Posted on January 26, 2015 in Uncategorized

The ACLU sued on behalf of several bookstores and publishing associations, the owner of the Village Voice and 12 other alternative newsweeklies nationwide, and the National Press Photographers Association.The groups sent Mesnard and legislative leaders a letter early this month suggesting changes to the law to address its concerns that the law was overly broad......."In our view, we're just trying to ask them to add some elements that first of all protect the media with respect to images that are important historically or have news value or artistic image," said David Horowitz, executive director of the Media Coalition, whose members include publishers, librarians and booksellers. "And trying to really focus this again on the kind of malicious invasion of privacy everyone agrees is bad behavior."The letter suggested that Mesnard change the law to narrow its scope to address only "revenge porn" without interfering with free speech rights. Specifically, they don't want it to apply when the publication was in the public interest or newsworthy.And they want it to apply only to someone who was in an intimate relationship and displays a photo that their partner expected would be private with the intent to embarrass, harass or otherwise harm the person.Mesnard said that language would be a deal-breaker because of the need to prove intent to harm, which he said would create "a big old loophole."

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 Posted on January 25, 2015 in Uncategorized

A couple of years ago I wrote a post about the prevalence of judges coaching prosecutors:

In short, the judiciary acting as an adjunct to the prosecution shouldn't surprise anyone. Elected judges identify with the state. There are very few who will decide close calls for the defense. There are many more who will bend over backwards to make sure the state wins. What Coker did with Jones is little different than what Narcise does with Cousteau. But Narcise doesn't text Cousteau, or if he does Cousteau is smart enough not to commit the texts to paper.

Now I've found a judge who is so brazen about coaching prosecutors that he doesn't care who knows it.

Meet Billy Harmon, Judge of Harris County Criminal Court at Law Number Two.In a DWI case in Court Two, Tyler Flood filed a motion in limine asking, among other things, that Harmon "refrain from...[c]oaching the prosecution....":

Motion for Judge Harmon not to Coach Prosecutors

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 Posted on January 24, 2015 in Uncategorized

I don't think I'd heard of Brad Spangler before today, when this popped up in my feed reader:

The following message was posted on Facebook, allegedly from Brad Spangler, and I find it difficult to believe. If someone out there is trying to malign him or malign libertarianism through him, then it is a viciously sick joke. I'm suspending judgment until more is known, and I hope everyone else does the same. I am not providing the FB link because the commentary thread has been reduced to spewing hatred.The message (purportedly) from Brad Spangler:"...During a particularly bad period in 2004, I molested [a young relative]. I did not do so forcibly, but the betrayal of trust and resulting potential emotional fallout for her has weighed heavily on my conscience ever since, to the point of doubting my sanity and refusing to believe I had, or even could have, done such a thing."While I believe justice ought to be handled as a matter of restitution to the victim rather than punishment, my declining physical health, apparently from myotonic dystrophy, means I probably don't have many years left to live in which attempts could be made at restitution. With the laptop going in for warranty exchange, worries about discovery of which web sites I had visited and further questions that might raise convinced me that facing the currently dominant accountability process, regardless of what's right or wrong with it, is the best thing I can do for my [relative]."

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 Posted on January 23, 2015 in Uncategorized

"Let me state boldly; I am against sexual assault. But..."

"I am against revenge porn. But..."

"I am not a supporter of crime or criminals...."

Of course you are against all the bad things. So you don't need to say it. Please don't.

I understand the impulse: if you publicly oppose uncritically believing people who make rape accusations, you will be accused by small-minded people of favoring sexual assault. If you publicly oppose criminalization of anything, zealots of criminalization will accuse you of favoring that thing. If you defend people accused of crimes, the booboisie will infer that you support those people and their crimes.

The disclaimer is a preemptive strike against this illogical inference. But even if it's true, it is not going to convince anyone. (If your disclaimer is, "I am a strong proponent of free speech, but...", it's probably not true; the second half of your sentence will tell.)

The great mass of readers are either too poorly educated to tell the difference between procedure and substance, or too dishonest to acknowledge it. The ignorant group doesn't understand that you can fight criminalization without supporting bad conduct; the dishonest group understands, but pretends otherwise in order to quash dissent. (I'm sure you all have favorite examples of the latter, you misogynistic rape apologist you.)

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 Posted on January 20, 2015 in Uncategorized

The question comes up time and again: should lawyers portray the legal system as some wish it were, or as it really is?

Those who think we should portray the legal system as they wish it were-an accurate instrument for finding the truth, with rules that work and players who are above reproach as long as they follow those rules-are deceivers. Their deception has a purpose, perhaps-to "fake it until we make it," or to keep the rubes from rioting-but they are deceivers nonetheless.

Those who portray the legal system as it really is are truth-tellers. When truth-tellers speak, deceivers accuse us of bringing the profession into disrepute and try to shut us down.

