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Recent Blog Posts
2016.019: Scurry Scurry, Scurrae
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.
2016.018 Why It's Time to Repeal the First Amendment
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 We need to say loud and clear: The First Amendment must be repealed.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.
2016.017: I'm The Asshole the Robs Deserve
"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.))
"Say please, say thank you, take your turn, don't cuss in church, respect authority": A society has agreed behavioral norms, which help people to live together comfortably in that society. A society's norms are, roughly, the things you needed to know that you learned in kindergarten. Most people break these norms in private or occasionally without consequence, but people who violate society's norms consistently and defiantly are "assholes" to those who follow the norms. ((If that isn't definitional, it's damn near.))
2016.016: Jill Filipovic Makes Readers Stupider
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.
2016.014: Gawker, Thiel, and the Future of Free Speech
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.
This is not about the social consequences of speech, but rather about the legal consequences. Thiel did not organize a boycott or fund Gawker's competitor. He used the coercive power of the state to destroy his enemy. The First Amendment applies not only to state action in the form of prosecutions and regulation, but also to state action in the form of civil lawsuits.
2016.013: An Apology
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:
Recently I heard that the bride had seen the tweet and been hurt by it.
To the bride: I apologize unreservedly. I had no intention of hurting you. I have deleted the tweet, and will be more mindful in the future of the damage my words can cause to innocent bystanders.
2016.012: Voir Dire Seminar in Dallas
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.
2016.011: Followup on Three Good Deeds
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.
So: Judge is rude to lawyer. Lawyer stands up for herself. Judge retaliates against lawyer. Mark stands up for lawyer. Judge retaliates against Mark. Court staff stands up for truth. Judge retaliates against court staff. Classy!
Maybe the judge has a friend who can talk to her about the First Rule of Holes.
2016.010: Brown & Musslewhite
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.
Why is writing the post better than making the call? Because - and I'm speaking from extensive experience here, having made the call time after time only to be left flat on my back like Charlie Brown - when you make that call you don't get taken seriously. Instead you waste your time listening to excuses - "my marketer did it" - and rationalizations - "well, we gave you credit." The extreme, by contrast, always seems to make an impression.
2016.009 Three Good Deeds
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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