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Signs and Portents
"It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?' " the attorney general, Eric H. Holder Jr., wrote to Mr. Paul. "The answer to that question is no."
So to avoid being killed out of the blue by the government, just don't engage in combat, right?
Wrong: in a world where "imminent" includes "not imminent," who knows what "engaged in combat" means?
Well, they'll at least tell us what groups the government says are engaged in combat with the U.S. so that we can avoid associating with those groups, right?
Terrorist…ic…al…ish? Threat
So what about the charge for which DPS issued subpoenas to Twitter? ((It appears that DPS has withdrawn one of the subpoenas by agreement (PDF).))
§ 22.07. TERRORISTIC THREAT. (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:(1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;(2) place any person in fear of imminent serious bodily injury;(3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;(4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;(5) place the public or a substantial group of the public in fear of serious bodily injury; or(6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.
What We Know That Ain't So
We all know the rule that ex parte communications between counsel and the court are generally forbidden. We also know that judges-even judges of good will-who know the rule break it all the time. This week I got a little bit of insight into how this might happen when a Harris County jurist, someone who has been a judge for longer than I've been a criminal-defense lawyer, told me:
"If it's in open court, it's not ex parte."
I was floored. I had always thought that an ex parte communication is one in which one side participated and the other did not, regardless of where it happened-in the back hallway, in open court, or in the hot tub.
To Westlaw!
Sure enough:
An ex parte communication is one that involves fewer than all parties who are legally entitled to be present during the discussion of any matter with the judge. Ex parte communications are prohibited because they are inconsistent with the right of every litigant to be heard and with the principle of maintaining an impartial judiciary. This proscription applies regardless of whether the communication occurs through a social media website, in the judge's chambers, or elsewhere. ((Youkers v. State, 400 S.W.3d 200, 206 (Tex. App.–Dallas 2013, no pet.).))
DPS Twitter Subpoenas
The San Antonio Express reports that Jason McMurray, a Texas Department of Public Safety Agent ((Is there really such a thing?)) out of Tyler sent an administrative subpoena to Twitter in San Francisco for records of two Twitter accounts, @deniseromano and @prisonforbush, including the IP addresses used from July 17 to July 19, 2013:
Twitter sent one of the account holders (and presumably both of them) an email notifying them (despite the subpoena's direction that it not do so) of the subpoena and giving them an opportunity to oppose it:
One of our core values is to defend and respect the user's voice....We are notifying you of this legal process in order to allow you to decide whether or not you will oppose the production of the requested information, either by filing a motion with the court where the legal process was issued or contacting the requesting party directly.Please be advised that Twitter is required to respond to this request by August 2, 2013....
Stand-Your-Ground in the Zimmerman Case
Yesterday I wrote about stand-your-ground laws generally. I did so because I didn't know the mechanics of such laws, and there is a great deal of talk about such laws from people who seem to have no greater understanding of them than I have.
In the Zimmerman jury instructions, the jury was instructed on the stand-your-ground law:
If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.
That instruction may not have been dispositive of the case-we'll never know, since jurors decide then justify (based on the evidence and jury instructions)-but had the jury been given the pre-stand-your-ground jury instruction...
Standing Your Ground
Forget George Zimmerman and Trayvon Martin. Forget any specific case. You're going to design the best society you can, and I'm going to offer you two (and only two) options for a self-defense law.
Option A:
A person may use deadly force in self-defense if he or she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm, but may not resort to deadly force without first using every reasonable means within his or her power to avoid the danger, including retreat.
Option B:
A person may use deadly force in self-defense if he or she reasonably believes that deadly force is necessary to prevent death or great bodily harm. The person who is not engaged in an unlawful activity and who is attacked in any place where he or she has a right to be may meet force with force, and has no duty to retreat.
Which law do you choose for your better society, and why?
On the one hand, life is precious; there is some appeal to the idea that before using force that one should, as a matter of principle, do everything reasonable to avoid having to end another human being's life.
The Stupid. It Burns.
Zimmerman Verdict Exposes Deficiencies in U.S. Self-Defense Law, by "television correspondent and attorney" Amy Dardashtian.
I hate it when the person who writes something like that describes herself as an attorney because it conveys the impression that her notions have some basis value. I don't even know where to begin, and I don't want to spend much time on it lest reading it make me dumber. I'll limit myself to this sesquiparagraph:
The George Zimmerman case brings to our attention that there is no liability for instigation, verbal, mental or emotional abuse. All of the aforementioned are actions and all of the aforementioned can be just as severe, just as infuriating and just as criminal as throwing the first punch. Bullying has become a topic of heated debate and concern in society. It is impossible in this day and age to deny the effects of bullying or to deny that pursuing, antagonizing, and pushing someone's buttons can drive even the most controlled and disciplined people to express their frustration through physical force. How often have we heard psychologists postulate that years of bullying and social awkwardness may have been the driving forces behind some of the most appalling mass murders and school shootings in our country over the past decade? And yes, a neighborhood watchman can be the bully.The bottom line is that self-defense law is outdated. Self-defense law codifies the notion that physical actions create a crime. Now we must figure out how to codify when other types of aggression create liability without self-defense acting as a barrier.
Zimmerman Verdict Confirms What We All Knew All Along
The verdict in a criminal trial is a dismal medium for sending a message. Seldom does anyone outside the criminal courtroom care what has happened inside.
Even if people are paying attention, criminal jury instructions don't ask "what message would you like to send?" but only whether the government has proven its case. A verdict that is issued to send a message is not based on the facts and the law. So a jury that has "sent a message" with its verdict has gone outside its jury instructions; a jury that has gone outside its jury instructions to reach a verdict has broken its oath. Absent compelling evidence of misconduct, we pretend that a jury followed its oath. The message of a conviction is that the government proved its case beyond a reasonable doubt; an acquittal simply means that it did not. There is no additional signal contained in the verdict.
To call for a jury to "send a message" with a culpability verdict is to call for jury nullification. Criminal-defense lawyers, of all people, know this. And yet friends of mine, experienced trial lawyers, see the verdict in George Zimmerman's case as sending more of a message than "the Government failed to prove its case": Black men's lives aren't valued, for example, or American society still thinks it's okay to murder a Black man.
Ten Commandments of Courtroom Humor
I have advocated (Lizards Don't Laugh) getting jurors laughing to get them out of their lizard brains and make them less likely to convict. Conventional courtroom wisdom is that a laughing jury does not convict. But humor in the criminal trial has to come with some rules. Herewith, ten commandments for humor in the courtroom.
I
Thou shalt probably not. This is a maneuver to be attempted only by trained professionals, if at all. At a bare minimum, you must have technique to burn, and be comfortable in your own skin in trial, before trying to deploy humor. If you are a new lawyer, both conditions are unsatisfied. You may think they are satisfied, but you're wrong. If you're an experienced lawyer and you think you can't pull it off, you're right. If you're an experienced lawyer and you are sure you can pull it off, read on.
II
If thou must do it, thou shalt not script it. Stand-up comedy looks easy, but it's an art and a science that we don't learn in law school. The humor that works in the courtroom is that which points the jury toward the absurdity that already exists there. It is, by its very nature, unscripted and improvisational.
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