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2015.59: Revenge Porn Statutes and Confidentiality

Mark's Blog: Defending People - Sun, 05/24/2015 - 19:26

If I were to write a penal statute that was a content-based restriction on speech, I would come prepared with an explanation of how the statute passed constitutional muster, since such restrictions are presumptively invalid.

The proponents of revenge-porn-criminalization statutes never have picked a constitutional justification for their statutes. Instead they have, in post after article after column, thrown a bunch of possible justifications at the wall, hoping that something will stick.

When I visited the topic in January, Danielle Citron had written an article on Forbes.com entitled “Debunking the First Amendment Myths Surrounding Revenge Porn Laws.” In it she threw a couple of theories against the wall: “disclosing private communications about purely private matters” and “confidentiality.”

In a lengthy post fisking Citron, I wrote “Since maybe three people will have gotten this far in this post, I will give more thought to a breach-of-confidence revenge-porn-criminalization statute and write a post on that.”

Now Citron has made another run at it, highlighting confidentiality. So I guess it’s time to write a post on that.

“Breach of confidentiality” is not a category of speech that the Supreme Court has recognized as unprotected. Citron hangs her confidentiality hat on Cohen v. Cowles Media, in which the issue was whether the First Amendment barred damages against a newspaper for a violation of its promise of confidentiality (spoiler: it did not).

Cohen is a civil case; those who would criminalize speech like to pretend that the rules applicable in civil cases also apply in criminal cases. This is untrue. Even in civil cases, the rules are different depending on whether there is money at stake, or a prior restraint. In civil cases, there are no as-written attacks on statutes, but the civil proceeding most similar to an as-written attack on a statute is an attack on a prior restraint: when the legislature passes a content-based restriction on speech, the effect is the same as that of a court issuing a prior restraint on speech, except much broader.

And as Justice Brennan wrote in his concurrence to Nebraska Press Association v. Stuart:

[T]here is effectively an absolute prohibition of prior restraints of publication of Any material otherwise covered within the meaning of the free press guarantee of the First Amendment.

While there is no absolute prohibition of content-based penal restrictions on speech, such restrictions are presumed to be invalid and subjected to strict scrutiny. Civil judgments in cases between private parties—as in Cohen v. Cowles—are not subject to such scrutiny.

Of Cohen, Citron writes, “Breaches of confidentiality have no First Amendment salience.” I would go further: breaches of confidentiality have no First Amendment relevance. Cohen is a red herring. It did not find a “breach of confidentiality” exception to the First Amendment. Rather, Cohen was decided on the unexceptional principle that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”

Citron writes:

We can contract around the First Amendment. That is why we can criminalize breaches of confidentiality related to health data (HIPAA), federal agency records (the Privacy Act of 1974), and nude images.

So what about HIPAA?  What about the Privacy Act?

42 USC § 1320 d-6 criminalizes the wrongful disclosure of individually identifiable health information. 5 USC § 552a criminalizes the prohibited disclosure of individually identifiable information by an officer or employee of an agency. It’s an interesting question whether either content-based restriction on speech passes constitutional muster; neither has been tested yet. So saying that we can criminalize breaches of confidentiality related to nude images for the same reason that we can criminalize breaches of confidentiality related to other things begs the question.

And that—Cohen, HIPAA, Privacy Act—is the full extent of Citron’s confidentiality argument. An irrelevant case and two untested statutes.

If the government wrote a penal statute of general applicability forbidding all breaches of confidentiality regardless of content, revenge porn could be punished under that statute. The statute would not be subjected to strict scrutiny under the First Amendment because it would not be content-based.

But revenge-porn statutes are by definition content-based. Citron’s proposed “criminal law [that] would apply only to publication of nude images in circumstances where the perpetrator and the victim had an implicit or explicit understanding that the image would be kept confidential” would be a content-based (“nude images”) restriction on speech, and therefore presumptively invalid.

The government has the burden of showing how a content-based restriction on speech is constitutional. To do so it must show that there is not a real and substantial set of potential unconstitutional applications of the statute—that is, applications to protected speech.

The Supreme Court has listed the narrow categories of speech that it recognizes as unprotected:

  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. Obscenity;
  3. Defamation;
  4. Speech integral to criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

“Violations of privacy” are not a category of unprotected speech.

“Intentional infliction of emotional distress” is not a category of unprotected speech.

“Breaches of confidence” is not a category of unprotected speech.

Eugene Volokh’s suggestion that nudity posted without consent constitutes obscenity is “fascinating” only because it’s a dumb idea from a smart guy. No revenge-porn criminalization statute I’ve seen includes the elements of obscenity, but if revenge porn were obscene then current obscenity statutes could be used to deal with it.

Some revenge porn might incidentally fall into a category of unprotected speech—might be obscene, might be child pornography, might be defamatory—but revenge porn qua revenge porn fits into no category of unprotected speech, and so is protected.

Citron writes, “What about the argument that statutes proscribing the unauthorized publication of nude photos require an intent to harm? The ACLU has argued that revenge porn laws should only punish intentional, malicious privacy invaders.” Citron herself has taken this position:

Revenge porn laws should also make clear that to win a conviction, prosecutors must show that the poster of the revenge porn intended to do harm.

