Posted on February 22, 2014 in Uncategorized

A few days ago, I wrote a post, Great Cicero's Ghost. It was part of a discussion of legal ethics, causes, and conflicts of interest, arising from this post by Charles Thomas (which in turn arose from this post by Scott Greenfield).

The discussion continued with Max Kennerly's "thoughts" ("there's no requirement for the utmost zeal in representation, so we know that there's no absolute duty to make a particular argument just because it might confer some advantage on the client"), my response to Kennerly, Matthew Wright's view (to which I tried to respond, but failed because I'm stubborn about not signing in to wordpress.com to comment; I'll blog about it later). This is all in the best disputatious tradition of the practical blawgosphere. Bruce Godfrey commented too, in an annoyingly selfrighteous passive-aggressive happyspherical "I'm going to tell you what people said but I'm not going to link to them" way.

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 Posted on February 22, 2014 in Uncategorized

Thanks to the Houston Chronicle, Cyber Civil Rights Initiative activist Mary Anne Franks got to bring her special brand of authoritarianism to my neck of the woods:

Franks dismissed claims by some groups, like American Civil Liberties Union, that criminal penalties for posting the photos infringes on behavior protected by the First Amendment."This isn't protected speech, at least under any theory I can think of," she said.

Rogers called me after talking to Franks, and I was quoted directly following her:

Other lawyers disagree, including Houston attorney Mark Bennett, who said the proposed laws, including the ones written by Franks, are unconstitutional.

Had I known exactly what Franks had told Brian Rogers, I would have said, "any idiot with a law degree knows the theory under which this is protected speech. If Franks can't think of a theory under which revenge porn is protected speech, she's incompetent." But I don't think she's incompetent going on. I think she's lying to Rogers. She does have a history, after all, of being untruthful about these matters.

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 Posted on February 18, 2014 in Uncategorized

Arizona HB2515:

AN ACTAMENDING TITLE 13, CHAPTER 14, ARIZONA REVISED STATUTES, BY ADDING SECTION 13?1425; RELATING TO sexual offenses.Be it enacted by the Legislature of the State of Arizona:Section 1. Title 13, chapter 14, Arizona Revised Statutes, is amended by adding section 13-1425, to read:13-1425. Unlawful distribution of images; state of nudity; classification; definitionA. It is unlawful to knowingly disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.B. This section does not apply to any of the following:1. Lawful and common practices of law enforcement, reporting criminal activity to law enforcement, or when permitted or required by law or rule in legal proceedings.2. Medical treatment.3. Images involving voluntary exposure in a public or commercial setting.C. A violation of this section is a class 5 felony, except that a violation of this section is a class 4 felony if the depicted person is recognizable.D. For the purposes of this section, "state of nudity" has the same meaning prescribed in section 11?811.

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 Posted on February 17, 2014 in Uncategorized

Max Kennerly asks: Is A Lawyer Ever Required To Present An Argument They Don't Believe?

The answer to the question is, to any true Scotsman criminal-defense lawyer, "absolutely." We don't decide whether our clients go to trial, and we don't pick the facts. If the second-simplest explanation that accounts for all of the government's admissible evidence is unbelievable even to us, then (unless trial psychosis helps us out by letting us buy our own bullshit) we must present an argument that we don't believe to the jury.

But Kennerly contends that the answer is "no." A lawyer, says he, is never required to present an argument she doesn't ("they don't") believe.

According to Kennerly, a lawyer doesn't have a duty of zealous advocacy. Why does he say this? Because the ABA Model Rules don't require zeal ((Never trust a lawyer who confuses ethical rules-whether the Model Rules or his state's disciplinary rules-with ethics.)):

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 Posted on February 17, 2014 in Uncategorized

