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When Tom DeLay was convicted, I was quick to write Tom Delay, Convicted Felon.
It’s fair that I be just as quick to note that today DeLay is not a convicted felon. He’s not even in jeopardy. He is an innocent man.1 The Austin Court of Appeals reversed and rendered the case, which means that the appellate court didn’t remand (send the case back for a new trial) but rather found DeLay not guilty. He could get the case expunged from governmental records if he cared to.
The State could try to appeal to the Court of Criminal Appeals, but that court of Republicans isn’t likely to grant discretionary review. So it’s likely all over for the State but the crying.
Brian Wice and Dick DeGuerin are responsible for the reversal—Dick tried the case, and Brian appealed 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 (184.108.40.206) .)
The presumption of innocence means you’re innocent until the government proves you guilty beyond a reasonable doubt. ↩
Ethical question: if you think that a judge might be corrupt, but that the corruption can never be detected or prosecuted, do you join in his corruption for the good of your clients? Or do you avoid it for the good of everyone else?
I am, you will not be surprised to learn, on judicial political campaign mailing lists. The 2014 political season is begining, and I have started receiving invitations to judges’ fundraisers. I’ve noticed something curious: the worst judges—narcissistic, ignorant, biased, and cruel—have the longest lists of “supporters” in the criminal-defense bar.
Now, why would that be?
It couldn’t be that all of the “supporters” think that a bad judge is fit for the bench. A few of them might, but most of the people listed are as critical as I am.
So if you don’t think a judge is fit for the bench, why lend your name—your most prized possession—to his campaign?
The alternative could be worse, but we’re early on in the political year, there are no declared alternatives yet, and if a judge is not fit for the bench then odds are that whatever alternative emerges will be better.
Could it be in the hope of getting an advantage in that judge’s court? Of the judge treating you a little better, listening to you a little more, making your clients’ lives a little easier?
I think it could. More than that, I think it is. Lawyers, respected in their community, allow judges to call them “supporters” for nothing more than the chance that their clients will somehow benefit.
There’s no explicit quid pro quo; there may be no quid pro quo at all. I don’t know that the judges in question in fact treat their “supporters” any better than their nonsupporters. But I think that we can agree that a judge should treat everyone equally well, and that trading support for better treatment would be corrupt, even if the corruption is unprosecutable.
So a slight variation on my original question: if you think that a judge might treat you (and by extension your clients) better if you lend your name to his campaign, is the correct action to lend your name to his campaign, or not to?I don’t think the answer is obvious. On the one hand, we have a duty to our clients, and that duty sometimes includes eliminating some personal reservations we might otherwise have to the course of action that is best for the client: you probably laugh at the judge’s jokes even when they aren’t funny. How is “supporting” the bad judge different from this?
On the other hand, that duty does not include eliminating all our personal reservations: you’re probably not going to perform oral sex on him in chambers to get a ruling favoring your client (unless that is otherwise your thing). How is “supporting” the bad judge different from that?Like laughing at bad jokes and pleasuring judges, “supporting” bad judges is not illegal. Every lawyer has to decide how much he can stomach. Is allowing the judge to use your name in his campaign materials more like laughing at his jokes, or fellating him?
The Fourth Court of Appeals (Texas’s San-Antonio-based intermediate appellate court) three weeks ago in Ex Parte Thompson held unconstitutional (pdf) the portion of Texas’s improper photography statute that outlawed taking photos of other people without their consent in places other than bathrooms and dressing rooms with the intent to arouse or gratify sexual desire.
This week a twelve-year-old girl was “convicted” (adjudicated delinquent) in juvenile court of improper photography in Harris County (Chronicle). To prosecutors and the complainant’s family the case was about “bullying.”
This week the Texas Court of Criminal appeals heard oral argument in a case involving the unconstitutionality of the sexually-explicit-communication portion Texas’s online-solicitation-of-a-minor statute.
This week the Fifth Court of Appeals (the Dallas-based intermediate appellate court) in Freeman v. State held the sexually-explicit-communication portion of Texas’s online-solicitation-of-a-minor statute constitutional (pdf).
The unconstitutionality of a statute as it is written (that is, without considering the facts of the case) can be challenged pretrial with a writ of habeas corpus. The reasoning for allowing this pretrial challenge is that a person should not have to face prosecution for an unconstitutional crime.
If the trial court denies the writ of habeas corpus, the defendant can appeal to the intermediate court of appeals. That’s how Thompson got to the Fourth Court of Appeals.
If the defendant loses in the intermediate court of appeals he can appeal to the Court of Criminal Appeals. That’s how the Court of Criminal Appeals got the case it heard this week.
If the State loses in the intermediate court of appeals it can appeal to the Court of Criminal Appeals. That’s where Thompson is probably headed next.