So it’s interesting that Citron now attributes that position to the ACLU, without copping to it herself.

Shame on the ACLU, by the way, for taking that position.

2015.58: New Jersey’s Revenge-Porn Statute

Mark's Blog: Defending People - Wed, 05/20/2015 - 21:17

c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

That’s New Jersey Statute 2C:14-9(c). It’s unconstitutional as hell, it has been the law since 2004, and there are no appellate decisions interpreting it.

Have Gun, Will Travel Business Card

I’m just sayin’.

2015.57: 170 in Waco

Mark's Blog: Defending People - Wed, 05/20/2015 - 21:10

More than one hundred seventy bikers are in jail in Waco on charges arising out of the Twin Peaks melee that killed nine. According to the LA Times article, in McLennan County, “there are just 100 [lawyers on the court-appointed list] and many of them do not do the kind of felony proceedings that have stemmed from Sunday’s violence.”

Each defendant has bail (not “bond”) set at $1 million at the moment; they have a constitutional (under the Texas Constitution) right to “reasonable” bail, so as they get lawyers and those lawyers file applications for writs of habeas corpus, the bail amounts will take a nosedive. In Texas (contra Las Vegas lawyer Draskovich, quoted by the LA Times) a murder doesn’t merit a million-dollar bail. In Harris County, for example, the standard bail for murder is $30,000. A person can be held without bail for capital murder, but only if the State jumps through some procedural hoops within seven days of the arrest and proves at a hearing that the proof of the crime is “evident.” Because there are very few bonding companies that can make a million-dollar bond (none in Houston, unless the defendant puts up a million dollars of collateral), a million dollars might as well be no bail.

Every biker charged in Waco will require a separate lawyer. Conflicts of interest bar one ethical lawyer from representing two defendants unless each defendant, advised by separate conflict counsel, waives the conflict. This is not to say that there are not unethical lawyers who will represent multiple defendants, but the courts can’t very well appoint conflicted counsel. So for each defendant who remains in jail (and is presumptively indigent), the courts will likely need a lawyer. I would guess that there are fewer than 25 court-appointed lawyers competent to handle a murder case in McLennan County, which leaves a huge gap.

Even those who bail out are likely to need court-appointed counsel: while the clubs probably have war chests, I doubt that they have the millions (a meager $50,000 per case times 170 cases equals $8.5 million) needed to defend everyone.

This is a fascinating situation. If the bikers (who see themselves as outlaws) stick together and reject cooperation with the law, they can gum up the McLennan County criminal-justice system for years to come.

That’s not likely to be allowed, though, because the trains must run on time. My early prediction: once the investigation is mostly complete, a move to federal court (charges could include ViCAR) for the defendants against whom the evidence lies heaviest, and dismissals or sweetheart pleas for the rest.

2015.56: HB2777 Is Unconstitutional

Mark's Blog: Defending People - Tue, 04/28/2015 - 10:56

House Bill 2777 (Herrero) purports to provide trial courts with broad authority to admit evidence of prior bad acts for the purpose of showing action in conformity therewith in many cases.

The statute would add an article 38.371, which would state, in pertinent part, that:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(3) the character of the defendant and acts performed in conformity with the character of the defendant.

House Bill 2777 is a derivative of the Huffman Special, article 38.37 of the Texas Code of Criminal Procedure, and like article 38.37 it violates due process.

Article 38.37 purports to allow the admission of character-conformity evidence in cases involving alleged sex offenses against children. Abel Herrero’s article 38.371 would broaden the rule to apply to offenses against family members, complainants in dating relationships, people formerly in dating relationships, complainants who are or were in dating relationships with people with whom defendants are or were in dating relationships, and people living together. This is a solution looking for a problem. What’s more, it’s unconstitutional.

Admission of evidence for the purpose of demonstrating general character propensity violates due process.

Texas Rule of Evidence 404(b)(1) prohibits admission of “Evidence of a crime, wrong, or other act … to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” House Bill 2777 purports to abrogate this rule in certain cases.

But even aside from Rule 404(b)(1), the admission of evidence to show the character of the defendant as proof of his conformity with that character violates the defendant’s right to due course of law under the Texas Constitution and due process under the United States Constitution. Admission of such evidence also violates the defendant’s right to trial by an impartial jury, his right to be informed of the nature and cause of accusations against him, his right to effective assistance of counsel, his right to be presumed innocent until proven guilty, and other rights guaranteed to him under established principles of law.

The existence of due process rights can be established by showing a settled historical usage in the United States and in England. In order to determine whether a particular right constitutes a portion of the “due process” accorded to a party, the Supreme Court of the United States has long held that historical precedent ought to be the principal guide. Murray v. Hoboken Land & Improvement Co., 59 U.S. 272, 276-7 (1856). The Court reaffirmed this principle in Hurtado v. California, 116 U.S. 516, 528 (1884), observing that if due process protections are to be any restraint whatsoever on legislative power, they must be understood to go beyond the current law of the land as embodied in statute.

