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A Williamson County Online-Solicitation Indictment
In the name and by authority of the State of Texas:The Grand Jury for the _______ term of the ___ Judicial District Court of Williamson County, Texas, having been duly selected, empaneled, sworn, charged, and organized, presents that before the presentment of this indictment, on or about the ___ day of ____, 2013, in Williamson County, Texas, X, hereinafter "defendant", with the intent to arouse or gratify the defendant's sexual desire, over the Internet, knowingly solicited Jessica, a minor and undercover persona of Gary Marquis, to meet the defendant with the intent that Jessica would engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the defendant, and Jessica was an individual whom the defendant believed to be younger than 14 years of age at the time of the commission of the offense.Against the peace and dignity of the State.
Got it? The State is charging X with committing online solicitation of a minor with Jessica, who is "a minor," an "undercover persona of Gary Marquis," (who is presumably a cop), and "an individual whom the defendant believed to be younger than 14 years of age at the time of the commission of the offense."
One in Thirty
Here (pdf) is the Bureau of Justice Statistics' report on Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013.
Some highlights (all statistics are for women aged 18–24 unless otherwise noted):
6.1 out of 1,000 college women experience "sexual victimization"-rape, attempted rape (("Rape is the unlawful penetration of a person against the will of the victim, with use or threatened use of force, or attempting such an act. Rape includes psychological coercion and physical force, and forced sexual intercourse means vaginal, anal, or oral penetration by the offender. Rape also includes incidents where penetration is from a foreign object (e.g., a bottle), victimizations against males and females, and both heterosexual and homosexual rape. Attempted rape includes verbal threats of rape.")) or sexual assault (("Sexual assault is defined across a wide range of victimizations separate from rape or attempted rape. These crimes include attacks or attempted attacks usually involving unwanted sexual contact between a victim and offender. Sexual assault may or may not involve force and includes grabbing or fondling.))-annually.
Journalism!
When I first saw the Rolling Stone UVA rape story by Sabrina Erdely, I'd been thinking about satanic ritual abuse stories because Fran and Dan Keller were in the news. I tweeted:
Speaking of satanic ritual abuse: http://t.co/MyO2bC2Cjm- Mark W. Bennett (@MarkWBennett) December 1, 2014
The story was unbelievable to me. Not "unbelievable" in the loose sense of "sensational," but literally unbelievable. I knew that the story was false
The Erdely UVA story is going to turn out to be a long rambling joke. "Journalism!" will be the punchline. - Mark W. Bennett (@MarkWBennett) December 2, 2014
I say that "I knew it." For you to know something, three conditions must be met: you have to believe it, it has to be true, and you have to have reason to believe it.
I believed that Erdely's story was false.
The story-of a violent gang rape-was false. It appears from the rereporting performed by the Washington Post that the alleged victim made up the story as part of an elaborate scheme to win the love of her friend "Randall."
In Which New Vistas Open Up
It started with criminal First Amendment litigation. I fought for five years against a speech-restricting penal statute, learning the law along the way and finally punching a hole in the dam last year, freeing a lifetime's worth of people who had already given up hope.
Naturally, I went on the hunt for other statutes to kill. My friend and fellow TLC alumnus Don Flanary of San Antonio beat me to the improper-photography statute, but he only killed (in Ex Parte Thompson) the part dealing with photography in a public place, leaving the part dealing with photography in a restroom or dressing room, as well as the parts dealing with publication of images. I've got challenges pending to those, as well as to the fraudulent-use-of-identifying-information statute, the online-impersonation statute, and some others.
In the course of working on these cases-and pointing out on this blog how many ways proponents of penal revenge-porn statutes get constitutional law wrong-I realized how little most lawyers actually know about free speech. I also got sued for hurting Joseph Rakofsky's feelings, and had to pay Marc Randazza gobs of money to kick Rakofsky's ass across the courtroom. It could probably have been done cheaper, but if it's worth doing it's worth overdoing, and Randazza provides entertainment value that I'm happy to pay for. Further, I had a friend file an ill-advised suit against someone for statements that were absolutely privileged, and I pulled his bacon from the fire.
In Which Texas Sex-Assault Law is Bizarre
Texas Penal Code Section 22.011, Sexual Assault:
(a) A person commits an offense if the person:(1) intentionally or knowingly:(A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or(C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor...(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.
Texas Penal Code Section 25.01, Bigamy:
(a) An individual commits an offense if:(1) he is legally married and he:(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage; or(B) lives with a person other than his spouse in this state under the appearance of being married; or(2) he knows that a married person other than his spouse is married and he:(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person's prior marriage, constitute a marriage; or(B) lives with that person in this state under the appearance of being married.
In Which Some Lawyers Are Suckers at Best [Updated]
Dear _,We are pleased to officially inform you that you have been chosen to receive this year's prestigious TOP 10 Attorney Award for the state of Texas. Through a multi-phase selection process, the National Academy of Criminal Defense Attorneys (NACDA) has chosen you to receive our organization's highest honor because of the hard work and dedication you have shown in protecting the rights of the accused....
The letter, signed by "Kelly D. Kerr, Executive Director," ((Kelly's signature does not look practiced. I wonder whether it is fake.)) was sent to a friend of mine by the "National Academy of Criminal Defense Attorneys, Inc.", with a mailing address of 1629 K Street NW, Suite 300, Washington DC 20006 and a phone number of (202) 827-9985.
Googling that phone number turns up:
National Academy of Criminal Defense Attorneys, Inc.;
National Academy of Family Law Attorneys, Inc.;
National Academy of DUI Attorneys, Inc.;
In Which We Look at Plea Numbers
In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.
Jed S. Rakoff, Why Innocent People Plead Guilty.
In Which Cultures Clash
I recently had a discussion with a lawyer from another culture. One of my clients is a potential witness in one of his cases, and my client got tired of hearing from him. So I sent the lawyer a brief email asking that he not contact my client anymore. I said "please" and "thank you," but otherwise didn't mitigate my speech. Because the rule is very simple:
in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
(Texas Disciplinary Rule of Professional Conduct 4.02). I've been on both sides of the situation many times, and there's never been any drama: you might push the bounds in dealing with someone whom you don't know to be represented regarding that subject, but if another lawyer asks you not to talk to his client about the subject of his representation, you just don't. It's a matter not only of the law (the rule), but also of respect for the lawyer-client relationship.
RIP Brad Frye
I just learned that Houston criminal-defense lawyer (and frequent Defending People commenter) Charles B. "Brad" Frye died about an hour ago of COPD.
RIP, Brad. Take care of yourselves, everyone else.
In Which We Find the Game
I often say that criminal-defense trial practice is about playing "what's really going on here?" At every phase of a trial case, we are dealing with people who aren't telling us the whole truth, because they don't know it, don't know its importance, don't want to tell it, or don't want us to know it. The facts are usually, at first glance, bad for us (else the client wouldn't be a client), but there is always more to the story than the facts reveal at first glance. So the criminal-defense trial lawyer's job is to figure out what's really going on, the interesting twist, which is probably not explicitly stated, and to turn that truth to the client's advantage.
In improv class we're working on finding "the game of the scene," the interesting twist, which is probably not explicitly stated and...hey, that's "what's really going on here?"!
On an assault case recently a prosecutor described the disputed issue like this: "she says she pulled the gun on him because he was assaulting her; he says he was defending himself because she pulled the gun; that's the game." I might not agree with him that that is the game, but I agree with him that there is a(t least one) game.
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