Instead of filing a writ of habeas corpus and appealing, the trial lawyer can steam ahead and try the case. That’s what happened in Freeman. Now Mr. Freeman can ask the Court of Criminal Appeals to review the Fifth Court of Appeals’ decision. But meanwhile Mr. Freeman has to register as a sex offender, and that status has been picked up and republished by various websites. So even if he keeps his case on appeal and the Court of Criminal Appeals holds the statute unconstitutional, he’s going to have a hard time clearing his name.
Until Texas’s online-solicitation, improper-photography, and online-impersonation statutes have been stricken by the Court of Criminal Appeals or upheld by the U.S. Supreme Court, every such case ought to be sent into pretrial appellate orbit. They are plainly violative of free speech.
A content-based restriction on speech is presumed unconstitutional. It is the State’s burden to show that the statute is constitutional. The standard of review is “strict scrutiny.” This is the highest level of constitutional scrutiny, the most difficult to satisfy. To satisfy strict scrutiny, a statute must be justified by a compelling state interest, must be narrowly tailored to accomplish that interest, and must be the least restrictive means for achieving that interest.
A restriction on speech is content-based if the legality of the speech depends on its content.
So how did the Fifth Court in Freeman justify upholding the online-solicitation statute? Simple: it ignored strict scrutiny and applied a lower standard by calling speech “conduct”:
A statute is impermissibly overbroad if it includes within its coverage speech or conduct protected by the First Amendment in addition to properly prohibiting activities that are not protected. Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). We hesitate to strike down a statute on its face because of the far-reaching effect, so we do so only “as a last resort.” New York v. Ferber, 458 U.S. 747, 769 (1982). We will not invalidate a statute for overbreadth merely because it is possible to imagine some unconstitutional application. In re Shaw, 204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d) (citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). The United States Supreme Court requires substantial overbreath before invalidating on its face a statute regulating conduct. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). The Supreme Court has recognized that, particularly when conduct and not merely speech is involved, the overbreadth of a statute must “not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. It is at the point of substantial overbreadth that the quantity of protected speech and conduct within the statute— “at best a prediction”—justifies invalidating a statute on its face. Id.
But the sexually-explicit-communication portion of the online-solicitation statute would regulate pure speech, not “conduct and not merely speech.” It doesn’t require an intent to commit any crime, but only to arouse or gratify—protected thought.
The Freeman opinion is non-sequitur laden, which is what it takes to uphold the statute in the face of a well-developed body of U.S. Supreme Court caselaw: dirty talk to kids, even with the intent to titillate (the speaker or the kids), short of obscenity or solicitation of a crime, is protected.
The Fifth Court wrote,
To paraphrase the Supreme Court, one would hardly be surprised to learn that communicating sexually explicit material to a child younger than seventeen years old is not an innocent act.
Good old common sense. One might not be surprised to learn that. The court may be surprised to learn that, innocent or not, it is protected by the First Amendment.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) .)
Paul Kennedy writes:
But when questions arose regarding who was eligible [for the DWI pretrial intervention program] and who wasn’t and what defendants would be required to do as a condition of their “probation,” there was no one around to answer them. No one was in charge. With Mr. Anderson out of the picture, no one wanted to step up and take any heat for unpopular decisions.
That’s ridiculous. Even when Mike Anderson was healthy, the person at the DA’s Office responsible for DWI pretrial intervention decisions was Belinda Hill.
Kennedy’s view of the DA’s Office as having a “a complete vacuum on the Sixth Floor” for the last four months doesn’t bear scrutiny. Business has been taken care of; when issues have been brought to First Assistant DA Belinda Hills’ attention, she has promptly dealt with them. I doubt that Kennedy has called Hill to ask for the DA’s Office’s answers to his questions.
Rumors have it that Gov. Goodhair has shopped the position [of interim Harris County District Attorney] to various folks who have been prominent in the Harris County criminal (in)justice system but that no one has expressed any desire in serving as the temp. It looks like Belinda Hill will get the nod by default.
Or maybe Harris County will get lucky and Belinda Hill will get the nod, instead of whoever the kleptocrats running the Harris County Republican Party choose, because she is the best candidate for the job. I challenge Kennedy to name a better candidate.
The incumbent, if he or she wins the Republican primary, will be the clear frontrunner in the 2014 election.1 And apparently some culture-war Republicans think that Hill can’t win a primary because she is “pro-choice.”
— Don (@DonPHooper) September 7, 2013
(Hooper appears to have deleted his tweet calling Hill a Democrat and suggesting that she, elected judge four times as a Republican, couldn’t win a Republican primary. Curious.)
