2015.42: Harris County Welcomes Dallas Prosecutors

What do you do if you’re a District Attorney running an office that is under fire for prosecutorial misconduct and in the middle of a hearing (in which current and former prosecutors contradicted each other, themselves, and the documentary evidence) over whether the office hid exculpatory evidence of alternate suspects in a murder case?

If you’re Devon Anderson, you hire a former Dallas County ADA who is the subject of a motion for new trial for hiding exculpatory evidence in a murder case.

Fortunately we criminal-defense lawyers have started talking to each other of late. Here’s the book on three new Harris County ADAs, refugees from the Dallas County DA’s Office, from one of the Dallas brethren:

Danielle Uher: She withheld evidence on a high profile case and then lied about it to the judge. We have it all on the record. She also improperly contacted a consulting expert and tried to get him to spill the beans on the defense strategy. She is a bully who takes advantage of weakness and only responds to bully in return. She will interrupt and talk over and down to you AND the judge. The louder she argues, the more wrong she usually is.

Andrea Mosley: She is a former cop and doesn’t believe there is anything such thing as an innocent defendant. If they’ve been arrested, they’re guilty. She also doesn’t believe in mitigation. If you’re 1% wrong, you’re a 100% wrong and there is nothing in between and no excuse for any wrongdoing. Once we had a defendant who was arrested for stealing food and she offered prison time because, “He’s a thief and I don’t like thieves. At least in prison, he won’t have to steal to eat.” She is very frank and you will always know where you stand. She holds the defense bar in utter contempt, and generally doesn’t work and play well with women.

Andrea Handley: She’s the nicest one of the bunch, but is also the most manipulative of them as well. She will try to lull you into a false sense of security and then sticks a shiv between the 3rd and 4th ribs. Document document document and then document your file some more. A paper trail is the best way to deal with her.

All good to know, more in the nature of a cautionary tale rather than actionable intel. It’s mostly things that could fairly be said of some members of the defense bar: poor social skills, contempt for the adversary, zealotry, manipulation.

When Uher talks over Jim Wallace or down to Susan Brown, I want to be there.

Mosley sounds like a prosecutor in the mold of Justin Keiter, trying to prove to the world her authoritarian credentials; I hope she doesn’t get butt-hurt like Justin does when I call him a boring little fascist. I see a place for prosecutors such as them; they have to be watched especially closely, though, both by the defense bar and by whoever in the DA’s Office cares about ethics, because zealotry often leads to ethical lapses.

Handley will fit in just fine; nice-and-manipulative prosecutors are a dime a dozen at the Harris County Criminal Justice Center; the advice for dealing with her should be the rule among defense lawyers rather than the exception.

Here (PDF copy of opinion), though, is some actionable intel: a Fifth Court of Appeals opinion from this week dealing with Uher:

Appellant supported his motion with affidavits from Navarette and appellant’s trial counsel, Andy Beach. In his affidavit, Navarette stated that in his pretrial interview with Assistant District Attorney Meredith Behgooy, he told her that the black SUV had pulled “behind” his van on Elm Street and that he had made the sudden stop at the intersection because Ramirez had gotten out of the van so fast. Navarette also stated he had volunteered to testify at trial and was sworn in as a witness, but that Behgooy told him he had an outstanding warrant for “criminal mischief” and that the “best thing would be for [him] not to show up at trial because there was a probability of getting arrested.”

According to Beach’s affidavit, at the same time Behgooy suggested that Navarette not show up for trial, she told Beach that appellant did not need to subpoena Navarette because he would be testifying at trial as a State’s witness. On the day of trial, however, Behgooy and her supervisor Danielle Uher, told Beach that Navarette was not present for trial and would not be testifying after all. The State then refused to request a writ of attachment to secure Navarette’s presence. The trial judge nevertheless issued a writ because Navarette had been previously sworn as a witness.

