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A Williamson County Online-Solicitation Indictment

Mark's Blog: Defending People - Fri, 12/19/2014 - 20:56

In the name and by authority of the State of Texas:

The Grand Jury for the _______ term of the ___ Judicial District Court of Williamson County, Texas, having been duly selected, empaneled, sworn, charged, and organized, presents that before the presentment of this indictment, on or about the ___ day of ____, 2013, in Williamson County, Texas, X, hereinafter “defendant”, with the intent to arouse or gratify the defendant’s sexual desire, over the Internet, knowingly solicited Jessica, a minor and undercover persona of Gary Marquis, to meet the defendant with the intent that Jessica would engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the defendant, and Jessica was an individual whom the defendant believed to be younger than 14 years of age at the time of the commission of the offense.

Against the peace and dignity of the State.

Got it? The State is charging X with committing online solicitation of a minor with Jessica, who is “a minor,” an “undercover persona of Gary Marquis,” (who is presumably a cop), and “an individual whom the defendant believed to be younger than 14 years of age at the time of the commission of the offense.”

“Minor” means: (A)  an individual who 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.

“Individual” means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.

Jessica, a “persona” of Gary Marquis, is not alive, and therefore is not an individual, and therefore is not a minor. So the indictment on its face does not charge X with a crime. The appropriate way for the State to charge the crime would be to allege that X solicited Gary Marquis, whom X believed to be younger than 14 years of age.

Unfortunately, X pled guilty to this non-crime. His lawyer should have filed a motion to quash the indictment, forcing the State to replead.

Why would this do any good? Why—in other words—would the State want to rely on its incorrect pleading?

Because there’s a defense built in to the online-solicitation statute that would prevent X’s conviction for soliciting Gary Marquis:

It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed…the actor was not more than three years older than the minor and the minor consented to the conduct.

If the minor (the living person whom X believes to be younger than 17) is Gary Marquis, then X is not more than three years older than the minor. The transcripts of conversations between X and Marquis will show that Marquis consented to the solicitation—Marquis was trolling for solicitation.

It cannot be argued that the age of the minor referred to in the defense is the age that the defendant believed the minor to be: the Texas Legislature in subsection (f) of section 33.021 showed that it knows the difference between the age of the minor and the believed age of the minor:

[Online solicitation of a minor] is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age.

X has an excellent ineffective-assistance-of-counsel claim against his trial counsel, who didn’t consider the existence of the defense. But even an excellent IAC claim is a long shot. Nobody should take deferred-adjudication probation in hopes of getting relief on habeas corpus. Other defendants charged with online solicitation in Williamson County (or other counties that use the same pleading form) should talk to their lawyers about the indictment and the defense before they decide to plead guilty. And their lawyers should, of course, talk to me.

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 (74.125.40.16) .)

One in Thirty

Mark's Blog: Defending People - Fri, 12/12/2014 - 15:39

Here (pdf) is the Bureau of Justice Statistics’ report on Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013.

Some highlights (all statistics are for women aged 18–24 unless otherwise noted):

6.1 out of 1,000 college women experience “sexual victimization”—rape, attempted rape1 or sexual assault2—annually.

This is much lower than the 1–in–5 statistic that is widely bandied about by those who think there is an epidemic of rape on American college campuses. Even if we multiply 6.1 by five (for five years in college), the rape rate in American colleges is 3.5%.

A few years ago Chad Hermann crunched the numbers of reported sexual assaults at three Pittsburgh Universities, applied a 10X multiplier for 90% of sexual assaults being unreported, and came up with a number of the same order of magnitude (1 in 44, assuming a four-year college career).

I ran the numbers for my alma mater, which has had two alleged sex offenses reported every year for the last three years, and has about 2,190 female students. That’s a rate of 0.91 reported sexual assaults per thousand female students. If we assume that 90% of sexual assaults go unreported and multiply by ten, we have 9.1 sexual assaults per thousand female students per year, and if we multiply by five years we have a 4.5% chance that a Rice woman will be sexually assaulted during her five years at Rice3

That “90% unreported” assumption is probably not valid, though. The BJS report found that 20% of “sexual assault victimizations” were reported to the police by college women. If instead of 10X we use a 5X multiplier, we have 4.6 sexual victimizations (reported or otherwise) per thousand female Rice students per  year. The reasons victimizations went unreported were:

  • Reported to other official, 4%;
  • Personal matter, 26%;
  • Not important enough to respondent, 12%;4
  • Police would not or could not do anything to help, 9%;
  • Did not want to get offender in trouble with the law, 10%;
  • Advised not to report, <0.5%;
  • Fear of reprisal, 20%; and
  • Other reason, 31%.5

(The first six of these, covering 61% of cases, seem to me like reasonable reasons not to report sexual victimization as defined by the study (including attempted rape,6 grabbing, and fondling) to the police, but fear of reprisal should never stop anyone from reporting a crime—that’s just bad policy.)

Nonstudents, by the way, report 32% of their sexual victimizations rather than 20%.  They are also are 20% more likely to experience rape, attempted rape, sexual assault, or the threat of rape or sexual assault. And those victimizations are 50% more likely to be completed sexual assaults.

Breaking down the student/nonstudent differences even further,

18-to-19-year-old nonstudents are 1.6 times as likely to experience sexual victimization as students are.

White nonstudents are 1.4 times as likely to experience sexual victimization as students are.

Northeastern nonstudents have the lowest rate of sexual victimization, followed by rural students and southern students.

Midwestern nonstudents (the group with the highest rate) are about 130% more likely to experience sexual victimization than southern students (with the lowest rate).

Men are, as you would expect, raped at lower rates than women, but male students are four times as likely as nonstudents to experience sexual victimization.

The “one in five” number will probably never go away. It’s been challenged and debunked before, and still it gets trotted out as gospel truth. But the actual numbers are much smaller and would be smaller still if respondents got to define “sexual victimization” themselves.7

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 (74.220.156.202) .)
  1. “Rape is the unlawful penetration of a person against the will of the victim, with use or threatened use of force, or attempting such an act. Rape includes psychological coercion and physical force, and forced sexual intercourse means vaginal, anal, or oral penetration by the offender. Rape also includes incidents where penetration is from a foreign object (e.g., a bottle), victimizations against males and females, and both heterosexual and homosexual rape. Attempted rape includes verbal threats of rape.” 

  2. “Sexual assault is defined across a wide range of victimizations separate from rape or attempted rape. These crimes include attacks or attempted attacks usually involving unwanted sexual contact between a victim and offender. Sexual assault may or may not involve force and includes grabbing or fondling. 

  3. But realistically, who can afford five years at Rice anymore? 

  4. Some victimization! 

  5. Miscellaneous is always the largest category.
    — Walter Slovotsky, The Warrior Lives by Joel Rosenberg 

  6. Question: If you define rape to include sex by psychological coercion, does that make trying unsuccessfully to convince someone to have sex “attempted rape”? 

  7. Here is where most people would put in obligatory mealy-mouthed statement to prove their anti-rape bona fides, but my readers are smarter than most. 

Journalism!