I don’t know Hill’s feelings on abortion. As far as I can tell her “pro-choice” attitude was invented by people who don’t want her as DA for some other reason,2 , or perhaps who assume that a black woman is a pro-choice Democrat, but regardless, the DA’s job is not to make the law, and nobody who knows her would say that Hill will not enforce the law.3
But the culture-warrior Republicans think the DA’s Office should not investigate whether the allegations are founded.4 They want something done now, which is perfectly understandable, since they are already convinced, but which is a stupid reason to pass over the best candidate for the job.5
By default or for good reason, if Belinda Hill wants the job she should be running the Harris County DA’s Office.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) .)
The Republican will be the frontrunner in any case in the 2014 election—Democrats will put up a good fight in 2016, but the off-years still belong to the Republicans. ↩
Take your pick:
- She’s a woman.
- She’s black.
- She’s incorruptible.
- She’s smart.
The Karpen case that Hooper cites is a good example: if the allegations against Dr. Karpen are founded, I don’t know of any prosecutor in Texas who wouldn’t hammer him for murder. Anyone who thinks Hill would, because of her personal philosophy, throw the case is just plain nuts. ↩
First the execution, then the trial! ↩
Other names that have been mentioned include Ted Poe, who likes being a Congressman, and Joan Huffman, of whom one courthouse wag has truthfully said, “she’s evil, but at least she’s dumb.” ↩
Me, six years ago:
When we react with anger to someone else, we’re generally trying to teach them a lesson. A judge once told me that anger is usually the result of either a loss of control or a perceived loss of dignity; I think that he got it right. When we try to teach another person a lesson, we’re trying to show them that they can’t take away our control or dignity and get away with it.
President Obama, nine days ago:
This attack is an assault on human dignity.
Me, five years ago:
“I’ll show him!” That’s the retributive impulse in a nutshell, isn’t it? The desire, when someone angers us by making us feel a loss of control or a perceived loss of dignity, to regain control and dignity by “teaching him a lesson”?…
It drives prosecutors to put people in prison (hold them accountable! teach them a lesson!), it causes domestic assaults, and it results in road-rage incidents.
The President, nine days ago:
…I’m confident we can hold the Assad regime accountable for their use of chemical weapons….
Me, from the 2007 post:
What is road rage but an effort to teach the other guy a lesson? Driver A makes a mistake, and driver B feels a loss of control. So Driver B then flips driver A off, and driver A feels a loss of dignity. So Driver A brake-checks driver B, and Driver B feels a loss of both control and dignity. So Driver B runs Driver A off the road, and Driver A feels a loss of control and dignity as well. Soon someone is getting shot on the median and someone is getting charged with murder. These things tend to turn brutally expensive for everyone involved really quickly.
And that’s what the President wants to get us into in Syria. Except of course the consequences will be much more brutally expensive than any run-of-the-mill road rage.
All because his dignity got a little bruised.
Congress would do well to heed a little street wisdom:
Even if the odds are more even, though, being the aggressor in a road-rage incident is a bad idea. Unless you plan to stay in your car and shoot the guy who has deprived you of your precious dignity (a good way to get indicted), you’re either going to (A) damage your car while damaging his (explain that to your insurance company. and your wife); or (B) get out of your car and risk getting your stupid self run over (if you get out of your car, in my view the other driver should reasonably assume that you are carrying a gun and intending to use it on him). There is little upside to a road-rage incident. It’s much cheaper to swallow your pride and go home.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) .)
From the New York Times:
Hemisphere covers every call that passes through an AT&T switch — not just those made by AT&T customers — and includes calls dating back 26 years, according to Hemisphere training slides bearing the logo of the White House Office of National Drug Control Policy. Some four billion call records are added to the database every day, the slides say; technical specialists say a single call may generate more than one record. Unlike the N.S.A. data, the Hemisphere data includes information on the locations of callers.
There is nothing wrong with AT&T keeping these data. Nobody should expect AT&T to purge its records regularly.
The problem—the violation of our privacy, and therefore of our freedom1—arises when AT&T is required to provide these data to the government, or, as here, where AT&T provides these data to the government voluntarily.
“What’s that,” you ask, “voluntarily?” The NYT article says that the government queries AT&T’s records “using what are called ‘administrative subpoenas’; those issued not by a grand jury or a judge but by a federal agency, in this case the D.E.A.” And like AT&T’s spokesman says, “[W]e, like all other companies, must respond to valid subpoenas issued by law enforcement.”
But AT&T isn’t just responding to administrative subpoenas: AT&T employees are embedded in “High Intensity Drug-Trafficking Area” (HIDTA) units in Houston and elsewhere.
More importantly, AT&T, like any other company, does not have to respond to an “administrative subpoena.” An administrative subpoena is just a piece of paper; there are no consequences for ignoring it. The DEA cannot enforce its administrative subpoenas.