Beach said the State did not tell him that Navarette would be available to testify until after Orosco had testified. He further said he did not know what Navarette had witnessed until he was testifying on the stand. According to Beach, Navarette’s account substantially bolstered appellant’s claim of self-defense and, if he had known that Navarette could provide favorable evidence, it would have altered his presentation of the case, including his opening statements, the manner in which he questioned Orosco, and his advice to appellant on whether to testify.

So according to witnesses Behgooy told an exculpatory witness to make himself scarce and told defense counsel that the witness would be testifying as a state witness. Then Behgooy and Uher told defense counsel that the witness would not be testifying after all, and did not request a writ of attachment. Fortunately, the defense was entitled to rely on the State’s subpoena, and could get a writ of attachment. Unfortunately, the State’s hiding of the ball (concealing Navarette’s story and trying to disappear Navarette) adversely affected the defense.

At the motion for new trial hearing, the trial court heard the prosecutors’ testimony ex parte and sealed the transcript of their testimony. The Dallas Court of Appeals reversed for a proper hearing and ordered the transcript unsealed (rest assured that you’ll see it as soon as it’s out).

I don’t expect Anderson to inquire too closely into the reputations of the prosecutors she hires. I wouldn’t ask the prosecutorial bar about defense lawyers I was considering hiring, but I don’t have the duty to see that justice is done.

I had an unfortunate encounter last year with a misdemeanor Harris County prosecutor who thought it was okay to tell a subpoenaed witness who had exculpatory information not to turn up for trial; maybe witness-hiding prosecutors are just what Anderson is looking for.

Was Meredith Behgooy not available?

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2015.41: Citron and Richards on Revenge Porn

There are two types of advocates of revenge-porn criminalization: there are those who actually propose and try to defend unconstitutional statutes, and those who dispense with First Amendment objections with a wave of a hand, but don’t offer any statutory language that might pass First Amendment Muster.

Mary Anne Franks is an example of the former. She will write (and rewrite) her model statute and defend it to the last breath with great passion but very little legal reasoning.

Lawprofs Danielle Citron and Neil Richards are the latter. They defend the idea of revenge-porn criminalization, but don’t suggest language that might be acceptable (Citron disagrees with Franks’s approach—she thinks that an acceptable statute will “only punish individuals who knowingly and maliciously invade another’s privacy and trust“; Franks disagrees, and her model statutes don’t include those requirements).

In “Regulating revenge porn isn’t censorship” Citron and Richards write:

Yet some critics argue that regulating nonconsensual pornography risks censoring protected speech, including pornography. Under the First Amendment, critics argue, we cannot take that risk.

But it is possible to be both pro-porn and anti–revenge porn, and laws can be designed accordingly. What matters under the First Amendment and what is often misunderstood is not whether we can regulate revenge porn but why and how.

For “some critics” they link to my post fisking Citron’s Forbes Forbes piece on the subject.

They also write—

The defenders of revenge porn ignore this fact and offer no response other than a curious insistence (bordering on affection) for the continued availability of amateur and celebrity revenge porn, as if they have some personal stake in its continued free flow.

—which puts Richards squarely in the sleazy dishonest camp, with Citron and Franks, of those who, knowing better, accuse people opposed to criminalization of favoring the activity that would be criminalized.

That notwithstanding, I’ve read some of Richards’s writing on privacy and the First Amendment, so I was curious how a revenge-porn criminal statute could pass First Amendment muster.

I asked Richards via The Twitter Machine:

He replied:

What he may not have known is that I had already read him. I quoted him back at himself:

What he’s saying in those quotes is that giving courts a standard such as “not newsworthy” or “of purely private concern” gives them the power to censor expression that they dislike, and is at odds with modern commitments to the freedom of speech. Which is a very different thing than a well-crafted law will criminalize “1 sexually explicit photo 2 known to be shared in trust 3 not newsworthy.”