A legal process, according to the Court, “must be taken to be due process of law, if it can show the sanction of settled usage in England and in this country.” Id. Much more recently, the Court has rearticulated the boundaries of due process rights as the “fundamental conceptions of justice which lie at the base of our civil and political institutions.” Dowling v. United States, 493 U.S. 342, 353 (1990). Here the Court cautions against judicial creation of new due process rights, but holds to the principle that historically-established rights should be respected.

Exclusion of Character-Propensity Evidence in History

The inadmissibility of character-propensity evidence is a long-settled rule in the common law of the United States and England. Thus, this principle bears the required ‘sanction of settled usage’ for consideration as a due process right.

In Pre-1776 England

Disfavor of character-propensity evidence is expressed in the common law of England over 300 years ago. In Hampden’s Trial (King’s Bench, 1684), Lord Chief Justice Withins discusses the exclusion of evidence of prior forgeries in a prosecution for forgery. In Harrison’s Trial (King’s Bench, 1692), Lord Chief Justice Holt famously interrupted the examination of a witness when propensity evidence was offered, exclaiming “Hold! Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.”

In Pre-Revolutionary America

Inadmissibility of propensity evidence was established early in the history of American jurisprudence. For instance, prior to the American Revolution, a Massachusetts court held that evidence of prior “bawdy” behavior at a residence was inadmissible in the defendant’s current prosecution for operating a house of ill repute. Rex v. Doaks, Quincy’s Mass. Reports 90 (Mass. Super. Ct. 1763).

In Post-Revolutionary America

The principle that character-propensity evidence must be excluded has been repeatedly recognized by U.S. courts throughout the country’s history. In Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), the defendants were charged with murder following an attempt to rob, and the prosecution introduced evidence that the defendants had committed other robberies before the one involved in the crime charged. The Court, in an opinion by the first Mr. Justice Harlan, held the evidence of other crimes inadmissible: “Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death.” 142 U.S., at 458, 12 S.Ct., at 295. The opinion reaffirmed the principle that “[h]owever depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence and only for the offense charged.” Id.

In Brinegar v. United States, 338 U.S. 160, 174 (1949), the Supreme Court ruled in a whiskey smuggling case that evidence of prior similar acts was inadmissible. In so deciding, the Court noted that the standards it was applying were “historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty, and property.” The Court went further in Michelson v. United States, 335 U.S. 469, 475 (1948), observing that “courts that follow the common law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish the probability of his guilt…. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.”

In an opinion dissenting in part and concurring in part in Spencer, Chief Justice Warren noted that our jurisprudence indicates that character propensity evidence is offensive to due process:

While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause. Evidence of prior convictions has been forbidden because it jeopardizes the presumption of innocence of the crime currently charged. A jury might punish an accused for being guilty of a previous offense, or feel that incarceration is justified because the accused is a ‘bad man,’ without regard to his guilt of the crime currently charged.

Spencer v. Texas, 385 U.S. 554, 573-575, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (Warren, C.J., dissenting in part and concurring in part) (footnotes omitted).

Several United States courts have specifically held that admitting character-propensity evidence in a criminal trial can violate the defendant’s right to due process. After detailed analysis of the historical grounding of the right at issue, the Ninth Circuit Court of Appeals ruled in McKinney v. Rees, 993 F.2d 1378, 1385 (9th Circ. 1993) that the introduction of character-propensity evidence had rendered the defendant’s trial fundamentally unfair in violation of his due process rights. The First and Fourth Circuits have also characterized the rule prohibiting character propensity evidence as constitutional in dimension. See United States v. Ferrer-Cruz, 899 F.2d 135, 143 (1st Cir. Puerto Rico 1990) (“The prohibition against the introduction of “[e]vidence of other crimes … to prove the character of a person in order to show action in conformity therewith,” [is] mandated by Fed. R. Evid. 404(b) as well as due process …”); Lovely v. United States, 169 F.2d 386, 389 (4th Cir.1948) (“The rule which thus forbids the introduction of evidence of other offenses having no reasonable tendency to prove the crime charged, except in so far as they may establish a criminal tendency on the part of the accused, is not a mere technical rule of law. It arises out of the fundamental demand for justice and fairness which lies at the basis of our jurisprudence.”). Dissenting in Estelle v. McGuire, 502 U.S. 62, 79 (1991), Justice O’Connor reasoned that if introduction of propensity evidence served to relieve the prosecution of its proper burden to prove all elements of the offense beyond a reasonable doubt, then the introduction of such evidence must violate the due process clause of the Fourteenth Amendment.

Two circuits have held that due process is implicated by the admission of other crimes evidence, for purposes other than to show conduct in conformity therewith, in the absence of a limiting instruction. See Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir.1981) (holding that it violated due process for the jury to hear “repeated references to the defendant’s criminal past without any limiting instruction to relate this evidence only to the firearm violation and to disregard it altogether in considering the murder count”); Murray v. Superintendent, Ky. State Penitentiary, 651 F.2d 451, 453 (6th Cir.1981) (noting that the Sixth Circuit has held that “[t]he logical converse of [Spencer] is that it is unfair and violative of due process if evidence of other crimes is admitted without a limiting instruction”). The clear import of these cases is that the influence of character propensity evidence on the jury is so prejudicial as to violate the constitution.