In the case of contumacy by or refusal to obey a subpena issued to any person, the Attorney General may invoke the aid of any court of the United States within the jurisdiction of which the investigation is carried on or of which the subpenaed person is an inhabitant, or in which he carries on business or may be found, to compel compliance with the subpoena. The court may issue an order requiring the subpenaed person to appear before the Attorney General to produce records, if so ordered, or to give testimony touching the matter under investigation. Any failure to obey the order of the court may be punished by the court as a contempt thereof. All process in any such case may be served in any judicial district in which such person may be found.
In other words, if you ignore a DEA “administrative subpoena” the government can ask a U.S. District Court in your judicial district to order you to do what the subpoena requests;3 only if you refuse to follow the court’s order can you be punished.
In still other words, compliance with a DEA administrative subpoena is strictly voluntary.
If AT&T—or any other company—had customers who valued their freedom4 enough to choose privacy over convenience, the company would refuse to comply with DEA’s administrative subpoenas, instead requiring the agency to get a court order for the production of records.
But most Americans don’t value their freedom beyond the the freedom to shop at Walmart. To most Americans, “freedom” is just a word, the spoonful of sugar that makes the authoritarianism go down.5 Despite the Bill of Rights’ long slide into irrelevancy the bulk of Americans know they’re free because Toby Keith told them so.
It may appear that more people are complaining more about lost freedoms now than in the past, but if they have a problem with government’s infringement on their freedom, it’s this particular government’s infringement; once a Republican is back in the White House, most of those who have come to the cause of freedom in the last five years will return to their previous comfortably complacent authoritarianism.6
After all, most people think that they have nothing to hide from the government—at least, their sort of government. And most people are probably right: they have no secret thoughts and no dangerous ideas. Everything they believe has already been published somewhere, else they would not believe it.
But this is a country built on secret thoughts and dangerous ideas, and even those who have neither might someday have children or grandchildren, and those progeny might have such thoughts and ideas. If they do, they will thank their ancestors for preserving their privacy or curse them for surrendering it.7
Future generations’ privacy and freedom, not to mention our own, is in the hands of people who post pictures of their children on Facebook. These are not people who would dump a phone provider8 for giving the government whatever it wants.
Knowing this, AT&T and the corporations that gather our data have no reason to do anything to impede the government’s access to that information.
So you see, it’s not that they “must,” but just that they “will.”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) .)
Because privacy = freedom. ↩
It irks me that non-lawyer writers, told what the law is by someone with an interest in the law being that way, rarely bother to fact-check that aspect of the story. “Inside baseball,” they’ll say, when in fact the lie about the law is sometimes the bigger story. The text of the law is available to everyone, and a legal interpretation is rarely more than a couple of phone calls away. ↩
Judicial review! ↩
As Sarah Palin says, “national security freedom.” ↩
And those who trust Obama with the reins of power will rediscover their inner libertarian. If everyone who would rather vote Libertarian than Democrat and everyone who would rather vote Libertarian than Republican voted Libertarian, there wouldn’t be a Republican or a Democrat to be found in any elected office. ↩
If they do not—if lacking the spark of liberty is strictly hereditary—then freedom is doomed anyway. ↩
Even if it would do any good. ↩
You may have seen this:
The NSA seal is protected by Public Law 86–36, which states that it is not permitted for “…any person to use the initials ‘NSA,’ the words ‘National Security Agency’ and the NSA seal without first acquiring written permission from the Director of NSA.”
It’s the statement the NSA sent The Daily Dot in response to a story about these t-shirts with the NSA logo being pulled from Zazzle:
Also, it’s utter nonsense.
Blustering legal threat letters annoy me, with their citations (meant to impress people who don’t read law) masking the shoddiness of the legal reasoning. One telltale of legal bluster is a cite to an uncodified statute—a “Public Law” or a bill—where the law has long since been codified. If you cite to a “Public Law,” you see, your readers are one step farther from being able to figure out what it is you’re talking about.
Never fear, law geek is here.
“Public Law 86–36″ was the National Security Act of 1959. Read it, with its subsequent amendments, here. Since we’re looking for the portion of the law dealing with “initials,” search for that word within the page and you’ll find this:
Sec. 15. (a) No person may, except with the written permission of the Director of the National Security Agency, knowingly use the words ‘National Security Agency’, the initials ‘NSA’, the seal of the National Security Agency, or any colorable imitation of such words, initials, or seal in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency.
Now that we’ve got the specific language (about which more later), let’s find it in the U.S. Code. I googled <us code “except with the written permission of the Director of the National Security Agency”>, and found 50 U.S.C. § 3613, which is really what the NSA should have cited had they not been trying to pull a fast one.
You see why the NSA’s quotation of the law is a lie: 50 USC 3613 does not use the language that NSA quoted to the Daily Dot.
