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Recent Blog Posts
Online Solicitation in Conroe
Five guys arrested in Montgomery County and charged with 33.021(c) online solicitation-not the portion of the statute that has been held unconstitutional, but the portion that should be. They all made bail (though one has a warrant pending); one of them has another case pending.
The lawyers who are hired or appointed on these cases need to give some serious thought to filing writs challenging the constitutionality of the statute, and then putting them on appeal. It is by no means clear whether their clients will benefit from the statute eventually being held unconstitutional if the lawyers don't get their shit together now.
It's crazy, this idea that a defendant can forfeit his right not to be prosecuted under a penal statute that violates the First Amendment. But there you have it: Karenev, my white whale.
Law Geek: More Karenev
The meat of Judge Keller's opinion in Karenev v. State:
Marin took a functional approach to error preservation, dividing rules into three types: (1) absolute requirements or prohibitions, (2) rights that are waivable-only, and (3) rights that can be forfeited.[51] A facial challenge to the constitutionality of a statute falls within the third category. Statutes are presumed to be constitutional until it is determined otherwise.[52] The State and the trial court should not be required to anticipate that a statute may later be held to be unconstitutional.footnotes:[51] 851 S.W.2d at 279-80. Marin briefly discussed Rose, but in doing so it did not cite Rose for the proposition that the facial unconstitutionality of a statute can always be raised on direct appeal; rather, Marin incorporated Rose's holding into the functional approach of its framework, explaining that "this Court has held that nonjurisdictional principles of due process and separation of powers are such as to render void from its inception conflicting legislation." Marin, 851 S.W.2d at 279.[52] Flores v. State, 245 S.W.3d 432, 438 (Tex. Crim.App.2008); Doe v. State, 112 S.W.3d 532, 539 (Tex.Crim.App.2003).
Montgomery County is Definitely Different
I've had a report that prosecutors in Montgomery County want a defendant to plead guilty to online solicitation of a minor by communication under Section 33.021(b) of the Texas Penal Code (the "talking dirty to a minor" statute that was held unconstitutional a couple of weeks ago) and take two years in prison.
So what do they think will happen after the defendant pleads guilty and takes his time and comes back into court with a writ based on his lawyer's ineffective assistance?
(Texas, not Maryland, in case you're still wondering.)
How Democracy is Supposed to Work
Here's one of Dave Wilson's campaign flyers:
Wilson, a white man, was running for the office of Houston Community College Trustee in a predominantly black district.
Here's local TV station KHOU's spin:
White guy wins after leading voters to believe he's black.
My initial reaction, when I saw the KHOU story (which didn't show detail on the flyers on which the dispute was based) was meh. I think that "low-information" gets tossed around too much as a description of voters-we are all making voting decisions based on partial and false information-but if voters are going to choose their candidate based on race without considering their character, they're going to get what they deserve.
After seeing the flyer (published by the Chronicle in connection with Lisa Falkenberg's article this morning), my reaction is even more meh. Wilson concealed the color of his skin and won because of the content of his character. That's as it should be. When voters choose a homophobic (from the Greek ????, same, + ?????, fear) "black" candidate over a tolerant black candidate, they deserve what they're going to get.
You call it a “syndrome” as though it's a bad thing.
At Keith Lee's Associate's Mind he writes about impostor syndrome, which is
"a psychological phenomenon in which people are unable to internalize their accomplishments. Despite external evidence of their competence, those with the syndrome remain convinced that they are frauds and do not deserve the success they have achieved. Proof of success is dismissed as luck, timing, or as a result of deceiving others into thinking they are more intelligent and competent than they believe themselves to be."
I have done enough psychodrama training, and talked to enough lawyers in truth-telling mode that I believe that, at least among successful male criminal-defense lawyers, "impostor syndrome" is the rule rather than the exception. (I don't have an opinion on the impostor syndrome on the distaff side, nor in more boring fields of law.)
Book Review: The Marble and the Sculptor
There is much advice available to young and aspiring lawyers on how to be a lawyer. The vast majority of it is written by:
a) People who are selling something-failed lawyers and charlatans using "free webinars" to sell vaporware; or
b) People who practice law, but have been doing so for so long that they aren't in close touch with the world that new lawyers face, with stratospheric debt in a recessionary economy; or
c) People who can't write for squat.
The problem with the crap advice that is readily available is that the person needing advice can't necessarily tell the difference between the wheat and the chaff. How is the young-or-aspiring lawyer to sort out the bad or worthless career advice from the treasures of wisdom? I'm about to make it easy.
If you're a young or aspiring lawyer, you must read this book: The Marble and the Sculptor: From Law School to Law Practice. If you are a recent law-school graduate, a law student, or contemplating law school, make this your first investment in your professional development. Even before you find a mentor, read this book. Mark it up with a red pencil with questions for the mentors you will eventually get.
