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Recent Blog Posts
Letting the Imp Drive
I am well-acquainted with the Imp of the Perverse. The Imp and I are buds. We've lived together for a long time, and I give him free rein from time to time. At his urging, I'll egg on the lawyer who is posting drunk to the listserv, or I'll suggest to my brother, in a car full of relatives from our parents' generation, that the elephant on his shirt means he's gay.
Just to, y'know, see what happens.
For entertainment purposes only.
But I also know when to restrain the Imp. When, for example, innocents might get hurt. Or, theoretically, when it might lose me my job. Sometimes before publishing something I'll run it by my trusted advisors (Jen, Scott, Troy, Brian), they will tell me not to be a fool, and I'll tell the Imp, "I'm sorry, but you lose."
This week Brian Wice wrote an op-ed piece for the Houston Chronicle about a prosecutor's post-verdict communications with the jury, which violated Rule 3.06-he told them about an inadmissible extraneous offense-and showed a want of class and grace.
Stop NACDL LeadRival Spam
These are the new leads. These are the Glengarry leads. And to you they're gold, and you don't get them. Why? Because to give them to you would be throwing them away. They're for closers.
"Leads" are what you buy from the guys who set up the "free month at the gym" boxes at Schlotzky's. "Leads" get cold-called by guys in boiler rooms. Any criminal-defense lawyer paying for, looking for, or even wanting "leads" should be ashamed of himself.
The people looking for our help are potential clients; they are not "leads." Look at them as "leads" and you're already well down the path of treating them as a resource to be tapped, and not as human beings who need help with their problems.
But not to the National Association of Criminal-Defense Lawyers. NACDL, which has in the past shilled for the highly unethical Yodle, sends out a spam email for a company called LeadRival:
[Not So] Good Expunction News
[Let this be a monument to hasty blogging. I based my "good news" on a) another lawyer's published legislative update; and b) an earlier version of HB 351 than the enrolled version. While HB 351 cleaned up the language of the expunction statute, the news is not that good. The intent of the legislature was to restore the law to the way most of us thought it was before Beam, but they passed a statute that did the opposite, reaffirming Beam.]
Way back in 2007 I wrote in Bad Expunction News about the Texas Supreme Court's unfortunate interpretation of the Texas expunction statute to require defendants with dismissed cases to wait until the statute of limitations has expired before filing for expunction.
Now the Texas legislature has, in changes to the expunction statute effective 1 September 2011, rewritten the statute to make it clear that the expiration of the statute of limitations is not a precondition for the expunction of a dismissed case where there was probable cause to file the case in the first place.
I Hope There's a Fourth Amendment in Heaven
RIP Pat Barber (via Tony Vitz). Barber died 29 July 2011. Here‘s a story about him in his local paper, and here‘s a 2004 story from the Idaho Observer.
(I mentioned Pat before here.)
My Amazon Bookstore
Past book recommendations from Defending People are consolidated at my aStore on amazon.com; I've added a few other books that I have enjoyed or found useful (or both).
Aristotle Wept
In logic, an argument is valid or it is not. The truth of a conclusion depends on the truth of the premises and the logical validity of the argument, and not on the identity of the arguer. "All men are mortal; Socrates is a man; therefore Socrates is mortal" is true whoever says it. When anonymous folk on the Internet exclaim that their identity is unimportant because "the truth of an argument doesn't depend on who makes it," what they mean is that the truth of a conclusion doesn't depend on who reaches it.
But logic is just one part of persuasion.
In rhetoric, the test of an argument is not whether it is valid, but whether it is persuasive. A logically valid argument based on uncontested premises may be persuasive, but so may a logically valid argument based on questionable premises or even, to the right audience, a logically invalid argument based on false premises. The other elements of persuasion, recognized for two and a half millennia,* are emotion and personality. A charismatic demagogue (character, ethos) talking to people who want to believe (emotion, pathos) might convince them of things that have no basis in fact or reason (see, e.g., every organized religion but yours.)
Moral Foundations Matter
At the Reagan Library Republican presidential debate, the crowd cheered when Rick Perry boasted about the 234 executions during his tenure as governor (Crucify him! Crucify him!). Troy Davis has been executed. And those farther to the left seem to have absolutely no idea what's going on: How can those people cheer executions? How can anyone support the execution of someone who might well not have killed anyone? They must be evil.
If you want to communicate with people, you have to understand them. And if you want to understand people, you have to understand morality. And if you want to understand morality, you have to know this:
conservatives and liberals base their moral judgments on different things.
If you're a liberal, your moral judgments are probably based on a) harm/care; and b) fairness/reciprocity: do no harm and be fair. If you can't do both, strike a balance.
If you're a conservative-especially a religious conservative-your moral judgments are probably based on the harm/care and fairness/reciprocity foundations, but also on foundations of c) ingroup/loyalty; d) authority/respect; and e) purity/sanctity. Do no harm, be fair, sacrifice for the group, defer to authorty, and live more cleanly. If you can't do all five, strike a balance.
When Happy Thoughts Are Valued More Than True
When Judge Standley talked frankly with Clear Springs High School kids about drug abuse, the school administration and MADD got their panties in a twist. So did some kids, but their protestations have an Eddie Haskell sound to them. (See also this and this.)
I wonder if the adults would have felt any differently knowing that this guy and his customers were in the room.
Probably not. Americans are so damn delusional about their kids and drugs (see also "sex"): they think that if they pretend that they never did drugs when they were kids, their kids won't do drugs. Horseshit. Kids are going to do what they want. If they want to do drugs (like because mom and dad do drugs-and chances are that they do: prescription pills, ethanol, marijuana, nicotine, caffeine) they're going to do drugs.
Redemption Theory: All Stocked Up.
Bernard Weckmann ("Bernard: WeckMann") posted this comment to my post on Redemption Theory vs. Reality:
Sovereignty is a fact! It does work!!!My wife and I have closed down the local court FOUR times. Visit my site and above all click on the link to listen to the audio recording of her court appearance.http://runnymede1215.wordpress.comI have not got my car back but without my consent there is no jurisdiction and without jurisdiction they are check-mated!They only got themselves deeply into shit.CheersBernardAnd then have the chutzpah to tell me you know anything about the law!Bernard
Here's the audio recording to which Weckmann refers:
"I am called Edith! I am called Edith!"
By "closing down the court" Mr. Weckmann apparently means that they walked out without the court doing anything to them.
Federal Jury Selection: No Google for You!
In their relentless war on meaningful jury selection, formerly prosecuted through judge-conducted voir dire, the Department of Justice and the Federal Judiciary together have come up with a new weapon:
Government Motion to Prevent Defense Googling Jurors
I don't see in ECF that the Judge, Richard D. Bennett of the District of Maryland, has acted on the prosecutors' motion to keep the defense from googling potential jurors before trial, but the Baltimore Sun says that the questionnaires were redacted.
The prosecutors' argument, which Judge Bennett apparently bought, is this:
If the parties were permitted to conduct additional research on the prospective jurors by using social media or any other outside sources prior to the in-court voir dire, the Court's supervisory control over the jury selection process would, as a practical matter, be obliterated.
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