Posted on March 19, 2017 in Uncategorized

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.

Attention

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?

Attention is a universal currency of human interaction. We all have it, we have only a limited amount, we can spend it on only one thing, and we cannot get it back. Attention has both a time dimension (for how long will I pay attention?) and a proximity dimension (how closely will I pay attention?).

Rapport

I wrote about rapport here. Rapport is a function of attention, and one of its outputs is attention. See, for example, Dale Carnegie‘s second Fundamental Technique in Handling People, Give honest and sincere appreciation (attention as input) and his third, Arouse in the person an eager want (attention as output).

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 Posted on March 17, 2017 in Uncategorized

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.

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 Posted on February 21, 2017 in Uncategorized

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.

That's a narrow rule, applicable only to images, and it takes some processing to see its application to non-image speech. So here's a broader test: The Seven Ws Test.

If the restriction of speech depends only on Where, When, or How, the restriction is content neutral. You can't make sounds at more than 120 decibels after 10pm on Main Street: content neutral.

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 Posted on January 23, 2017 in Uncategorized

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).

And hate speech laws follow logically from hate crime. Hate-crime laws specifically punish the thought underlying less serious crimes. Thought is the parent of speech, and hate-speech laws punish the same thought that hate-crime laws punish, only more directly - by criminalizing the speech reifies such punishable thought.

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 Posted on January 16, 2017 in Uncategorized

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.

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 Posted on January 05, 2017 in Uncategorized

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.

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 Posted on January 04, 2017 in Uncategorized

(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.

Justin Keiter - caught making an unethical argument to a jury, caught hiding Brady information, and not having his contract renewed at the Harris County District Attorney's Office - has on his first day as a criminal defense lawyer been appointed to five serious felony cases. Keiter admits that all he has is his reputation; that reputation among the criminal-defense bar is as a cheat. ((Sue me, baby, sue me. Sue. Me.))

Now, some of those recently fired by Kim Ogg or by the voters will make good criminal-defense lawyers. I even have hope for some for whom my colleagues see no hope, and I'm not entirely discounting the possibility that Keiter will, though it strikes me as extremely remote - barring a road-to-Damascus conversion ((Saul was a prosecutor, you know: A persecutor is a prosecutor on the wrong side of history.)) he's most likely marking time until he can find another gig cheating to put people in prison. ((In truth, I think the cheaters should belong in the prosecutorial bar.))

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 Posted on January 01, 2017 in Uncategorized

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.

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 Posted on December 20, 2016 in Uncategorized

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

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 Posted on December 17, 2016 in Uncategorized

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 congress.gov 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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