From the (Canadian) Law Times last month:

[Dalhousie University lawprof Elaine] Craig also takes issue with lawyer web sites that imply aggressive advocacy in sexual assault cases, a sensitive topic in light of the current debates around the reticence of victims to report sexual assaults. In her view, implying aggressive advocacy may contravene law society rules on marketing. She noted, for example, the web site of law firm Adler Bytensky Prutschi Shikhman, which pointed out that "in many sexual assault allegations, the only evidence comes from a single complainant. It is therefore critical that your lawyer be capable of conducting a thorough and exhaustive cross-examination. Depending on a host of factors, this may call for light suggestive questioning or aggressive confrontational examination."According to Craig, even if lawyers have a duty to engage in aggressive cross-examination, "that shouldn't translate into your marketing platform.""No one is constitutionally entitled to any defence possible," she continues."Whatever we rely on as the legal profession to justify that kind of conduct, that doesn't apply to marketing."

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 Posted on January 20, 2015 in Uncategorized

When four felony prosecutors quit or are fired from the Harris County DA's Office in a week, I try to tease out the pattern, or the message that is being sent.

1. #3 in the 182nd.

2. Chief in Court 4.

3. Assistant in Forfeiture Division.

4. Chief in the 176th.

What do these four lawyers (there may be more that I haven't heard of) have in common? What message does their discharge send to the rest of the office? No idea. I haven't heard any gossip that doesn't strike me as bullshit. So this post is just a placeholder for now; I'll return to it when I have a theory.

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 Posted on January 19, 2015 in Uncategorized

If law is the operating system for society, then good lawyers are hackers. In the criminal justice system, there are white-hat hackers and black-hat hackers; which are which depends on your point of view. If you favor safety over freedom, prosecutors wear white hats and people like me wear black. If you prefer freedom to safety, it's the other way around.

Whichever way it is, there are people getting paid to use the rules of the system, or to change them if possible, to their clients' advantage. If a good criminal-defense lawyer can find a way to get her client out of trouble, she'll do so.

Those who think they've found a magical way to get or stay out of trouble that lawyers aren't using often believe that the lawyers aren't using it because they are part of a conspiracy to keep the truth from the public. But there is no British Accreditation Registry, no secret agreement among lawyers to conceal from the public the source code of the system. In fact, that source code is open-source. Interpreting it requires training and experience, though, and the Uniform Commercial Code is not foundational.

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 Posted on January 17, 2015 in Uncategorized

Here's the meat of Illinois's new revenge-porn criminalization statute:

720 ILCS 5/11-46 Sexual exploitation via non-consensual dissemination of a sexual act or intimate parts.(b) A person commits sexual exploitation via non-consensual dissemination of a sexual act or intimate parts when he or she:(1) intentionally disseminates an image of another identifiable person who is engaged in a sexual act or whose intimate parts are exposed; and(2) the person knows or should have known the other person has not consented to the dissemination.(c) Exemptions. The following activities are exempt from the provisions of this Section.(1) The intentional dissemination... made under a criminal investigation that is otherwise lawful.(2) The intentional dissemination... for the purpose of, or in connection with, the reporting of unlawful conduct.(3) The intentional dissemination... where the images involve voluntary exposure in public or commercial settings.(4) The intentional dissemination... when the dissemination serves a lawful public purpose.

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 Posted on January 16, 2015 in Uncategorized

Sarah "Bennett's Brain Emeritus" Wood of the Harris County PD's Office is the queen of all things mentorly. After the Harris County Criminal Lawyers Association had tried for years to create a functioning mentorship program it was Sarah who created the Second-Chair Program, which has been cranking out better-trained criminal-defense lawyers for at least six years. Sarah also runs the PD's internship program and the Future Appointed Counsel Training Program (FACT), which connects Gideon's Promise-trained young lawyers with experienced mentors for a two-year stint.

One component of the Harris County criminal bar's mentorship regimen is monthly brainstorming sessions, also organized by Sarah. We'll gather in the ready room on the seventh floor of the courthouse at lunchtime, HCCLA will order in food, and people will share their case issues and ask for advice from more-experienced lawyers.

These sessions are often frustrating for the more-experienced lawyers. Having given some thought to what makes them so, I've got some advice to offer those seeking advice.

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 Posted on January 15, 2015 in Uncategorized

Listening is vital to trial lawyers. It's probably more important than any other single skill, but it is less studied, less trained, and less practiced. Lawyers often don't listen very well. I've seen egregiously bad examples from all sides of the criminal bar; many times I've wanted to shake a lawyer or judge by the collar and shout, did you not hear what that person just said?

I have written about listening here multiple times. Among other posts, I wrote in 2007 about listening, attentiveness, and mindfulness; in 2008 about the value of listening; and in 2009 about how not listening was the worst voir dire advice ever. Listening is explicit in two of my rules for better jury selection-Rule Two (The Blind Date Rule) and Rule Fifteen (The Bat Rule) and implicit in the rest.

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