Cases Construing Statutes Permitting Character Propensity Evidence

Judicial acceptance of legislative changes to the propensity evidence rule does not mean that the principle of excluding propensity evidence has been abrogated, nor does it mean that protection of this right is no longer guaranteed by due process. At the very least, admission of such evidence is still governed by “general strictures” such as the requirement to weigh the probative value of evidence against its potential for prejudice. See United States v. Guardia, 135 F.3d 1326, 1331 (1998), affirming a trial court’s decision in a sexual assault trial to exclude testimony of four women who alleged that the defendant had sexually assaulted them in a fashion similar to the accusation.

Two states have struck down similar states, notwithstanding the judicial discretion to exclude unduly prejudicial evidence. The Supreme Court of Missouri declared a Missouri statute allowing admission of evidence of prior sexual crimes unconstitutional under the Missouri Constitution even though the statute contained a balancing clause similar to Federal Rule of Evidence 403. State v. Ellison, 239 S.W.3d 603, 607–08 (Mo. 2007). The court noted the long line of Missouri cases prohibiting admission of prior criminal acts as propensity evidence and held “[e]vidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant’s propensity to commit the crime with which he is presently charged. There are no exceptions to this rule.” Id. at 606 (citation omitted).

Likewise, the Iowa Supreme Court invalidated the admission of evidence of sexual abuse of other victims pursuant to Iowa Code section 701.11. State v. Cox, 781 N.W.2d 757 (Iowa 2010). The court concluded that evidence of the “defendant’s sexual abuse of other victims under Iowa Code section 701.11 based only on its value as general propensity evidence violates the due process clause of the Iowa Constitution.” Id. at 772. However, such evidence could “be admitted as proof for any legitimate issues for which prior bad acts are relevant and necessary, including those listed in [Iowa Rule of Evidence] 5.404(b) and developed through Iowa case law.” Id. at 768.

The language of article 38.371(b)(3) is also found in Texas Code of Criminal Procedure article 38.37. No Texas appellate court has been called upon to determine whether Article 38.37 §§2, 2-A offends due process by permitting consideration of character propensity evidence. But Texas cases assessing the constitutionality of Section 38.37, §1(b) [permitting extraneous offense evidence committed by the defendant against the child who is the victim of the alleged offense to show the state of mind and relationship of the defendant and the child] have upheld this section because such evidence has relevance beyond character propensity. In Jenkins v. State, 993 S.W.2d 133 (Tex. App.-Tyler 1999, pet. ref’d), the court of appeals held that the provision was constitutional because it permits introduction of evidence relevant to several non-character-conformity purposes, such as to show “the states of mind of the defendant and child and their relationship;” to show “how one in a position demanding care and guidance of a related person, has failed in such duty and has adopted an unnatural attitude;” to “explain the charged act—an act that would otherwise seem wholly illogical and implausible to the average juror;” and to show “that a peculiar relationship exists, but also how and why the defendant achieved dominance over the child.” Id. at 135. This position was adopted by other courts. Brantley v. State, 48 S.W.3d 318, 329–30 (Tex.App.-Waco, 2001, pet.ref’d); Martin v. State, 176 S.W.3d 887, 900 (Tex.App.-Fort Worth 2005, no pet.).

One Texas court has implicitly held that a statute permitting consideration of character propensity evidence would run afoul of due process requirements. In Bush v. State, 958 S.W.2d 503, 505 (Tex. App.-Fort Worth 1997), the court rejected the appellant’s argument that article 38.36 of the Code of Criminal Procedure expands the admissibility of extraneous acts in violation of rule 404(b):

Article 38.36 merely codifies the age-old res gestae, or same transaction contextual evidence, exception and adds the catch-all phrases “relationship between the defendant and the deceased” and “state of mind of the defendant at the time of the offense.” These two phrases necessarily encompass intent, opportunity, motive, plan, scheme, identity, absence of mistake or accident and knowledge, as well as all other logical inferences which may arise from the previous dealings between the victim and the defendant. Therefore, we hold that article 38.36 does not expand rule 404(b) and, thus, does not offend notions of due process.

Id.at 505 (emphasis added).

In sum, these cases demonstrate that the prohibition of evidence of general character propensity is so deeply embedded in tradition and historical jurisprudence as to create a substantive due process right. Accordingly, evidence of extraneous conduct for the sole purpose of general character propensity must be excluded on due process grounds, and House Bill 2777, which would purport to admit such evidence, is unconstitutional.

2015.55: Texas SB344 vs. HB861

Mark's Blog: Defending People - Wed, 04/22/2015 - 14:16

Texas Senate Bill 344:

By: Huffman S.B. No. 344

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
SECTION 1. Section 33.021(a)(1), Penal Code, is amended to read as follows:
(1) “Minor” means:
(A) an individual who is [represents himself or herself to be] younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age.
SECTION 2. Section 33.021, Penal Code, is amended by amending Subsections (b), (d), and (e) to read as follows:
(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure [arouse or gratify the sexual desire of any person], the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
(d) It is not a defense to prosecution under Subsection (c) that[:
[(1)] the meeting did not occur[;
[(2) the actor did not intend for the meeting to occur; or
[(3) the actor was engaged in a fantasy at the time of commission of the offense].
(e) It is a defense to prosecution under this section that at the time conduct described by Subsection [(b) or] (c) was committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.
SECTION 3. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 4. This Act takes effect September 1, 2015.