The actual language of the statute has two significant restrictions that NSA doesn’t mention. A person cannot use the NSA initials, logo, or name:
a) “in connection with any merchandise, impersonation, solicitation, or commercial activity”; and
b) “in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency.”
If either of those two conditions is not satisfied, then the NSA initials, logo, and name can be freely used.
So this cryptome post, listing what it claims are legal and illegal uses of the NSA logo, is nonsense as well.
The NSA claims that it didn’t ask Zazzle to pull these t-shirts:
NSA has not sent a cease and desist letter to Zazzle since March 2011 regarding a mug they were selling using the NSA Seal. At any time that NSA is made aware that the NSA Seal is being used without our permission, we will take appropriate actions.
Zazzle, on the other hand, told the t-shirt producer:
We have been contacted by legal representatives from the National Security Agency, and at their request, have removed the product from the Zazzle Marketplace.
It’s hard to know whom to believe—is Zazzle ignorant of the law and afraid of NSA; is NSA (which has proven itself mendacious in this case) lying about when it last sent a cease-and-desist letter to Zazzle; are both bending the truth; or are both telling the truth? The last could be correct if NSA had informally contacted (i.e. no “cease and desist letter”) Zazzle and asked them to remove the t-shirts, and Zazzle had done so.
Whatever happened, this reflects poorly on Zazzle as well as on NSA. These t-shirts are not reasonably calculated to convey the impression that the NSA approves the use of the logo; the very idea is laughable. If Zazzle were interested in standing up for the free-speech rights of its customers, it would have told the NSA to go pound sand even upon receipt of a cease-and-desist letter.
Meanwhile, I’ve designed my own NSA t-shirts, which I’ll sell for $18 apiece plus shipping. I won’t be using a third-party vendor, so email me your requests (and cease-and-desist letters):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) .)
And mugs, and pajamas, and iPhone cases, and, and, and… ↩
This weekend a young cat abandoned her two newborn kittens under our house.
We are not cat people. Or at least, we are not stray–cat people. I have had pet cats, but I have no emotional attachment to stray cats, which are wild animals of an invasive species.1 Our neighborhood is overrun with the vermin, which slaughter the birdlife and shit in the flower beds. I have on many occasions trapped neighborhood strays and taken them to the pound. I have surely caused the deaths of several of those strays, but lost no sleep over it.
I know the theory: you shouldn’t euthanize strays but rather TNR—Trap, Neuter, and Release—because neutering the cats and returning them to the colony will result in the diminution of the colony over time. But I don’t believe it. Cat lovers in the Houston Heights trapped, neutered, and returned all the cats they could last year, and still we have cat teen moms ditching their unwanted children. TNR is failing in the Heights.
The theory behind TNR is that “whenever cats are removed, new cats move in, or the surviving cats left behind, breed to capacity.” My theory of why TNR isn’t working in the Heights is that cat lovers, by feeding cat colonies, increase the neighborhood’s capacity for cats beyond what nature has provided and what cat lovers can manage. The more food you put out, the more the unfixed cats will breed to fill that capacity. The greater the capacity, the more cats. The more cats, the more will get missed in the neutering efforts. The more unneutered cats, the more litters.
Stop feeding the cats, and they’ll reach a much smaller population equilibrium.2 Feed the cats, on the other hand, and you are ethically responsible for them. If you care about the cats (which, if you feed the cats, you probably do), then you are also obligated to TNR them.3
Feed the cats and fail to TNR them, and you are responsible for their offspring.
So. Two kittens, abandoned by young mama cat who had no idea what to do with them: nature did not intend that these survive. They’d have been easy pickings for the red-tailed hawks that we’re sometimes fortunate to see in the neighborhood. But instead of letting natural selection do its job, we boxed them up and took them to the cat lady down on the corner, one of several who feed the neighborhood strays. When we explained that our alternative was to leave the box on the curb and hope somebody would come pick it up, she complained about all the time and money she had spent on her cat colony, but grudgingly took the two rat-sized kittens off our hands.
And then, at about midnight,4 she rattled off a cross email to me, CC all of her friends:
I just want you to know I feel about the kitten incident. I am still sitting outside crying and unable to sleep. You took advantage of someone who obviously cannot let you “leave the kittens on the corner.” I feed the feral cats as one small part of all I can do. I trap them and get them fixed. I spend inordinate amounts of money on trying to help animals and my heart breaks everyday. It is pathetic that this city has 1.2 million stray dogs and god knows how many cats. … I spent the rest of my day taking the kittens to Sunset Blvd Animal Clinic, I made two trips to Petsmart to get what they needed, and my vet at Greenway Animal Clinic is going to get them into a rescue program tomorrow at my expense. They still had umbilical cords attached and had maggot eggs on them. I hope you can do something more responsible in the future and not thrust responsibility on people who can’t say no. Please contact [vet] at 713-xxx-xxxx at Greenway Animal Clinic if I am out of town or me at 713-xxx-xxxx or 713-xxx-xxxx if you find more kittens or the mother so we can do something since you obviously will not.
