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Let Squawk Do The Job

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The client is the job. Without the client, you are not an attorney. You are an unemployed person with an expensive law degree. You exist as a lawyer for the benefit of those whom you represent.

The job is taking care of the client. Not "social justice." Not "justice." Not even "clients." The job is the client, singular. Usually, if you are a criminal-defense lawyer, the job is maximizing the client's freedom.

If, in representing the client, you think for a moment about being guided by anything-the interests, for example, of society-other than the client's interests you have a conflict of interest.


Article 17.151 of the Texas Code of Criminal Procedure provides:

A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within... 90 days from the commencement of his detention if he is accused of a felony....

The State is not ready for trial if the defendant has not been indicted. If a defendant was in jail for ninety days without being indicted, he is entitled to release either by bail reduction or by personal bond.


... and the sadist says "No."

It is hard not to pay attention to people who are screaming for your attention. It's hard to manage your own attention in the best of circumstances; sages have for thousands of years been directing our attention to attention, and still we are easy marks for those who would control our minds by misdirecting our attention.

We pay attention: The metaphor is important. When we pay attention we give a share of one of our limited resources to someone or something else. We can get something in return, or not. Largely we get to decide what we want to pay attention to.


Trump offers a submissive palm-up hand to Putin.

"Trump ‘won' Putin handshake: body-language expert."

Erm. No.


I took Harris County District Attorney Kim Ogg to task here for not stepping aside from the decision whether to retry David Temple for the murder of his wife. I saw it as a disappointing example of implicit corruption in the Harris County criminal justice system - behavior that a spocklike visitor would recognize as corrupt, but that we don't see as corrupt only because it's the way things have always been done.

A couple of weeks ago, after reviewing the file for four months, Ogg made the decision to ask for appointment of a special prosecutor.

Good for her.


"I'm what you'd call a true believer in the First Amendment," Rowland announced. "It's foundational.

I've criticized the staff attorney with the ACLU's Speech, Privacy, and Technology Project before for giving up the First Amendment struggle too easily. So when I saw that she claims to be a true believer, ((You are the inheritor of a rich legacy of protecting speech. You damn well ought to be a true believer.)) I went to ACLU's website to see what that once-great organization is doing with the untold millions it has gathered from the public

Friends, I'm here to tell you: It's bad. It starts out good - universities shouldn't have speech codes, more speech is the answer, "Defending First Amendment rights for the enemies of civil liberties and civil rights means defending it for you and me."


In hypnosis, there are two basic styles of inducing trance: the direct, or "authoritarian" style, and the indirect, or "Ericksonian" (named after Milton Erickson) style.

The direct: "Close your eyes." The indirect: "You might find yourself wondering whether you can go into trance, and thinking about your doubts you might discover a time when you could feel more relaxed than possibly at any time before you go into trance you might find your eyes trying to stay open or maybe they want to close and you can let them close now... that's riiiiggghhht...."

Neither is better than the other. A good hypnotist will have both available as tools (requisite variety!).


Old-School Ethical Heresies

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JBD asked for an outline of my TMSL talk on avoiding old-school ethical heresies.

"Ethics" training for lawyers usually focus on the disciplinary rules. But the disciplinary rules are law, not ethics. Sometimes the rules have nothing to do with ethics. Sometimes the rules provide no ethical guidance (so that what the rules allow is unethical). And sometimes what the rules require may be unethical.

For example:


[Updated to include David Hardaway's name, at his request.]

A defense lawyer appeals his client's second DWI conviction, arguing that the client should be punished for a first DWI because the State did not plead or prove the first conviction (which acted to enhance the class-B misdemeanor first DWI to a class-A second) in the culpability phase of the jury trial.

He wins: The Court of Appeals holds that the first conviction is an element of the class A. His client gets some advantage. Future DWI-second defendants have to face juries that know that they have been convicted before of DWI (because if it's an element and the State has to plead and prove it, the jury knows about it before finding the accused guilty or not guilty).


Criminal-Defense Reading List

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Attention, Rapport, and Loops

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There are three subjects that I've been giving a great deal of thought to lately, and I'd like to summarize them and tentatively tie them together in the context of trial here.

Attention, Rapport, and Loop Theory.


I wrote about attention here. Attention is your one resource. If you are not yet aware of the value of your attention, I invite you to ask yourself: When I pay attention, what am I spending it on?



