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(Nobody ever taught me this in school, and perhaps nobody ever told you either: When a compound adjective follows the noun ("the statute is content based") it is not hyphenated; when it precedes the noun ("it is a content-based statute") it is (provided, of course, that the other rules of hyphenation apply).)

Failing to convince the court that section 21.16(b) of the Texas Penal Code does not restrict speech, the State will next argue, in hopes of keeping strict scrutiny from applying, that even if it restrict speech section 21.16(b) does not restrict speech based on its content.

The statute restricts "visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct" but does not restrict visual material depicting other things. That's a content-based restriction.


Here is section 21.16(b) of the Texas Penal Code:

A person commits an offense if:(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or 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.

The State likes to argue that this does not restrict speech, but only conduct.

  1. Revenge porn is not speech.

  2. Revenge porn criminalization is not a content-based restriction.

  3. Revenge porn is obscenity.


Revenge-Porn Oral Argument

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The First Court of Appeals in Houston will be hearing oral argument February 13th in the case of State v. Mora. This is the State's appeal from a trial court judgment holding section 21.16(b) of the Texas Penal Code (Unlawful Disclosure or Promotion of Intimate Visual Material) unconstitutional under the First Amendment.

The State's scattered brief:

[pdf-embedder url="/wp-content/uploads/2018/01/BRF-STA-FLD-110717.pdf" title="BRF STA FLD 110717″]


Hagstette at Nuremberg.

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Harris County's sixteen county criminal court (misdemeanor) judges have spent millions of taxpayer dollars defending, in federal court, their systematic denial of personal-recognizance bonds to indigent defendants.

They probably should have settled. For now the plot thichens: the U.S. District Judge hearing the case, Lee Rosenthal, has ordered all sixteen judges to hie themselves into her courtroom next Tuesday afternoon to answer some questions the plaintiffs have asked about the judges' truthfulness to the court.

The questions were raised by three hearing officers' testimony before the State Commission for Judicial Conduct this month. One of the hearing officers,


A compliance set is a series of instructions (three will do) that you give to your hypnosis subject to establish his physical compliance with your commands. They don't have to be fancy, but they have to be things that your subject will do: "Put your feet flat on the floor [he's already doing it]. Rest your hands comfortably on your legs. Now close your eyes."

A yes set is a series of questions that you ask your hypnosis subject to establish his intellectual compliance with you. Again: nothing fancy. "Do you want to experience a hypnotic trance? Is this your first time to experience a hypnotic trance? Are you ready to begin?"

Start with a yes set, follow with a compliance set, and you're off to the races. You've set up two patterns: physical compliance, and rapport.


Cargo-Cult Judging

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The State may lawfully proscribe communicative conduct (i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests of another in an essentially intolerable manner."

Scott v. State, 322 S.W.3d 662, 668–69 (Tex.Crim.App. 2010).

Yes, the Supreme Court used some of those words in Cohen v. California. But those weren't all of the words:


Another Shot at Injustice

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This is going out today to Nico LaHood, the District Attorney of Bexar County. Similar letters are going out to Kim Ogg, the District Attorney of Harris County; and Sharen Wilson, the District Attorney of Tarrant County.

I think Wilson has done the most to fix the problem-her office sent out letters notifying people that they might be entitled to relief from convictions under the void section 33.021(b) of the Texas Penal Code.

But nobody has, as far as I know, taken the obvious step of asking trial courts to appoint counsel to people suffering such convictions.


Too Little, Too Late

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On Friday, I sprung a guy from a Texas prison.

"Carl" had been in for nine years on an online-solicitation-of-a-minor case when his mom hired me to file an application for writ of habeas corpus on his behalf.

Just after Christmas the Tarrant County District Attorney agreed that relief was appropriate, and agreed to Carl's release on his own recognizance. The court bench-warranted Carl back from prison to the county jail, and put him on the docket for Friday.


At the outset we reject the view that freedom of speech and association, as protected by the First and Fourteenth Amendments, are ‘absolutes,' not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.

Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1961) (citation omitted).

What does that mean?


Felonious Political Advertising

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Texas's Online Impersonation statute, Penal Code Section 33.07:

(a) A person commits an offense if the person, without obtaining the other person's consent and with the intent to harm... any person, uses the name or persona of another person to:(1) create a web page on a commercial social networking site or other Internet website; or...(c) An offense under Subsection (a) is a felony of the third degree.

("Harm" includes any disadvantage.)


If jurors decide cases based on beliefs reached early in the case, how can we best affect their decisions?

Ideally we will show them two things before the evidence begins: A story, and credibility.

Maybe we'll talk some other time about telling the story-what makes a good story, and how to tell it.


The Wrong Place for Common Sense

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These many cognitive biases we all have-confirmation bias, fundamental attribution bias, and so forth-were once our friends. They helped our species reach the top of the food chain by allowing us to make snap judgments that, at the time, were right often enough to justify how often they were wrong. But "at the time" was before they built the Harris County Criminal Justice Center. Before we started living together in cities, even. Probably before we started growing our food instead of pursuing it.