Thanks to Rule One, I have resisted responding to her, but things worked efficiently here: people who had little interest in the survival of these cats delivered them to someone who obviously had great interest in it.
As a result, the cats get a chance to live without passing on their mother’s defective kitten-abandoning genes. The cat lady gets whatever psychic value she so obviously finds in saving stray cats and, as a bonus unforeseen to me, gets to play the martyr among her friends.5 I get the cats out of my front yard, the pleasure of having saved a living thing,6 the satisfaction of having given the cat lady what she wanted,7 and a blog post.
I’m not saying this is the only or even the most efficient result: had a hawk or a raccoon snacked on the kittens, things would also have worked efficiently—better for the predator, worse for the kittens and cat lady—but I probably wouldn’t have gotten a blog post out of it.
Meanwhile, back in the federal courthouse…
Thanks to the sequester the government has cut funding for Federal Public Defenders’ Offices, resulting in layoffs, and cut the already-low rates paid private lawyers appointed to represent indigent people in federal court (Criminal Justice Act, or CJA rates).
The more rational solution would appear to be to cut back on prosecutions, since defense expenses follow prosecution expenses.
But the criminal-defense bar, like the cat lady, gets psychic value from doing what it does.8 Even though CJA rates were already below market rates for good lawyers, good lawyers took appointments in federal court because it provided other satisfactions, among them the pleasure of helping those whom God had forsaken, society’s strays.
I believe, as a matter of principle, in calling bluffs. Criminal-defense lawyers ought to quit the CJA panel en masse, because gutting the defense to preserve the prosecution is wrong, and because the only way for the lawyers to keep the government from cutting their pay and laying off PDs is by refusing to accept it. If the government wants to prosecute people, it must pay to defend them; if it’s not willing to do so it should be forced to forgo prosecution.
But that will never happen. Because of the fringe benefits,9 the government will get away with cutting CJA rates, and there will not be mass resignations from the CJA panel.
There are plenty of strays I can help without being appointed to help them, so I am resigning from the CJA list. But the CJA bar as a whole will not say “no” to continuing to help the strays despite the feeling that they are being treated unjustly.
Most of them won’t send alcohol-fueled midnight emails complaining about the injustice of being forced to do what they have chosen to do. Now that the government has gotten away with cutting CJA rates, it’ll do it every time the opportunity presents itself, and the lawyers have nobody to blame but themselves.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) .)
Maybe even one that doesn’t have me baiting the Havahart. ↩
When I get a cross email sent in the wee hours, I assume that alcohol was involved. ↩
Never underestimate the value of this in our narcissistic victimocratic society. ↩
A verminous living thing, granted, but still. ↩
Though she complains about it. ↩
My first thought when the cat lady complained about her money and time spent helping stray cats was, “what a waste.” But I probably spend more time and money helping stray human beings, and who knows: maybe cats are more worthy of saving than human beings. It’s easier to see results when you’re helping cats. ↩
As well as a lack of political will among criminal-defense lawyers. ↩
So today’s my birthday. And what better to do on my birthday than go to court. Representing a guy charged with a family-violence assault. Pro bono, because he’s in the Army.
Wait. Back up. A couple of weeks ago I go to court for this guy. And there’s an envelope in the State’s file. It doesn’t say “work product,” so I pull the papers out and start reading, without noticing the big “work product” header at the top of the first page. Reading the State’s work product is not something I would willfully do, but sometimes the Universe smiles on our clients, because this particular “work product” was, like the old joke1 goes, full of exculpatory and impeaching information.
This was an “FCLD” case—a case handled by the Family Criminal Law Division of the Harris County DA’s Office. FCLD handles cases in which the complainant2 in a family-violence case has recanted or is not cooperating with the State. I have represented many people against FCLD, and I don’t recall ever receiving notice of Brady information. Which, come to think of it, is odd because recantation would be Brady.
FCLD has “caseworkers” whose job appears to be to get recanting complainants back on the State’s team. And it seems that these caseworkers write reports on their interviews with the recanting complainants, and those files go in that work-product envelope, and I stumbled into one of them. I saw something in the notes of the interview about a “made-up” story. But once I get the gist a prosecutor points out that the document says “work product,” so I stop reading and put it away.
Today I file a motion asking the judge to review the State’s work product in camera and determine what portions of the file the State must produce under Brady. And the prosecutor suggests that instead I read the file and take notes.
So I fire up my laptop and start typing away. Ticka-ticka-ticka.
“You’re not taking verbatim notes, are you?“3
A minute later: “Why don’t you just read through it?”
“I need to take notes.”
“I think you’re taking verbatim notes.”
