Posted on September 15, 2013 in Uncategorized

Ethical question: if you think that a judge might be corrupt, but that the corruption can never be detected or prosecuted, do you join in his corruption for the good of your clients? Or do you avoid it for the good of everyone else?

I am, you will not be surprised to learn, on judicial political campaign mailing lists. The 2014 political season is begining, and I have started receiving invitations to judges' fundraisers. I've noticed something curious: the worst judges-narcissistic, ignorant, biased, and cruel-have the longest lists of "supporters" in the criminal-defense bar.

Now, why would that be?

It couldn't be that all of the "supporters" think that a bad judge is fit for the bench. A few of them might, but most of the people listed are as critical as I am.

So if you don't think a judge is fit for the bench, why lend your name-your most prized possession-to his campaign?

The alternative could be worse, but we're early on in the political year, there are no declared alternatives yet, and if a judge is not fit for the bench then odds are that whatever alternative emerges will be better.

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 Posted on September 14, 2013 in Uncategorized

The Fourth Court of Appeals (Texas's San-Antonio-based intermediate appellate court) three weeks ago in Ex Parte Thompson held unconstitutional (pdf) the portion of Texas's improper photography statute that outlawed taking photos of other people without their consent in places other than bathrooms and dressing rooms with the intent to arouse or gratify sexual desire.

This week a twelve-year-old girl was "convicted" (adjudicated delinquent) in juvenile court of improper photography in Harris County (Chronicle). To prosecutors and the complainant's family the case was about "bullying."

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 Posted on September 14, 2013 in Uncategorized

Paul Kennedy writes:

But when questions arose regarding who was eligible [for the DWI pretrial intervention program] and who wasn't and what defendants would be required to do as a condition of their "probation," there was no one around to answer them. No one was in charge. With Mr. Anderson out of the picture, no one wanted to step up and take any heat for unpopular decisions.

That's ridiculous. Even when Mike Anderson was healthy, the person at the DA's Office responsible for DWI pretrial intervention decisions was Belinda Hill.

Kennedy's view of the DA's Office as having a "a complete vacuum on the Sixth Floor" for the last four months doesn't bear scrutiny. Business has been taken care of; when issues have been brought to First Assistant DA Belinda Hills' attention, she has promptly dealt with them. I doubt that Kennedy has called Hill to ask for the DA's Office's answers to his questions.

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 Posted on September 09, 2013 in Uncategorized

Me, six years ago:

When we react with anger to some­one else, we're gen­er­ally try­ing to teach them a les­son. A judge once told me that anger is usu­ally the result of either a loss of con­trol or a per­ceived loss of dig­nity; I think that he got it right. When we try to teach another per­son a les­son, we're try­ing to show them that they can't take away our con­trol or dig­nity and get away with it.

President Obama, nine days ago:

This attack is an assault on human dignity.

Me, five years ago:

"I'll show him!" That's the ret­ribu­tive impulse in a nut­shell, isn't it? The desire, when some­one angers us by mak­ing us feel a loss of con­trol or a per­ceived loss of dig­nity, to regain con­trol and dig­nity by "teach­ing him a les­son"?...It dri­ves pros­e­cu­tors to put peo­ple in prison (hold them account­able! teach them a les­son!), it causes domes­tic assaults, and it results in road-rage incidents.

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 Posted on September 02, 2013 in Uncategorized

From the New York Times:

Hemisphere covers every call that passes through an AT&T switch - not just those made by AT&T customers - and includes calls dating back 26 years, according to Hemisphere training slides bearing the logo of the White House Office of National Drug Control Policy. Some four billion call records are added to the database every day, the slides say; technical specialists say a single call may generate more than one record. Unlike the N.S.A. data, the Hemisphere data includes information on the locations of callers.

There is nothing wrong with AT&T keeping these data. Nobody should expect AT&T to purge its records regularly.

The problem-the violation of our privacy, and therefore of our freedom ((Because privacy = freedom.))-arises when AT&T is required to provide these data to the government, or, as here, where AT&T provides these data to the government voluntarily.