Texas House Bill 861:

84R17156 JRR-F By: Dale, King of Parker, Sheffield, Burkett,
H.B. No. 861
Frullo, et al. Substitute the following for H.B. No. 861: By: Herrero
C.S.H.B. No. 861

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
SECTION 1. Sections 33.021(b), (d), and (e), Penal Code, are amended to read as follows:
(b) A person who is 17 years of age or older commits an offense if, with the intent to induce a minor to engage in conduct with the actor or another person that would constitute an offense under Section 21.11, 22.011, 22.021, 43.25, or 43.26 [arouse or gratify the sexual desire of any person], the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
(d) It is not a defense to prosecution under Subsection (c) that[:
[(1)] the meeting did not occur[;
[(2) the actor did not intend for the meeting to occur; or
[(3) the actor was engaged in a fantasy at the time of commission of the offense].
(e) It is a defense to prosecution under this section that at the time conduct described by Subsection [(b) or] (c) was committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.
SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 3. This Act takes effect September 1, 2015.

Both bills restore the “fantasy” defense, which is the other half of the amendment required to bring Section 33.021(b) and (c) in compliance with the First Amendment.

Huffman’s Senate Bill 344 is plainly superior, on First Amendment grounds, to Dale’s House Bill 861 because Huffman’s bill eliminates the prosecution of a defendant who is talking with an adult and knows it despite the adult’s “representing” himself as a child. Dale’s bill leaves the door open to such prosecutions.

Huffman’s bill is also superior on general legal grounds. Dale’s description of the required intent under subsection (b) is “to induce a minor to engage in conduct with the actor or another person that would constitute an offense….” This language comes from Section 15.031 of the Texas Penal Code, the general solicitation-of-a-minor statute, and it will not serve the intended purpose. When a defendant induces a child to have sex with him, the child’s conduct does not constitute an offense. It is the defendant’s conduct that constitutes an offense. We know what the legislature is trying to say; Huffman’s bill says it, but Dale’s does not.

Both bills limit the subsection (e) defense to violations of subsection (c) (actual solicitation). I think the reasoning may be that a defendant who is married to a child does not intend to commit a crime if he solicits her for sex. But age proximity and marriage are affirmative defenses under the predicate statutes; does the existence of an affirmative defense mean that the conduct would not be an offense?1 We don’t want to prosecute defendants for talking dirty to their spouses or their age-appropriate girlfriends, so why not simplify by applying the defense to (b) and (c)?

  1. Further, the 18-year-old boyfriend who solicits his three-years-young girlfriend for sex may still be violating Texas Penal Code Section 43.25, which has an affirmative defense only for a two-year age difference 

2015.54: Statute of Limitations Law Geekery

Mark's Blog: Defending People - Sun, 04/19/2015 - 20:57

In 2010 D is charged with communicating through a commercial online service in a sexually explicit manner with a minor under Section 33.021(b) of the Texas Penal Code.

He is convicted in 2011 and put on probation, which he complies with until 2014, when the Texas Court of Criminal Appeals rules that Section 33.021(b) is unconstitutional.

In 2015  D files an application for writ of habeas corpus in the trial court. His case is reopened and the charge is dismissed.

The State charges D under Section 33.021(c) of the Texas Penal Code with soliciting the same minor to meet him, through a commercial online service, with the intent that the minor would engage in sexual contact with him.

The statute of limitations for online solicitation of a minor is the catch-all three years under Texas Code of Criminal Procedure article 12.01(7).1 So at first blush it would appear that the 33.021(c) prosecution is barred by limitations.2

The statute of limitations is tolled during the pendency of an indictment, information, or complaint.3

But there is no charge pending while the defendant is on probation.4

But “during the pendency” begins with the day the charge is filed in a court of competent jurisdiction, and ends with the day the accusation is, by an order of a trial court having jurisdiction, determined to be invalid for any reason.5

But if there was a charge pending, it was not a 33.021(c) charge.6

But the Court of Criminal Appeals has held (in Hernandez, which was the appeal of a drug case) “that the first indictment tolls the statute of limitations if both indictments allege the same conduct, same act, or same transaction, even if the offenses charged do not fall within the same statute.”7

So the question comes down to whether both indictments allege the same conduct, same act, or same transaction. That’s a really interesting question to this law geek.

In Hernandez the defendant was charged in both indictments with the possession of the same drugs; the first indictment charged it as amphetamine, and the second charged the same substance as methamphetamine.

Since you can communicate explicitly without soliciting a meeting, and you can solicit a meeting without communicating explicitly, they could be separate acts. But since you could solicit a meeting in a sexually explicit way, they could be the same act.

Absent some indication of what specific message D was prosecuted for in 2010, whether the statute of limitations is tolled might depend on whether any soliciting communication was also sexually explicit.

