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Recent Blog Posts
Avvo, Endorsement, Fraud.
Framingham, Massachusetts divorce lawyer Howard Lewis endorses Taylor:
...and Weston:
Also Ware:
...and Bellotti:
...and-oh, hell. 9,000-plus others, all of whom he couldn't possibly know:
This practice of endorsing strangers on Avvo makes actual endorsements worthless. It's as bad as-worse than-falsifying client reviews.
You don't think Lewis picked 9,000 strangers to endorse, do you? It's possible-he may have some paid marketeer posting endorsements to random accounts for him. But some of those endorsements are for people who have solicited them.
Is New Jersey's Revenge-Porn Statute Constitutional?
In Are Statutes Criminalizing Revenge Porn Constitutional? I considered Mary Anne Franks's proposed statute aimed at revenge porn, and concluded that lower courts considering the constitutionality of the statute will be constrained by current Supreme Court precedent to find the statute unconstitutional.
At least three states-New Jersey, California, and Texas-have statutes that would criminalize revenge porn. I've discussed the unconstitutionality of Texas's improper-photography statute before, and California's statute is newer, so let's turn our attention first to New Jersey's third-degree-invasion-of-privacy statute.
Here's the relevant portion:
(c) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.d. It is an affirmative defense to a crime under this section that:(1) the actor posted or otherwise provided prior notice to the person of the actor's intent to engage in the conduct specified in subsection a., b., or c., and(2) the actor acted with a lawful purpose.
Are Statutes Criminalizing Revenge Porn Constitutional?
There's a movement afoot to pass statutes outlawing "revenge porn"-the malicious publication of images of intimate partners. Here's the proposed state statute, drawn up by Florida law prof Mary Anne Franks:
Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person's consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.(a) Definitions: For the purposes of this section,1) "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.2) "intimate parts" means the naked genitals, pubic area, buttocks, or female adult nipple of the person.3) "sexual contact" means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.(b) Exceptions:1) This section shall not apply to lawful and common practices of law enforcement, reporting of unlawful activity, or legal proceedings.2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.
I Am A Whore.
The short story: Biologist Danielle N. Lee, who blogs at The Urban Scientist, gets a request from "Ofek," an editor at "Biology Online" to write content there for free. She politely declines. The editor responds:
Because we don't pay for blog entries?Are you an urban scientist or an urban whore?
Lee writes about the experience on The Urban Scientist; Scientific American takes the post down without notifying her.
There are plenty of angles to this story that deserve closer attention. For example:
There's "Ofek," who deserves googleable public naming and shaming.
Six Ways to Screw Up Your Persuasive Writing
In support of her attempt to limit speech to protect women from revenge porn, Mary Anne Franks, who teaches family law, criminal law, and criminal procedure at the University of Miami, demonstrates, via Concurring Opinions, some of the hazards of single-issue advocacy, accidentally providing some compelling negative rhetorical lessons, demonstrating to the world six things not to do when you're trying to persuade:
Overstate your case: "[T]his kind of conduct is an act of sexual use without consent, that is, a form of sexual abuse."
The thing about laws restricting speech is that speech is treated differently than conduct. Franks can stamp her foot and insist that revenge porn is sexual abuse, but saying it doesn't make it so.
Misstate the law: "Right now, only two states, New Jersey and California, currently treat non-consensual pornography as a crime in itself."
All the Wrong Reasons
The last time we checked in with Robert S. Bennett, it was because Lillian Hardwick, the State Bar's ethics "expert" who was going about opining on the matter of flat fees in criminal cases, had associated herself with him to lecture and write an article on ethics.
Before that, we saw Bennett appearing on a major federal criminal fraud case as a "concierge lawyer."
Now he's facing a lawsuit by the Commission for Lawyer Discipline.