Mark's Blog: Defending People - Thu, 12/11/2014 - 15:58

When I first saw the Rolling Stone UVA rape story by Sabrina Erdely, I’d been thinking about satanic ritual abuse stories because Fran and Dan Keller were in the news. I tweeted:

Speaking of satanic ritual abuse: http://t.co/MyO2bC2Cjm
— Mark W. Bennett (@MarkWBennett) December 1, 2014

The story was unbelievable to me. Not “unbelievable” in the loose sense of “sensational,” but literally unbelievable. I knew that the story was false

The Erdely UVA story is going to turn out to be a long rambling joke. “Journalism!” will be the punchline. — Mark W. Bennett (@MarkWBennett) December 2, 2014

I say that “I knew it.” For you to know something, three conditions must be met: you have to believe it, it has to be true, and you have to have reason to believe it.

I believed that Erdely’s story was false.

The story—of a violent gang rape—was false. It appears from the rereporting performed by the Washington Post that the alleged victim made up the story as part of an elaborate scheme to win the love of her friend “Randall.”

So to have known the story to be false, I have to have had reason to believe that the story was false. Did I? Nonlawyers asked me why, as a criminal-defense lawyer, I found the story so incredible.

As a criminal-defense lawyer, I ask three big questions when trying to get to the truth of a story:

•    What else must be true for this to be true?
•    What if things had gone a little differently?
•    What’s really going on here?

If Erdely’s story were true, seven men violently raped a sober woman on broken glass upstairs in a house for three hours while a party was going on downstairs. Two men watched. Then the nine men left the woman lying there alone, “face beaten, dress spattered with blood” to make her own way out of the house ((With her cellphone? “Disoriented, Jackie burst out a side door, realized she was lost, and dialed a friend, screaming, ‘Something bad happened. I need you to come and find me!'”)) while the party was still going on downstairs. Then when, that very night, the woman reported the rape to her three best friends on campus (two men and a woman), the three “launched into a heated discussion about the social price of reporting Jackie’s rape,” and decided not to report it.

What else must be true for this story to be true? Each of these twelve people who knew what happened to Jackie that night must have valued his or her own interest above the principle that men shouldn’t rape women.

Violent rape is abhorrent to the American male.1 There are men who are exceptions to this rule, who have no compunction against violent rape, but they are few and far between, and they don’t advertise the fact—talking about it could be lethal—so the odds against finding nine of them in one room outside of a prison are slim.

Erdely’s story was intended to demonstrate that violent rape of women is accepted in American culture. But for the story to be believable the reader would have to already believe a) that violent rape of women is accepted in America; and b) that because of this acceptance eleven men and one woman who knew about a violent rape kept the secret for two years.

It’s all very circular—if you believe that we live in a “rape culture” with a callous attitude toward rape then the story is perfectly believable, and it proves that we live in a rape culture. If you don’t believe that American men are okay with violent rape then the story is unbelievable and it proves nothing.

If you believe that three college freshman would count the “social price” of reporting a violent rape that had just happened higher than than the ethical, moral, justice, and safety costs of not reporting it, Erdely’s story is credible. If you don’t believe that—and I don’t—the story is incredible.2

I didn’t believe that American men are okay with violent rape, I didn’t believe that the nine conspirators could keep the secret for two years, and I didn’t believe that three college freshman would count the social cost of reporting a violent rape that had just happened higher than the myriad soul-bankrupting costs of not reporting it. “What must be true for this to be true” gave me reason to disbelieve the story.

“What if things had gone a little differently?” is a truth-seeking question to ask when the story involves a deliberate plan or conspiracy. The more ways the plan could have gone wrong but didn’t, the more likely it is that the plan was fabricated after the fact.

For the imaginary man’s imaginary plan to succeed, a thousand things had to go just right; if any one of them had gone even a little bit wrong he would have landed in prison. His plan depended on (among other things):

  • None of the conspirators getting cold feet that night;
  • All of the conspirators keeping their secret, not spilling the beans while drunk or remorseful;
  • Jackie not calling the police while the room was still strewn with physical evidence;
  • No decent human being seeing Jackie leaving the party injured and intervening;
  • The people she told not themselves calling the police;
  • Jackie not reporting the rape to the police later, or the conspirators not rolling over on each other when threatened with prison time; and
  • Jackie not telling her story within the statute of limitations to a competent reporter.3

There are two explanations for how this plan succeeded so well for two years. Either the conspirators walked between raindrops, or the rape never happened. The second explanation is the most likely.

The third question, “What’s really going on here?” sets the allegations against known facts, verisimilitude, and plausibility, and finds the most probable explanation. “What’s really going on here?” led the Washington Post to evidence that “Jackie,” the alleged victim in the Erdely story, had fabricated the man whom she was supposedly going out with on the evening of her claimed rape. Not having the benefit of the Washington Post’s reporting at first, “what’s really going on here?” led me to the conjecture that something bad had happened to Jackie—that perhaps she had been sexually assaulted by her date at the fraternity house—but that she had blown the story up for Rolling Stone.

My three questions—What else must be true for this to be true?, What if things had gone a little differently?, and What’s really going on here? didn’t lead me all the way to what now appears to be the truth—that Jackie was catfishing Randall and fabricated the rape to try to win his heart—but each led me in the right direction and made me disbelieve the story as published.

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 (65.19.138.33) .)
  1. I say “violent rape” to try to prevent quibbling here over things that not everyone would agree are rape—sex while all parties are drunk, for example. The assault described in Erdely’s article would fit anyone’s description of “violent rape,” so we don’t have to argue about sex with implicit but not explicit consent, nor about gaze rape. Yes, I know that there are those who think that any unwelcome sexual attention from a man is violence. I recommend that they get out more. 

  2. A digression: what is required for us to believe these things about human nature that Erdely would have us believe? We would have to either a) accept them uncritically; b) be inclined toward callousness ourselves, so that callousness in others makes sense; or c) not be inclined toward callousness ourselves, but think that we are superior to most other people in this regard. Why “most other people”? I’ll get to that in a second. I believe that the credulity with which Erdely’s article was met was a result mostly of (a). People accept rape narratives uncritically. That so many people are shocked that the story is not true helps disprove Erdely’s rape-culture narrative. 

  3. Some people think that Erdely believed her source; I think this is too generous to Erdely. If Erdely had believed Jackie she would have done the investigation that she would have expected to corroborate her story. That she didn’t do that investigation suggests that she didn’t expect it to corroborate her story, which suggests that she knew that Jackie’s story was a fable. Journalism! 

In Which New Vistas Open Up

Mark's Blog: Defending People - Wed, 11/19/2014 - 21:39

It started with criminal First Amendment litigation. I fought for five years against a speech-restricting penal statute, learning the law along the way and finally punching a hole in the dam last year, freeing a lifetime’s worth of people who had already given up hope.

Naturally, I went on the hunt for other statutes to kill. My friend and fellow TLC alumnus Don Flanary of San Antonio beat me to the improper-photography statute, but he only killed (in Ex Parte Thompson) the part dealing with photography in a public place, leaving the part dealing with photography in a restroom or dressing room, as well as the parts dealing with publication of images. I’ve got challenges pending to those, as well as to the fraudulent-use-of-identifying-information statute, the online-impersonation statute, and some others.

In the course of working on these cases—and pointing out on this blog how many ways proponents of penal revenge-porn statutes get constitutional law wrong—I realized how little most lawyers actually know about free speech. I also got sued for hurting Joseph Rakofsky’s feelings, and had to pay Marc Randazza gobs of money to kick Rakofsky’s ass across the courtroom. It could probably have been done cheaper, but if it’s worth doing it’s worth overdoing, and Randazza provides entertainment value that I’m happy to pay for. Further, I had a friend file an ill-advised suit against someone for statements that were absolutely privileged, and I pulled his bacon from the fire.

