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Suppose that you are a civil lawyer representing a business or government entity in Texas, and your client is served with a subpoena in a criminal case. The subpoena is returnable "instanter," and asks that your client produce certain documents along with a business-records affidavit.

What do you do?If you are Shannon Kackley of Austin's Denton Navarro et al., you look up the Texas criminal subpoena statutes, notice that a subpoena must require the witness's appearance "before a court" "at a specified term of the court or on a specified day" (and not instanter), and send the defense lawyer this email:

Mr. Bennet,This Firm and I represent the City of Bay City, Texas and the Bay City Police Department.We have been informed that you have recently provided a copy of the attached document to the Bay City Police Department. We have reviewed the purported subpoena and determined that it is invalid and unenforceable.If you wish to obtain documents from the Bay City Police Department, please properly serve it with a valid subpoena duces tecum under Article 24 of the Texas Code of Criminal Procedure.If you have any questions, please do not hesitate to contact me.


This week a district court (felony) judge in Waco held Section 33.07 of the Texas Penal Code unconstitutional:

Sec. 33.07. ONLINE IMPERSONATION. (a) A person commits an offense if the person, without obtaining the other person's consent and with the intent to harm, defraud, intimidate, or threaten 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(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:(1) without obtaining the other person's consent;(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and(3) with the intent to harm or defraud any person.(c) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.(e) It is a defense to prosecution under this section that the actor is any of the following entities or that the actor's conduct consisted solely of action taken as an employee of any of the following entities:(1) a commercial social networking site;(2) an Internet service provider;(3) an interactive computer service, as defined by 47 U.S.C. Section 230;(4) a telecommunications provider, as defined by Section 51.002, Utilities Code; or(5) a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.(f) In this section:(1) "Commercial social networking site" means any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or to other users. The term does not include an electronic mail program or a message board program.(2) "Identifying information" has the meaning assigned by Section 32.51.

At the moment the judge was signing the order (PDF-read it; p2¶1 is #Texas), I was arguing the unconstitutionality of Section 33.07 before the Fourteenth Court of Appeals in Houston. In that case, too, the trial court had held the statute unconstitutional, so the state was appealing and I represented the appellee.


About 15 seconds of my 20-minute argument in the Georgia Supreme Court on Monday ( watch it ) involved everyday incidents of teenagers being sexually aroused by adults, or adults being sexually aroused by children. I talked about my own experiences as a sexually aroused teen, which was true and amusing, and also about something that is true and important: the unwanted sexual attention paid to teen girls by grown men.

My point, which I made explicitly, was that this is not the sort of thing that government could or should try to criminalize-something orthogonal, as JDog would say, to my argument, which was that the forbidden speech falls into no historical category of unprotected speech, so that forbidding it is not permitted by the First Amendment and Supreme Court authority.

Fifteen seconds, and incidental, and the Daily Report's Katheryn Hayes Tucker chose to make that the focus of her coverage of the story. She found three outraged lawyers who were more than happy to be outraged in the paper without watching the entire argument, and described the outrageous snippet of argument to them.

I'm no Melissa Click, but I'm going to take a stand here and say that publishing comments on the reporter's summary of the facts as though they are comments on the facts is flat-out unethical. It is lying to the reader: "here's what this person said about the facts," rather than "here's what this person said about what I said about the facts."


2016.005: Conservatism in Court

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My argument in the Supreme Court of Georgia had me reflecting on three categories of conservatism: the social, the political, and the judicial.

In Georgia, we were dealing with a law that forbade an adult communicating certain content (including descriptions of nudity) to a child online with the intent to arouse or satisfy the sexual desire of the adult or the child.

While socially conservative libertarians can lay claim to the "political conservative" tag with just as much good faith as socially conservative authoritarian, I view political conservatism as lying closer to the authoritarian end of that axis. It may be that "politically conservative" has been used by so many disparate philosophies that it is devoid of meaning, but the political conservative would, in my view, view the suppression of perversion as a valid governmental goal.


Chris was charged in Texas with Online Solicitation of a Minor under Section 33.021(b) of the Texas Penal Code. He hadn't tried to solicit anyone, but he had allegedly communicated sexually explicit words to a minor with the intent to sexually arouse or gratify himself or the minor.

Jack was charged in Georgia with Obscene Internet Contact with a Child under Georgia Code 16-12-100.2(e). He hadn't had obscene contact with anyone, but had allegedly communicated sexually explicit words to a child with the intent to sexually arouse or satisfy himself or the child.

I stood up in the highest courts of Texas and Georgia to argue that 33.021(b) and 16-12-1002(e) violated the First Amendment by forbidding a real and substantial amount of protected speech. Texas agreed with me; we will find out by July whether Georgia does.


