Posted on January 06, 2015 in Uncategorized

When I argued Ex Parte Lo at the Court of Criminal Appeals, I used section 33.021(c), the "actual solicitation" portion of Texas's Online Solicitation of a Minor statute as an example of a constitutional limitation on speech. I hadn't given section 33.021(c) a lot of close attention, but it talked about "soliciting" a "minor" for sex, and soliciting a minor for sex is generally recognized as unprotected speech.

Looking at it more closely, it's obvious that the "solicitation" described by section 33.021(c) is not necessarily solicitation (because a defendant cannot raise his lack of intent to meet as a defense) and the "minor" described by section 33.021(c) is not necessarily a minor (because it can be an adult who represents himself to be a minor, but whom the defendant knows not to be a minor). Non-solicitation of a minor is constitutionally protected speech, as is solicitation of a non-minor.

But now that the section 33.021(c) cases are rolling in and I'm challenging the constitutionality of that statute, my ill-thought-out argument in Lo, holding up section 33.021(c) as an example of a speech restriction done right, is coming back to bite me in the butt: in its opinion in Lo the Court of Criminal Appeals adopted, in dicta, that particular argument.

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 Posted on January 06, 2015 in Uncategorized

IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE

Ariz. Rev. Stat. § 13-142 (effective 2014).

(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.

Texas HB101.

Almost the same thing, right? There is a distinction: while the Arizona statute criminalizes the publication of an image of another person "in a state of nudity," the Texas statute requires "sexual conduct," which includes "lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola." But lewdness is in the eye of the beholder, and does not differentiate the statutes in a constitutionally significant way.

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 Posted on January 05, 2015 in Uncategorized

Scott Greenfield wants the backstory? Here's the backstory.

I asked the Collin County Sheriff's Office for Sergeant (now Investigator) Christopher M. Meehan's personnel file. Robert J. Davis, representing the Sheriff's Office, requested an opinion from the Attorney General allowing the Sheriff's Office to withhold the bulk of the cop's personnel file for various reasons, ranging from the specious ("There is certainly no information contained in the personnel file of Investigator Meehan which is a a legitimate concern to the public...") to the offensively stupid (the language quoted in 2015.6).

I haven't yet written about the New York Police Department's petulant response to criticism (as a Libertarian, I don't want to discourage them in making only the arrests that they "have to": you go, guys!), but that, Justin Keiter‘s petulant response to my naming him as the lawyer engaging in what an appellate dissent called "egregious misconduct," and Davis's response to my public-information request on behalf of the Collin County Sheriff's Office are all of a piece: public servants behaving as though they are masters.

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 Posted on January 05, 2015 in Uncategorized

[A]ll trial lawyers who make improper arguments...have no business lamenting the public's low perception of lawyers. They need only look in the mirror.

I wasn't even very hard on him: I just republished part of a dissenting opinion criticizing a closing argument that Justin Keiter had made, and connected Keiter's name with it.

Keiter took the criticism hard. I was riding on the elevator today when Justin got on with a little smile on his face. He looked around, saw me, stopped smiling, faced front and got off the elevator at the next stop. (Other people on the elevator noticed. They commented.) A year later he can't even bear to look at me.Judges criticize prosecutors, but almost always without using their names. I won't guess at Justice Jennings's motivation for not naming Justin Keiter in the opinion. Apparently there's no reason the public should know who the lawyer responsible for "egregious misconduct" (Jennings's words) was.Jennings wrote:

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 Posted on January 04, 2015 in Uncategorized

There are dangerous pedophiles in the world, and some of them are civil lawyers. But that is no reason to assume that Dallas lawyer Robert J. Davis is either a pedophile or dangerous.

Because assuming that a civil lawyer like Robert J. Davis is a dangerous pedophile would be like assuming that a criminal lawyer is in cahoots with dangerous drug dealers.

And I wouldn't do that. Most civil lawyers are not dangerous pedophiles, so if I had to take a position on the question I would be comfortable saying this: Robert J. Davis is neither dangerous nor a pedophile.

In that way I'm unlike Robert J. Davis, who wrote in a letter to the Attorney General:

It is self-evident that the release of Investigator Meehan's personnel file to an attorney who represents alleged drug dealers could pose a threat to Investigator Meehan and his family's personal safety and well being.

It's probably several orders of magnitude more likely that a randomly chosen civil lawyer will diddle children than that a randomly chosen criminal-defense lawyer will reveal an officer's information to people who would pose a danger to that officer.