Then Randazza had a client who had been sued by a Houston lawyer for hurting his feelings, and had had a default judgment entered against him, in Harris County. I’d done a good job of avoiding civil court since about my second year of practice, but I can read the rules and write a brief (a lawyer in the Piney Woods once called me “slick big city lawyer who uses the rules to his advantage”), so I signed on to carry Randazza’s bag and do the Texas Rules of Civil Procedure stuff. We got the default judgment undone, and Randazza got the case dismissed. A codefendant in that case hired me to carry his lawyer’s bag as well, and we were able to get the same result for them.

For most people, being sued is a big deal. Censorious asshats know that, and will threaten to drag people into court, or actually sue them, for hurting their feelings. Defending the First Amendment in civil court is little different than defending it in criminal court. Different rules and less money, is all.

So when the editor-in-chief of a Vietnamese newspaper reached out to me after being sued for libel by Al Hoang, a former Houston City Council member and sometime Republican candidate for the Texas Legislature because the newspaper called him a communist, I didn’t hesitate to sign on. I filed an anti-SLAPP motion, briefed it up, had a hearing last Friday, and this morning got this:

Dismissal Order in Al Hoang v. Thoi Bao

The only thing that I didn’t get was sanctions. The plaintiff, Al Hoang, a lawyer, had sued people at least four times before for hurting his feelings, but none of those cases had been dismissed under the anti-SLAPP statute, so the judge in my case didn’t sanction him. You can bet that he’ll try again, and you can bet that next time he’ll get whacked even harder.

That was fun, so I’m going to do more of it. I’ve always prided myself on doing one thing—criminal defense—really well. After almost twenty years of practice, though, there’s room in my practice to be really good at two things, and maybe in another couple of decades I’ll add another practice area and be really good at three.

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 (173.255.254.15) .)

In Which Texas Sex-Assault Law is Bizarre

Mark's Blog: Defending People - Wed, 11/05/2014 - 18:27

Texas Penal Code Section 22.011, Sexual Assault:

(a) A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor…

(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Texas Penal Code Section 25.01, Bigamy:

(a) An individual commits an offense if:

(1) he is legally married and he:

(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or

(B) lives with a person other than his spouse in this state under the appearance of being married; or

(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or

(B) lives with that person in this state under the appearance of being married.

So if you’re single and you rape a single person, it’s a second-degree (2–20) felony.

If you’re single and you rape a married person of the opposite sex, it’s a first-degree (5–life) felony.

If you’re married and you rape your spouse it’s a second-degree felony.

If you’re married and you rape a person of the opposite sex who is not your spouse it’s a first-degree felony.

If you rape a person of the same sex it’s a second-degree felony because you couldn’t marry him regardless of your prior marriage.

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 (74.125.19.147) .)

In Which Some Lawyers Are Suckers at Best

Mark's Blog: Defending People - Wed, 11/05/2014 - 17:37

Dear _,

We are pleased to officially inform you that you have been chosen to receive this year’s prestigious TOP 10 Attorney Award for the state of Texas. Through a multi-phase selection process, the National Academy of Criminal Defense Attorneys (NACDA) has chosen you to receive our organization’s highest honor because of the hard work and dedication you have shown in protecting the rights of the accused.

The letter, signed by “Kelly D. Kerr, Executive Director,”1 was sent to a friend of mine by the “National Academy of Criminal Defense Attorneys, Inc.”, with a mailing address of 1629 K Street NW, Suite 300, Washington DC 20006 and a phone number of (202) 827-9985.

Googling that phone number turns up:

  • National Academy of Criminal Defense Attorneys, Inc.;
  • National Academy of Family Law Attorneys, Inc.;
  • National Academy of DUI Attorneys, Inc.;
  • National Academy of Personal Injury Attorneys, Inc.; and even
  • National Academy for Dental Professionals, Inc.

A little poking reveals that the registered agent for these five Oklahoma corporations, and for National Academy of Bankruptcy Attorneys, Inc., is either lawyer Ken D. Kerr, Jr. (DUI)2 or Shannon Rich (all the rest), both of Oklahoma City. These folks have come up with a way to extract money from pathetic lawyers desperate for validation.

The price for a Top 10 Attorney Award for the state of Texas is $350—it’s gone up since Matt Brown was chosen in Arizona last year.3 And speaking of bloggers, Murray Newman is listed by this Oklahoma corporation as one of the Top 10 Criminal Defense Attorneys in Texas! Congratulations, Murray.

You’ll notice that the National Academy of Criminal Defense Attorneys, Inc. website only shows ten lawyers in Texas; I wonder what they’ll do if more than ten suckers send in their checks—perhaps break the states with more than ten top ten lawyers down into areas, as “The National Trial Lawyers” of Dothan, Alabama has done, and break down the “Naitonal” “Top 100 Trial Lawyers” by state, practice type (civil? criminal?) and even part of the state (North New Jersey? South New Jersey?). If the 40% price increase over the last year is any indication, Rich and Kerr will keep raising their rates until exactly ten lawyers are willing to pay.

I said “suckers” because paying $350 or even $250 for a fake honor (most of the lawyers on the top-10 list are smart enough to know that they’re not among the top 10 criminal-defense lawyers in Texas) is a sucker play.

It’s a sucker play unless you take advantage of it—knowing that you’re not legitimately among the top 10 criminal-defense lawyers in Texas, you pay the $250 or $350 and then advertise the fake honor. Paying $250 for the right to use the keywords “top 10,” when you know they don’t really apply? That’s something else entirely.

On his website trumpeting his selection, my friend Neal Davis4 parrots NACDA:

The National Academy of Criminal Defense Attorneys uses a thorough selection process to determine the top criminal defense attorneys in each state. With thousands of attorneys in each state, the NACDA’s rigorous, independent selection process resolves the challenge of attorneys claiming to be “the best” without basis for such claims.

Look at this list, Neal, and tell me that’s not a lie.

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 (99.74.196.151) .)
  1. Kelly’s signature does not look practiced. I wonder whether it is fake. 

  2. Ken D. Kerr? Kelly D. Kerr? What a coincidence! 

  3. Matt’s letter was signed by Shannon Rich. 

  4. I pick on Neal, rather than Carmen, Grant, Murray, or Todd, because he is trumpeting this horseshit. 

In Which We Look at Plea Numbers

Mark's Blog: Defending People - Mon, 11/03/2014 - 18:02

In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.

While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.

Jed S. Rakoff, Why Innocent People Plead Guilty.

What do the numbers look like in Harris County? From November 2013 to October 2014 there were 31,076 felony cases disposed of (excluding probation-revocation cases) in the county.1 Of those, 5,501 were dismissed. Of the 25,575 undismissed felony cases, 25,205 (98.6%) were resolved with guilty pleas (which might have included plea bargains or might have been “open” pleas with no agreed punishment).

But Rakoff’s chosen statistic—percent of undismissed cases that are tried—doesn’t tell the whole story. Of the 5,871 (18.9%) of cases that didn’t end in guilty pleas in Harris County, 5,582 (95.1% of non-pleas, 18% of all dispositions) were wins for the defense—mostly dismissals,2 but 81 acquittals.

Rakoff implicitly writes off those dismissed cases as inconsequential. They are not. There are 22 courts trying felonies in Harris County. If each of them tried a case to a jury a week with two weeks off a year they could try 1,100 cases. This is a theoretical maximum—that trial pace would crush most judges. If 5,871 defendants refuse to plead guilty in a year, at least 4,771 of their cases will be dismissed because of sheer numbers.