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I had a jury trial in Midland County last week. ((Not guilty, thank you very much.)) The jury panel was very authoritarian - the prosecutor asked a Likert-Scaled (Strongly Agree - Agree - Disagree - Strongly Disagree) question: "Better that 100 guilty people go free than that one innocent person be punished?" Almost every member of the panel strongly disagreed with that proposition. ((To be fair, n=10 would have been a better test of authoritarianism in Midland County - even liberal legal philosophers do not all agree with Ben Franklin's n=100.))

Yet I was fairly sure by the end of jury selection that I had brought most of the panel over to the side of the out-of-town criminal-defense lawyer wearing lace-up shoes ((Yeah, I left my boots at home.)) and his client. I was fairly sure by the end of opening statement that most of the jury thought my client hadn't broken the law.

I would not have had this confidence early in my career. When we first learn to try cases, we learn the mechanics of voir dire, of opening statements, of direct and cross and closing. This is all useful stuff, of course.


There are two sorts of restriction on speech: content-based restrictions and content-neutral restriction.

Content-neutral restrictions are "justified without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Content-based restrictions are everything else - they are justified with reference to the content of the regulated speech.

I earlier proposed the "Grumpy Cat Rule" for content-based restrictions: If the statute favors images of grumpy cats over other images, its regulation of speech is content-based.


Hate-Crime Laws' Natural Consequence

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What's up with people who oppose hate crime laws? How can you be against laws that protect people from being targeted because of their race, ethnicity, nationality, religion, disabilities, sexual orientation or gender identity?

Sing it, sister! How indeed?! And in fact most Americans favor federal hate-crime enhancements.

How about hate speech laws, which protect people from being targeted with hurtful speech because of their race, ethnicity, etc.? 51% of Democrats and 37% of Republicans favor federal hate-speech laws (same source).


There Goes a Man

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I learned this weekend that the Honorable Herb Ritchie, whom I took to task (albeit without naming him, since he was only an example of the implicit corruption that is tolerated at the Harris County courthouse because it always has been tolerated) here for soliciting money from lawyers who would be practicing before him, is returning contributions made by lawyers with cases pending before him "in order to avoid even the appearance of impropriety."

I don't know what prompted his decision, and I don't care. Kudos to Judge Ritchie, and may he be a harbinger of a new less-corrupt age at the Harris County Criminal Justice Center.

Ogg? More Like Ugh, Amirite?

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Without all of the clothes rending and teeth gnashing about how David Temple murdered his wife (I am familiar with the evidence, and I doubt that he did), I agree with Murray Newman (as often I do) that Kim Ogg should ask that an attorney pro tem be appointed to decide how to proceed in the David Temple case, ((Murray suggests the AG's Office; this is a great idea if you want the job done incompetently.)) now that the Court of Criminal Appeals has reversed Temple's conviction.

Temple wants to be exonerated; I sympathize, but I'm not sure how he gets from here - with charges pending - to there. If the State dismisses his case, he has not been exonerated. If he goes to trial and wins, he has not been exonerated (because "not proven beyond a reasonable doubt" is not "some other dude did it"). If he isn't convicted again he can't file another 11.07 writ.

Maybe Stan Schneider has some vehicle in mind for compelling Judge Johnson to have a hearing on actual innocence and compel the State to participate, but an 11.07 writ is the only way that I know of for his client to be found actually innocent (his actual-innocence claim was rejected by the Texas Court of Criminal Appeals, which doesn't mean that he isn't actually innocent just as an acquittal doesn't mean that he is). If the State moves to dismiss the case, Temple can object, but Judge Johnson can dismiss the case over his objection.


(Updated first to include appropriate soundtrack:

Item the First:

On his first day as a criminal-defense lawyer, cheating prosecutor Justin Keiter gets appointed to five serious felonies.


Pay Attention to Attention

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Two books that influenced my thinking in 2016 were Matthew Crawford's The World Beyond Your Head and Robert Cialdini's Pre-Suasion.

Crawford is a philosopher and BMW motorcycle mechanic. His first book, Shop Class as Soulcraft (also recommended) was about the value of making things. The World Beyond Your Head is about how entities - government, media, and corporations - capture our attention to satisfy their own needs. The most striking portion of The World Beyond Your Head was a discussion of the science used by programmers of casino video slot machines to capture and hold the attention of gamblers "to extinction" - until they have no more money to put in the machines.