He crawfished:

I would be interested in reading a breach-of-confidence revenge-porn statute, but I’ve yet to see one, and Richards is apparently a dry hole. He’s hand-wavey on the defense of his platonic well-crafted law, too:

But regulating revenge porn doesn’t have to work that way. We can regulate revenge porn if it was secretly recorded, because there is no right to secretly capture sexually explicit images of ordinary people or celebrities. We can regulate it if it is distributed in violation of an express or implied trust and an expectation of privacy. And we can regulate it if it is intended to intimidate, threaten or harass and accomplishes that purpose.

With links and everything! Except that the first link is to a book by Citron; the second to a book by Richards; the third to an Atlantic article; the fourth (headache-inducingly) to an ACLU press release about the lawsuit challenging Arizona’s revenge-porn statute, which says nothing about intimidation, threats, or harassment; and, finally, some law: Rice v. Paladin Enterprises, Inc., in which the Fourth Circuit Court of Appeals reversed the District Court’s grant of summary judgment in favor of the defendant who had published a manual for murder.

Except that the Supreme Court has never said that there is no right to secretly capture sexually explicit images. Nor has it ever held that privacy trumps the First Amendment, nor that speech violating a trust is ipso facto unprotected.

Perhaps if the speech is intended to intimidate, threaten, or harass (rather than merely to embarrass or offend), it is unprotected. Non-content-based restrictions forbidding such speech have been upheld, but such restrictions need meet only intermediate scrutiny, lower scrutiny than the strict scrutiny that content-based restrictions face, so that’s no indication that a content-based restriction like a revenge-porn statute will be upheld.

Besides, try suggesting to the carceral feminists, fans of criminalizing revenge porn, that a criminal statute should include as an element the intent to intimidate, threaten, or harass.

Good luck with that.

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2015.40: Thinking is Not What You Think

Do I have free will? If you believe that I do, on what evidence do you believe that? The only evidence that you might have is your perception that you have free will—anything outside of that can be easily faked. If you ask me to do something and I do it, you don’t know whether that’s out of free will or some compulsion. But it seems to you that you have free will, so you believe that you have free will, and because you believe that you have free will and assume that I am the same you believe also that I have free will.

It seems to me that I have free will too. So why do I believe that I don’t have free will? Because it doesn’t make sense to me that the human brain would be any less deterministic (which is not to say “predictable”) than the rest of the universe. I could conceivably be wrong, but I count my perception that we have free will as an illusion. That just makes more sense to me.

Accepting that free will is an illusion is liberating. It opens up the possibility that our minds plays other big tricks on us, that they don’t work the way they seem to in other ways either.

One of the experiments designed to try to answer the free-will question (a question that I think no experiment will ever really answer) was the Libet Experiment, the results of which Libet interpreted to mean that the impulse to voluntary action arises before a consciousness of the impulse—that by the time we “decide” to move a finger we have already initiated the action, and only think in retrospect that we have made a conscious decision.

In other words—and I don’t think the Libet Experiment is conclusive on this point, but it is provocative—conscious decision making is an illusion. Each of us perceives himself or herself as consciously making decisions, and can justify those decisions if pressed with rational reasons. But we know that our “rational” thinking is raddled with cognitive biases that render its rationality suspect at best. We don’t, of course, recognize these biases when they are affecting us—another illusion, and more support for the premise that conscious decision making is an illusion.

That conscious decision making is an illusion is the major premise of my model of juror decision making, and of my Grand Unified Theory of Trial.

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2015.39: Texas House Member Chris Turner is an Ignorant Buffoon (updated)

Texas Penal Code Section 36.06:

OBSTRUCTION OR RETALIATION. (a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:

(1) in retaliation for or on account of the service or status of another as a:

(A) public servant, witness, prospective witness, or informant; or

(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or

.  .  .  .
(c) An offense under this section is a felony of the third degree unless the victim of the offense was harmed or threatened because of the victim’s service or status as a juror, in which event the offense is a felony of the second degree.

Texas Penal Code Section 1.07(25):

“Harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

Harm may includes reputational harm or embarrassment. So it’s a felony to embarrass a public servant (including an elected official) on account of his service or status as a public servant.

I don’t know that anyone has ever been prosecuted (explicitly) for embarrassing an elected official in Texas, but the statute allows it, so the statute is unconstitutional.