“I don’t really care what you think.” I wasn’t taking verbatim notes, though I probably should have been. Ticka-ticka— “I’ll tell you what, let’s just have the judge decide my motion.”
The judge took the judicial approach to my motion, avoiding either a decision or unnecessary work—instead of agreeing to review the work product in camera4 he advised the prosecutor that she should probably let me take my notes and not concern herself with how I was doing so—which is better for my client than an in camera review, if the lesson sticks.
Why did this prosecutor, who has been licensed all of two and a half years, need that lesson? Did someone from the Holmes generation tell her that she could keep me from taking verbatim notes from the file?
I’ve occasionally had doubts about the ethics of the Family Criminal Law Division of the DA’s Office—the division seems to attract true-believer prosecutors who have never seen a false allegation of family violence, and for whom the end might justify the means—but it never occurred to me before now that that FCLD might be actively teaching young lawyers to suppress Brady information.
A good prosecutor will bend over backwards to give the defense Brady information. A good prosecutor won’t put Brady material in the work product envelope in the first place. A good prosecutor will shoot a copy of the Brady information and give it to the defense counsel so that there’s no doubt that the prosecutor’s Constitutional duty is complied with.
A snake, by contrast, would do what she could to keep defense counsel from having an exact account of the exculpatory information.
Most prosecutors get a great deal of leeway from me, but snakes are dangerous, so they get treated differently than other lawyers. I’ll double-check an ethical prosecutor for honest mistakes; I’ll quadruple-check a suspected snake for cheating.
So that’s this prosecutor’s birthday present5 to me: early identification of a possible snake.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’s that envelope marked “work product” in the prosecutor’s file?” “That’s the Brady material.” Brady material is information that is exculpatory, is mitigatory, or would impeach a State witness. ↩
The “victim.” ↩
Remember the bad old days, during the Holmes administration, when the Harris County DA’s Office not only would not give defense lawyers copies of offense reports, but would try to keep them from taking verbatim notes from offense reports?
Then Rosenthal came along, and prosecutors had better things to worry about.
Then Lykos came along, and we got copies of offense reports, with things like driver’s license numbers and witnesses’ contact info redacted. Prosecutors still redacted from our copies things like our clients’ identifying information, (so we would have to go back and hand-copy all of the redacted information onto our copy of the offense report) but “you’re not taking verbatim notes, are you?” seemed like a relic of the past. So you can imagine the spike in my blood pressure. ↩
Latin for “in chambers”; refers to the judge reviewing documents without the parties’ presence. ↩
On her birthday too, coincidentally. ↩
“I hope our new DA will take corrective actions and remind his DAs to not participate in these long-standing ex parte dialogues.”
–Robb Fickman, commenting here, January 19, 2013.
From: Hill, Belinda
Sent: Tuesday, August 13, 2013 11:57 AM
To: All Prosecutors
Subject: Ex Parte Communications
Recently, we have received some complaints from the defense bar about improper ex parte communications occurring between prosecutors and judges. Whether these complaints are true or not, this is a good opportunity to remind you of the rules governing ex parte communications with the courts in which you practice.
Don’t do it. Don’t do it. Don’t do it.
Scott Durfee prepared a memo listing all the reasons why we should not engage in ANY ex parte communication with the judge.
· It may be a crime. Section 36.04 of the Penal Code provides:
A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law.
For purposes of this section, “adjudicatory proceeding” means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.
· It may be professional misconduct. Texas Disciplinary Rule of Professional Conduct 3.05 provides:
A lawyer shall not:
(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;
(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:
(1) in the course of official proceedings in the cause;
(2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;
(3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
· It may result in office discipline. Section 10.4(c) of the Operations Manual forbids prosecutors from communicating with the judges of the various courts, either directly or indirectly, concerning the merits of a pending case unless such communications are “expressly authorized by law.”
Here are some practice tips to avoid trouble:
1. Be disciplined in how you communicate with the judge. It can be very easy to rationalize a brief one-on-one discussion about a particular case with the judge as clarification of an issue to facilitate a settlement, a “heads up” about some piece of evidence or testimony that will be offered later, an informal request for a continuance or notice about a missing witness, a request for advance notice of the order of trials, an advance discussion of what kind of sentence the judge will impose on a plea without an agreed recommendation, or some similar “harmless” discussion about a minor issue in the case. It might take place at the bench while you’re waiting for the other side’s lawyer to arrive, it might be your peeking your head into the judge’s office to say a few words before docket call, it might be a short e-mail to the judge. The discussion may even be initiated by the judge and you may worry that not answering the judge’s question will be considered rude.
Don’t indulge in such rationalizations. The State Bar will not, and your supervisors won’t either.
