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Recent Blog Posts
Moron Dallas Lawyer Everett Newton [Updated]
A caller today said, "I heard that you got part of the Online Solicitation of a Minor statute held unconstitutional, but I know that decision doesn't apply to distributing sexually explicit material to minors." I asked him where he got that idea, and he pointed me to this on Dallas lawyer Everett Newton's website:
Notably, two other sections of the online solicitation of a minor statute remain good law, and outline conduct for which you can still be lawfully prosecuted. Hence, under this statute, you can still be charged with online solicitation of a minor for either: 1)distributing sexually explicit material to a minor, OR 2)soliciting a minor online to meet for sex.
It's ignorant twaddle. "Distributing sexually explicit material to a minor" is protected speech; it falls under the portion of the statute that the Court of Criminal Appeals held unconstitutional.
Mark Sandoval and Christopher Ernest Braughton (Updated)
Emanuel Dominguez's fiancée, Jessica Cavender-a Marine like Emmanuel-was nowhere near when, according to this account, "Emmanuel Dominguez began backing away with his hands in the air when [Christopher Ernest] Braughton opened fire, shooting him once in the torso."
Now Christopher Ernest Braughton is charged with murdering Emmanuel Dominguez, and is set for trial August 11, 2014.
So why is Christopher Ernest Braughton suing Jessica Cavender, the fiancée of the Marine he killed, for more than $200,000?
Here are the allegations of the lawsuit:
FACTS
The Plaintiff was damaged as a result of the actions of the Defendant
CHRISTOPHER BROUGHTON'S CLAIM FOR NEGLIGENCE
Defendant was negligent
DAMAGES FOR PLAINTIFF, CHRISTOPHER BROUGHTON
Plaintiff, CHRISTOPHER BROUGHTON, was caused to suffer, and to incur the following damages:
Actual Damages
The State's Argument in Ex Parte Thompson
Ronald Thompson was arrested last September for taking photographs of swimsuit-clad children at Sea World in San Antonio. He was charged with violating Texas's improper photography statute:
A person commits an offense if the person:(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:(A) without the other person's consent; and(B) with intent to arouse or gratify the sexual desire of any person....
He hired Don Flanary III, who made an as-written overbreadth challenge to the statute in an application for writ of habeas corpus. The San Antonio Court of Appeals found that the statute was content-neutral, but still found it unconstitutional under intermediate scrutiny.
Last week I went to the Court of Criminal Appeals to hear oral arguments on discretionary review. Don argued the case for Mr. Thompson, and he gave some of his time to Eugene Volokh to argue on behalf of amicus Reporters Committee for Freedom of the Press. (Protip: the interests of amicus are not always aligned with the interests of your client. Be wary of ceding argument time.)
The Grumpy-Cat Rule
From the San Antonio Court of Appeals' opinion in Ex Parte Thompson (PDF), which is before the Texas Court of Criminal Appeals on discretionary review (and will be argued tomorrow morning by Don Flanary III of San Antonio and Eugene Volokh of L.A.):
[W]e hold the plain language of the subsection 21.15(b)(1) does not "limit" or "restrict" the substantive content of photographs-in other words, it does not favor one type of photograph over another. See Turner, 512 U.S. at 642. Rather, the statute limits speech by imposing time, place, and manner restrictions that are unrelated to content. See Clark, 468 U.S. at 293. Accordingly, we hold subsection 21.15(b)(1) regulates speech in a content-neutral manner, requiring intermediate scrutiny. See id.
Here's the gist of Texas Penal Code Section 21.15(b)(1):
A person commits an offense if the person photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room....
Texas Rules of Appellate Procedure
I couldn't find the Texas Rules of Appellate Procedure online in HTML format-only in PDF format-so I created them.
You're welcome.
Harris County Criminal-Defense Residency
From Scott Ehlers at the Harris County Public Defender's Office:
The Harris County Public Defender's Office received a grant from the Department of Justice to establish the Future Appointed Counsel Training Program (FACT) for new lawyers committed to representing indigent defendants in Harris County.The training includes a 14-day "boot camp" this summer, and 2 weekend follow-up trainings next year, all provided by Gideon's Promise (online at: http://gideonspromise.org). The grant covers expenses for travel, lodging, meals, the 14-day "boot camp," and the 2 follow-up trainings in Atlanta. There will also be a 2-day training on Harris County courts and Texas law, and a year of mentoring to be provided by top notch criminal defense lawyers, who will be paid for their time. There are 3 additional weekend trainings in Atlanta in 2016-2017. For those, training, lodging, and meals are paid for, but participants will be responsible for travel-related expenses.Last year we selected the first class of FACT participants and mentors. This year we will be accepting the second class of 10 lawyers, licensed for 0-3 years. Students who graduate this May and take the bar this summer are eligible to apply.A copy of the application is online here: http://harriscountypublicdefender.org/FACT-ReqforAppsForm-v2-2014.pdf. The deadline is March 31.Please feel free to pass this along to any new lawyers or graduating law students who you believe will be good candidates.Best,Scott EhlersLegal and Policy AnalystHarris County Public Defender's Office
The Ethics of Decolletage
My Three Commandments of Criminal-Defense Ethics:
I. Thou shalt not break the law.II. Thou shalt put thine client's interests above all else.III. There will be times when (I) and (II) seem to clash; at those times thou shalt consult ethics counsel.
From Judge Richard Kopf, who has recommenced blogging at Hercules and the Umpire, in regard to lawyers wearing short skirts and low-cut blouses in court:
I have three rules that young women lawyers should follow when considering how to dress for court:1. You can't win. Men are both pigs and prudes. Get over it.2. It is not about you. That goes double when you are appearing in front of a jury.3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.
I'm with the judge, more or less (I think men are only prudes when prudishness either benefits them socially or helps them keep the female competition down), on the first two rules.
Dirty-Talk Statute Dead in Texas, and a Misquote
This morning the Court of Criminal Appeals denied the State's Motion for Rehearing (PDF) in my case invalidating Section 33.021(b) of the Texas Penal Code.
The court pointedly ignored the Attorney General's effort to intervene, and found that Section 402.010 of the Texas Government Code was also unconstitutional, in violation of the Separation of Powers provision of the Texas Constitution.
In related news, I'm pretty sure this purported quote in Mitch Mitchell's Fort Worth Star-Telegram article about the case...
...is a misquote, or at least out-of-context. I've never suggested that it's okay for adults to talk dirty to children (unless in "talking dirty" you include all "sexually explicit" communication forbidden by 33.021(b)). Legal? Yes. My position from the beginning is that it's not okay, but that it's parents'-and not government's-job to regulate what kids see and hear.
True Believers Redux
Six and a half years ago Scott Greenfield wrote The Fallacy of True Believers, about the danger of true believers:
But Bill [Kunstler] was a scary guy. Bill was a true believer in the cause, not that I was ever quite clear what the cause was because abject liberalism is an ever changing line. Bill existed for the cause, not the client. If the cause demanded that the client burn, so be it. He took a long range view of the world, and the cause was far more important than any individual, with their petty problems. So us stupid kids who found ourselves in his orbit learned quickly that our focus, the client, was mere canon fodder to Bill. And he could be far more dangerous (because he was far smarter, quicker and stronger) than any prosecutor we had ever met.
More recently Charles Thomas's Don't rape started a discussion of lawyers putting their own feelings above the effective representation of their clients. Some more contributors to the string: me, Max Kennerly, me again, and Matthew Wright.
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