Posted on November 29, 2015 in Uncategorized

The article is offered by everydayfeminism.com 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).

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 Posted on November 28, 2015 in Uncategorized

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.

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 Posted on November 23, 2015 in Uncategorized

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.

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 Posted on November 20, 2015 in Uncategorized

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.

So when I saw that Wes Volberding (Baylor, clerkship) and Seth Kretzer's (UT Law Review, clerkship) in their letter to Gretchen Sween, who was trying to help Raphael Holiday get new appointed lawyers, who would be both competent and willing to keep fighting for him, wrote:

We also direct that you cease communication with our client. It appears you have been corresponding with him, and probably have been to see him without our consent or permission. While Rule 4.02 of the Disciplinary Rules allows you to respond to his letters, if you have gone to see him and acquired confidential information, and used that information to intervene in his case, then you have stretched Rule 4.02 beyond any reasonable interpretation. We respectfully urge you to go no farther.

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 Posted on November 20, 2015 in Uncategorized

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!

That's short and sweet. No surprises there. So Matthew's suggestion that Fidelity would not be defrauded under his scheme is, it appears, false.

I'm sending my correspondent a link to this blog post, in case Fidelity is concerned about Matthew's "family friends at Fidelity Investments who promise me AT LEAST one new client a week (Estate Planning) if I were able to get on their Preferred Attorney's List" outside the scope of Fidelity's program.

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 Posted on November 19, 2015 in Uncategorized

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.

People fight because as long as we are fighting there is hope, and without hope we might as well be already dead. Lawyers fight because that's what we do.

But that's not what happened in Raphael Holiday's case. Raphael Holiday's lawyers, Wes Volberding and Seth Kretzer, stopped fighting.

Well, they didn't stop fighting. They just stopped fighting for Holiday, but they fought to keep Holiday and lawyer Gretchen Sween from fighting:

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 Posted on November 19, 2015 in Uncategorized

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.

In the course of these proceedings, on March 20 Duty had sought a gag order from the court. On April 9 the court had issued the gag order. Then on May 7 Duty violated the gag order that she had requested by talking to the Austin American Statesman about a defense motion. The judge scheduled a hearing on May 8, and ordered Duty to be there.

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 Posted on November 19, 2015 in Uncategorized

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.

So at first I was puzzled what "Texas law Chapter 18A Section 1.1" is. It is meaningless, cite soup. There is no such defamation-related law in Texas.

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 Posted on November 18, 2015 in Uncategorized

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:

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 Posted on November 17, 2015 in Uncategorized

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").

Murder and Aggravated Assault are lesser-included offenses of the two EOCA counts. "Committing the offense as a member of a criminal street gang" makes an agg assault a first-degree felony, and makes a murder a fifteen-to-life crime.

To convict this defendant of the most serious offense charged the State would have to prove at least (under the law of parties):

1. That the defendant intended to promote or assist the commission of some felony;

2. That murder resulted, and should have been anticipated as a result of the carrying out of that crime;

3. That the defendant solicited, encouraged, directed, aided, or attempted to aid another person to commit that felony; and

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