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TCDLA has given me the go-ahead to tell you that if you sign up for the voir dire seminar (which I am directing) or the cross examination seminar (which I am not) in Dallas September 8–9 at the Sheraton Dallas Hotel by the Galleria, you can attend sessions of the other.

Sign up here . See you in Dallas.

TCDLA Voir Dire seminar Dallas 2016

2016.029: Thank You

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You may have noticed that I've added a widget to the right-hand column of "Cool Things I Really Like." It's stuff that I buy for myself, and can get more of if you use the links (or, with UberEats, the code "eats-nw0pp") to buy something for yourself.

I just added a link to Nootrobox. I chew their GoCubes, which are coffee (with other sparkly ingredients) in small gelatinous cubes. They've got other nootropics as well, and if you are interested in biohacking they have a lot of interesting stuff to read on their website.

Thank you especially to those of you who have ordered custom shirts from Original Stitch . I hope you enjoy wearing them, and think fondly of me when you do. I'll think fondly of you, whoever you are, for helping fund my custom shirt habit.

I wrote yesterday about Texas's Law of Parties, and how it is different from Texas's Felony-Murder Rule. An observant reader emailed to ask:

What about Enmund v Florida?

An excellent question. In Enmund the U.S. Supreme Court reversed Mr. Enmund's death sentence because he "d[id] not himself kill, attempt to kill, or intend that a killing take place or that lethal force w[ould] be employed."


Wood was convicted and sentenced to die under Texas' arcane felony-murder law, more commonly known as the "the law of parties" - for his role as an accomplice to a killing, which he had no reason to anticipate.

( Hedayati: In Texas death row case, punishment does not fit crime .)

That Wood "had no reason to anticipate" the killing should have prevented him from being convicted under a parties theory. Here's the Law of Parties:


TCDLA Jury Selection Course, Dallas September 2016

Come play with us in Dallas. Your mind will be blown, and I guarantee that you'll come away a better lawyer.

Register here .


I did not write the following post. Scott Greenfield wrote it and posted it to Simple Justice in 2013. Carl David Ceder has filed what appears to be a fraudulent DMCA takedown letter regarding it (because Scott used Carl's JC Penney portrait as an illustration).

On the chance that the takedown succeeds for a moment, I bring you Scott Greenfield's...

Carl David Ceder Learns The 12 Rules of The Blawgosphere

When I received the email from Dan Hull at What About Clients/Paris? it wasn't hard to imagine the look of exasperation on his face. There are few people in the blawgosphere who have had their content ripped off more consistently than Dan, and unlike the rest of us whose posts ended up on some scammer's website, Dan's was different. The thief always seemed to be a lawyer. Lawyers just wanted what Dan wrote.This time it was a young Dallas/Fort Worth criminal defense lawyer named Carl David Ceder, who had lifted wholesale one of Hull's best known and most appreciated posts, his12 Rules of Client Service. This was first posted in 2006 and may be the post for which Hull is best known.And there it was, on 2007 Houston law grad Carl David Ceder's website, in all its glory. No permission. Not even credit. Just as if this kid came up with it all by himself, instead of stealing it from Dan Hull.So I asked Dan if he sent the kid an email, and he told me he sent the kid a question, whether Ceder wrote the 12 Rules himself? But Hull heard nothing back and was off to Hanover, New Hampshire to conduct a Sensitivity training Seminar for the Dartmouth College rugby team. Again.Not being particularly inclined to let things go so easily, I sent Ceder an email as well:


2016.024: #AllPeopleLie

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From Popehat (h/t Scott Greenfield):

It is currently fashionable for defense attorneys to say "clients lie" and "most clients are guilty." I wouldn't agree with either proposition. Everybody lies; I don't think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It's just that criminal defense scenarios require a level of precision and accuracy that most human interactions don't.Being an effective and responsible criminal defense attorney doesn't require believing everything a client says, exactly. The policy could be better described as "trust, but verify." The key isn't to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don't, you're not defending the client - you're defending your stereotype of the client.

"Everybody lies" is like "all lives matter." It doesn't contradict the narrower statement to which it is intended to respond. Of course clients lie, because clients are people in terrifying and stressful circumstances and people in terrifying and stressful circumstances lie. Sometimes, a wise and benevolent man said years ago, they are lying to themselves as well.


From here :

Eugene Volokh, a professor at UCLA School of Law, told Vocativ in an email that he is "not a fan of most privacy-based speech restrictions," but said "this law seems quite narrow, and pretty clearly defined."



2016.022 hangoutwithmark

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I'm going to be messing around with Google Hangouts. If you'd like to join in, haz clic aquí.

