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This Guy Needs Me
Andrew Sanchez III, 60, is set to be booked in Bexar County Jail on one count of improper photography. A judge set bail at $7,500.Police said the officer assigned to the American Cheer Power Southern National Championship at the Alamodome saw Sanchez videotaping the performers around 11:30 a.m. Sunday. The officer questioned Sanchez and determined he had no children in the contest.
(Chron.com.)
Improper photography is one of three newish Texas penal statutes that violate Free Speech.
The first comment following the article illustrates why: "I don't know what restrictions registered sex offenders are under. But it can't be illegal for an ordinary citizen to film cheerleader practice."
Yes, dear anonymous Chronicle commenter, it is indeed illegal for an ordinary citizen to film cheerleader practice...if a cop thinks the ordinary citizen has the intent to arouse or gratify someone's sexual desire. Does that "if" make you feel safe? Remember, the cops questioned Sanchez (and thought they had enough suspicion to run his record) before knowing that he was a registered sex offender.
¡SpiderOak, Sí. Dropbox, No!
It is almost unfathomable to me that a lawyer would give up confidential client information without a fight.
Yet Sam Glover at The Lawyerist suggests that this might be an option: "If you are the sort of person who would fight such a subpoena, this would give you the option to do so."
The context: Glover is talking about using SpiderOak for file sync instead of Dropbox.
Dropbox and SpiderOak both provide options for synchronizing data between computers and storing it in the cloud. While Dropbox has access to your data, SpiderOak has zero-knowledge encryption: data are encrypted on your end, and SpiderOak could not decrypt them even if ordered to.
What that means is that if the bad guys want to get your clients' data from Dropbox, they can get a subpoena or a court order and serve it on Dropbox; not only can you not fight it, but you might not know about it. If the bad guys want to get your clients' data from SpiderOak they have to go through you.
Revenge Porn and “Rape Culture” Culture
Business Insider found some folks who see revenge porn not as a free-speech issue but as "a kind of high tech rape":
When we teach women not to walk alone in public after dark, not to wear particular kinds of clothing, not to engage in consensual acts like taking nude photos or making sex tapes, we're saying that women can expect to be victims because they are women, and that it is more important to limit a victim's participation in public life than it is to remedy the systemic injustices that lead to victimization in the first place. Revenge porn is merely a high tech piece of rape culture, and sadly it doesn't say anything about our culture that we didn't already know.
Wait, what?
When we teach women? How condescending is that?
I don't think grownups teach grownups much. So let's talk about those whom we have some chance of influencing: our kids.
When we teach our daughters not to take nude photos, we're saying that women can expect to be victims because they are women, and that it is more important to limit a victim's participation in public life than it is to remedy the systemic injustices that lead to victimization in the first place?
Isn't Revenge Porn Constitutionally Protected?
Dylan Love at Business Insider (the article contains lots of bad legal advice) writes:
There is a seedy underbelly of the internet where people post nude or otherwise compromising photos of their ex-girlfriends or boyfriends for anyone to see, sometimes to get back at a lover who jilted them. These so-called "revenge porn" sites bring up a number of questions. Why aren't they illegal?
Why would they be?
In the Business Insider post, criminal-defense lawyer Jason Van Dyke argues that the revenge-porn sites are illegal because they don't appear to keep the records of performers' ages required by 18 USC 2257. I think he is probably wrong. 18 USC 2257 applies to those who "produce[] any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image" containing sexually explicit conduct, and requires them to keep records of the performers' ages. "Producing" includes "inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct" but does not include "the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication." Assuming that the owners of the revenge-porn sites did not select or alter the images they are publishing, they are not "producers" and do not have to maintain records of the performers' ages. Holding a revenge-porn site liable for violating Section 2257 would be like holding a bookstore or cable channel liable.
Behind the Jury-Selection Curtain: Challenges for Cause
A commenter on this post asks:
I do have a few questions on challenges for cause. Mostly, how are they resolved? Is it entirely about negotiation to consensus and good faith, or does the judge have complete discretion? Also, what happens if you don't have a large enough panel remaining for a strike zone of 32 (e.g. thirty nullificationists show up that day)? Do you just have fewer peremptory challenges, or do you go get a new panel?
The judge does not have discretion to deny a challenge for cause once the law has been explained to the juror and it has been established that the juror cannot follow the law.
That the judge does not have discretion to do something does not mean that the judge can't do it or won't do it. It just means that if the judge does it it may be grounds for reversal on appeal.
