Posted on August 26, 2014 in Uncategorized

Here's a survey of what's going on in Texas with regard to the First Amendment in criminal cases:

Texas Penal Code Section 33.021(b) (online solicitation by explicit communication) was held unconstitutional by the Texas Court of Criminal Appeals in Ex Parte Lo. In Ex Parte Chance the Court of Criminal Appeals granted relief on habeas to someone who hadn't raised the unconstitutionality of the statute either in the trial court or on direct appeal. Concurring, Judge Cochran stated that the petitioner was actually innocent (not argued by the petitioner). Dissenting, Judge Keller suggested that the issues presented should have been briefed and more carefully considered.Pending issues include whether a person convicted only of violating a void statute is actually innocent, so that he is (if he went to prison) entitled to compensation for his wrongful conviction; and whether a 33.021(b) conviction should be reversed on direct appeal where the unconstitutionality of the statute was not raised in the trial court.I have the former issue (innocence) in two article 11.07 postconviction writs, out of Montgomery County and Harris County. The State has agreed to relief, and agreed to innocence. We'll see what the Court of Criminal Appeals does.Nic Hughes of the Harris County PD's Office and I have won the latter issue (unconstitutionality raised for the first time on direct appeal after the statute has been invalidated in another case) in intermediate courts of appeals (Schuster in the First, and Sanders in the Sixth, respectively). Gerald Bourque of the Woodlands has it before the Court of Criminal Appeals in Smith v. State. Argument will probably be this fall; I'll watch and report back.

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 Posted on August 25, 2014 in Uncategorized

I use 28-pound printer paper for my pleadings. Have done for years. Judges and prosecutors often notice the paper: it's heavy, stiff, and smooth. It also costs almost four times times as much as cheap paper (2.3 cents, vs. 0.64 cents per page), which can add up; my justification for using it has been that the things I'm filing with the court are important, so they should look and feel important (I put some effort and money into typography as well).

Yesterday Sarah "Bennett's Former Brain" Wood sent me a link to a Psychology Today post that supports that justification:

New research...shows that the weight, texture, and hardness of the things we touch are, in fact, unconsciously factored into our decisions about things that have nothing to do with what we are touching. Potentially, every decision we make.* * * * *[W]hen we hold something heavy, we actually see seriousness and importance in people and issues that we might not otherwise.* * * * *As with weight and texture, hardness exerts an influence on our perceptions and behavior. People who had earlier examined a hard piece of wood later judged an employee interacting with his boss as more rigid and strict than did people who had first examined a soft blanket.

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 Posted on August 24, 2014 in Uncategorized

In There's No "Ick" in Victim, in which she lauds victims for speaking up, Brooklyn lawyer ((And cousin of my officemate Jay Cohen!)) C.A. Goldberg turns her truly dizzying intellect my way:

Then you have the George Wills and Mark Bennetts of the world who argue that society is victimized by victimhood. The former famously claimed that victims revel in their victimness and that "victimhood" is a "coveted status that confers privilege," and results in the "proliferation" of victims.In a post called "Victimocracy is for Sociopaths," Mark Bennett, a criminal defense attorney and blogger in Texas, growls at the "ascendancy of victimocracy, in which victimhood is esteemed above merit, and victims are given special authority to determine the course of the state." He accuses many victims of "feigning" it. He flaccidly stabs at some blurry claim that self-identifying victims comprise much of the purported four percent of sociopaths, revealing himself to be the one person in America gullible enough to drink Martha Stout's pop psychology Kool-Aid. "The more power we give victims, the more power we give sociopaths," he says.Attitudes like those of the grandfather, the blogger, Wills, and Bennett, shame not just the crimes, but also try to corrode any dignity the victim may have in self-identifying as such, creating false categories that attempt to separate out the "true" victims from the "feigning" ones. (Anybody else hearing the echoes of Todd Akin here and his marble mouthing about "legitimate" rape?) These people take offense to persons stepping up and saying, "Hey, I was harmed," acting as though the V-word itself is a diminishing resource, conservation of which they must personally defend. And so what do they do? They engage in ad hominem attacks to discredit the victim: she was complicit in it, is lying, doing it for the attention, is a sociopath. It's as if some defense attorneys, perhaps as a group the most vocal about they would call "victomania," can't zealously represent their clients while respecting the "victim" concept.