2016.003 Memento Mori

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I'm writing this from 30,000 feet in the air, flying home to Houston from Atlanta where yesterday I argued a First Amendment case before the Georgia Supreme Court. Most lawyers never get to argue before their own State's highest court, much less another state's. Georgia was very hospitable to me. Brunswick criminal-defense lawyer Jason Clark ((For the Texas criminal-defense lawyers: Jason's a Georgia version of Tony Vitz.)) and Savannah criminal-defense lawyer Cris Schneider, my local counsel on the case, put me up in a nice hotel, fed me good food, and-most importantly-made sure I didn't have to worry about getting where I had to be when I had to.

In addition to Jason and Cris, I made other new friends in Georgia: Keith Lee, Andrew Fleischman, Jon Rapping, Scott Key, Esther Panitch, Alan Begner, and my opposing counsel Jay Sekulow (who I hope will be on the right side of the First Amendment the next time I work with him). I got to see my old Trial Lawyers College friend Nick Lotito. My old buddies Scott Greenfield and Brian Tannebaum flew in from New York and Miami to hang out and help me prepare for argument (I don't need a moot court; I just need three or four smart lawyers to try to crush any pride I might have had in my argument over coffee).

The court didn't have a lot of questions, and I don't work great with cold panels. Give me a hostile panel over a cold one any day. A couple of times I stumbled because I hadn't prepared to lecture the court for twenty minutes; finally I just shut up and enjoyed the silence for a moment. The one justice who had questions was David Nahmias, a former law clerk to Justice Scalia, former U.S. Attorney for the Northern District of Georgia, and by all accounts a brilliant guy-my kind of audience. He had the right questions both for me and for the State; I believe that Nahmias understood the argument better than the State, and at least as well as I understand it, which means that I didn't obfuscate it too much in my brief.

Of course I have no idea what the court will do, but I know that I did a hell of a job (watch it here ). Going home in triumph feels good.


2016.001: My Free-Speech Wish List

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In the last three years, I convinced Texas courts to hold five statutes unconstitutional under the First Amendment. ((Also one statute under Texas's separation of powers clause.)) I filed briefs in the Georgia Supreme Court, will argue the unconstitutionality of a Georgia statute next month, ((February 22 in Atlanta. There will be steaks, wine, and hilarity. Mark your calendars.)) and will be assisting Jason Clark in the appeal of another George First Amendment challenge. ((Protip: the State can't forbid people insulting bus drivers.)) This year, I'd like to hear from:

  1. Alaska lawyers with clients charged under Alaska Stat. 11.61.120(a)(6);

  2. Arkansas lawyers with clients charged under Arkansas Code 5-26-314;

  3. California lawyers with clients charged under California Penal Code section 647(j)(2), 647(j)(3), or 647(j)(4);


2015.105: Bah, Humbach

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Josh Blackman sent me the link on Christmas Eve:

Humbach on the Constitutionality of Revenge Porn Statutes A. Humbach (Pace University School of Law) has posted The Constitution and Revenge Porn (Pace Law Review, Vol. 35, No. 1, 2015) on SSRN. Here is the abstract: Most of the recently enacted revenge-porn laws are unconstitutional as content-based regulations of speech unless (as is unlikely) they can either (i) pass strict scrutiny or (ii) fit within one of the recognized categorical exceptions to First Amendment protection. By paying close attention to the constitutional precedents, however, a legislature should be able to write a law that addresses the primary harms of revenge porn without resorting to the content discrimination which subjects the law to strict scrutiny. One approach, suggested here, is to frame the law so that it establishes an otherwise valid crime whose burden on speech can be regarded as only "incidental" (within the meaning of O'Brien and other precedents). By avoiding the content-discrimination trap, such a law should be able to thus survive constitutional scrutiny for the same reasons that, for example, the Title VII harassment prohibitions are constitutional. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an attempt by government to suppress speech it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing. Note: This article is a revised and finalized version of a working paper previously available and entitled "How to Write a Constitutional ‘Revenge Porn' Law."

I had seen a rough draft of the paper a year ago and hadn't thought enough of it to write about it here. Humbach's critique of existing revenge-porn statutes is substantively nothing new-I've been saying the same thing for years.


2015.104: What Common Sense Is

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The great thing about having blogged for more than eight years (eleven, if you count my first shortlived attempt) is that I have a record of my own increasing understanding of my subject.

I wrote in 2010 about fighting back against common sense-preempting and responding to the State's argument that a jury should find a defendant guilty because of "common sense":

"Common sense" has nothing to do with it. The words do not appear in a Texas criminal jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense.