The meat of the Commission's allegations is that a guy named Land hired Bennett in 2011 to represent him in a breach-of-contract suit...
and the development of a potential federal Civil Rights action. The latter matter would involve Land's belief that he is the subject of a campaign of covert surveillance by unnamed individuals, possible federal agents. Although Land's beliefs are fantastical on their face and other attorneys had declined to represent him, [Robert S. Bennett] took on Land as a client. Respondent demanded, and Land paid, a $50,000 retainer.Land and [Robert S. Bennett] entered into an Attorney Retainer and Dispute Resolution Agreement. At the time the Agreement was signed, Land requested that invoices be emailed to him, since he would be traveling extensively for the next several months. Respondent did e-mail the first invoice, but mailed subsequent invoices to the residence of Land's parents. As a result, Land did not see the invoices for several months. Eventually Land became aware that Respondent had invoiced him for approximately $75,000.00 in legal fees, despite the fact that there had been no significant progress on the Lambert Lawsuit. And given the nature of the second matter, no progress was in the realm of reasonable possibility.
Teacup Texans (and New Yorkers)
In Cohen v. California the U.S. Supreme Court said:
The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.
That the government can shut off discourse to protect others from hearing it if substantial privacy interests are being invaded in an essentially intolerable manner is mere dicta. ((Mere dicta, or just dicta, is something in a court opinion that was not necessary to the decision of the case.)) While the Supreme Court has quoted that language since 1971 in cases invalidating speech-restricting statutes, it has not, in the forty-two years since Cohen, upheld a speech-restricting statute based on this theory.
In other words, while it has invalidated numerous statutes that restricted speech that did not invade on substantial privacy interests in an essentially intolerable manner, the U.S. Supreme Court has never upheld a statute because it restricted such speech.
Isn't the Coverup Always Worse?
McClelland was driving east on Clay in the far left lane, Cannon said. He came to a stop before turning left onto northbound Travis on a green light, looked into the intersection and didn't see anyone in the crosswalk...."He made the left turn and suddenly an adult male stepped off the curb into a moving lane of traffic," Cannon said.
(Houston Chronicle, September 5, 2013.)
Contrast that HPD account of Chief McLelland's collision with a pedestrian, and the video, released a couple of weeks later:
It is untrue that McLelland "came to a stop before turning left." It is also untrue that his victim "suddenly stepped off the curb into a moving lane of traffic"
McLelland also claims that he was not texting or on the phone when he hit the pedestrian. This, I doubt.
This is not Chief McLelland being treated specially because he is the chief. It's Chief McLelland receiving special treatment because he is a cop. His victim is lucky the cops responding didn't plant a gun and dope on him.
The Illusion of High Standards
On the morning of Friday, August 20, 2010, when Senior Judge Robert D. Jones was sitting in Harris County's 337th District Court, lawyers saw him revoke a defendant's bond and jail her because her lawyer was absent. The defendant remained in jail until Monday, when the sitting judge in that court returned and reinstated her bond.
In January 2011 the State dismissed all charges against the defendant.
Six months later the Harris County Criminal Lawyers Association filed a complaint (PDF) against Judge Jones with the Texas Commission For Judicial Conduct (HCCLA Complaint re Judge Robert Jones 071411).
In early 2012 Nahdiah Hoang from the Commission called Earl Musick, the past president whose name was on the complaint, suggesting that it was okay for a judge to jail a defendant for coming to court without a lawyer. Musick wrote Hoang a letter explaining the law, and sent an additional affidavit describing Jones's conduct (Robert Jones- Letter to Nahdiah):
Tom DeLay, Innocent Man
When Tom DeLay was convicted, I was quick to write Tom Delay, Convicted Felon.
It's fair that I be just as quick to note that today DeLay is not a convicted felon. He's not even in jeopardy. He is an innocent man. ((The presumption of innocence means you're innocent until the government proves you guilty beyond a reasonable doubt.)) The Austin Court of Appeals reversed and rendered the case, which means that the appellate court didn't remand (send the case back for a new trial) but rather found DeLay not guilty. He could get the case expunged from governmental records if he cared to.
The State could try to appeal to the Court of Criminal Appeals, but that court of Republicans isn't likely to grant discretionary review. So it's likely all over for the State but the crying.
Brian Wice and Dick DeGuerin are responsible for the reversal-Dick tried the case, and Brian appealed it.
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