When occasionally some naive young lawyer proposes that the defense bar shut down the system, he doesn’t realize that we are already doing it; as long as at least 1,100 people are refusing to plead guilty, each additional defendant who doesn’t plead forces the State to dismiss someone’s case. It might not be that defendant’s case, but something has to give.

Almost every case I’ve ever had dismissed was dismissed after my client rejected a plea offer and I had prepared for trial. Many of them were dismissed on the eve of trial, or with a jury in the hall. The 5,501 dismissals in Harris County were not “because of a mistake in law or fact or because the defendant had decided to cooperate,” as Rakoff describes dismissals in federal court. Sure, in a few of them the State had decided that they had gotten it wrong—charged the wrong guy, or the right guy with the wrong thing—but most of those cases were dismissed because the defendant refused to plead guilty and the State decided that its time would be better spent elsewhere.

Rakoff’s experience is in federal court, where small numbers of cases are dismissed, and where the sentencing guidelines, by rewarding early guilty pleas, discourage defense brinkmanship and encourage government brinkmanship. It’s easy and convenient to write off those few dismissals as prosecutors doing what the law or facts require, or rewarding cooperators. Closer to earth, where most criminal prosecutions actually take place,3 the dynamic can be quite different. Not that the federal system doesn’t need reform to remove the concentration of power from the hands of petty functionaries, but the picture drawn in federal court does not represent the rest of the country. The dynamic is different in Harris County, at least.

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 (173.255.254.15) .)
  1. Numbers are from the Office of Court Administration

  2. Though some of those dismissals don’t count for much, since they were consideration for pleas to other charges. 

  3. In 2012 the Department of Justice filed charges against 85,621 defendants nationwide—fewer than were filed in L.A. County and Harris County combined 

In Which Cultures Clash

Mark's Blog: Defending People - Fri, 10/31/2014 - 21:23

I recently had a discussion with a lawyer from another culture. One of my clients is a potential witness in one of his cases, and my client got tired of hearing from him. So I sent the lawyer a brief email asking that he not contact my client anymore. I said “please” and “thank you,” but otherwise didn’t mitigate my speech. Because the rule is very simple:

in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(Texas Disciplinary Rule of Professional Conduct 4.02). I’ve been on both sides of the situation many times, and there’s never been any drama: you might push the bounds in dealing with someone whom you don’t know to be represented regarding that subject, but if another lawyer asks you not to talk to his client about the subject of his representation, you just don’t. It’s a matter not only of the law (the rule), but also of respect for the lawyer-client relationship.

The lawyer got upset that I had asked him not to speak to my client. He told me that my client was his witness, that he didn’t care about the rule, and that he would talk to my client if he wanted to. I think he wanted to fight me over it. His culture, you see, is a culture of honor, and apparently I had inadvertently ((I do try not to offend people inadvertently.)) offended him by asking him not to talk to my client.

If I were so assiduously looking for opportunities to take offense, I’m sure I would find it everywhere. I can’t imagine that would be much fun; it might make personal relationships difficult to maintain. And if the people who I perceived as having slighted me rejected and even laughed at1 the idea of letting me fight them to restore my honor, I’m sure that it would be very frustrating. I might even lash out, which in a culture of law could land me in jail and jeopardize my license.

So I don’t know how it works out, being a culture-of-honor lawyer in a big-city criminal courthouse. I suspect that long-term results are mixed at best.

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  1. While I reject this guy’s invitations to fight, I’m not laughing at them—I take violence, including the threat of violence, very seriously. 

RIP Brad Frye

Mark's Blog: Defending People - Fri, 10/31/2014 - 14:31

I just learned that Houston criminal-defense lawyer (and frequent Defending People commenter) Charles B. “Brad” Frye died about an hour ago of COPD.

RIP, Brad. Take care of yourselves, everyone else.

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In Which We Find the Game

Mark's Blog: Defending People - Wed, 10/29/2014 - 20:23

I often say that criminal-defense trial practice is about playing “what’s really going on here?” At every phase of a trial case, we are dealing with people who aren’t telling us the whole truth, because they don’t know it, don’t know its importance, don’t want to tell it, or don’t want us to know it. The facts are usually, at first glance, bad for us (else the client wouldn’t be a client), but there is always more to the story than the facts reveal at first glance. So the criminal-defense trial lawyer’s job is to figure out what’s really going on, the interesting twist, which is probably not explicitly stated, and to turn that truth to the client’s advantage.

In improv class we’re working on finding “the game of the scene,” the interesting twist, which is probably not explicitly stated and…hey, that’s “what’s really going on here?”!

On an assault case recently a prosecutor described the disputed issue like this: “she says she pulled the gun on him because he was assaulting her; he says he was defending himself because she pulled the gun; that’s the game.” I might not agree with him that that is the game, but I agree with him that there is a(t least one) game.

Without a game there is no trial.

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In Which the News is Good

Mark's Blog: Defending People - Mon, 10/27/2014 - 08:35

Dallas’s index Ebola Zaire patient, Thomas Duncan, was at home for four days while he was symptomatic with Ebola. His family were not infected with the virus.

While Duncan infected two nurses at the hospital during his final days (when he was leaking blood from every available orifice) he didn’t infect the people who lived with him when he was very sick—sick enough to have gone to the hospital and been sent away.

One of the commenters on my last Ebola post pointed out that Ebola has a very low basic reproduction number, R0, of about two. R0 is not an inherent characteristic of a virus, but depends on the environment. The R0 for Ebola Zaire has been calculated as 2.7 in some outbreaks, but 2.0 in this one in Africa. As long as R0 is greater than one, the disease will continue spreading. If R0 were intrinsic, Ebola Zaire would continue spreading until eventually everyone got sick. Fortunately, R0 will be lower in a more developed nation than in the Third World.

Given that neither of the people whom we know Duncan to have infected appears to have infected anyone else, R0 for Ebola Zaire in Dallas in 2014 is something less than one (2/3?).

What about the scary transmission through the air? The good thing about that is that Ebola doesn’t make you cough or sneeze. So while an infected person can, contrary to the government’s assertions, transmit the virus through the air, it’s not a mode of transmission of which the virus has evolved to take advantage (contrast a cold or flu virus, which spreads by making you expel virus-laden particles at high velocity through your mouth and nose).

So I’m downgrading my concern about Ebola in the U.S. from “do something now” to “play Whac-A-Mole as cases appear.”

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In Which Math is Still Hard

Mark's Blog: Defending People - Sat, 10/18/2014 - 15:57

I’ve written here several times, under the category “math is hard,” about Americans’ innumeracy with regard to risk and danger. I have a theory:

  • Americans overestimate the danger (risk times harm) of things that they are willing to do something about (terrorism!), and underestimate the danger of things that they are not willing to do something about (obesity!).
  • The government, meanwhile, has an interest in overstating the danger of things that it is profitable for corporations to do something about (terrorism!) and understating the danger of things that it is unprofitable for corporations to do something about (obesity!).

There are 8,000+—about 2^13—Ebola Zaire cases; that number is doubling monthly. There are 2^33 people on earth, give or take. That’s 33 months from one case to everybody being infected, at the current rate. We’ve used up thirteen of those months; we have twenty months left. Of course the current rate of infection can’t be sustained—the virus might not spread as fast in more affluent countries with their indoor plumbing and their medical care,1 and at some point the population becomes sparse enough that the survivors aren’t hanging out with each other much anymore.