If D’s lawyer had filed a motion to quash the 33.021(b) indictment in 2010 because it didn’t give him sufficient notice “to plead the judgment that may be given upon it in bar of any prosecution for the same offense”—Texas Code of Criminal Procedure article 21.04—the State might have had to plead the specific communication that was explicit, so that now the State could only prosecute him under 33.021(c) for that communication.

But who among us thought to file such motions to quash? I didn’t, and I doubt that anyone else did. So D is left in 2015 fighting about whether the State is prosecuting him now for the same conduct, same act, or same transaction. There may be a lesson in there.

  1. You could argue, depending on the conduct that was solicited, that there is no limitation under article 12.03(c); I don’t think that’s right 

  2. Hooray! 

  3. Boo0! 

  4. Hooray! 

  5. Booo! 

  6. Hooray! 

  7. Booo! 

2015.53: Get a Grip, Gaas

Mark's Blog: Defending People - Wed, 04/15/2015 - 21:46

That’s a cop allowing a girl to get out of a minor-in-possession ticket by winning a game of rock-paper-scissors.

Here‘s Burleson County Precinct 2 Constable Dennis Gaas’s take:

Gaas says he found out about the incident last night. This morning he told all three officers that they will not be allowed to work security at future Chilfests. He also notified the two departments the officers work for so they can decide whether further action is warranted. Gaas declined to say what departments the three officers work for.

Giving the underage drinker a break is not what got the officers in trouble. Gaas says doing so is an officer’s discretion. But when they “play games to get someone out of a ticket, I have a problem with that,” Gaas said.

Gaas said he hired officers from nearly 60 agencies to work security. They issued 113 citations. According to the Burleson County Sheriff’s Office, 44 people were arrested at Chilifest.

Gaas was upset by the officers’ actions saying, “it gives all of us a bad name.”

No, it doesn’t. Humorless twits like you give “all of you” a bad name. The cop cut a girl a break; he should have. He gave her a few seconds of stress; that’s okay too. Texas Monthly’s take is smart, but I think they’re missing what’s really going on here. They’re missing it because the girl one the first round.

I think that Gaas and Texas Monthly’s Dan Solomon assume that the officer would have written the girl a ticket had she thrown paper the first time. I’m not convinced. Rock-paper-scissors can be played best-of-n, where n is any positive odd number.

I hunch that if the girl had lost the first round the officer would have offered best-of-three, and kept throwing scissors.

If the girl hadn’t caught on to the game by best-of-five, then, well, she was intoxicated and probably should have been ticketed.

2015.52: Hot Texas First Amendment Action

Mark's Blog: Defending People - Wed, 04/15/2015 - 21:02

Ex Parte J.I.L. (that’s the real name; it’s a juvenile case) is pending in the Fifth Court of Appeals in Dallas. Cocounsel Josh Andor of McKinney and I are challenging the constitutionality of the Online Impersonation statute, Texas Penal Code Section 33.07. I had to go to Collin County to make this challenge because the Harris County DA’s Office had been dismissing online-impersonation cases out from under me when I filed writs.

But recently in the 209th District Court here in Harris County the State filed a response to my writ challenging Section 33.07. So maybe the Online Impersonation statute isn’t dead in Harris County. Amusingly but unfortunately the State included this in its response:

He’s right: Section 33.07 is similar to Section 33.021(b). But that “pet. granted” bit in the cite means that something else could happen in the case, and what happened in that case is that the Court of Criminal Appeals reversed the court of appeals on that very issue and held Section 33.021(b) unconstitutional. You might have heard about it. It made the news.

But the state’s strategy won’t be set by the prosecutor who thinks that Lo upheld Section 33.021(b). So if Judge McSpadden upholds the constitutionality of Section 33.07 we’ll appeal and the State will dismiss rather than get an adverse ruling on appeal; and if Judge McSpadden grants habeas relief and holds the statute unconstitutional, the State will not appeal.1

That’s okay, because I have J.I.L. in Dallas, but J.I.L. also includes interesting procedural issues about the appeal of the denial of habeas relief on behalf of a juvenile. Apparently there aren’t a lot of applications for writs of habeas corpus filed on behalf of juveniles and appealed. So that case may be resolved on issues other than the unconstitutionality of the statute. If so, I may need other vehicles for that particular challenge. (So if you know a lawyer defending an online impersonation case anywhere in Texas, have her call me.)

Fortunately, the Texas Legislature seems to have no intention of amending Section 33.07, so we have plenty of time to kill that statute. The same can’t be said of Section 33.021; amendments to that statute that are making their way through the legislature would do away with the major points of unconstitutionality. That’s a good thing, but there have been hundreds of people convicted under the current, unconstitutional, Section 33.021(c). If nobody makes a pretrial challenge to the statute as it is now and succeeds, all of those people are stuck with felony convictions and sex-offender registration for violating a void statute.

I am doing my part to challenge 33.021(c) before it changes. I have a pretrial writ pending in Abilene (where the appeal will go to the Eastland Court of Appeals) and Conroe (Beaumont Court of Appeals), and I have appeals pending in the First Court of Appeals and the Beaumont Court of Appeals.

