Posted on July 08, 2015 in Uncategorized

Public defender "Norm DeGuerre" asks:

Bringing the system to its knees is in you clients' best interest. Why aren't we doing it? @nytimes http://t.co/S0i8NG1lP6- Norm DeGuerre (@NormDeGuerreEsq) July 7, 2015

The answer is simple: because we do not serve our clients' best interest. We serve our client's best interest. And what is in the clients' best interest has nothing to do with what is in the client's best interest.

Put more concretely: say that there are 100 people charged with felonies, and the court system could, by keeping up a grueling pace, conduct four jury trials ((In Harris County, multiply these numbers by about 300)). If everyone demanded a jury trial there is no way the criminal-justice system could convict everyone; 96 cases would have to be dismissed. But the system could convict four people.

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 Posted on July 07, 2015 in Uncategorized

Texas's new revenge-porn statute, Texas Penal Code Section 21.16, is effective 9/1/2015. It's unconstitutional (content-based restriction on speech, and no recognized exception applies), but it's "only" a class A misdemeanor, so defendants will be less motivated to take the time and spend the money to hire me to fight it, and lawyers taking their cases will be less motivated to seek my help:

Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL.(a) In this section:(1) "Intimate parts" means the naked genitals, pubic area, anus, buttocks, or female nipple of a person.(2) "Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.(3) "Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse.(4) "Simulated" means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.(5) "Visual material" means:(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.(b) A person commits an offense if:(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;(3) the disclosure of the visual material causes harm to the depicted person; and(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:(A) any accompanying or subsequent information or material related to the visual material; or(B) information or material provided by a third party in response to the disclosure of the visual material.(c) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct and the actor makes the threat to obtain a benefit:(1) in return for not making the disclosure; or(2) in connection with the threatened disclosure.(d) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for publication that is owned or operated by the person.(e) It is not a defense to prosecution under this section that the depicted person:(1) created or consented to the creation of the visual material; or(2) voluntarily transmitted the visual material to the actor.(f) It is an affirmative defense to prosecution under Subsection (b) or (d) that:(1) the disclosure or promotion is made in the course of:(A) lawful and common practices of law enforcement or medical treatment;(B) reporting unlawful activity; or(C) a legal proceeding, if the disclosure or promotion is permitted or required by law;(2) the disclosure or promotion consists of visual material depicting in a public or commercial setting only a person's voluntary exposure of:(A) the person's intimate parts; or(B) the person engaging in sexual conduct; or(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.(g) An offense under this section is a Class A misdemeanor.(h) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.

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 Posted on July 07, 2015 in Uncategorized

I'll admit it: I sometimes envy guys like Steve Fairlie a bit.

Meet Steve Fairlie of North Wales, Pennsylvania. Steve is:

1. A "National Trial Lawyers Association" (the Givens boys of Dothan, Alabama) "Top 100 Trial Lawyer";

2. A "National Academy of Criminal Defense Attorneys" (Oklahoma City) "Top 10";

3. A National Advocacy for DUI Defense ("NAFDD"?) (Steven Glazer of Flagstaff, Arizona) "Superior DUI Attorney"; and

4. An "American Society of Legal Advocates" (Edwin Sawyer Neely of Sayles | Werbner, and Joel Israel, formerly of that firm, in Dallas, Texas) "Top 100 Lawyer."

But it isn't these meaningless "honors," unrecognized by our peers and valuable only as far as they can be dishonestly sold to potential clients as meaningful, that make me envy Steve.

Rather, I envy Fairlie because, recognizing that other lawyers like him would pay to have their egos stroked, he created the National Association of Distinguished Counsel, handing out to ego-starved lawyers the honor of calling themselves "the Nations Top One Percent." Oh, and selling merchandise: a plaque for $150, a personalized statute for $300, a personalized video for $400. I envy, just a bit, the chutzpah of taking insecure lawyers' money for imaginary recognition so that the lawyers can deceive potential clients. Every time I see another of these scams, I think "I really ought to do that."

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 Posted on May 24, 2015 in Uncategorized

If I were to write a penal statute that was a content-based restriction on speech, I would come prepared with an explanation of how the statute passed constitutional muster, since such restrictions are presumptively invalid.

The proponents of revenge-porn-criminalization statutes never have picked a constitutional justification for their statutes. Instead they have, in post after article after column, thrown a bunch of possible justifications at the wall, hoping that something will stick.

When I visited the topic in January, Danielle Citron had written an article on Forbes.com entitled "Debunking the First Amendment Myths Surrounding Revenge Porn Laws." In it she threw a couple of theories against the wall: "disclosing private communications about purely private matters" and "confidentiality."

In a lengthy post fisking Citron, I wrote "Since maybe three people will have gotten this far in this post, I will give more thought to a breach-of-confidence revenge-porn-criminalization statute and write a post on that."

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 Posted on May 20, 2015 in Uncategorized

c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

That's New Jersey Statute 2C:14-9(c). It's unconstitutional as hell, it has been the law since 2004, and there are no appellate decisions interpreting it.

