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Recent Blog Posts
2015.52: Hot Texas First Amendment Action
Ex Parte J.I.L. (that's the real name; it's a juvenile case) is pending in the Fifth Court of Appeals in Dallas. Cocounsel Josh Andor of McKinney and I are challenging the constitutionality of the Online Impersonation statute, Texas Penal Code Section 33.07. I had to go to Collin County to make this challenge because the Harris County DA's Office had been dismissing online-impersonation cases out from under me when I filed writs.
But recently in the 209th District Court here in Harris County the State filed a response to my writ challenging Section 33.07. So maybe the Online Impersonation statute isn't dead in Harris County. Amusingly but unfortunately the State included this in its response:
He's right: Section 33.07 is similar to Section 33.021(b). But that "pet. granted" bit in the cite means that something else could happen in the case, and what happened in that case is that the Court of Criminal Appeals reversed the court of appeals on that very issue and held Section 33.021(b) unconstitutional. You might have heard about it. It made the news.
2015.51: Trends in Policing
I was picking one of my kids up from school the other day when a guy in a clapped-out Ford Taurus drove by the crowded schoolyard honking his horn and screaming obscenities ("shitbag" was one).
Curious, I tracked the car to the City of Houston, then to the Houston Police Department, then to Senior Police Officer George Garcia of the Criminal Intelligence Division, who was using the car on city business. I guess the Houston Police Department has a new policy of drive-by shitbaggings at elementary schools.
Well done, Senior Police Officer George Garcia. Well done.
2015.50: Possibly the Worst Scaled Question Ever
From a sexual-assault appeal I'm working on:
I want to ask everybody on the panel the following question: How likely do you think a child would be to lie about being sexually abused? One is very likely; two, likely; three, unlikely; four, very unlikely.
As a criminal-defense lawyer who has represented people who have been falsely accused of sexually abusing children, my answer is "four, very unlikely." But I interpret the question to mean, "any given child." And that's the truth: any given child will most likely not lie about being sexually abused-will never have the opportunity or the motivation. But it just takes one false accusation to ruin a guy's whole day. ((If I read the question to mean "how likely is it that some child somewhere will lie at some time about being sexually abused," my answer would be "one, very likely; in fact, inevitable." And you wouldn't know how I was interpreting your stupid fucking question.))
Now, if I, despite being more skeptical about allegations of sexual abuse than the vast majority of people, would be likely answer at the conservative conviction-friendly end of your scale, how likely is it that you'll get any meaningful information from a jury panel?
2015.48: To the Potential Client
Dear PNC (we call you PNCs, for "Potential New Clients"; it's redundant, I suppose, but "PC" is already assigned to "probable cause" and "personal computer" and "politically correct"):
You have told me repeatedly that you are innocent. You don't mean "legally innocent"-that is, unconvicted-but "factually innocent." I don't know whether you're telling me the truth or not (people lie to me all the time), but please know that it doesn't matter to me. It won't decrease my fee, and it won't make me do any better job.
I consider the act of putting people in boxes to be fundamentally immoral in virtually all cases, and I don't believe that I-or any human-have the wisdom to distinguish the few cases in which putting people in boxes is moral from the many in which it is not. So it doesn't matter to me whether they're factually innocent. If anything, I prefer factually guilty clients-there is less stress, and I confess that I get impish joy from cutting loose a malefactor. I'll do the same job on behalf of the innocent, but there is no innocent-client discount.
2015.47: HB101, HB 496, HB603 Unconstitutional
There are three nonconsensual-pornography-criminalization bills before the Texas House of Representatives' Criminal Jurisprudence Committee tomorrow:
HB101 (Guillen) and HB603 (Davis of Harris) are identical:
(b) A person commits an offense if the person: (1) intentionally displays, distributes, publishes advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and (2) knows or should have known that the depicted person has not consented to the disclosure.(c) It is a defense to prosecution under this section that: (1) the disclosure 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 was permitted or required by law; (2) the disclosure consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or (3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, or a provider of an information service, as defined by 47 U.S.C. Section 153, and the disclosure consisted of visual material provided by another person. (d) An offense under this section is a state jail felony.
