as if Wilcox and Odocha had to comply:
The lawsuit claims that Deming Police tried taking Eckert to an emergency room in Deming, but a doctor there refused to perform the anal cavity search citing it was “unethical.”
But physicians at the Gila Regional Medical Center in Silver City agreed to perform the procedure and a few hours later, Eckert was admitted.
What consequences did the doctor at the Deming emergency room suffer for telling the pigs to fuck off? None. What consequences would there have been had Wilcox and Odocha just said “no”? None.
The cops might skate, even though they were told that the search was unethical—they had a warrant, although their manner of executing it (time and place) appears not to have been strictly legal—and the doctors might not be disciplined by their fellow doctors, as Emmette Flynn was not disciplined by his, but to me this sounds like an eight-figure lawsuit against the doctors.
It probably wouldn’t be, if Wilcox and Odocha had assaulted Eckert in Texas. In Texas we have that conservative darling, tort reform, which limits a plaintiff’s recovery in a health care liability suit to $250,000. If Wilcox, Odocha, and Gila Regional Medical Center1 split that three ways, that’s less than $85k apiece…not chicken feed, but nowhere near an amount that would indelibly get the attention of every doctor in America who might otherwise consider violating medical ethics at government request.
Thanks for that, “conservatives.”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 (18.104.22.168) .)
Or their insurers—I’m hoping there’s an exclusion that will bankrupt the doctors. ↩
The easier a statute makes it to regulate undesirable speech, the less constitutional the statute. For example, Texas Penal Code Section 15.031, Criminal Solicitation of a Minor is more difficult for a prosecutor to prove than Section 33.021(c), Online Solicitation of a Minor because the former requires proof of the specific intent that a crime be committed, but the latter (in subsection (d)) dispenses with that requirement.
Given the choice between a statute that makes his job more difficult, and a statute that makes his job easier, a prosecutor will tend to choose the latter.
So, given the choice between a constitutional statute and an easier-to-prove-but-more-likely-unconstitutional statute a prosecutor will choose the latter. He will naturally choose “not having to prove specific intent” over “having to prove specific intent.”
If legislatures and prosecutors listened to me, the legislatures wouldn’t be writing unconstitutional statutes and the prosecutors wouldn’t be enforcing them. But I’m not going to change anyone’s mind by arguing with people who say things like, “Speech, by the mere virtue of being speech, does not receive First Amendment protection by default” and then get huffy when told that they are ignorant.
So instead of continuing to argue with political hacks like Mary Anne Franks about whether a statute that makes it easier than current law to publish revenge porn would be constitutional (it would not), from now on I will encourage the passage of such statutes without regard to their unconstitutionality. If it’s an option, prosecutors will prosecute people under these statutes, rather than under more-difficult-to-prove-but-more-likely-constitutional statutes, until at some point someone points out to the courts that the statutes are unconstitutional. Then the statute will be tossed out, along with the convictions of everyone prosecuted before the courts figured out that the statutes were unconstitutional. It’ll be too late then for the State to go back and prosecute everyone under the more-difficult-to-prove statutes.“But Mark,” you say, “What about the wrongdoers who your plan will in the end be set free because the legislature and the prosecutors couldn’t be bothered to read Stevens and Alvarez for themselves?“
That, friends and neighbors, is not my problem.