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 Posted on May 20, 2015 in Uncategorized

More than one hundred seventy bikers are in jail in Waco on charges arising out of the Twin Peaks melee that killed nine. According to the LA Times article, in McLennan County, "there are just 100 [lawyers on the court-appointed list] and many of them do not do the kind of felony proceedings that have stemmed from Sunday's violence."

Each defendant has bail (not "bond") set at $1 million at the moment; they have a constitutional (under the Texas Constitution) right to "reasonable" bail, so as they get lawyers and those lawyers file applications for writs of habeas corpus, the bail amounts will take a nosedive. In Texas (contra Las Vegas lawyer Draskovich, quoted by the LA Times) a murder doesn't merit a million-dollar bail. In Harris County, for example, the standard bail for murder is $30,000 [correction: $50,000]. A person can be held without bail for capital murder, but only if the State jumps through some procedural hoops within seven days of the arrest and proves at a hearing that the proof of the crime is "evident." Because there are very few bonding companies that can make a million-dollar bond (none in Houston, unless the defendant puts up a million dollars of collateral), a million dollars might as well be no bail.

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 Posted on April 28, 2015 in Uncategorized

House Bill 2777 (Herrero) purports to provide trial courts with broad authority to admit evidence of prior bad acts for the purpose of showing action in conformity therewith in many cases.

The statute would add an article 38.371, which would state, in pertinent part, that:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:...(3) the character of the defendant and acts performed in conformity with the character of the defendant.

House Bill 2777 is a derivative of the Huffman Special, article 38.37 of the Texas Code of Criminal Procedure, and like article 38.37 it violates due process.

Article 38.37 purports to allow the admission of character-conformity evidence in cases involving alleged sex offenses against children. Abel Herrero's article 38.371 would broaden the rule to apply to offenses against family members, complainants in dating relationships, people formerly in dating relationships, complainants who are or were in dating relationships with people with whom defendants are or were in dating relationships, and people living together. This is a solution looking for a problem. What's more, it's unconstitutional.

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 Posted on April 22, 2015 in Uncategorized

Texas Senate Bill 344:

By: Huffman S.B. No. 344A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:SECTION 1. Section 33.021(a)(1), Penal Code, is amended to read as follows:(1) "Minor" means:(A) an individual who is [represents himself or herself to be] younger than 17 years of age; or(B) an individual whom the actor believes to be younger than 17 years of age.SECTION 2. Section 33.021, Penal Code, is amended by amending Subsections (b), (d), and (e) to read as follows:(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure [arouse or gratify the sexual desire of any person], the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:(1) communicates in a sexually explicit manner with a minor; or(2) distributes sexually explicit material to a minor.(d) It is not a defense to prosecution under Subsection (c) that [: [(1)] the meeting did not occur [; [(2) the actor did not intend for the meeting to occur; or [(3) the actor was engaged in a fantasy at the time of commission of the offense].(e) It is a defense to prosecution under this section that at the time conduct described by Subsection [(b) or] (c) was committed:(1) the actor was married to the minor; or(2) the actor was not more than three years older than the minor and the minor consented to the conduct.SECTION 3. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.SECTION 4. This Act takes effect September 1, 2015.

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 Posted on April 19, 2015 in Uncategorized

In 2010 D is charged with communicating through a commercial online service in a sexually explicit manner with a minor under Section 33.021(b) of the Texas Penal Code.

He is convicted in 2011 and put on probation, which he complies with until 2014, when the Texas Court of Criminal Appeals rules that Section 33.021(b) is unconstitutional.

In 2015 D files an application for writ of habeas corpus in the trial court. His case is reopened and the charge is dismissed.

The State charges D under Section 33.021(c) of the Texas Penal Code with soliciting the same minor to meet him, through a commercial online service, with the intent that the minor would engage in sexual contact with him.

The statute of limitations for online solicitation of a minor is the catch-all three years under Texas Code of Criminal Procedure article 12.01(7). ((You could argue, depending on the conduct that was solicited, that there is no limitation under article 12.03(c); I don't think that's right)) So at first blush it would appear that the 33.021(c) prosecution is barred by limitations. ((Hooray!))

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 Posted on April 15, 2015 in Uncategorized

That's a cop allowing a girl to get out of a minor-in-possession ticket by winning a game of rock-paper-scissors.

Here‘s Burleson County Precinct 2 Constable Dennis Gaas's take:

Gaas says he found out about the incident last night. This morning he told all three officers that they will not be allowed to work security at future Chilfests. He also notified the two departments the officers work for so they can decide whether further action is warranted. Gaas declined to say what departments the three officers work for.Giving the underage drinker a break is not what got the officers in trouble. Gaas says doing so is an officer's discretion. But when they "play games to get someone out of a ticket, I have a problem with that," Gaas said.Gaas said he hired officers from nearly 60 agencies to work security. They issued 113 citations. According to the Burleson County Sheriff's Office, 44 people were arrested at Chilifest.Gaas was upset by the officers' actions saying, "it gives all of us a bad name."

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