There are people using science to get your attention, and they do not have your best interests at heart. They will use this science to harm you, and often they do.


It looks like Harris County prosecutors are making one last-lap effort at proving Murray's anonymous commenters wrong and guaranteeing infamy for the prosecutorial tenure of Devon Anderson. Here's an email from the DA elect to the outgoing First Assistant, Judge Belinda Hill:

Judge,Please be advised that I have received several phone calls on my personal cell phone and at my law firm from a sex trafficking victim, the mother of a child who was sexually assaulted, and two parents of murdered children-all of whom have cases pending with the Harris County District Attorney's Office. These crime victims have been contacted by individuals identifying themselves as assistant district attorneys. The callers deliberately misinformed the crime victims about the status and well-being of their cases, and then told them to call me personally to complain. The prosecutor identified by the sex trafficking victim is Justin Keiter.A frantic rape victim's mother called me to say she was notified by VINE that the a defendant accused of raping her child had been released because of case dismissal by the prosecutor, Nick Socias, who had failed to contact her about the dismissal. Last night I spoke with a woman whose daughter is the victim of a capital murder. She received an anonymous phone call by a person identified as a prosecutor who not only misinformed her about the status of her case, but made false statements about me, including stating that I would never seek the death penalty in her case, currently scheduled for Feb. 2017. The prosecutor handling her case is Gretchen Flader.The purpose of this communication is to inform Ms. Anderson and you that the use of official and confidential information available only to the prosecutors handling these cases is unethical and possibly illegal. I urge you to immediately halt the access to all official information by these prosecutors and any others engaged in these despicable actions.Additionally, please take immediate action to ensure that all records (personal cell phone, personal and work email, etc.) from each person involved are immediately preserved so that a full investigation can be undertaken.To say that these actions re-victimize people who have already suffered enough is an understatement. In the name of professionalism and common decency, I urge you both to take appropriate action immediately.Regards,Kim OggHarris County District Attorney-Elect

(Here's Channel 13's coverage of Ogg's press conference this morning.)


The CRFA: Don't Start Celebrating Yet.

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Protip: the government is not in the business of protecting free speech; any apparently pro-speech statute should be viewed most skeptically.

Here's the summary of HR 5111, the Consumer Review Fairness Act of 2016:

(Sec. 2) This bill makes a provision of a form contract void from the inception if it: (1) prohibits or restricts an individual who is a party to such a contract from engaging in written, oral, or pictorial reviews, or other similar performance assessments or analyses of, including by electronic means, the goods, services, or conduct of a person that is also a party to the contract; (2) imposes penalties or fees against individuals who engage in such communications; or (3) transfers or requires the individual to transfer intellectual property rights in review or feedback content (with the exception of a nonexclusive license to use the content) in any otherwise lawful communications about such person or the goods or services provided by such person.A "form contract" is a contract with standardized terms: (1) used by a person in the course of selling or leasing the person's goods or services, and (2) imposed on an individual without a meaningful opportunity to negotiate the standardized terms. The definition excludes an employer-employee or independent contractor contract.The standards under which provisions of a form contract are considered void under this bill shall not be construed to affect:legal duties of confidentiality;civil actions for defamation, libel, or slander; ora party's right to establish terms and conditions for the creation of photographs or video of such party's property when those photographs or video are created by an employee or independent contractor of a commercial entity and are solely intended to be used for commercial purposes by that entity.Such standards also shall not be construed to affect any party's right to remove or refuse to display publicly on an Internet website or webpage owned, operated, or controlled by such party content that: (1) contains the personal information or likeness of another person or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic; (2) is unrelated to the goods or services offered by or available at such party's website; or (3) is clearly false or misleading.A provision shall not be considered void under this bill to the extent that it prohibits disclosure or submission of, or reserves the right of a person or business that hosts online consumer reviews or comments to remove, certain: (1) trade secrets or commercial or financial information; (2) personnel and medical files; (3) law enforcement records; (4) content that is unlawful or that a party has a right to remove or refuse to display; or (5) computer viruses or other potentially damaging computer code, processes, applications, or files.A person is prohibited from offering form contracts containing a provision that is considered void under this bill.Enforcement authority is provided to the Federal Trade Commission (FTC) and states.The FTC must provide businesses with nonbinding best practices for compliance.Nothing in this bill shall be construed to limit, impair, or supersede the Federal Trade Commission Act or any other federal law.

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