It can spread like the common cold flu, it doubles every month, and it kills 70% of the people it infects.2 How do you stop this world-changing bug?

If you don’t already have an off-the-shelf solution (and we don’t—see fn1), it seems obvious that you buy some time by slowing it down. You quarantine everyone who wants to enter the U.S. after having been in the most-infected countries in the last thirty days.3

But there’s not much money for the corporations in a quarantine, so the government plays down the danger posed by Ebola. And the Americans who are willing to do something about it (quarantine!) overestimate the danger  while the Americans who aren’t willing to do it (it wouldn’t work!) underestimate it.

The raw numbers—doubling every 20-30 days; 70% mortality—seem pretty compelling to me. Do I overestimate the danger? It’s possible, but if Ebola cases double in eleven days in a hospital in Dallas, I think it’s reasonable to be extremely concerned about what’s going to happen when it hits the Harris County Jail, and to look to the government to at least try to delay that catastrophe.

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  1. Or it might:

    • 9/24: Duncan symptomatic.
    • 9/25: Duncan goes to hospital. Is sent home.
    • 9/28: Duncan returns to hospital via ambulance.
    • 9/30: Officials confirm that Duncan tested positive for Ebola.
    • 10/8: Duncan dies.
    • 10/11: Pham tests positive for Ebola.
    • 10/15: Vinson tests positive for Ebola.

    So the first known Ebola case was known in Dallas on September 28th. Seventeen days later, there were three known cases. That’s equivalent to doubling every ten or eleven days—in a state-of-the-art hospital in a modern city among people who knew that Duncan had Ebola, and how to avoid catching it. We should know in the next week—t+25—whether Duncan infected other people before being admitted to the hospital; we should know in three weeks whether Pham or Vinson infected anyone before testing positive. 

  2. It’s not very good at its job, which is to replicate. But it is good at killing its hosts. 

  3. This is different than the cargo-cult solution of barring flights from the most-infected countries. Airplanes don’t carry viruses, people carry viruses. 

In Which We Are Being Lied To

Mark's Blog: Defending People - Sat, 10/18/2014 - 13:37

[via The White House.]

I’ll take the last point—which may be literally true—first: “Ebola is not spread through casual contact with someone who has no symptoms of the disease.” Per the CDC, “Initial signs and symptoms are nonspecific and may include fever, chills, myalgias, and malaise. … The most common signs and symptoms reported from West Africa during the current outbreak from symptom-onset to the time the case was detected include: fever (87%), fatigue (76%), vomiting (68%), diarrhea (66%), and loss of appetite (65%).” So as long as everyone you have casual contact with does not have a fever, feel chilled, have muscle aches, have diarrhea or vomiting, or feel worn out or not hungry, you’re probably okay. But those symptoms are nonspecific, which means that people who don’t obviously have Ebola (have you ever had fever, fatigue, vomiting, diarrhea, and loss of appetite without having Ebola Zaire?) may be infectious.

“Ebola is not spread through casual contact with someone who has no symptoms of the disease” is cold comfort. Ebola Z is spread through bodily fluids “including but not limited to urine, saliva, sweat, feces, vomit, breast milk, and semen.” Ever have involuntary contact with a stranger’s saliva (cough, cough)? Sweat (don’t touch that doorknob)? Other bodily fluids (achoo)?

Sneezing and coughing bring us to the White House Lie, which I call the Droplet Deception: “Ebola is not spread through air.”

The medical consensus, it appears, is that Ebola cannot be transmitted via an airborne route. But what doctors mean by “airborne” is not what most Americans mean by “airborne.”

If you are standing three feet from me, and I’m sick with a virus, and I sneeze, and you become infected by the virus by inhaling or otherwise touching microscopic droplets from that sneeze, is the virus airborne? Most people would say “yes.”

Doctors would say, “not necessarily.” There’s an explanation here: experts distinguish between “droplets” and “an airborne route.” Ebola Z cannot, it appears, be transmitted through the latter (involving droplet nuclei that have a very high surface-area-to-mass ratio and so can remain suspended in air currents indefinitely), but can certainly be transmitted through the former—droplets travelling through the air.

When you use a word in an unusual way, knowing that your audience doesn’t understand it the same way, it’s deceptive. “Ebola Z is not spread by an airborne route” is literally true (a doctor might say) but it is nevertheless deceptive to the general public.

“Ebola Z is not spread through the air,” however, is a flat-out lie. It is not in any sense—literal, metaphorical, or other—true.

Ebola Z is spread through the air like some viruses we know well—the common cold, for example. What does the White House think the American people would do if they knew that truth?

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 (74.125.176.149) .)

In Which My Good Deed is Punished

Mark's Blog: Defending People - Thu, 10/16/2014 - 11:49

On April 5th TSU law student Amir Tavakkoli sent me this message via my website:

Your name: Amir Tavakkoli
Your E-mail Address: [redacted]
Your Phone Number: [redacted]
The defendant’s Name: Amir Tavakkoli
The defendant’s date of birth: [redacted]
The court: Texas Court of Criminal Appeals/Appeal from 9th COA
The case number: 09-13-00082-CR
Your message to Bennett & Bennett:
Dear Mr. Bennett:

I hope this email finds you well. My name is Amir Tavakkoli and I am graduating from law school in May. You may know me from my days working at the Texas Criminal Justice Coalition. I have a request.

I filed a writ of habeas corpus last year for a 2006 misdemeanor conviction that I have which is giving me immigration issues. This is the only thing on my record. When I google my name, there is a link to your cite that takes it straight to the opinion for my writ. As a lawyer, you know the importance of reputation and the use of google by perspective employers. While I know that I must disclose my misdemeanor to employer, I do not necessarily want to let everyone know about the immigration issue and hope to put it in the past. I am requesting that you remove this case from your list. The case number is 09-13-00082-CR from the Ninth Court of Appeals and discretionary review denied by TX Court of Criminal Appeals.

Thank you for your understanding.

Here‘s the page Tavakkoli was asking that I remove. It’s on a site I created to automatically republish in HTML format the opinions of Texas’s appellate courts in criminal cases.1

As a matter of principle I won’t remove a blog post unless I got the facts objectively wrong. The opinion in question is public information and always will be. It’s available directly from the court here. There are other public records—on the Ninth Court of Appeals site, on the Montgomery County Clerk’s site, on Publicdata.com, and on the Harris County District Clerk’s website2—about Tavakkoli’s criminal history. But knowing the importance of reputation, not wanting to contribute to Tavakkoli’s issues, and being a nice guy (at least until I get poked with a stick) I changed all occurrences of Tavakkoli’s name to “A.T.”

A month later Tavakkoli emailed me again:

Hi Mr Bennett

I hope this email finds you well. Sorry for the inconvenience, however, it seems that the content is still active on your site. Below is a message I receive from google when I request to remove the URL.

Analyzing URL

http://texascriminalslipopinions.bennettandbennett.com/?p=38752

The content is still live on the web.
Before Google can remove it from our search results, the site owner needs to take down or update the content.
Thank you!


Amir Tavakkoli
Research Editor, Thurgood Marshall Law Review
Vice President, Thurgood Marshall School of Law Class of 2014

I had already updated the content. I responded:

Your name is not on that page.

He replied:

Thanks!

May we please remove the whole link? Although the name does not show on the page, when my name is searched “Amir Tavakkoli Houston”, the link is still at the top and a quick reading of it shows enough identifying information, such as born and raised in Iran, that the reader would know it is me.