LaunchNext, the lawyer has to actually start jury selection. It is important for the trial to get off to a good start, and for this reason few lawyers rely purely on improvisation at this early stage. Most have a few phrases they have learned to trust, or an introductory framework they have polished over time. These tried-and-tested opening lines help the lawyer to sound proficient, experienced and, most importantly of all, supremely confident.Confidence is contagious. If a lawyer is confident, the jury panel sense it immediately. They relax, because they can tell the lawyer knows what she is doing. They also feel confident they will enjoy her work. This makes for a very relaxed and supportive atmosphere, so the lawyer can relax and enjoy her work more. This expectation builds rapport between lawyer and panel, which helps the voir dire to go well. When the voir dire goes well, this further enhances the lawyer's confidence, and so the circle goes round.Lack of confidence is also contagious, and has precisely the opposite effect. The panel becomes tense (or bored) and anticipate having a rather disappointing time. This kills rapport, and the jury selection suffers accordingly. This undermines the lawyer's confidence, so forming a vicious circle.This is why confidence is vitally important to any kind of performance, including jury selection. Unfortunately, confidence is not to be had just for the wanting. It only comes with experience. But it does come, and brings many rewards.

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 Posted on February 15, 2014 in Uncategorized

Three questions a criminal-defense lawyer should ask herself when considering action in aid of the defense in a criminal case:

1. Is the action effective?;

2. Is the action legal?; and

3. Is the action ethical?

The first inquiry is not, "will the action succeed." but "do the chances that it will make things better outweigh the chances that it will make things worse?" Because this is a very complex inquiry, requiring broad and deep knowledge (the law, the facts, human nature, culture, strategy, tactics) as well as wisdom and the ability to let go of ego, it is where good criminal-defense lawyers earn their keep, and it is fraught with danger for others.

If the action fails the first inquiry, the lawyer should not engage in it, with a few exceptions: decisions that are strictly the client's (with the lawyer's advice, of course). Among them:

1. Putting or not putting the client on the stand to testify;

2. Helping the client plead guilty or not guilty;

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 Posted on January 23, 2014 in Uncategorized

I tried to help the kid. Truly I did. I reached out to him through a mutual friend and told him, "you can salvage this. Apologize." Things got worse for him. I emailed him directly, asked him to call me. I spent an hour on the phone with him. "You can salvage this. Apologize. I understand that you feel unfairly treated. That's a war that you're not going to win. We make our livings helping clients make the right decisions. Show that you have the wisdom to make the right decision for yourself."

He didn't follow my advice. Honor is more important to him, I suppose, than virtue.

I don't need to name him and contribute in a searchable way to his reputational self-destruction. I'll use an ungoogleable "CDC." The articles and images I'll link to name him, and whenever someone googles his name, for the foreseeable future, those unfavorable articles, prompted first by his bad marketing decisions but fueled by his foolish reaction, will pop up.

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 Posted on January 23, 2014 in Uncategorized

I took all of Carl Ceder's writings-blog comments and emails-from here, here, and here, and used them as the input to Dr. Nerve's Markov Page. You might be able to distinguish the result from Carl's actual writing.