2015.46: Boom Goes the Thoughtcrime.
Whether he wrote DOWN WITH BIG BROTHER, or whether he refrained from writing it, made no difference. Whether he went on with the diary, or whether he did not go on with it, made no difference. The Thought Police would get him just the same. He had committed - would still have committed, even if he had never set pen to paper - the essential crime that contained all others in itself. Thoughtcrime, they called it. Thoughtcrime was not a thing that could be concealed for ever. You might dodge successfully for a while, even for years, but sooner or later they were bound to get you.
George Orwell, Nineteen Eighty-Four.
Today I got word that a district judge in Montgomery County, Texas held unconstitutional the "posession" portion of Texas's Fraudulent Use of Identifying Information statute. By criminalizing the possession of information (including knowledge) combined with the intent to harm (which is a constitutionally protected intent) or defraud the State has created a thought crime.
2015.45: Problems in Evidence Tampering I
Suppose that a client comes to you with a problem: he has a computer hard drive full of child pornography, and he wants to know what to do with it. What do you tell him?
It's illegal for him to continue possessing the images. So you can't advise him to do nothing (and keep breaking the law).
The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).
But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?
Under state law (Texas Penal Code section 37.09),
A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he: (1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding;...
2015.44: One out of Seven—an F for McBrayer
Justin McBrayer laments the fact that our public schools are teaching our children that there are no moral facts, and therefore no moral truths. He gives seven examples, from online fact vs. opinion worksheets, of facts that kids are taught are opinions:
- Copying homework assignments is wrong.- Cursing in school is inappropriate behavior.- All men are created equal.- It is worth sacrificing some personal liberties to protect our country from terrorism.- It is wrong for people under the age of 21 to drink alcohol.- Vegetarians are healthier than people who eat meat.- Drug dealers belong in prison.
All of these are opinions, with one possible exception of the sixth:
Copying homework assignments is wrong: May be true or false depending on circumstances. If by "assignments" you mean "the description of work to be done," the statement is wrong. If by "assignments" you mean "the answers," the statement may be right or wrong depending on the circumstances-some assignments require students to collaborate.
2015.42: Harris County Welcomes Dallas Prosecutors
What do you do if you're a District Attorney running an office that is under fire for prosecutorial misconduct and in the middle of a hearing (in which current and former prosecutors contradicted each other, themselves, and the documentary evidence) over whether the office hid exculpatory evidence of alternate suspects in a murder case?
If you're Devon Anderson, you hire a former Dallas County ADA who is the subject of a motion for new trial for hiding exculpatory evidence in a murder case.
Fortunately we criminal-defense lawyers have started talking to each other of late. Here's the book on three new Harris County ADAs, refugees from the Dallas County DA's Office, from one of the Dallas brethren:
Danielle Uher: She withheld evidence on a high profile case and then lied about it to the judge. We have it all on the record. She also improperly contacted a consulting expert and tried to get him to spill the beans on the defense strategy. She is a bully who takes advantage of weakness and only responds to bully in return. She will interrupt and talk over and down to you AND the judge. The louder she argues, the more wrong she usually is.Andrea Mosley: She is a former cop and doesn't believe there is anything such thing as an innocent defendant. If they've been arrested, they're guilty. She also doesn't believe in mitigation. If you're 1% wrong, you're a 100% wrong and there is nothing in between and no excuse for any wrongdoing. Once we had a defendant who was arrested for stealing food and she offered prison time because, "He's a thief and I don't like thieves. At least in prison, he won't have to steal to eat." She is very frank and you will always know where you stand. She holds the defense bar in utter contempt, and generally doesn't work and play well with women.Andrea Handley: She's the nicest one of the bunch, but is also the most manipulative of them as well. She will try to lull you into a false sense of security and then sticks a shiv between the 3rd and 4th ribs. Document document document and then document your file some more. A paper trail is the best way to deal with her.
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