Does it really allow it? It doesn’t forbid it, and I don’t see how you read harm to exclude embarrassment and reputational harm. But just in case you do, Democratic Texas House Member Chris Turner of Tarrant County has a solution: House Bill 1061, which would add a fourth subsection to Section 36.06:

(4) “Harm” includes:
(A) financial harm, including harm to a person’s financial status or a person’s credit report or score;
(B) harm to a person’s reputation;
(C) harm caused by intentionally disseminating or using a person’s personal, private, or confidential information;
and
(D) harm caused by invading the privacy of a person.

Ignorant Buffoon Chris Turner

That is Chris Turner. Chris Turner is a mouthbreathing dimwit who wouldn’t know the First Amendment if his favorite hand puppet read it to him slowly in very small words.

Fortunately, Turner was Wendy Davis’s campaign manager, so his bill has zero chance of success. Unfortunately, his bill is superfluous anyway: the statute makes embarrassing him a felony. And, so that I am clear enough that even the slackjawed moron Mr. Turner gets it, that is exactly what I am doing.

I write this blog post with the intent to harm Chris Turner’s reputation on account of his status as a public servant.

[Update: I’m also violating Texas Penal Code Sections 33.07 (Online Impersonation) and 32.51 (Fraudulent Use of Identifying Information) either one of which could be a predicate unlawful act for a 36.06 prosecution.]

Come and get me.

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2015.38: Greenfield Takes a Hill He Can’t Hold

Scott writes:

Keith is friends with Jeena, and saw no reason to attack her post too strongly and turn a friend into an enemy. So in concluding, he threw her a bone with some praise. Of course, it contradicts his point, renders his post pointless and is facial nonsense. Jeena didn’t remind anyone to structure behaviors so as not to do a disservice towards clients, but to not be a jerk because that’s not how she wants to be personally and therefore believes it to be intrinsically better.

“Jerk” is never used as a word of praise. Why? Because not being a jerk is intrinsically better than being a jerk. The world would be a better place if nobody was a jerk. Not being a jerk makes the lives of those around you easier, it lowers your blood pressure, and it satisfies the categorical imperative.

The point that I think Scott is trying to make is that we lawyers are not allowed to choose to do the things that make us feel better—things like making the lives of those around us easier, lowering our blood pressure, and satisfying the categorical imperative—over the client’s interests. If that’s Scott’s point, it’s a very good point, and one that bears making over and over.

What matters to the client is winning. We are not hired to be nice. If the client wants to put “be nice” above “win” in his list of priorities, that’s his choice and not the lawyer’s. If you’re not prepared to do unpleasant things when it is required for the good of the client, don’t get into the profession. If not for clients, attorneys wouldn’t even exist.

But by making the patently false claim that not being a jerk is not intrinsically superior to being a jerk, Greenfield loses the plot. It isn’t that one way of being is not intrinsically superior to another; it’s that sometimes we have to do the things that are intrinsically inferior—to spit on our hands, hoist the black flag, and begin slitting throats—for the good of the client.

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2015.37: Never to Forget

Today the Harris County Criminal Lawyers Association held a ceremony in honor all of the local criminal-defense lawyers who have died. There are 125 names on the list; I’m sure we’re forgetting some, but we only started keeping track in 2006 (it was Robb Fickman’s idea, during Wendell Odom’s presidency). Most of us will never find more than fleeting fame; the purpose of the ceremony is to remember those who have fought the good fight, and might otherwise be forgotten.

We invited Harris County’s thirty-seven criminal court judges to the ceremony. Three attended:

  • The Honorable Brad Hart, Judge of the 230th District Court;
  • The Honorable Ryan Patrick, Judge of the 177th District Court; and
  • The Honorable Kristin Guiney, Judge of the 179th District Court.

The Honorable Marc Brown, Justice of the Fourteenth Court of Appeals, also attend us to show respect for our fallen comrades.