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 Posted on January 03, 2015 in Uncategorized

When the media need an opinion on some legal issue, often they will go to the nearest law school. The reasoning-which is sound in theory-is that if a professor lists, say, "immigration law" as one of her subjects, then she will be an expert in the subject.Most law professors, who live lives of quiet desperation writing academic articles that few will ever read, are happy to opine on any subject. Unfortunately, while they sometimes have deep knowledge of narrow areas of law, in other areas-even areas that they teach-they are swimming in the shallow end of the pool.A case in point:

The Texas Court of Criminal Appeals tossed out part of the "improper photography and visual recording" statute. Some reports make it sound like the Court has given the green light to "pervs" taking video or pictures up a woman's dress. University of Houston law professor Peter Linzer says that's not so. "Notice this didn't involve what they call "upskirting" or anything like that. This was a guy taking pictures underwater, of some young girls in bathing suits and there's nothing wrong with that" says Linzer.This ruling was based on one specific case out of San Antonio where it was suspected a man took the pictures for sexual gratification. "The Court of Criminal Appeals struck that down because that's getting in your mind. That's saying that if you pick up the Bible and want to read about David and Bathsheba and you "get off" on adultery, that's a crime. Well we can't make that a crime. We can't do that because then how do we decide what's going on inside people's heads" Linzer explains.

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 Posted on January 02, 2015 in Uncategorized

A prosecutor asked me recently whether I might be willing to work with legislators to write a revenge-porn statute that would pass First Amendment muster. I replied that I would, but that I didn't think it could be done.

The United State's Supreme Court's modern approach to First Amendment challenges to content-based penal restrictions of speech, as applied in U.S. v. Stevens and U.S. v. Alvarez, is a categorical one:

1. If a penal statute restricts a substantial amount of protected speech based on its content, it is invalid.

2. All speech is constitutionally protected unless it falls in one of a very few narrowly defined categories of historically unprotected speech.

3. Among those categories ((The list is not exclusive because it is possible that other categories will be recognized in the future.)) are:

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 Posted on January 01, 2015 in Uncategorized

A defendant should never "plea guilty" because "plea" is not a verb. The infinitive is "to plead." The past tense is "pleaded" or "pled." Which you use is a matter of personal preference, either yours or your readers', but the Oxford English Dictionary and Garner's Modern American Usage both prefer "pleaded."

A case should not under any circumstances "be plead," but it might be pled (or pleaded) if necessary.

(I wrote about this seven years ago. I'm probably the only one who remembers, other than Justice Jim Sharp, who in 2012 left a comment threatening to use "plead" as the past tense in a footnote. I seem to have (aided by the authority of OED and GMAU) prevailed on Justice Sharp, who used "pled" in opinions before his comment, and "pleaded" after.)

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 Posted on January 01, 2015 in Uncategorized

People don't like being manipulated or controlled by other people. They will bridle and resist if they think you are trying to convince them to do something. The harder they think you are trying, the harder they will push back.

But trial advocacy is the practice of convincing people to do things.

So ideally, trial advocacy should be transparent. At the end of the case the jurors, having ruled for your client, should think that they came to their decision without regard to anything that you did. They should believe, when they free your client, that they were compelled by the facts and the law to do so, and that your only role was to bring them those facts and explain to them that law.

If asked in jury selection the jury, ((I tend to use "jury" and "jury panel" interchangeably in the context of jury selection. The jury is a subgroup of the panel, and will treat the ideas of the panel as its own ideas. The jury will also remember your treatment of the panel, and will respond as though it was your treatment of the jury. Beware. You can't mistreat a member of the panel and expect the jury to forgive you because that panel member didn't make it on the jury.)) given the accusation, suggest the possible defenses they can think of; ideally one of these defenses will be your defense. If a panel of laypeople doesn't think of your defense as a possibility, that defense is a stretch.

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 Posted on January 01, 2015 in Uncategorized

I do not write I'm sorry I haven't written more lately; here's why; I promise to do better blog posts.

The first part strikes me as narcissistic-as though it matters to the world that any particular blogger hasn't written more lately; the third part is usually a lie-people who write these posts almost always return to silence shortly afterwards. And I don't figure readers generally care much about the why of silence. But Scott Greenfield has called me out:

As for those of you who have paid only rare attention to your blawgs, let your posts dwindle, left the heavy lifting to others, this might be a good time to explain why. You know who you are. I know who you are too. Is the genre dead? Is it not worth the effort? Are things so wonderful that there is nothing left to write?

So here's why:

In 2014 I tried three jury trials and won all three. Two of them saved clients from certain deportation and the other saved the client from a felony conviction, a lifetime of sex-offender registration, and a possible prison term. Three jury trials is not a lot for a criminal-defense lawyer in Houston to try, but it's fifty percent over my yearly average.

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