Thank you for your attention.

I wrote back:

In short, no. Your problem is with Google. Stop bugging me.

To which Tavakkoli responded:

If you were in my situation, what would you have done? I am in no way trying to bug you or disrespect you. Like you, I have other things to focus on as well, like preparing for the bar. A removal of the link from your site would solve this issue.

I have just graduated from law school and looking for a job, and you know that this information can be very hurtful.

You will not receive any more emails from me.

That was May 31st. I thought that was the last of it: I had done Amir Tavakkoli the entirely unnecessary favor of redacting his name, and his beef was with the search engines for continuing to index the site as though it contained his name.

In fact, if I google <Amir Tavakkoli Houston> the Texas Criminal Slip Opinions page doesn’t turn up on the first page of results. How do I know? Because I did so. Why did I do so? Because today this came in the mail:

“Other appropriate action,” “defamatory,” “file a frivolous suit,” “save us both time and headaches,” “exercise my other options,” all wrapped in a certified letter. Does that look like a censorious threat to you?

It did to me.

Now most people, threatened with time-wasting and headache-inducing litigation over online content that doesn’t matter much in the grand scheme of things,3 will just take the content down.

Even some law schools, faced with the threat of litigation over First Amendment freedom, will cave in.

Because the set of people who have the resources and will to resist such a threat is small, those who belong to that set have a duty to make their resistance public and vocal, to discourage others who might send censorious threats. See, e.g., Ruben Guerrero; Joseph Rakofsky.

If an asshat gets a private email correcting his censorious ways, maybe he learns. If his threats are made public, maybe others learn.

“Play nice,” Tavakkoli’s friends will say. And if he had merely, say, done a shitty job defending someone and then cooperated with the government in the writ case, I would be inclined to counsel him privately—I’ve learned that lesson. But censorious threats are different. The intent of such threats is to keep information out of the public eye. To respond to them privately is to accede to them. I mentor law students and young lawyers, but  a law student doesn’t get a special dispensation for trying to quash my speech, any more than a judge does. I had played nice, and I got threatened with a lawsuit. Playing nice again is not the appropriate response.

So I wrote most of this post.

But then I found that Tavakkoli had been endorsed for HCCLA student membership by TSU lawprof Lydia Johnson, so I talked with her, explaining the problem—a kindness warranted only by my fondness for Professor Johnson. I guess she talked with Amir, because he emailed me last night:

Dear Mr. Bennett:

I hope this email finds you well. I want to apologize if my previous correspondence appeared to be demanding or threatening. I did not have any intentions to make a threatening letter or to disrespect you. I was merely trying to protect my best interests the only way I knew how. Please excuse my actions.

I have made mistakes in the past and take full responsibility for them. I have been paying the consequences for my mistakes since the time they occurred (2006) and continue to do so to this day. I believe I should pay the penalty for my mistakes, but how long should a young man who has turned his life around with great goals and aspirations be punished? I have to live my life with the shame and embarrassment every day when my family and friends become aware of my misdemeanor in 2006 (commonly known as my criminal background.) I know that in the back of their minds, some people think of me as a criminal. And they think once a criminal, always a criminal. They do not look at the details of the case and the fact that it is a class B misdemeanor, or that it happened so long ago. Or the fact that I only pleaded guilty because I did not have effective counsel. All they see is the criminal record. And this is why even though I graduated in the top 5% of my class, competed nationally in advocacy competitions, served as the Vice President, stayed active in community service and volunteer programs throughout these years, and provided for my family, I am facing issues with immigration trying to get my citizenship. Because all immigration officials see is the “criminal” in me.

I understand that most of these issues are beyond your control and I have to deal with them, but you can reduce or help control the damage I inflicted on myself. I am opening a law firm in Houston soon (awaiting bar results) and the name of the law firm will be A.T. Law Firm. As a new lawyer, my reputation is everything. Like you, I too share the feelings that individuals should be given a second chance. And that sometimes there is more to the story than the “police has arrested the individual, thus, he must be a criminal.” This is why I will dedicate my life to helping individuals, like you have done for so many years. My goal is to someday reach the status of lawyers like you and Professor Johnson. I don’t know if I will be blessed enough to do so, but I know that I will give it my best shot and feel humbled that I even get a chance.

I, too, love writing and I know that removing an article or an opinion that is published under your name is not a simple task. I ask that you do so to help a colleague’s life. Professor Johnson has indicated that you are the type of seasoned lawyer who will wake up in the middle of the night to assist someone in need. I am extending an open hand and asking that you consider making an exception by removing my information from your blog. I intend to join HCCLA and learn from lawyers like you. If you can consider giving me this opportunity to start fresh, I hope to one day be able to work with you and maybe even work on a research project with you.

I apologize for my hasty response, without consulting with a seasoned lawyer on how to best resolve this matter. I would like to have an opportunity to meet you in person and apologize. Thank you for your consideration.

Sincerely,

Amir Tavakkoli, JD

I don’t think Tavakkoli understands what’s going on here. I had unequivocally taken removal of the post off the table months before, and nothing about his threat had inclined me to change my mind. To the contrary, I’m inclined to reverse my first act of kindness. If Tavakkoli isn’t smart enough to appreciate it, nobody benefits from it.

If you’re Tavakkoli or a friend of his you might think his last email a perfectly good response to the situation. You would be wrong. “I want to apologize if…” is not an apology. “I did not have any intentions to make a threatening letter…” is a lie. And Tavakkoli had more than six months to write his “hasty response.” I explained most of this to Tavakkoli, and gave him another chance, of which he didn’t avail himself.

Draw your own conclusions about the judgment exhibited by Tavakkoli in the service of his own cause, and the relevance of that judgment to his fitness to exercise judgment in the service of other people’s causes; I’ve drawn mine.

Do a good deed for someone, and get threatened with suit if you don’t go even further? There’s an easy solution to that problem: Amir Tavakkoli, snort my taint.

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  1. The courts publish their opinions in PDF format, so the site does some data extraction, which isn’t quite ready for prime time. 

  2. A driving-while-license-invalid conviction, despite Tavakkoli’s assertion that the Montgomery County possession of marijuana was “the only thing on [his] record.” 

  3. Possession of marijuana, reckless driving, driving with license suspended—all of that has little to nothing to do with one’s fitness to practice law. If Tavakkoli wanted to be a criminal-defense lawyer, he could even make a virtue of his experience as a defendant: “I pleaded guilty on bad advice. I’ll never let you do the same.” You’re welcome. 

In Which I Defend, Against Franks and Citron, Your Right to Sext

Mark's Blog: Defending People - Tue, 10/14/2014 - 15:38

In the same way that sovereign citizens and jailhouse lawyers take snippets of language from cases and quote them as gospel truth, applicable in all cases, anti-revenge-porn zealots take snippets of language from cases and quote them as gospel truth, applicable in all cases:

While Bennett has accurately described categories of speech that the Supreme Court has deemed “unprotected,” there are other types of speech that are lesser-protected. The most established example of lesser-protected speech is commercial speech.

The Supreme Court has also recognized that “speech on matters of purely private concern” receives “less stringent” protection from the First Amendment (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985)). That sounds quite a bit like the speech Citron is talking about when she says that revenge porn bans should be limited to private communications between people in a trusting relationship. And footnote 190 of Citron and Mary Anne Franks’s article, Criminalizing Revenge Porn, suggests that this is precisely the area of First Amendment doctrine Citron is referencing.