Guest Post By Robb Fickman
Since Robb Fickman seems to have abandoned The "Meaning" of America, I asked for and received his permission to republish here his thoughts about Ken Anderson's ten-day sentence for hiding exculpatory evidence to keep Michael Morton in prison for twenty-five years:
1. As has been repeatedly noted by John Raley and the Innocence Project, Anderson has never apologized to Michael Morton for Anderson's conduct. He apologized for what the "system"did.He has accepted no personal responsibility for his actions.2. Anderson's remorse has been for himself. That's right, He testified and had the audacity to compare his going through The Court of Inquiry to Michael Morton's 25 years in prison.3. Anderson built a career while Michael served 25 years. The real killer stayed on the loose and he murdered a woman in Austin thanks to Anderson's prosecution of an innocent man.4. If any of our clients locked someone in a cage for 25 years what do you think the offer would be? Try life.While historic & important, Anderson's 10 days trivializes his abandonment of his duty and his crimes.No DA will be deterred by this 10 day sentence. Hell, some of them would do 10 days to win a big case. The punishment does not fit the crime.5. I understand empathy for Anderson's family. I do not understand any of the empathy expressed for Anderson. He is embarrassed, upset, bothered? Who gives a shit. The sorry fucker robbed a fellow human being of 25 years and I am supposed to have empathy cause he hurts inside?My empathy is for Michael Morton and his family. My empathy is for the Austin family that lost their relative to the same psycho that Murdered Michael's wife.I have no Empathy for Anderson. He was entrusted by the public to do justice.He violated that public trust. He deliberately hid evidence.Why????!? Why did he hide it???To win a conviction, he hid the very evidence that would have helped establish the defense.Who does that? A person without a conscience. The same kind of person who never apologizes. Anderson.6. Kevin Fine and I defended an IAD cop once. He kidnapped a woman and held her for ransom for about 27 hours. He was caught. The woman was OK.DAs offered him 45-50 years. He confessed three times. He pled guilty to a jury and expressed remorse. The DA held up our clients badge in argument and said, " The worst criminals are those with badges." The jury gave him 27 years. I think it was a year for every hour the woman had been kidnapped.Michael Morton was kidnapped & locked in a cage by Anderson. Michael was locked in that cage for 219,000 hours. Using our jury's math, Anderson's sentence should be life in prison. Nothing less.7. The legislature must make Anderson's conduct punishable by serious pen time. And as in murder, there can be no statute of limitations.The "Thing called Senator Huffman" will fight this. The Texas County and District Attorneys Association will fight it. But we must pass new laws. Until rogue prosecutors face the prospect of real punishment, they will not be deterred from abusing the good citizens of Texas.Fuck Ken Anderson. Fuck Sebesta. Fuck any DA who would violate his ethical duties and the law to secure a conviction.(offense intended)Robb
Hired Guns and Heroes
A reader suggested that I was a hero. I'm no hero. I'm more Kid Shilleen than Superman:
More Winston Wolf than Batman:
I'm the hired gun, the guy you call when you need a problem solved. It doesn't matter to me whether you are good or evil, right or wrong, a sinner or an angel. None of that affects how I defend you. You should be glad of that.
I know "cause" lawyers. They often do more harm than good to their clients. I can't fault their principles, except when those principles get in the way of the job. A jury trial might seem like more fun than a dismissal to the 18-year-old Occupier, but lose that trial and twenty years from now that soapbox is going to seem awfully small, and not worth passing on the dismissal.
Principles? Sure, I've got 'em: freedom is better than safety; knowledge is better than ignorance; love is better than fear. ((I think I just said the same thing three different ways.)) If they're trying to put you in a box and you have the coin to hire me, I'll try to keep you out. If you don't have the coin, I might do it anyway. I take a lot cases for free. But not because I have to. I take cases for free when doing so amuses me.
Law Geek: Texas Appellate Nightmare—Karenev [Update]
[Update: the below is a nightmare. It is not how things are, much less how things have to be. I've identified four ways a good lawyer might make the nightmare end; I'm sure I'll think of others as I litigate these cases. Your takeaway from this post should not be that there is no hope, but rather that the relief that people convicted of 33.021(b) should-morally, ethically, common-sensibly-get it is by no means a sure thing.]
Meet Dave.
Dave was convicted in Houston five weeks ago of online solicitation of a minor by communication under Section 33.021(b) of the Texas Penal Code-the "talking dirty to a minor" statute-and sentenced to ten years in prison.
Dave's trial lawyer, Fred, didn't argue in the trial court that Section 33.021(b) was unconstitutional because that was a crazy idea.
Dave is sitting in prison.
Dave's appellate lawyer, Al reads the case in which the Texas Court of Criminal Appeals held Section 33.021(b) unconstitutional. "Eureka," says Al. He files a brief with a single point of error:
Legal Malpractice Nightmare
In Peeler v. Hughes and Luce the Texas Supreme Court held that a convicted criminal defendant's crime is the sole proximate cause of any consequences of that crime, so that a criminal-defense lawyer cannot be sued for malpractice "without first establishing that she has been exonerated by direct appeal, post-conviction relief, or otherwise."
Does "exonerated" in this context mean "proven innocent," or just "unconvicted"? It must mean the latter because the lack of a criminal conviction is the lack of proof of guilt, so that a person whose conviction has been vacated is not as a matter of law barred from suing his lawyer.
So. 33.021(b). Held unconstitutional last week. A bunch of people are still in prison for violating it. More are on probation or parole, or have completed their probation or parole. All are required to register as sex offenders.
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