What I didn't have in 2010 was an explanation of what common sense is, until I saw this:


It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.

Cicero did not take into account the case of Tyler lawyer James Volberding and Houston lawyer Seth Kretzer, whose treatment of their client Raphael Holiday was not merely negligent but malevolent. The idea that lawyers would turn on their own client, trying to speed his execution, was beyond consideration for Cicero.

As it was for me. When Gretchen Sween, the lawyer who was trying to help Holiday get new counsel appointed in the place of Volberding and Kretzer, told me that Kretzer and Volberding "opposed their own client's motion for a stay of execution before the Fifth Circuit," I was skeptical, to say the least. I thought that Sween's description of what happened was probably not entirely objective.

Lawyers representing a death row inmate don't suffer under the illusion that they can keep their client from dying. They don't even suffer under the illusion that they can keep him from dying in cold blood at the hands of the state. Occasionally they can, but most often they are buying a few more precious days for their client, and making the state work a little harder to end his life. The client generally isn't suffering from the illusion that litigation is going to keep him from dying either. Nothing is going to stop him from dying. Nothing is going to stop you or me from dying either, but most of us are doing things to try to set that moment off a little bit longer. We exercise and eat well, or failing that at least we eat, breathe, and don't step in front of buses.


2015.102: This Article Friggered Me

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The article is offered by as a "one-stop 101" for those "not sure what people mean by triggering." So while this may look like a weak-man argument, it is not.

In the motte and bailey of triggering, the motte is people with actual post-traumatic stress disorder, the symptoms of which are triggered by some event. These people hate their disease, and seek help.The bailey is people who think having a psychological disorder is cool and dramatic, and demand that the rest of the world moderate their speech and conduct to avoid "triggering" some bad feeling:

Triggering occurs when any certain something (a "trigger") causes a negative emotional response.The emotional response can be fear, sadness, panic, flashbacks, and pain, as well as any physical symptoms associated with these emotions (shaking, loss of appetite, fainting, fatigue, and so on).


2015.101: The Thanksgiving Truce

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It all went wrong at the second word:

We don't have a whole lot in common. We never have, not even back in the days when we were dumping tea into harbors and sneak attacking Hessians on Christmas Eve. America has always been less melting pot than Mulligan stew, an improvised conglomeration of ingredients, a loose affiliation of flavors, barely held together by the thin gravy of shared love of underdogs and the fervent hope that J.J. Abrams can get the Star Wars franchise back on track. We're divided by race and religion and politics and culture and smart phone preference and a legion of lesser differences, separated into little tribes of shared interests, each of us closed off behind the walls of our individual circumstances, our personal preferences.

In truth, we have a lot in common; what we have in common is almost everything. We certainly have all of the important things in common. We all want the same things: survival, sex, affection, a better life for our children, entertainment, education.

In contrast to the things that we share, the differences between us-"race and religion and politics and culture and smart phone preferences and a legion of lesser differences"-are superficial, artificial, and trivial. We were born not knowing these differences, and when the alien invasion fleet arrives in orbit we will promptly forget them again. They are differences that were fabricated and magnified by those who would use dissension to their disadvantage: governments, churches, and corporations.


From Holiday v. Stephens, 557 U.S. ___ (2015):

Statement of JUSTICE SOTOMAYOR, respecting the application for stay of execution and denial of certiorari.A federal statute entitles defendants sentenced to death to court-appointed counsel during "all available post-conviction process." 18 U. S. C. §3599(e). This statute requires counsel to "represent the defendant in... proceedings for executive or other clemency as may be available to the defendant." Ibid.; see Harbison v. Bell, 556 U. S. 180, 185–186 (2009). Pursuant to §3599, Raphael Holiday asked his court-appointed counsel-Seth Kretzer and James Volberding-to petition the State of Texas for clemency. App. to Pet. for Cert. 5a. His attorneys declined, however, because of their belief that there was "no chance at all that a clemency petition would be granted." Id., at 11a (internal quotation marks omitted).Holiday asked a Federal District Court to appoint a new attorney who would file his petition for clemency. The court denied his request. The court recognized that §3599 compelled it to appoint new counsel if "the interests of justice" require. Ibid. (quoting Martel v. Clair, 565 U. S. ___, ___ (2012) (slip op., at 7); (internal quotation marks omitted). But given the "representations" of Holiday's attorneys, the court found new counsel unwarranted. App. to Pet. for Cert. 11a.