The distinction between speech of purely private concern and that of legitimate public concern has been invoked by the Supreme Court in public-employee speech cases, among them Pickering v. Board of Education; Connick v. Myers; and City of San Diego v. Roe. Public employees may speak freely on matters of public concern. Outside of matters of public concern, their speech is less protected. A governmental employer may impose on the speech of its employees restraints that would be unconstitutional if applied to the general public.

The 2004 unanimous opinion in San Diego v. Roe is instructive: John Roe was fired from his job as a San Diego cop for making pornography. The Court concluded that Officer Roe’s porn did not qualify as a matter of public concern.

Speech of purely private concern is not less protected from prosecution. I have not found a challenge to a criminal statute in which the Supreme Court invoked the distinction between speech of purely private concern and that of legitimate public concern. But if the Court did, we know from San Diego v. Roe that pornography is not a matter of public concern.

Danielle Citron and Mary Anne Franks profess support for people’s right to take erotic pictures of themselves and send them to their intimate partners. Two things put the lie to this:

  • Their eagerness to adopt Eugene Volokh’s goofy suggestion that the Court might treat revenge porn (“along with many consensual depictions of nudity”) as obscenity; and
  • Their willingness to import a “purely private concern” test into First Amendment criminal law.

If the Court treats many consensual depictions of nudity as obscenity, or if speech of purely private concern receives less-stringent protection, then the creators of erotic images will risk criminal sanction along with those who publish them without consent.

Citron’s and Franks’s argument for revenge porn being less protected as purely private speech depends on those snippets of language from as-applied challenges in tort and public-employee cases applying to as-written challenges in criminal cases. Supreme Court jurisprudence is all over the board, and there have been changes both radical and incremental in First Amendment law in the last century. A test that applies in an as-applied public-employee case or a tort case doesn’t necessarily apply in an as-written criminal case; nor should it. Nor does a test used in 1985 necessarily apply in 2014.

So how, if we can’t rely on language from 1985’s as-applied defamation case, Dun & Bradstreet, Inc. v. Greenmoss Builders, do we predict what the Supreme Court will do with a challenge to a revenge-porn statute?

We look at what the Supreme Court has done in recent years in procedurally analogous cases.

Procedurally, a challenge to a revenge-porn statute will be an as-written criminal statutory challenge. The best guide we have for how the Court will analyze a revenge-porn statute is the Court’s recent as-written-statutory-challenge cases, such as U.S. v. Stevens, 2010’s crush-film case, or U.S. v. Alvarez, 2012’s “stolen valor” case.

In both of these cases the Court applied, with no mention of strict scrutiny, the categorical test that I described in First Amendment 101; in neither of these cases did the Court even bother to discuss whether the speech (commercial depictions of animal cruelty in one; untrue claims of military service in the other) were “commercial speech,” were “matters of purely private concern,” or otherwise could evade the categorical test.

So no, speech “of purely private concern” neither receives less protection in the criminal context, nor should receive less protection than speech of legitimate public concern. Even zealots should be able to see the slippery slope we’re on if the Supreme Court signs off on their cocakmamie theories.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (184.73.49.84) .)

First Amendment 101

Mark's Blog: Defending People - Mon, 10/06/2014 - 14:20

Danielle Citron compensates for her ignorance of First Amendment law with her certainty:

Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Slate, All States Should Outlaw Revenge Porn.

Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law:

  1. Speech is presumptively protected.
  2. Content-based restrictions on speech are presumptively void.
  3. For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:
    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.”

Those are the categories of speech that the Supreme Court has recognized as unprotected.1 So Citron’s assertion that “disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection” is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category

In her law review article with Mary Anne Franks Citron argues (from Supreme Court dicta and other courts’ opinions) that the Supreme Court might recognize such a category, for example, as Eugene Volokh goofily proposes, by redefining obscenity to eliminate the requirement that the material be of prurient interest, as well as the requirement that the material be utterly without redeeming social interest.2

Indeed the Court might some day recognize a category of unprotected speech that includes revenge porn.3 How the Supreme Court responds to private images may depend on how the case arrives at the Supreme Court. I can see the court treating the disclosure of consensually made images differently than the nonconsensual making of images. But we’re a long way from there, and while Citron’s certainty may affect the lawmakers whom she is trying to convince to pass revenge porn statutes, it won’t convince the courts that will be hearing the inevitable challenges to those statutes. Those courts are bound by Supreme Court precedent, which contra Citron, does not put revenge porn into any unprotected category.
(See also Scott Greenfield.)

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  1. In fact they are redundant—child pornography is unprotected because it is speech integral to criminal conduct. 

  2. Citron and Franks cite Volokh’s proposal approvingly even though Volokh notes that his notion of obscenity would render unprotected “many consensual depictions of nudity.” They would cut down every tree in England…. 

  3. And perhaps it should. But it’s hard for this First Amendment lawyer to see how an exception could be crafted to exclude from protection revenge porn but not exclude socially desirable communications, such as Volokh’s consensual depictions of nudity. 

Robert S. Bennett (Absolutely No Relation)

Mark's Blog: Defending People - Fri, 09/05/2014 - 13:36

I’ve written about Robert S. Bennett from time to time, and I’m not impressed by him. But neither was I impressed with the State Bar’s effort to disbar him, which effort succeeded in March. Robert S. Bennett was barred:

from practicing law in Texas, holding himself out as an attorney at law, performing any legal services for others, accepting any fee directly or indirectly for legal services, appearing as counsel or in any representative capacity in any proceeding in any Texas court or before any administrative body or holding himself out to others or using his name, in any manner, in conjunction with the words ‘attorney at law,’ ‘attorney,’ ‘counselor at law,’ or ‘lawyer,'”

So what’s Robert S. Bennett doing now? He’s “President” of “Bob Bennett Licensing Services.” In his LinkedIn page he categorizes the company as “legal services” (which would violate the court’s order):

Robert S. Bennett’s LinkedIn Header 9/5/14

In the description of “Bob Bennett Licensing Services for Professionals,” Bennett writes:

Mr. Bennett is the owner of Bob Bennett Licensing Services for Professionals. The licensing counselors in this licensing service are especially proficient in cases involving, matters before the Office of Chief Disciplinary Counsel, the Texas Medical Board, the State Board of Law Examiners, and other Boards involving professionals and DTPA violations, ethics defense, and white-collar criminal defense involving licensing issues.

The Bob Bennett Licensing Services for Professionals concentrates on representing attorneys, doctors, judges, and other professionals who have professional licensing issues and find themselves the subject of federal and state investigations. This includes representation of both law students and medical students who have run afoul of the Texas Board of Law Examiners or Texas Medical Board. Medical students and doctors who have issues with the United States Medical Licensing Examination, the National Board of Medical Examiners, or the Federation of State Medical Boards have retained Bennett Licensing. Whether the matter involves a grievance hearing before the Texas Office of Chief Disciplinary Counsel or a privilege hearing before a hospital committee, this Texas Licesning entity is known for aggressive representation and success. See client reviews and peer recommendations: www.avvo.com.

Specialties: Representing law students and lawyers with licensing issues before the Board of law Examiners or cases with the Office of Chief Disciplinary Counsel or before the Texas Board of Medicine or other professional boards that license professionals.

This sounds a lot like practicing law to me (which, as well as being a crime, would violate the court’s order). “Representing law students and lawyers with licensing issues before the Board of law Examiners” is certainly “appearing … in any representative capacity in any proceeding … before any administrative body,” which is interdicted by the order of disbarment.