The following did not deign to attend:

  • Paula Goodhart;
  • Bill Harmon;
  • Natalie C. Fleming;
  • John Clinton;
  • Margaret Harris;
  • Larry Standley;
  • Pam Derbyshire;
  • Jay Karahan;
  • Analia Wilkerson;
  • Dan Spjut;
  • Diane Bull;
  • Robin Brown;
  • Don Smyth;
  • Mike Fields;
  • Jean Hughes;
  • Ruben Guerrero;
  • Michael McSpadden;
  • Stacey W. Bond;
  • Judge Marc Carter;
  • David Mendoza;
  • Mary Lou Keel;
  • Katherine Cabaniss;
  • Catherine Evans;
  • Denise Bradley;
  • Jeannine Barr;
  • Jim Wallace;
  • Vanessa Velasquez;
  • Renee Magee;
  • Jan Krocker;
  • Brock Thomas;
  • Susan Brown;
  • Maria T. Jackson;
  • Denise Collin; and
  • Mark Kent Ellis.

I’m sure that every one of them has a Very Important Reason for failing to post, even though they were invited a month ago and reminded at least twice since then. I doubt that any of them (except maybe Billy Harmon) would admit that the Very Important Reason is that they can’t be bothered to feign respect for our fallen brethren, and by extension to us. It is not, after all, election season, so there’s no point in pretending to respect the role of the defense or those who fulfill it.

If we had the ceremony in the summer or fall of an even year, the judicial turnout would be much higher. That’s okay: “higher” is not “better.” This way we find out who are friends really are.

Today’s ceremony was about remembrance, and I promise that in the summer and fall of even years to come, when those listed above are seeking campaign contributions, endorsements, votes, and support, the defense bar will remember.

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2015.36: The Unconstitutionality of Section 33.021(c)

Here’s my brief on the unconstitutionality of the balance of Texas’s Online Solicitation of a Minor statute, Texas Penal Code Section 33.021. I have two appeals pending, both in courts that have already upheld the statute in the face of First Amendment challenges:

Both the Beaumont and First Courts of Appeals analyzed Section 33.021(c) as statutes regulating conduct rather than speech. This is plainly incorrect: speech that is unprotected because it incites the imminent commission of a crime is still speech.

The San Antonio Court of Appeals upheld Section 33.021(c) in the face of a vagueness challenge, holding:

The requisite intent arises within the conduct of soliciting the minor, and must exist at the time of the prohibited conduct of solicitation. Id. Indeed, it is the requirement that the defendant must solicit “with the intent that the minor will engage in sexual contact” that operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows then, that for purposes of a subsection (c) solicitation offense, it does not matter what happens after the solicitation occurs because the offense has been completed; it does not matter whether the solicited meeting actually occurs, or that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation. [AB1]

It cannot be true both that  “[I]t does not matter … that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation,” and that “The requisite intent [that the minor engage in sexual contact] … must exist at the time of the prohibited conduct of solicitation.” Either the defendant intended to engage in sexual conduct (and therefore intended to meet) or did not intend to meet (and therefore did not intend to engage in sexual conduct).

I am confident that the statute will, if the question ever reaches the Court of Criminal Appeals or the U.S. Supreme Court, be held unconstitutional. Unfortunately, I’m swimming upstream against some ill-considered authority. This would be easier if it had been done right in the first case.

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2015.35: Jury Selection Rule: Pull Back the Curtain.

One of my proteges, working on an appeal, noticed how easily the prosecutor convinced a member of the jury panel to change his mind on an important issue with a tongue lashing. He posted about it publicly, admonishing potential jurors to be strong in jury selection and not let a prosecutor “bully them” into changing their opinions. It’s a fair point, but there is a lesson for the defense lawyer as well.

Jury selection is not about getting jurors to change their minds. You’re not likely to get them to change their minds in jury selection, and the prosecutor in my protege’s case probably (I wasn’t there) didn’t really get the juror to change his mind. What she did was to get the juror to say different words than he had at first; she might be able to hold the juror to that new position during deliberations, but probably not, so if she didn’t get him to say words that led to a challenge for cause she was wasting her breath.