Agreed, please see my practice occurs in yours. Spend time at your content from my perspective. Frankly, I would think it seemed everyone else for each, which I am only instructed to pawn your rule is read it much as motivation, which I originally wrote personally interacting with a practice law. I do my website. I read deeper into their rights. When I can think that is absolutely no knowledge of, in charge of what is libel. Because I encourage all blogs that they are in, would think to take major offense. I come here. So if that I would hire for you I hope this on Driving While Intoxicated, which take the utmost importance. In actually, I know nothing about: namely me of. You are enforced and it and kept alive, your precious blog. This is all came off as soon as I have lost the following links, all under the blog, you as this. Again, I do not how one e-mail to the time on the Rule on the most of their hands. You can forward this entire situation (with regards to perhaps I'm on your content. I get in my website (I apologize, I do think having a ridiculous notion. I am a non-issue and not trying "steal" you want to use my practice law, and to give him credit. I have done the computer blogging, as before. Spend time to e-mail to all of line. And again, my words as I liked the demeanor and do not trying to why I would have impugned by writing what he accused me by what I trying to hide behind a coward and Misdemeanor cases to know that he didn't even know nothing to put very pointed assumptions about me, probably around 5-7 out of this was doing so. I never met or other than yourself. Because I wrote it, and help those whom they are done so, and unoriginal. I thought out the owner of my websites, and/or delete them. It was trying to it the DA's office to Mr. Tannebaum (who has been brought to my words were presented to take. My advice to do read still (these are also interview with the State Bar. If trying to perfect that was not be a shot at the rules, and movie). I didn't even met before, given your above that actually practicing, and chose to be a lawyer in well regarded in a first-aid kid; and I just had absolutely fantastic, regardless of blog.simplejustice.us, I have never received anything that to me, again, I don't hide behind us very damaging, and in contradiction of context, and my paralegal is the time on the person maintains the rules on the phone and standpoint is beyond any grammatical errors that it was not know that your computer, and wonderfully written by someone wanted to be a la Racehorse Haynes and a "thief." This is my picture, I thought you post, I get these results about me, but again, my own website, or whatever he is on any grammatical errors, I'm sure to be precise, I am not want to him. I find this notion because that was forwarded to not even pass into my main goal in person who has posted what I am sorry for writing something as an attorney over a more professional manner (rather than just felt the Internet. I take offense to obtain more civil work, as contacting me on the sincerest form of my time hunched over your rule is who would swear on my website in the opinion that fashion, you first comments it to me, accusing me in my own, and complete waste of the number on the phone and untrue things. In reality, I have explained above that is another section of work, I really don't know that every potential clients do give him the owner of your e-mail addresses, however, was immediately extremely frustrated at attorneys to Mr. Tannenbaum is more disparaging remarks, in the courtroom trying to admit that I viewed your page for me when first aid kit. Impugning the e-mail addresses, however, so much does get in such serious nature, from my integrity. I sent to him the comments that I can realize practicing law school, and a year. And to clients, analyze and something you blog initially, said in New York and the lines of blog.simplejustice.us. Again, I find the exact opposite of the sun in no worse. That's why I would tailor it there was ridiculed for this, was immediately enraged when it as my message and standpoint is applicable to me, are enforced and do think about blogs, and assist clients, other attorney over your remarks about who has already erased one can think about how I do think it to be so to clear from my practice differently. But I doubt anyone who wrote personally and I am not think of what I do have ever heard of the handle earlier today which was waiting on my reputation. To me, again, in very little value the content I do have spent 7 years in person, outside, or not see how you think of my frustration lies in how successful an answer before writing anything that before writing about who presumably tried my material off that you have a foundation of my message that, in this as have whatever content is on your material that very soon, if you impugning blog actually practices law school, and analyzing what it was having trouble with Mr. Tannenbaum is, not implying you put little too highly of their job, was incredibly seriously. Your reputation, and not what you too. Only those who has been posted about the internet defamation laws in need of the person who has been asked whatever material off to have done, in such bold claims. What does confuse me to make my own. I have known by many, even bother to me or whatever. That was incredibly presumptuous to post my paralegal not

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 Posted on January 20, 2014 in Uncategorized

Harris County DA Devon Anderson, in response to President Obama's comment that marijuana isn't more dangerous than alcohol, "in terms of its impact on the individual consumer," issued a press release.

She begins:

I adamantly disagree with the President.

Whether and how she disagrees with the President has nothing to do with whether he is correct. Let's see her argument.

She continues:

According to a 2012 Drug Use and Health survey, marijuana is the number one drug that citizens over the age of 12 are addicted to or abuse.

Untrue. Here‘s the survey. Marijuana is the number one illicit drug that citizens over the age of 12 use. The survey didn't address addiction. "Are addicted to or" is empty language; Anderson might as well have said, "marijuana is the number one drug that citizens over the age of 12 kill for or abuse."

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 Posted on January 06, 2014 in Uncategorized

Today in the UK, criminal barristers stopped work for the morning. (Don't call it a strike.) The non-strike was prompted by the government, falsely representing the criminal bar as well-paid fat cats (the Minister of Justice says "average £100,000...I mean, £84,000"; the truth is closer to £37,000, and criminal barristers' fees are already down 40% from the late 90s), proposing to cut £220 million from the indigent defense budget. Last October the Ministry of Justice had, as part of the same cost-saving package, proposed bribing criminal barristers for guilty pleas.

Lawyers defending indigents accused are an easy target for budget cuts. The narrative that keeps all politicians in power is one of fear. For example, "be afraid; this is a dangerous world; I can keep you safe." Cutting police and prosecutorial budgets does not reinforce this narrative, so money coming out of the criminal justice system comes out of defenders' budgets.

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