The Beaumont court had upheld Section 33.021(c) in the face of a constitutional challenge in Victorick v. State, but that opinion is unpublished (and so of no precedential value), and it doesn’t appear that the argument for why Section 33.021(c) is unconstitutional was clearly made or understood.

The First Court of Appeals had also upheld Section 33.021(c) in the face of a constitutional challenge in the published opinion of Maloney v. State. Justice Higley wrote that opinion, holding that:

the incidence of the State seeking to prosecute two consenting adults engaging in online role playing or “fantasy” would likely be exceedingly low. See Ferber, 458 U.S. at 773, 102 S.Ct. at 3363; Smith, 806 N.E.2d at 1265. Considering the overly broad scope and purpose of section 33.021, we have been given no basis to believe that prosecutions of consenting adults engaging in role-playing would amount to any more than a “tiny fraction” of all prosecutions under the statute.

How often the State would seek to prosecute people engaging in constitutionally protected age play wasn’t quite the right question to ask, for:

The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

U.S. v. Stevens.

The right question would, rather, have been how often the State could seek to prosecute people engaged in age play. The relevant inquiry is whether constitutionally protected age play is substantial compared to the legitimate sweep of the statute.

The answer to that inquiry is “yes.” While the First Court in Maloney arguably didn’t have any basis to believe that prosecutions of consenting adults engaged in age play would be more than a tiny fraction of prosecutions,2 the First Court in W. has reason—an uncontroverted affidavit from an age play expert—to believe that age play is substantial. And while it might not be substantial compared to vanilla sex, age play is, I will bet, more prevalent than sexual abuse of children.

The First Court in Lo cited Maloney approvingly, and was reversed by the Court of Criminal Appeals. Justice Jennings wrote the First Court’s opinion in Lo. My panel in W. is Justices Jennings, Hudson, and Higley. At the end of the day it turned out that I was right, and Justice Jennings wrong, in Lo. I contend that, because she didn’t have enough information about age play, Justice Higley was wrong in Maloney. The court has that information now.

The First Court has granted oral argument in W. It’ll be the afternoon of April 29th. I have to think that they wouldn’t bother if they weren’t open to abrogating Maloney.

Killing Section 33.021(c) will get a bunch of people out of prison and off probation, but not as many as killing Section 32.51, Fraudulent Use or Possession of Identifying Information, will. This is one that people are doing lots of prison time for. I have several pretrial writs in the pipeline, but the only case that has hit the Court of Appeals got dismissed when the State read my brief.3

Prosecutors seem to think that Section 32.51 forbids only identity theft, but it forbids “using” someone’s “identifying information” without their consent with intent to “harm” them. “Using” is undefined, so it takes its usual meaning; “identifying information” is anything that, alone or in conjunction with something else, can be used to identify someone; “harm” is anything reasonably regarded as loss, disadvantage, or injury. So if I speak (use) your name without your consent with the intent to damage your reputation, embarrass you, or offend you (any of which a jury might reasonably regard as loss, disadvantage or injury) I can be prosecuted for a felony.

What’s more, if I know (possess) your name without your consent with the intent to damage your reputation, embarrass you, or offend you, I can be prosecuted for a felony.

What’s more, if I possess the identifying information of more than three people, I am presumed to have the intent to harm or defraud another. Remember telephone books? Possessing the white pages (possessing the identifying information of more than 50 people without their consent; intent to harm is presumed) is a first degree felony, the same level of offense as murder.

But I’m just being a paranoid First Amendment zealot when i worry about such things, right? No government official would ever dream of using such a law to attack critics, right?

  1. What does it take to get Harris County DA Devon Anderson to defend the constitutionality of a statute? 

  2. The counterargument is that the fact that the Legislature explicitly excluded a fantasy defense is itself evidence that fantasy prosecutions will be substantial. 

  3. Thanks again, Harris County. 

2015.51: Trends in Policing

Mark's Blog: Defending People - Wed, 04/15/2015 - 18:59

I was picking one of my kids up from school the other day when a guy in a clapped-out Ford Taurus drove by the crowded schoolyard honking his horn and screaming obscenities (“shitbag” was one).

Curious, I tracked the car to the City of Houston, then to the Houston Police Department, then to Senior Police Officer George Garcia of the Criminal Intelligence Division, who was using the car on city business. I guess the Houston Police Department has a new policy of drive-by shitbaggings at elementary schools.

Well done, Senior Police Officer George Garcia. Well done.

2015.50: Possibly the Worst Scaled Question Ever

Mark's Blog: Defending People - Sun, 04/12/2015 - 21:20

From a sexual-assault appeal I’m working on:

I want to ask everybody on the panel the following question: How likely do you think a child would be to lie about being sexually abused? One is very likely; two, likely; three, unlikely; four, very unlikely.

As a criminal-defense lawyer who has represented people who have been falsely accused of sexually abusing children, my answer is “four, very unlikely.” But I interpret the question to mean, “any given child.” And that’s the truth: any given child will most likely not lie about being sexually accused—will never have the opportunity or the motivation. But it just takes one false accusation to ruin a guy’s whole day.1

Now, if I, despite being more skeptical about allegations of sexual abuse than the vast majority of people, would be likely answer at the conservative conviction-friendly end of your scale, how likely is it that you’ll get any meaningful information from a jury panel?