Worse than that, when a lawyer browbeats a juror into changing his position, other jurors are not going to share their honest opinions with the lawyer for fear of being browbeaten themselves. So by being a bully, the prosecutor shuts down her own ability to get actual information from the rest of the panel.

Even worse than that, if the defense lawyer is on the ball he will get up when the prosecutor has finished talking, rehabilitate the juror, and talk with the jury about people trying to browbeat other people into changing their minds, using the prosecutor as an example.

Often an important part of the defense voir dire is to talk with the jurors about standing their ground when other people are trying to bully them into changing it: each juror’s verdict is a personal moral judgment (the language of the Colorado Method of capital jury selection); a juror should not change her verdict based on pressure from others; and a juror should not pressure others to change their verdicts. It’s improper, and unfair.

In most jurisdictions prosecutors go into jury selection with a halo of credibility because of their job. Jurors assume that what prosecutors do in jury selection is what is supposed to be done. They may not like it, but they figure that the prosecutor wears a white hat and is doing what she is supposed to. If the defense can remove that halo, the odds are evened considerably. (I think I’ve won every jury trial in which the prosecutor misstated the law in jury selection and my objection was sustained.)

When the prosecutor has demonstrated bullying behavior in voir dire, defense counsel can hold it up as an example, and the prosecutor won’t have a chance to respond. The benefits to the defense of this are several: the jurors feel free to speak freely with the defense lawyer (even more than if the prosecutor had behaved better); the prosecutor’s credibility is shattered; and the defense lawyer’s credibility increases.

In jury selection we are not trying to change jurors’ minds, but rather to win their hearts. Intellectually, at best we are going to get them to frame the game of the case in a way that favors us. Emotionally, though, we can help them trust us, like us and want to help us. By revealing to the jury panel the prosecutor’s voir dire tricks (and this applies to trick questions, bullying, and other tactic of which your kindergarten teacher would not approve) the defense lawyer reveals the prosecutor as a trickster and himself as a truth-teller. It’s a credibility bonanza for the defense.

If the defense lawyer is using tricks in voir dire, the prosecutor doesn’t get a chance to stand up afterwards and have a conversation with the jury about it, so she doesn’t get the same credibility bonanza. But juries aren’t clueless, and if you treat them unfairly they are going to do the same to you.

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2015.34: Well Done, Joan Huffman!?

Joan Huffman is the Texas Senator (and former Harris County criminal judge) responsible for Code of Criminal Procedure article 38.37 section 2, which provides that extraneous offenses are admissible in the trial of someone accused of a sex crime with a child to prove “the character of the defendant and acts performed in conformity with the character of the defendant.” My brief on the unconstitutionality of that statute is here.

Not to gertrude, I am not inclined to cut Huffman any slack.

But when I read this, I was pleasantly surprised:

Section 33.021, Penal Code, is amended to read as follows:

(a)(a) In this section:

(1) “Minor” means:

(A) an individual who isrepresents himself or herself to be younger than 17 years of age; or

(B) an individual whom the actor believes to be younger than 17 years of age.

(2) “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.

(3) “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedurearouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d) It is not a defense to prosecution under Subsection (c) that :(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense
.

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(1) the actor was married to the minor; or

(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

That is what Texas’s Online Solicitation of a Minor statute, Texas Penal Code Section 33.021, will look like if Huffman’s proposed amendment, SB 344, passes in its current form. It is not quite right, but is much closer to constitutional than the statute as it exists now. It will also be much harder for the State to prove—constitutionality and prosecutorial convenience are a zero-sum game.

In subsection (a) Huffman proposes eliminating the “represents himself or herself to be” language from the definition of minor, so that a “minor” will be either an actual minor or someone the defendant believes to be a minor. So on the one hand if the “minor” is a cop the State will have to prove beyond a reasonable doubt that the defendant believed the cop’s “minor” schtick.