Here’s what RSB’s website for Bob Bennett Licensing Services says in its small-print “DISCLAIMER AND NOTICER [sic] REGARDING MR. BENNETT’S LEGAL BACKGROUND”:

While in law school, Mr. Bennett served as an intern in the Harris County District Attorney’s Office and the United States Attorney’s office.  Upon graduation, both law enforcement agencies offered  him positions. He was a licensed attorney, former Assistant United States Attorney and was Board Certified. At the present time he  is not a licensed attorney. His history of representing and working on licensing issues goes back to 1974 when he was hired  by the Interstate Commerce Commission as an enforcement attorney to review licenses and permits in the transportation industry. As you can tell from his avvo.com site, 165 former clients have used his services and over 41 attorneys have provided peer reviews of his licensing work. Since he is presently not a licensed attorney, he cannot provide legal advice but having worked nearly forty years with every imaginable professional license, he can  advise you about any business decisions concerning your license issue  and  if your fact situation is one that  you should have an attorney assist you or not. It may be that you license  concern or do to the  simplicity of the licensing  issue, your licensing issue  can be handled without hiring an attorney. Every licensing issue does not require the assistance of an attorney, but if you decide it does, Mr. Bennett is extremely well qualified to help you with your business decision ( at a price that is not lawyerly!) and provide recommendations as to the best attorney to handle your case. .  An example of this decision process may be helpful. Staff members with the  Texas Board of Law Examiners as a matter of course would tell applicants they did not need to hire an attorney. In some instances that was correct and in others it was disastrous. With years of experience with business decisions about your application or license, Mr. Bennett may be able to save you thousands of dollars, and the first phone call is free.

What he describes on LinkedIn as “legal services” here becomes “help[ing] you with your business decision.” By calling them “business decisions,” I imagine that he thinks he’s shielding himself from a) contempt charges; b) an unauthorized-practice-of-law suit; and c) another grievance (should he get his license back) for UPL.

Protip: whether it is practicing law or not does not depend on what you call it. According to Section 81.101(a) of the Texas Government Code,

In this chapter the “practice of law” means … a service rendered out of court, including the giving of advice … requiring the use of legal skill or knowledge….

Advising people on “handling licensing issues” is giving legal advice. “You’d better talk to a lawyer” might not be legal advice, but “you don’t need a lawyer” damn sure is. Making “business decisions” of this sort requires legal skill and knowledge.

In fact, the experience that Robert S. Bennett describes to explain his qualifications is all legal experience: law school, prosecutor intern, licensed attorney, AUSA, board certified, enforcement attorney, etc. If you eliminated his legal experience, there would be no experience left:

At the present time he  is not a licensed attorney. Since he is presently not a licensed attorney, he cannot provide legal advice but he can  advise you about any business decisions concerning your license issue  and  if your fact situation is one that  you should have an attorney assist you or not. It may be that you license concern or do to the  simplicity of the licensing  issue, your licensing issue can be handled without hiring an attorney. Every licensing issue does not require the assistance of an attorney, but if you decide it does, Mr. Bennett is extremely well qualified to help you with your business decision (at a price that is not lawyerly!) and provide recommendations as to the best attorney to handle your case. An example of this decision process may be helpful. Staff members with the  Texas Board of Law Examiners as a matter of course would tell applicants they did not need to hire an attorney. In some instances that was correct and in others it was disastrous. Mr. Bennett may be able to save you thousands of dollars, and the first phone call is free.

There is a sucker for every charlatan, but I have to wonder: if a law student has such horrible judgment that he would pay a disbarred lawyer for advice on how to get licensed, shouldn’t that law student be, ipso facto, barred from practicing law?

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¡Justice, Sí, Safety, No!

Mark's Blog: Defending People - Thu, 09/04/2014 - 22:14

 

Harris County District Judge Katherine Cabaniss’s email pleading for votes in the popularity contest that is the Houston Bar Association’s Judicial Preference Poll (via Robb Fickman, who I hope will have something to say about it when he’s out of trial) is right across the SWRVs’1 home plate:

Dear Fellow HBA Member,

The Houston Bar Association’s Judicial Preference Poll will be released on Monday, September 8. I am asking for your vote.

In the HBA poll released earlier this year, I was voted either “Well Qualified” or “Qualified” by almost 87% of respondents.

I was a prosecutor for more than 11 years in Houston. I also served as Crime Stopper’s Executive Director for 6 years. Since being appointed by Governor Perry in 2013, I have worked to see that justice is done in every single case, every single day, in my courtroom.

It is the election season, and I need your help to keep Harris County safe.

Please take a moment to complete the HBA poll before the deadline, September 29. I would be honored to receive your vote. Additionally, please let a friend know about the poll, and ask them to vote as well.

Thank you for your time and consideration.

Katherine Cabaniss
Judge, 248th Criminal District Court
www.judgecabaniss.com

pd pol ad • Katherine Cabaniss Campaign
www.judgecabaniss.com

A judge’s job is not to “keep Harris County safe.” The safer we are, the less free we are, and vice versa. The prosecution’s job is to keep us safe, the defense’s job is to keep us free, and the judge’s job is to call the balls and strikes. A felony judge promising to “keep Harris County safe” is dangerously close to violating Canon 5(1) of the Texas Code of Judicial Conduct:

A judge or judicial candidate shall not make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge….

A judge’s job is to protect everyone from the fears and prejudices of the majority. Unfortunately, judicial elections buy us judges who pander to those fears and prejudices. And as long as more Republicans vote than Democrats, the SWRVs—right-wing authoritarians to a man—will dominate and those fears and prejudices will be those of the meanest and most frightened among us.

(This should not be read as an endorsement of Cabaniss’s opponent, for it is certainly not.)

 

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  1. Scared White Republican Voters’. 

Free to Be Stupid

Mark's Blog: Defending People - Sun, 08/31/2014 - 11:06

You think it’s insane that Arizona allows a 9-year-old to shoot at a firing range? ABC News reports that one in Texas allows them to do so at age 6.

-Leonard Pitts, Jr.

So we make the leap from dumbass puts fully automatic pistol in hands of little girl, winds up dead to it is insane to allow children to shoot at shooting ranges

A well-run shooting range is one of the safest places in America. The rules, which when followed provide no opportunity for firearms accidents, are strictly enforced. If the question is, “should my child learn to shoot at the range, or somewhere else?”, “the range” is the right answer.

So then the question becomes, “should my child learn to shoot?” In a society in which children might come in contact with guns without parental supervision (for example, at a friend’s house where the parents have an unsecured gun), “yes” is the right answer. Guns are fascinating to children—especially to little boys—and firearms education demystifies them and teaches the proper respect. The alternative is to teach children to “just say no” to guns; we have seen how well that works with drugs and sex.

So then the question becomes, “should we have a society in which children might come in contact with guns without parental supervision.” Pitts and the choir to which he preaches think the answer is no: only the government can be trusted with guns. Pitts asks:

What kind of shooting range allows a prepubescent girl1 to fire an Uzi? What kind of instructor does not guard against recoil when a child is handling such a powerful weapon? What kind of parents think it’s a good idea to put a submachine gun in their 9-year-old’s hands? And what kind of idiot country does not prohibit such things by law?

These are all good questions, and not at all difficult. Here are the answers:

  • Careless;
  • Incompetent;
  • Ignorant; and
  • Free.
Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (184.73.49.84) .)
  1. Why “girl” instead of “child”? -MB 

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