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Recent Blog Posts
2015.41: Citron and Richards on Revenge Porn
There are two types of advocates of revenge-porn criminalization: there are those who actually propose and try to defend unconstitutional statutes, and those who dispense with First Amendment objections with a wave of a hand, but don't offer any statutory language that might pass First Amendment Muster.
Mary Anne Franks is an example of the former. She will write (and rewrite) her model statute and defend it to the last breath with great passion but very little legal reasoning.
Lawprofs Danielle Citron and Neil Richards are the latter. They defend the idea of revenge-porn criminalization, but don't suggest language that might be acceptable (Citron disagrees with Franks's approach-she thinks that an acceptable statute will "only punish individuals who knowingly and maliciously invade another's privacy and trust"; Franks disagrees, and her model statutes don't include those requirements).
2015.40: Thinking is Not What You Think
Do I have free will? If you believe that I do, on what evidence do you believe that? The only evidence that you might have is your perception that you have free will-anything outside of that can be easily faked. If you ask me to do something and I do it, you don't know whether that's out of free will or some compulsion. But it seems to you that you have free will, so you believe that you have free will, and because you believe that you have free will and assume that I am the same you believe also that I have free will.
It seems to me that I have free will too. So why do I believe that I don't have free will? Because it doesn't make sense to me that the human brain would be any less deterministic (which is not to say "predictable") than the rest of the universe. I could conceivably be wrong, but I count my perception that we have free will as an illusion. That just makes more sense to me.
Accepting that free will is an illusion is liberating. It opens up the possibility that our minds plays other big tricks on us, that they don't work the way they seem to in other ways either.
2015.38: Greenfield Takes a Hill He Can't Hold
Keith is friends with Jeena, and saw no reason to attack her post too strongly and turn a friend into an enemy. So in concluding, he threw her a bone with some praise. Of course, it contradicts his point, renders his post pointless and is facial nonsense. Jeena didn't remind anyone to structure behaviors so as not to do a disservice towards clients, but to not be a jerk because that's not how she wants to be personally and therefore believes it to be intrinsically better.
"Jerk" is never used as a word of praise. Why? Because not being a jerk is intrinsically better than being a jerk. The world would be a better place if nobody was a jerk. Not being a jerk makes the lives of those around you easier, it lowers your blood pressure, and it satisfies the categorical imperative.
The point that I think Scott is trying to make is that we lawyers are not allowed to choose to do the things that make us feel better-things like making the lives of those around us easier, lowering our blood pressure, and satisfying the categorical imperative-over the client's interests. If that's Scott's point, it's a very good point, and one that bears making over and over.
2015.37: Never to Forget
Today the Harris County Criminal Lawyers Association held a ceremony in honor all of the local criminal-defense lawyers who have died. There are 125 names on the list; I'm sure we're forgetting some, but we only started keeping track in 2006 (it was Robb Fickman's idea, during Wendell Odom's presidency). Most of us will never find more than fleeting fame; the purpose of the ceremony is to remember those who have fought the good fight, and might otherwise be forgotten.
We invited Harris County's thirty-seven criminal court judges to the ceremony. Three attended:
The Honorable Brad Hart, Judge of the 230th District Court;
The Honorable Ryan Patrick, Judge of the 177th District Court; and
The Honorable Kristin Guiney, Judge of the 179th District Court.
The Honorable Marc Brown, Justice of the Fourteenth Court of Appeals, also attend us to show respect for our fallen comrades.
The following did not deign to attend:
2015.36: The Unconstitutionality of Section 33.021(c)
Here's my brief on the unconstitutionality of the balance of Texas's Online Solicitation of a Minor statute, Texas Penal Code Section 33.021. I have two appeals pending, both in courts that have already upheld the statute in the face of First Amendment challenges:
Both the Beaumont and First Courts of Appeals analyzed Section 33.021(c) as statutes regulating conduct rather than speech. This is plainly incorrect: speech that is unprotected because it incites the imminent commission of a crime is still speech.