Does the embed work?

It appears to be about 20 seconds behind.(If I'm not in, holler. I'm probably nearby. Otherwise check back later.)

Via scribd:

(a) IN GENERAL.-Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or of the naked genitals or post-pubescent female nipple of a person, with reckless disregard for the person's lack of consent to the distribution, shall be fined under this title or imprisoned not more than 5 years, or both.(b) EXCEPTIONS.-(1) LAW ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.-This section-(A) does not prohibit any lawful law enforcement, correctional, or intelligence activity;(B) shall not apply in the case of an individual reporting unlawful activity; and(C) shall not apply to a subpoena or court order for use in a legal proceeding.(2) VOLUNTARY PUBLIC OR COMMERCIAL EXPOSURE.-This section does not apply to a visual depiction of a voluntary exposure of an individual's own naked genitals or post-pubescent female nipple or an individual's voluntary engagement in sexually explicit conduct if such exposure takes place in public or in a lawful commercial setting.(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.-This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.-This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.(c) DEFINITIONS.-In this section:(1) Except as otherwise provided, any term used in this section has the meaning given that term in section 1801.(2) The term ‘visual depiction' means any photograph, film, or video, whether produced by electronic, mechanical, or other means.(3) The term ‘sexually explicit conduct' has the meaning given that term in section 2256(2)(A).

Let's fisk it.


2016.019: Scurry Scurry, Scurrae

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A couple of days ago in felony court a guy who was supposed to go into custody decided that he didn't want to go. The bailiff and the process server (both Harris County Sheriff's Deputies) wrestled him to the ground. While they were having some difficulty subduing him, someone (the court coordinator, I think - I was focused on the wrestling match) came up to the two prosecutors who were standing near me, whispered, "the deputies have guns, and he might get a gun, so you should go in the back," and led them out of the courtroom, leaving me, the third prosecutor, and everyone in the audience to - in that imagined scenario - get shot by the out-of-control defendant.

I could have left too, but in my view the risk that the guy would a) get a gun; b) discharge it; and c) hit me was smaller than the risk that I would twist my ankle leaving the courtroom. If I'd thought otherwise, I would have politely but persuasively suggested that the audience (and the third prosecutor) leave. ((I probably wouldn't have left, on the theory that if he got a gun the chance that the guy not hit me was much larger than the chance that he would, and in that margin I might be helpful.)) Why? Because while I have a keen sense of self-preservation, that sense doesn't exclude the preservation of other people.

I don't get up at trial and loudly claim to represent the people of Harris County in trial, and then skitter quietly into my hole, leaving those same people to fend for themselves, when I imagine a threat to my own skin.


I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. I admire the Founders for establishing a representative democracy that has survived for over two centuries.

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The First Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it's important to understand that they got it wrong - and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don't know it now, but under the original document, Mitt Romney would be serving as President Obama's vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment, which set up the system we currently have of the president and vice president running for office together.


"Rob" commented:

An investment banker closing a factory that has been a small town's economic lifeblood and shipping those jobs off to Indonesia is creating value for the shareholders, and thus doing what is ethical and appropriate within the context of how he chooses to make his living. It's choosing to make his living this way which makes him an asshole.A CIA operative who waterboards a terror suspect is doing what is correct and expected within the context of how he chooses to make his living. It's choosing to make his living this way that makes him an asshole.Someone who chooses to make his living destroying rape victims on the stand is an asshole, or at least has a mean streak a mile wide.

Some of you might expect me to argue with this. Surprise!: Rob is right in the end. ((I'll leave the niggling details to the nitpickers.))


When someone writing for a popular website says:

Before I was a journalist full-time, I was a lawyer. I didn't do criminal defense work, but I am the daughter of a public defender, and the friend, former classmate, and former colleague of dozens of defense lawyers. I'm not a religious person, but if there is anything I believe is the Lord's work, it is criminal defense, especially as a public defender for the indigent. It is under-paid, vilified, time-sucking, emotionally depleting work. It is also the backbone of our justice system. It is the last line of defense - the only line of defense - for millions of people, many of them young men, many of them poor, many of them of color, in a criminal justice system that houses more people in prisons than any society in the history of the world. Here in the United States, we put people in jail for a very long time and we ostracize them when they come out, breeding cycles of crime, poverty, and marginalization. Large corporations profit from this mass incarceration; politicians are elected because of it. We have built a moral disaster, and criminal defenders are some of the only bulwarks against that.

... you just know there's a big "but" coming along.


What I write is what I mean. I will not gertrude. If you read into my words support or opposition for something other than I explicitly support or oppose, you are a fool.