In the modern world the balance is different-we are much less often exposed to things that will eat us if we take the time to apply reason and logic instead of making a correct snap judgment. We have more access to information, and more time to reflect on it before making most decisions.

We have a popular name for these cognitive biases. We call them, collectively, "common sense." Cognitive biases are-common sense is-what we rely on when reason and logic fail us.


Origin Story

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Fundamental attribution bias is the cognitive bias that leads us to attribute people's actions, good or bad, to their character rather than to circumstances. A person of whom we have no opinion and for whom we have no ingroup/outgroup associations leading to an opinion, but whom we learn has done a bad thing, we generalize ((Remember: When we form our cognitive map of the world we generalize, distort, and delete.)) as a bad person; such a person who does a good thing, we generalize as a good person.This is why you get at most one chance to make a first impression.

Once we have generalized a person as good or bad, we look at everything that he does in light of that generalization. Good people get the benefit of the doubt when they do bad things; bad people do not get the benefit of the doubt when they do good things.This is the battleground in many criminal jury trials.

Something bad has happened. The State wants to pin it on the defendant, turn him into a bad person, and then get the jury to hold him culpable because he is a bad person. The defense wants to disrupt this chain, either preemptively (for example, with ingroup associations) making the defendant a good person, keeping the State from pinning it on the defendant, or fighting the uphill battle of showing the jury that the defendant is a good person despite the bad thing.


Lies We Tell (About) Juries

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(Please forgive typos in this and surrounding posts. I'm traveling, and writing on an old iPad and a bluetooth keyboard, so there is some lag between the typing and the appearance of words on screen. I may come back and clean up later.)

What if there were a secret about the way that jurors decided cases, the knowledge of which would give you an advantage over almost any adversary. Would you want to know it?

What if using that secret to your clients' advantage required you to believe it. Would you be willing to believe it?


Criminal trial lawyering is a subcategory of trial lawyering, which is a subcategory of persuasion, whihc is a subcategory of communication.

So the criminal trial lawyer, to be better at her craft, could study the lessons of other trial lawyers (personal-injury lawyers, for example). That's obvious. The good thing about personal-injury lawyers is that they are fighting over money. ((It's also the bad thing about them.)) Because they are fighting over money they have money to spend on investigations into being better trial lawyers. Few are motivated to do so, but those that are, are also financially able.

Less obviously, the criminal trial lawyer, to be better at her craft, could study other persuaders, such as salesmen, and preachers, and politicians and other conmen. Salesmen write ad nauseum about how to be better salesman-How to Win Friends and Influence People is a classic manual of persuasion. I don't know that preachers write about their craft, but they can be watched in action. The art of the con is more opaque, but no less worthy of study.


My Attention, and Barriers to it

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I decided near the end of last year that my word for this year would be "attention." I would pay attention to what I was paying attention to, and to what I was getting in return f0r these payments of the scarcest asset I possess.

I pretty quickly realized that I couldn't stand watching sitcoms, or tv generally, or listening to commercial radio, or watching popular media. I could see how all of these media used the science of attention to capture my attention (and how they thearbitraged it to their advertisers.

And I got to read a lot more.


Why the Lo Test Will Prevail

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Here I expressed confidence that the Texas Court of Criminal Appeals will eventually straighten out the law on what makes a regulation content based, putting various speech-restricting statutes that intermediate Texas Courts have found not to be content-based regulations back on the table.

Why the confidence? Because I'm right.

Okay: Also because while the Court of Criminal Appeals can dodge the issue procedurally for a while, they cannot close every procedural door. Eventually they will have to correct an intermediate court that has called a content-based regulation content-neutral. Either that, or the Supreme Court will grant cert when Texas courts uphold some unusually preposterous content-based restriction (like a statute forbidding someone's name without his consent online with intent to harm) as not content based.


Situation excellent: On Wednesday the Texas Court of Criminal Appeals affirmed the Beaumont Court of Appeals in Leax v. State.

When the Court of Criminal Appeals granted discretionary review on Leax, I thought it would be the culmination of almost four years of fighting that began with this post after I realized that section 33.021 of the Texas Penal Code, in which the Texas Legislature created a constitutionally valid offense in subsection (c) and then eliminated one of the elements that made it constitutional in subsection (d), was not constitutional.

The first litigation was in a case called Wheeler. I filed a habeas petition in the trial court in June 2014. The trial court denied relief, we appealed, and the First Court of Appeals allowed oral argument in April 2015. Oral argument went well, I thought-I wrote then that the opinion would "at least apply the correct standard of review," that is, strict scrutiny.


Texas's New Nondisclosure Law

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When Texas first passed its nondisclosure statute, it allowed some people with successfully completed deferred-adjudication probation to seek an order of nondisclosure effectively sealing the public records of their arrest. Nondisclosure had to be "in the best interest of justice," so it was effectively at the trial court's discretion.

Since then the right to nondisclosure has been broadened.

Section 411.074 General requirements for Nondisclosure

To be eligible for nondisclosure, every defendant must:

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