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 Posted on August 24, 2014 in Uncategorized

I've started taking improvisational theater classes again, now at The Station Theater, about halfway between my house and my downtown office. (I took classes at ComedySportz and at Bay Area Theater Sports several years ago, but neither theater is as convenient as The Station.) One of the perks of taking classes at The Station is free admission to shows at the theater. So I'll be seeing, as well as doing more improv.

Last night Jen and I went to the show by Nice Astronaut, a visiting troupe from Austin. At the door, I told the guy taking money that I was a student (saving me $6, cheap bastard) and introduced myself. "I know that name," he said, "I've read your blog for years."

Small world. A little birthday present from the universe.

But wait.

When we went in to choose our seats, a familiar-looking man came up to me. "Mark, I'm Brian Drake." Brian has been a blog reader and a correspondent of mine for many years. It was a treat seeing him in this context and meeting his girlfriend, who were also there for the show.

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 Posted on July 17, 2014 in Uncategorized

I noticed this at the bottom of an email from a lawyer on a First Amendment civil case (he's suing, I'm defending):

NOTICE OF DISCLAIMERS & CONTRACTUAL AGREEMENT NOT TO REMOVE DISCLAIMERS:This communication and any files or attachments transmitted with it are confidential, may be legally privileged, and are intended solely for the use of the individual or entity to which they are addressed. Because this type of communication may not be secure, can be made spontaneously, and/or is frequently treated informally, I do not accept any responsibility or duty (other than that owned in the attorney-client relationship) for the contents of such communication. Simply, you are put on notice that I do not guarantee that this communication has any accuracy whatsoever; being on such notice and for the consideration stated below, you contractually agree that I am not liable for any damage connected with this communication whether it is actual, contractual, compensatory, restitutionary, punitive, imaginary, etc. Make a formal request in writing via certified mail to the above address if this communication needs to be verified. Please notify me immediately if you have received this communication by mistake and delete it from your system. If you are not the intended recipient you are notified that altering, disclosing, copying, distributing, or taking any action in reliance on the contents of this communication is strictly prohibited and may be a criminal offense. If you are the intended recipient or receive this communication intentionally by the intended recipient, subject to Texas Rule of Evidence (including rule 408) you are granted express consent to disclose, copy, and/or distribute this communication. In return, you agree to not alter it, for example, by removing any of these disclaimers. In violation thereof, you agree to (1) be personally liable for a minimal of $15,000 in liquidated damages, reasonable attorney fees, and court costs in collecting these damages; and (2) Texas being the appropriate jurisdiction, that its laws prevail, and Harris County being the appropriate venue. The Internal Revenue Service rules require that I advise you that the tax advice, if any, contained in this message was not intended or written to be used by you, and cannot be used by you, for the purposes of (1) avoiding penalties under the Internal Revenue Code; or (2) promoting, marketing or recommending to an other party any transaction or matter addressed herein.

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 Posted on July 17, 2014 in Uncategorized

The original version of this post included two lawyers who had cried "victim." I identified neither; only a very small group (six people) knew who both were; those six already knew my opinion.

While I had not identified him and had explicitly disclaimed calling him a sociopath (he has mental-health problems, but they undisputably do not include a lack of conscience), one of them recognized himself and incorrectly concluded that I was calling him a sociopath. When he nagged me about it, in the interest of peace I very reluctantly took the unprecedented step of removing the reference to him-the other example of victim-stance behavior was sufficient.

Unfortunately, he took my gesture of peace as a sign of weakness, and began publicly demanding a public apology (after privately threatening violence, motherfucking me, and frightening my office staff). He then also appointed himself defender of the other lawyer's honor. In paroxysms of impotent rage he lashed out on Twitter and in comments here.