2. Don’t ask the judge for advice on how to try your case. There is no question that our judges, having tried or presided over many cases, have much wisdom to impart to you about how a case should be tried. Often, because you are the “home team” assigned to the court, a judge really wants you to know how well (or how badly) you are handling a trial and why. If this advice is offered while the case is pending, politely decline this mentoring opportunity. If you want the judge’s take on your case, ask him or her after the case is over (assuming that the case is not on appeal and subject to remand).
3. Wait for the opposing lawyer. If the case is on the morning docket and you want to get a ruling on a pending motion, but the defense attorney is late to court, neither you nor the court should penalize the attorney by proceeding on the merits of the motion in his or her absence. If you or the judge are frustrated with the attorney’s lateness, there are specific sanctions you can pursue to address that problem, but depriving the defendant of an advocate should not be one of them.
4. Document your notice to the opposing counsel. A certificate of service on your motions should be specific as to time, date, and the manner of service. This may be your only evidence in rebuttal to a claim that you improperly communicated with the court without notice to the defense, so it needs to be definitive.
5. Do not use the court staff as a back door to the judge. When you are communicating with the court coordinator, avoid asking the coordinator to get something done that you could not ask the court to do without the other side being present. This can include requesting issuance of orders for bench warrants or attachments, trial continuances, and bond revocations.
6. Ex parte communications on “procedural” matters may still be improper. For example, if a court order is necessary to obtain certain records during the discovery phase of the case, you can’t simply approach the bench and present the motion and order without noticing the other side and giving them an opportunity to be heard. You may correctly think that the other side has no reason to oppose the order, but make no mistake: you are asking the judge to exercise his or her discretion to issue an order and the other side should know what you’re doing.
7. Apply the Golden Rule. Obviously, not every communication with the court is going to be an ex parte communication: we are allowed to talk to our judiciary about matters that would not have any influence on a pending matter. In figuring out whether a particular communication may be improper, ask yourself, “How would I feel if a defense attorney had this conversation with the judge or his staff outside of my presence?” From that perspective, the answer is usually pretty obvious.
This is a change to the way things have been done in the Harris County Criminal Courthouse for longer than I’ve been practicing there, and probably for as long as there has been a Harris County District Attorney’s Office. Belinda Hill (the First Assistant District Attorney) and Scott Durfee (Chief of the General Litigation Division of the Office of the General Counsel of the District Attorney’s Office) are to be commended for taking a strong and clear position against “ANY” ex parte communications with a judge.
Hill’s email and Durfee’s memo were prompted by this letter from HCCLA President Todd Dupont to Hill:
Dear Judge Hill:
Recently the leadership of the Harris County Criminal Lawyers Association has received several complaints about ex parte communications between Harris County judges and Assistant District Attorneys.
Often these communications are about scheduling matters. HCCLA members complain about prosecutors and judges discussing which trials will go on Monday versus which will not. The prosecutor gains a unique advantage in these communications because he or she may properly prepare for certain trials while effectively ignoring last-minute trial preparation in other cases. The defense attorney then spends countless hours preparing over the weekend for a trial that everyone (judge, court staff, and prosecutor) knows is not actually going to be tried but rather rescheduled. It has been reported that a defense lawyer had expressed an intent to file a motion for continuance to the prosecutor who then “presented” this fact before the court during a “scheduling conference” wherein the judge denied the motion while discussing the case scheduling with the prosecutor ex parte.
There are also examples of more substantive ex parte communications between prosecutors and judges. It is not at all uncommon for prosecutors to get expert designation orders and other orders signed ex parte. One felony judge is known to give suggestions in the back hallway to “his” chief prosecutor on how subordinate prosecutors can do better in ongoing trials.
For as long as any of us have practiced there have been improper ex parte communications between bench and bar in Harris County. HCCLA’s interest is not in punishing these past transgressions, but in ending the practice. To that end, we write to seek your help in changing this culture.
Many of our members and board members are former Harris County prosecutors; we are not unmindful of the pressure on prosecutors not to rock the boat with judges before whom they appear every day. HCCLA will do its part to educate the bench and discourage it from seeking ex parte communications. Likewise, HCCLA’s leadership will discourage the defense bar as needed to delegitimize ex parte communications from either side.
We ask that you educate the prosecutors in your office, and discourage them from talking about cases with judges without the defense present, even where that conversation is about the scheduling or priority of trial cases.
There are three parts to the problem of ex parte communications between prosecutors and judges:
1. Prosecutors who don’t know, don’t care, aren’t motivated, or are reluctant (for fear of offending the judges) to avoid ex parte communications with judges.
3. Defense lawyers who engage in improper ex parte contact with judges, leading the judges to think that ex parte contact is okay.
Thanks to Dupont and Hill’s communications, the first and third parts are taken care of.
Now we just have to bring the judges—some of whom consider the prosecutors assigned to their courts “their” prosecutors—on board.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) .)