On the other hand it appears at first blush that the revised statute would allow a defendant to be held liable for talking dirty to an actual minor pretending to be an adult, even if the defendant believed the minor to be an adult, as an adult can be held liable for having sex with a minor who is pretending to be, and believed to be, an adult.

It would appear that way only at first blush, though, because the dirty talk prohibition now requires the intent to commit a sex crime against a child. So even if the “minor” is a minor pretending to be an adult the State will have to prove that the defendant intended to do something to a child, which presupposes that the defendant believed a child was somehow involved.

I’m not entirely happy with describing the offense as “communicat[ing] in a sexually explicit manner with a minor” “with the intent to commit” (for example) sexual assault. At best it’s clumsy, with no explicit connection between the sexual assault and the communication.

At worst it renders the statute unconstitutional again. The communication itself is constitutionally protected, and the state of mind itself is constitutionally protected. It is only when the intent is put into action, either physically or with a solicitation, that it can be constitutionally forbidden. “Incitement” is only unprotected if the speech is intended to induce or commence illegal activities.

So, for example, if D communicates in a sexually explicit manner with A while he intends to commit sexual assault with an unrelated B, the communication would still be constitutionally protected.

Or if D communicates in a sexually explicit manner with A and intends to commit sexual assault with A, but if the speech is not intended to induce or commence the sexual assault or any other illegal activity, the speech is constitutionally protected.

This may be a narrow class of protected speech that is criminalized; I haven’t yet worked through whether this invalidates the statute as to D or as written, but it seems to me that subsection (b) could be more clearly written:

(b) A person who is 17 years of age or older commits an offense if, with the intent to commit induce or commence commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with athe minor; or

(2) distributes sexually explicit material to athe minor.

With these small changes, the statute is almost in line with First Amendment incitement law. The only element of incitement that isn’t in the statute is imminence: for incitement to be unprotected speech the defendant must intend that a crime be imminent. There is, as you might imagine, not a lot of case law on imminence. If you stuck “the imminent” in between “commence” and “commission,” you’d have a statute that I’d have difficulty attacking (which is not to say that I won’t come up with something):

(b) A person who is 17 years of age or older commits an offense if, with the intent to induce or commence the imminent commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with the minor; or

(2) distributes sexually explicit material to the minor.

So that’s (b).

Subsection (c), as it is now, is unconstitutional because, in conjunction with subsection (a)(1)’s definition of minor to include anyone who represents himself to be a minor; and subsection (d)’s exclusion of fantasy and lack-of-intent defenses, it criminalizes speech that is not incitement, and is therefore protected by the First Amendment. Huffman’s edits to (a)(1) and (d) eliminate this unconstitutionality. To nail it down, imminence should be an element in (c) as well—

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will imminently engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

—but the lack of imminence is a minor problem compared with the explicit elimination of fantasy and lack-of-intent defenses.

Subsection (e)(2) still creates a defense for the defendant who, believing a cop who is older than the defendant to be a minor, solicits the cop to have sex. There is no good reason that a 33-year-old defendant can legally solicit a minor who happens to be a 36-year-old cop, but a 40-year-0ld defendant cannot. While the legislature is mucking around in this statute it ought to rewrite (e)(2) as well:

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(2) the actor was not more than three years older than the minorthe younger of (A) the age of the minor; and (B) the age the actor believed the minor to be; and the minor consented to the conduct.

There’s probably an even better way to write that, but you get the gist: the age defense should be available if the nineteen-year-old defendant believed he was chatting with a sixteen-year-old, but it should not be available if the nineteen-year-old defendant believed he was chatting with a thirteen-year-old but was actually chatting with a forty-year-old cop (because, as a rule of thumb, a “thirteen-year-old” cruising for sex on the Internet is a forty-year-old cop).

I wouldn’t ordinarily suggest improvements to make a penal statute constitutional, but since I don’t have a philosophical problem with the state punishing people who are truly trying to pick up kids for sex on the Internet, and Joan Huffman seems to be headed in the right direction on this one, I’m happy to help.

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