What a waste of time. About par for the course for the State’s voir dire.

  1. If I read the question to mean “how likely is it that some child somewhere will lie at some time about being sexually abused,” my answer would be “one, very likely; in fact, inevitable.” And you wouldn’t know how I was interpreting your stupid fucking question. 

2015.49: Unlawful Disclosure of Intimate Visual Material in Texas

Mark's Blog: Defending People - Sun, 04/12/2015 - 18:32

House Bills 101, 496, and 603, which I wrote about here and testified against in Austin, have been left pending in committee.

Senate Bill 1135, “UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL,” was voted out of the Senate Criminal Justice Committee. (I didn’t go to Austin to testify; I considered my public duty done, and my right to say “I told you so” earned, the first time.) It provides:

(a) In this section:
(1) “Promote” and “sexual conduct” have the meanings assigned by Section 43.25.
(2) “Visual material” has the meaning assigned by Section 43.26.
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person engaged in sexual conduct;
(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to the visual material; or
(B) information or material provided by a third party in response to the disclosure of the visual material.
(c) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person engaged in sexual conduct and the actor makes the threat to obtain a benefit:
(1) in return for not making the disclosure; or
(2) in connection with the threatened disclosure.
(d) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection
(b) on an Internet website or other forum for publication that is owned or operated by the person.
(e) It is not a defense to prosecution under this section that the depicted person:
(1) created or consented to the creation of the visual material; or
(2) voluntarily transmitted the visual material to the actor.
(f) It is an affirmative defense to prosecution under Subsection
(b) or
(d) that:
(1) the disclosure or promotion is made in the course of:
(A) lawful and common practices of law enforcement or medical treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure or promotion is permitted or required by law;
(2) the disclosure or promotion consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or
(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.
(g) An offense under this section is a Class A misdemeanor.


For this statute to be constitutional, the nonconsensual and harmful disclosure of visual material depicting an identifiable person engaged in sexual conduct in violation of the person’s reasonable expectation of privacy would have to fall into some category of unprotected speech.

The category does not yet exist:

  • Harmful speech is not unprotected, and should not be. We are not a nation of snowflakes who need government protection from hurt feelings.
  • Speech depicting sexual conduct is not unprotected, and should not be.
  • Speech violating privacy and nonconsensual speech about another person are not unprotected, and should not be. The idea that we can control what is said about us is inimical to American ideals of free speech.

Since the speech restricted does not fall into a recognized category of unprotected speech, under current Supreme Court (and Court of Criminal Appeals) jurisprudence this statute does not pass First Amendment muster. Proponents of this law would have to convince the Supreme Court to recognize a new category of historically unprotected speech that covers most of the speech forbidden by the statute. That’s long odds.

I’d like for this bill to pass so that I can make a few bucks, ((Please can we make it a felony?)) and put another notch on my gun, ((What’s the record for getting Texas penal statutes held unconstitutional?)) killing this statute.  But the Senate doesn’t look like it’s in a hurry to vote on it.

2015.48: To the Potential Client

Mark's Blog: Defending People - Sat, 03/28/2015 - 23:06

Dear PNC (we call you PNCs, for “Potential New Clients”; it’s redundant, I suppose, but “PC” is already assigned to “probable cause” and “personal computer” and “politically correct”):

You have told me repeatedly that you are innocent. You don’t mean “legally innocent”—that is, unconvicted—but “factually innocent.” I don’t know whether you’re telling me the truth or not (people lie to me all the time), but please know that it doesn’t matter to me. It won’t decrease my fee, and it won’t make me do any better job.

I consider the act of putting people in boxes to be fundamentally immoral in virtually all cases, and I don’t believe that I—or any human—have the wisdom to distinguish the few cases in which putting people in boxes is moral from the many in which it is not. So it doesn’t matter to me whether they’re factually innocent. If anything, I prefer factually guilty clients—there is less stress, and I confess that I get impish joy from cutting loose a malefactor. I’ll do the same job on behalf of the innocent, but there is no innocent-client discount.

You might wonder whether I believe your protestations of innocence. Don’t wonder. At this point, I listen without judgment. I neither believe nor (unless your story is bad to the point of incredibility) disbelieve. You don’t want a dumb lawyer, so if you are factually guilty, you don’t want a lawyer who is dumb enough to believe you when you lie to him. And you don’t want a lawyer who thinks it’s his job to judge you, so if you are factually innocent, you don’t want a lawyer who is judgmental enough to care. 

I have been training for more than twenty years for this fight against the people who are trying to put you in a box. Law school, Trial Lawyers College, trial upon trial, appeal upon appeal, hundreds upon hundreds of hours of teaching and studying continuing legal education, hundreds upon hundreds of hours of psychodrama and improv training, board certification: everything has led up to your case. 

If you really want someone to whom it is important whether you “did it,” who won’t take your case or will do a lesser job if he believes you to be factually guilty, you can get that for a lot less than my fee, but you will be buying a duller blade.

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