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 Posted on September 01, 2013 in Uncategorized

You may have seen this:

The NSA seal is protected by Public Law 86-36, which states that it is not permitted for "...any person to use the initials ‘NSA,' the words ‘National Security Agency' and the NSA seal without first acquiring written permission from the Director of NSA."

It's the statement the NSA sent The Daily Dot in response to a story about these t-shirts with the NSA logo being pulled from Zazzle:

Also, it's utter nonsense.

Blustering legal threat letters annoy me, with their cita­tions (meant to impress peo­ple who don't read law) mask­ing the shod­di­ness of the legal rea­son­ing. One telltale of legal bluster is a cite to an uncodified statute-a "Public Law" or a bill-where the law has long since been codified. If you cite to a "Public Law," you see, your readers are one step farther from being able to figure out what it is you're talking about.

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 Posted on August 26, 2013 in Uncategorized

This weekend a young cat abandoned her two newborn kittens under our house.

We are not cat people. Or at least, we are not stray-cat people. I have had pet cats, but I have no emotional attachment to stray cats, which are wild animals of an invasive species. ((And which, not "belonging to" anyone, may lawfully be humanely killed.)) Our neighborhood is overrun with the vermin, which slaughter the birdlife and shit in the flower beds. I have on many occasions trapped neighborhood strays and taken them to the pound. I have surely caused the deaths of several of those strays, but lost no sleep over it.

I know the theory: you shouldn't euthanize strays but rather TNR-Trap, Neuter, and Release-because neutering the cats and returning them to the colony will result in the diminution of the colony over time. But I don't believe it. Cat lovers in the Houston Heights trapped, neutered, and returned all the cats they could last year, and still we have cat teen moms ditching their unwanted children. TNR is failing in the Heights.

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 Posted on August 23, 2013 in Uncategorized

So today's my birthday. And what better to do on my birthday than go to court. Representing a guy charged with a family-violence assault. Pro bono, because he's in the Army.

Wait. Back up. A couple of weeks ago I go to court for this guy. And there's an envelope in the State's file. It doesn't say "work product," so I pull the papers out and start reading, without noticing the big "work product" header at the top of the first page. Reading the State's work product is not something I would willfully do, but sometimes the Universe smiles on our clients, because this particular "work product" was, like the old joke (("What's that envelope marked "work product" in the prosecutor's file?" "That's the Brady material." Brady material is information that is exculpatory, is mitigatory, or would impeach a State witness.)) goes, full of exculpatory and impeaching information.

This was an "FCLD" case-a case handled by the Family Criminal Law Division of the Harris County DA's Office. FCLD handles cases in which the complainant ((The "victim.")) in a family-violence case has recanted or is not cooperating with the State. I have represented many people against FCLD, and I don't recall ever receiving notice of Brady information. Which, come to think of it, is odd because recantation would be Brady.

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 Posted on August 21, 2013 in Uncategorized

"I hope our new DA will take cor­rec­tive actions and remind his DAs to not par­tic­i­pate in these long-standing ex parte dia­logues."

-Robb Fickman, commenting here, January 19, 2013.

From: Hill, BelindaSent: Tuesday, August 13, 2013 11:57 AMTo: All ProsecutorsSubject: Ex Parte Communications