This denial was an abuse of discretion. When Congress authorized federally funded counsel to represent clients in clemency proceedings, it plainly "did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells." Harbison, 556 U. S., at 194 (quoting Hain v. Mullin, 436 F. 3d 1168, 1175 (CA10 2006) (en banc); internal quotation marks omitted). Yet this is exactly what happened here. Although the "‘interests of justice' standard contemplates a peculiarly context-specific inquiry," Martel, 565 U. S., at ___ (slip op., at 13), it surely precludes a court from rejecting a substitution motion solely because it agrees with the appointed attorneys' premonitions about clemency.Executive clemency is fundamentally unpredictable. Clemency officials typically have "complete discretion" to commute a defendant's sentence based on "a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations." Ohio Adult Parole Authority v. Woodard, 523 U. S. 272, 278, 281 (1998) (principal opinion); see Tex. Const., Art. IV, §11; Tex. Code Crim. Proc. Ann., Art. 48.01 (Vernon Supp. 2014). By granting death-eligible defendants an attorney, "Congress ensured that no prisoner would be put to death without meaningful access to th[is] ‘ "fail safe" ' of our justice system." Harbison, 556 U. S., at 194 (quoting Herrera v. Collins, 506 U. S. 390, 415 (1993)). So long as clemency proceedings were "available" to Holiday, §3599(e), the interests of justice required the appointment of attorneys who would represent him in that process. Cf. Christeson v. Roper, 574 U. S. ___, ___ (2015) (per curiam) (slip op., at 8) (reversing the denial of a substitution motion under §3599 despite the "host of procedural obstacles" confronting the petitioner's claims). The District Court's denial did not adequately account for Holiday's statutory right.


I do not like lawyers making censorious threats.

I do not like lawyers failing to understand the ethical rules.

I especially do not like lawyers making censorious threats based on their failure to understand the ethical rules.


I sent Fidelity a copy of Matthew's email proposing that I act as a front man, using my name to allow him to get referrals from their Preferred Attorney list. ((I probably wouldn't have bothered if Matthew hadn't reminded me that he was there by incompetently threatening to sue me.))

I received a prompt emailed reply from their (a?) Director of Wealth Planning Product Management in Merrimack, New Hampshire:

Dear Attorney Bennett – this is outside the scope of our program.Thank you!


I have heard-and I believe it-that the worst thing about being under a death sentence is knowing that that date is coming, facing a date certain, watching the explicit number of days you have left become smaller and smaller and smaller until.

It's unnatural.

So death penalty lawyers fight for every minute of time, for every chance they might find something that might get their clients another minute of time:

From here on, the lawyer's job is to be creative. Investigate again. Search for the really unlikely. Float whatever. And put together the clemency pitch. Because, as we say in this business, once in a while pigs do fly. And because what the hell.


2015.96: Wilco Water

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There must be something in the water in Williamson County, Texas. After defeating John Bradley (that asshole), Jana Duty, who had never prosecuted an adult felony case, became District Attorney.

For her first adult felony jury trial, Duty chose a "delayed strangulation" case that even Bradley had recognized to be a dog. She bought found a witness who would testify that strangulation could cause death up to two years later.

During the trial there was an issue about Duty hiding evidence (my understanding is that the defense lawyer had asked her for a video; Duty had said she didn't have it; at trial it turned out that she had had it, and knew she had), and a mistrial was declared. When Duty wanted to retry the case, the defense said, "not so fast," arguing (essentially) that retrial was jeopardy-barred because it was the prosecutor's misconduct that had caused the mistrial.


2015.95: WTAF STCL

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From Matthew's November 13, 2015 demand letter:

Under Texas law Chapter 18A Section 1.1, it is unlawful to engage in defamation of another's character and reputation. The elements for defamation are as follows:1. The defendant published a statement of fact2. The statement referred to the plaintiff3. The statement was defamatory4. The statement was false5. With regard to the truth of the statement, the defendant was1. acting with actual malice6. The plaintiff suffered pecuniary injury.

Texas statutes are generally organized into codes-Penal Code, Civil Practice and Remedies Code, Probate Code, and so forth. Those Codes are divided into chapters dealing with particular subjects. Chapter 18 of the Texas Code of Criminal Procedure, for example, deals with search warrants.

There is no "Chapter 18A" in any Texas code that I can find, much less any Chapter 18A dealing with defamation.


I'm just going to leave this here for right now. I have plenty to say about it, but I've got a couple of other thinks in the hopper.


As requested, I directed Matthew's letter to my lawyer. Here is Marc Randazza's response on my behalf. He's much nicer than I would have been:


2015.93: Spaghetti Prosecution in Waco

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Here is one of the indictments arising from the Waco Twin Peaks killings:


This indictment charges three offenses: Murder ("Code: 19.02"), Aggravated Assault ("22.02"), and two counts Engaging in Organized Criminal Activity ("71.02").

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