The revelation that Hulk Hogan's lawsuit against Gawker was bankrolled by Silicon Valley billionaire Peter Thiel, who had a hardon for the media company because it outed him as gay, has prompted some interesting discussions.

If you love free speech, a billionaire's successful bankrolling of a company-killing lawsuit over the nonconsensual publication ((There seems to be some debate whether one or more of the participants knew that the tape was being made.)) of a sex tape is not cause for celebration. While one, especially one on the right, might reasonably find joy in the destruction of a leftwing media company publishing pornography without its subjects' consent, broader principles dictate wariness of covert financing of lawsuits punishing speech.


2016.013: An Apology

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It's no secret that the groom and I will never be friends. Since he was a baby prosecutor I've had grave ethical concerns about him. I've named him a couple of times in this blog.

But the groom being fair game doesn't make the bride fair game.

Someone sent me a link to a story about the groom's wedding proposal, in which he had faked his own arrest. I shared it in a three-word tweet:


Along with Heather Barbieri of Plano and Kerri Anderson Donica of Corsicana, I'm course-directing the Texas Criminal Defense Lawyers Associations' voir dire seminar in Dallas September 8–9, 2016 . Here's a draft description of the seminar for TCDLA's marketing:

This two-day intensive seminar - a combination of lectures, discussions, and demonstrations of voir dire strategies and tools - is a must for the criminal-defense lawyer who tries cases. Jury trials are won and lost in voir dire. Voir dire is not just your only chance to eliminate unfavorable jurors legally, but also your best chance to persuade the jury that your story of the case is the truth. In Voir Dire Outside the (Jury) Box you will learn theories of voir dire. You will learn inventive and useful techniques for connecting with jurors. You will learn to apply those theories and techniques in specific types of cases. You will be entertained. Your mind will be blown, and you will leave on Friday with something new that will help you win a jury trial on Monday.Voir Dire Outside the (Jury) Box is a unique opportunity to learn jury selection from the leaders of the Texas criminal-defense bar; it will benefit the newcomer and the veteran alike. The seminar includes a discount on tickets to the Dallas Comedy House's Thursday evening improv show. And, as always, scholarships are available.

As well as the usual popular topics - error preservation, defenses, jury suppression voir dire, DWI voir dire, child sex assault voir dire, and so forth - we plan to introduce some new ways of looking at the whole voir dire process. The promise of blown minds is mine, and I am not one to overpromise.


Apropos of this post, I learned some interesting things at the courthouse.

Rumor is that the judge put Sam up to commenting on my blog - believable, since Sam isn't the type to comment on blogs. Unfortunately the judge doesn't seem to have told Sam the truth about her private sanction so he's left denying something that I can prove to be true.

I also learned that the judge retaliated against one of her court staff for telling the truth to the Commission for Judicial Conduct about the incident for which she was sanctioned - which incident, I was reminded, was the judge's retaliation for my client not kowtowing to her rudeness in the first place.


2016.010: Brown & Musslewhite

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The Houston personal-injury firm of Brown and Musslewhite was ripping off Houston criminal-defense badass JoAnne Musick's blog posts. So she did what any self-respecting lawyer/writer would do in that situation: she gave the firm a polite telephone call to ask confidentially that they remove the offending comment-

Just kidding. JoAnne did what any self-respecting lawyer/writer would do in that situation: she called Brown & Musslewhite out publicly so that from now until the crack of internet doom there will be a record of their dishonest unethical ways:

I would never hire a lawyer engaging in such practice. It's unethical and just plain wrong. Color me offended and sad that they have chosen to use my name and my words to try and make themselves look better. Don't try to make yourself look better; be better!

Amen, sister.


2016.009 Three Good Deeds

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Speaking of kindnesses...

She was never my favorite judge. She was fair in trial, which is more than I can say for most of our local bench, but she was irascible in the runup to trial; it didn't seem personal, but she was not "patient, dignified and courteous," as required by the Texas Canons of Judicial Conduct. Still, when the Harris County district court judge tragically lost her grown son, I sent her my condolences because it was the right thing to do. She hugged me in the hallway and thanked me the next time she saw me. We were cool for a while. She treated me professionally, and not with the usual rudeness.

When the judge ordered one of my colleagues into custody for doing her job I stood up for my colleague. When she filed a grievance against the judge, I wrote an affidavit describing what I had observed. Because it was the right thing to do. The judge received a private sanction, (a big deal coming from the usually toothless Commission for Judicial Conduct, which usually disciplines judges by requiring them to buy the next round): A judge who has once been privately sanctioned doesn't want to be grieved again.

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