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 Posted on June 25, 2014 in Uncategorized

After reading Martha Stout's 2006 The Sociopath Next Door

Here‘s a snippet from Stout's book describing some of the positions that sociopaths might enjoy, including this:

But you do enjoy jobs that afford you a certain undersupervised control over a few individuals or small groups, preferably people and groups who are relatively helpless or in some way vulnerable. You are a teacher or a psychotherapist, a divorce lawyer or a high school coach. Or maybe you are a consultant of some kind, a broker or a gallery owner or a human services director. Or maybe you do not have a paid position and are instead the president of your condominium association, or a volunteer hospital worker, or a parent. Whatever your job, you manipulate and bully the people who are under your thumb, as often and as outrageously as you can without getting fired or held accountable. You do this for its own sake, even when it serves no purpose except to give you a thrill. Making people jump means you have power – or this is the way you see it – and bullying provides you with an adrenaline rush. It is fun.

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 Posted on June 12, 2014 in Uncategorized

I had filed a pretrial writ of habeas corpus challenging Texas's Online Impersonation statute on First Amendment grounds. The prosecutor agreed with me off the record, dismissed the case, and instead filed a (less serious) Fraudulent Use of Identifying Information charge. Also, the Harris County DA's Office flagged the Online Impersonation statute in its charge bank as "possibly unconstitutional."

What is wrong with these people? Doesn't Devon Anderson have an obligation to defend Texas's penal statutes against constitutional attacks? Do I have to notify the Attorney General to get some opposition?

It looks as though I'll have to go to some other county to get an appealable opinion upholding or striking the Online Impersonation statute.

But the prosecutor's refiling the charge as Fraudulent Use of Identifying Information had me looking at that statute with a critical First Amendment eye:

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 Posted on June 05, 2014 in Uncategorized

Harris County Assistant PD Nick Hughes had a huge win in the First Court of Appeals on Schuster v. State.

Mr. Schuster had pled guilty to online solicitation of a minor by explicit communication, enhanced with prior felony convictions, and been sentenced to forty years in prison while Ex Parte Lo was pending. Hughes appealed, arguing that the online-solicitation-by-explicit-communication statute was unconstitutional (the issue in Lo).

The State argued (as in this hypothetical) that the Court of Criminal Appeals' decision in Karenev v. State barred relief. Karenev held that the right not to be convicted under an unconstitutional statute was a right that could be forfeited, and that Mr. Karenev had forfeited that right.

That Mr. Schuster not receive relief from his 40-year sentence for an unconstitutional conviction is the result dictated by Karenev-a forfeited right is forfeited. It is also an absurd result. The First Court of Appeals resolved the absurdity by carving out an exception to the forfeiture of rights in Karenev: "the rationale for the Karenev rule-the presumption that a statute is constitutional-does not apply to this case." Because Section 33.021(b) had been held unconstitutional before Mr. Schuster's appeal, Mr. Schuster could raise the unconstitutionality on appeal.

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 Posted on June 04, 2014 in Uncategorized

I have tried a bunch of cases, and pled more. Win or lose, clients whose cases I've tried have almost universally been happy afterwards. Clients whose cases I've pled are often unhappy afterwards.

The client who pleaded guilty has chosen a plea over a trial, and has agreed to the result; he should be happy. The client who went to trial may have been forced to trial (the system's default condition) by the lack of a meaningful plea offer, and-if he loses-didn't get the result he hoped for.

So why is the trial client happier than the plea client?

I think it's because most people have never seen someone fighting for them. The trial client has seen it, and that's a new experience to him, he likes it. It is liberating.

Even the career criminal has probably never seen someone fighting for him. Most cases plead and most lawyers, most of the time, just don't fight. Not, at least, in any way that the client can see.

But this thing for which our clients thank us, win or lose-showing them that there is someone who will fight for them when they cannot fight for themselves-is more than just our job; it is a sacred duty. Do it not just for your client, and not for yourself. Do it for freedom.

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