Recently, we have received some complaints from the defense bar about improper ex parte communications occurring between prosecutors and judges. Whether these complaints are true or not, this is a good opportunity to remind you of the rules governing ex parte communications with the courts in which you practice.Don't do it. Don't do it. Don't do it.Scott Durfee prepared a memo listing all the reasons why we should not engage in ANY ex parte communication with the judge.Here's why:· It may be a crime. Section 36.04 of the Penal Code provides:A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law.For purposes of this section, "adjudicatory proceeding" means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.· It may be professional misconduct. Texas Disciplinary Rule of Professional Conduct 3.05 provides:A lawyer shall not:(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:(1) in the course of official proceedings in the cause;(2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;(3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.· It may result in office discipline. Section 10.4(c) of the Operations Manual forbids prosecutors from communicating with the judges of the various courts, either directly or indirectly, concerning the merits of a pending case unless such communications are "expressly authorized by law."Here are some practice tips to avoid trouble:1. Be disciplined in how you communicate with the judge. It can be very easy to rationalize a brief one-on-one discussion about a particular case with the judge as clarification of an issue to facilitate a settlement, a "heads up" about some piece of evidence or testimony that will be offered later, an informal request for a continuance or notice about a missing witness, a request for advance notice of the order of trials, an advance discussion of what kind of sentence the judge will impose on a plea without an agreed recommendation, or some similar "harmless" discussion about a minor issue in the case. It might take place at the bench while you're waiting for the other side's lawyer to arrive, it might be your peeking your head into the judge's office to say a few words before docket call, it might be a short e-mail to the judge. The discussion may even be initiated by the judge and you may worry that not answering the judge's question will be considered rude.Don't indulge in such rationalizations. The State Bar will not, and your supervisors won't either.2. Don't ask the judge for advice on how to try your case. There is no question that our judges, having tried or presided over many cases, have much wisdom to impart to you about how a case should be tried. Often, because you are the "home team" assigned to the court, a judge really wants you to know how well (or how badly) you are handling a trial and why. If this advice is offered while the case is pending, politely decline this mentoring opportunity. If you want the judge's take on your case, ask him or her after the case is over (assuming that the case is not on appeal and subject to remand).3. Wait for the opposing lawyer. If the case is on the morning docket and you want to get a ruling on a pending motion, but the defense attorney is late to court, neither you nor the court should penalize the attorney by proceeding on the merits of the motion in his or her absence. If you or the judge are frustrated with the attorney's lateness, there are specific sanctions you can pursue to address that problem, but depriving the defendant of an advocate should not be one of them.4. Document your notice to the opposing counsel. A certificate of service on your motions should be specific as to time, date, and the manner of service. This may be your only evidence in rebuttal to a claim that you improperly communicated with the court without notice to the defense, so it needs to be definitive.5. Do not use the court staff as a back door to the judge. When you are communicating with the court coordinator, avoid asking the coordinator to get something done that you could not ask the court to do without the other side being present. This can include requesting issuance of orders for bench warrants or attachments, trial continuances, and bond revocations.6. Ex parte communications on "procedural" matters may still be improper. For example, if a court order is necessary to obtain certain records during the discovery phase of the case, you can't simply approach the bench and present the motion and order without noticing the other side and giving them an opportunity to be heard. You may correctly think that the other side has no reason to oppose the order, but make no mistake: you are asking the judge to exercise his or her discretion to issue an order and the other side should know what you're doing.7. Apply the Golden Rule. Obviously, not every communication with the court is going to be an ex parte communication: we are allowed to talk to our judiciary about matters that would not have any influence on a pending matter. In figuring out whether a particular communication may be improper, ask yourself, "How would I feel if a defense attorney had this conversation with the judge or his staff outside of my presence?" From that perspective, the answer is usually pretty obvious.

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 Posted on August 12, 2013 in Uncategorized

There is an ilk of lawyer practicing in federal criminal court that gets a great deal of retained business through the jails: an incarcerated client talks up the lawyer and the miracles he can work to his cellies, some of whom get their families to scrape together the money to hire the lawyer, fire their court-appointed counsel, and themselves become evangelists for the lawyer.

Now, just about every defendant with a hired lawyer wants to believe that he's got the best lawyer in the world. And just about every defendant with a free lawyer wants to believe that he could get a better result if only he could hire a lawyer. But that dynamic can't account for the number of defendants who get momma to mortgage the house to hire these lawyers. Nor can the lawyers' unimpressive reputations in the legal community, nor the unimpressive objective results they obtain. ((I have long suspected, but never seen proof, that incarcerated defendants received some financial benefit for their evangelism, which would be both unethical and criminal.))

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