So let's say that you're a potential juror, and you explain that you can't presume my clientto be innocent because he's charged with burglary of a motor vehicle and someone broke into your car recently and you're too angry about it to see straight. I challenge you for cause. The judge denies my challenge. What I have to do next is preserve error-to make a record for the court of appeals so that they can see that the judge screwed up, that I gave her a chance not to, and that my client was harmed by the screwup.
Jury Selection Behind the Scenes
Experienced trial lawyers will often tell you that "jury selection" is misnamed-it's actually jury deselection.
Different jurisdictions use different methods. In a Texas non-capital felony trial, the jury panel is ordinarily sixty people. Each juror is assigned a number. The court brings the panel in to the courtroom and lines them up on the benches in numerical order-one through twelve on the first row, for example, thirteen through twenty-four on the second row, and so forth. (Lawyers often refer to the jurors by number instead of name because numbers are easier to keep track of.)
The judge talks to the jurors first. Some judges will talk for a few minutes and leave the lifting to the lawyers, and some judges will talk for hours. Usually the judge will introduce the jurors to general principles-the presumption of innocence, the right to remain silent, the burden of proof-and establish that all of the jurors can follow the law.
After the judge, the prosecutor takes her turn. She will usually talk about the elements of the case and the legal principles that she thinks are important to the case. If, as in many Texas felony cases, the defendant has chosen to have the jury set punishment, she will commit the jurors to considering the top end of the punishment range. She'll also ask questions intended to find the people who might be prejudiced against the State or the applicable law.
More Working-Class Jurors
Chris Daniel has a great idea (Chron.com) for broadening the jury pool:
[T]here are ways for government, without being intrusive, to provide businesses with incentives to pay workers absent because of jury service. Lawmakers will consider passing House Bill 433, which would allow employers to claim a 15 percent discount when calculating their state margins taxes if they pay workers who are out for jury service.
Employers don't have to pay their employees for time spent serving on juries. HB 433 would reward employers that do by reducing their taxes. In essence Daniel has found a way to boost juror pay for those who need it without giving a raise to jurors who are at more leisure to skip work.
Consider again the problem of the working poor. Working-poor defendants who can't afford not to make bail but can't afford to hire competent counsel are the same as those jurors who can't afford to take an unpaid day off work. HB 433 would give those folks a better chance of having a jury of their peers.
Bad Salesman
Ring."This is Mark Bennett.""Hello, Mark, how are you doing today?""I'm w-""This is Glenn, with Xerox. I was just calling today because I thought you might be interested..."
Glenn, you numbskull. The object of "how are you doing today" is to get me in "yes mode," responding to you positively in accordance with established social conventions, before you reveal that you're calling to try to sell me something.
If you don't give me a chance to answer it, it doesn't work.
If you do give me a chance to answer it, it doesn't work either-I don't play nice with people calling to sell me stuff. But if you call a thousand people and don't cut them off after you ask how they're doing, you'll sell more copiers than if you call a thousand people and do.
Slow down, Glenn. Take your time. Selling copier leases is not a race. If you don't schmooze your leads a little, you'll never close.
Teri Buhl Followup: “Libel…no wait, copyright!” (updated with two more theories)
When Tim Cushing at TechDirt wrote about Teri Buhl's "unpublishable tweets" and her attempts to bully Gideon with lawsuit threats, then me with veiled threats of a libel lawsuit, Buhl left a comment:
("Jurno"?)
Then she asked Jim Romenesko to post her response to the TechDirt article:
I can say silly things some times and I'd like to apologized for my knee jerk reaction to Gideon.Of course I can't sue him/her because I don't even know the person's real name.
You see, threatening Gideon is not wrong because there is no basis for a lawsuit, nor is it wrong because threatening a lawsuit is a thuggish thing to do; threatening Gideon is wrong because she doesn't know who he is. (If she knew his real name, she could threaten him, sue him, maybe even publish his private journal.)
Doin' it Wrong on Twitter (updated)
My friend "Gideon" (of A Public Defender fame) asked an intriguing question on Twitter:
@tbuhl's twitter profile proclaims "no tweets are publishable". What does that mean?
By "not publishable," I suspected that "investigative journalist" Teri Buhl (you'll see the reason for the doubt quotes in a moment) meant "not worth publishing," which is ironic and funny because posting on Twitter is publication.
But no. Buhl responded to Gideon's inquiry (read from bottom to top):
So not "ironic and funny," but "ironic and inaccurate." Because, as any journalist knows, posting on Twitter is publication, and "I don't want my tweets in a story or on a blog" is not the same as "you may not republish what I have published."
Strike that. Gideon replied, "ok thanks. I don't know how you prevent that, though. I could write a post quoting you":
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