The San Antonio Court of Appeals upheld Section 33.021(c) in the face of a vagueness challenge, holding:
The requisite intent arises within the conduct of soliciting the minor, and must exist at the time of the prohibited conduct of solicitation. Id. Indeed, it is the requirement that the defendant must solicit "with the intent that the minor will engage in sexual contact" that operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows then, that for purposes of a subsection (c) solicitation offense, it does not matter what happens after the solicitation occurs because the offense has been completed; it does not matter whether the solicited meeting actually occurs, or that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation. [AB1]
2015.35: Jury Selection Rule: Pull Back the Curtain.
One of my proteges, working on an appeal, noticed how easily the prosecutor convinced a member of the jury panel to change his mind on an important issue with a tongue lashing. He posted about it publicly, admonishing potential jurors to be strong in jury selection and not let a prosecutor "bully them" into changing their opinions. It's a fair point, but there is a lesson for the defense lawyer as well.
Jury selection is not about getting jurors to change their minds. You're not likely to get them to change their minds in jury selection, and the prosecutor in my protege's case probably (I wasn't there) didn't really get the juror to change his mind. What she did was to get the juror to say different words than he had at first; she might be able to hold the juror to that new position during deliberations, but probably not, so if she didn't get him to say words that led to a challenge for cause she was wasting her breath.
2015.33: In Which I Gertrude About Gertruding about Gertruding
I would never say that I don't need to prove that I don't need to prove that I'm opposed to cops being murdered. Because it's obvious that I don't need to prove that I don't need to prove that I oppose murder, and rape, and revenge porn, and all of the other bad things. It goes without saying. And nobody would suggest that I need to prove that I need to prove that I'm opposed to bad things unless I proactively insisted that such was not the case.
So, once and for all, not only am I opposed to all the bad things, but also I don't need to prove it. And furthermore I don't need to prove that.
I hope it's obvious. I would hate to have to prove that I don't need to prove that I don't need to prove that I oppose all of the bad things.
(I want Urban Dictionary credit for coining the verb "to gertrude," meaning "to create doubt in a proposition by insisting upon it.")
2015.32: Texas Lawyers, Don't Be That Guy
Some lawyers are reportedly interpreting Ethics Opinion 646 to mean that they can give their clients copies of discovery produced under Article 39.14 of the Texas Code of Criminal Procedure, despite Article 39.14(f)‘s admonition that:
The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness's own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver's license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.
2015.31: Ethical Question—Privilege vs. Best Interest
Hypo: In a Texas criminal case, defense counsel receives a video recording in discovery from the state. Assume that she needs to prepare her witnesses for cross-examination by talking to them about the contents of the video. The defendant forbids her from showing the video to the witnesses or even telling them what it shows. She does her best to convince him to allow it, but he refuses.
How does this shake out?
Generally, the defendant has the right to make the strategic decisions in his case (plead guilty? jury or bench trial? jury or judge for punishment? seek lesser-included offense?) but trial counsel makes the tactical decisions (what witnesses to call, what questions to ask). ((Others have characterized the dichotomy as "fundamental" vs. "strategic" decisions, a mixing of metaphors.))Good judgment isn't what made the client a client. A lawyer has to maintain control over the defense. Often a client will want the lawyer to do things that would be disastrous to the client's strategic goals; a lawyer can and should refuse. Whether to show the video to potential witnesses, to prepare them to testify, seems to fall under the category of "tactical decisions." The lawyer has a responsibility to keep the client from making disastrous mistakes. And the video isn't a secret-the State had it first.
2015.30: For Shame, Professor Franks.
Shame that @ACLU supports the violation of sexual privacy for profit or entertainment http://t.co/VBZ0aounKn @EndRevengePorn @cagoldberglaw- Mary Anne Franks (@ma_franks) January 26, 2015
A wise man recently said, "If you publicly oppose criminalization of anything, zealots of criminalization will accuse you of favoring that thing."
The argument is either ignorant or dishonest. Franks doesn't get to plead ignorance here. She knows the argument is dishonest and she makes it anyway.
It is fair to ask, "is there some depth to which Mary Anne Franks won't sink?" So far we haven't found that depth.
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