In Which New Vistas Open Up

It started with criminal First Amendment litigation. I fought for five years against a speech-restricting penal statute, learning the law along the way and finally punching a hole in the dam last year, freeing a lifetime’s worth of people who had already given up hope.

Naturally, I went on the hunt for other statutes to kill. My friend and fellow TLC alumnus Don Flanary of San Antonio beat me to the improper-photography statute, but he only killed (in Ex Parte Thompson) the part dealing with photography in a public place, leaving the part dealing with photography in a restroom or dressing room, as well as the parts dealing with publication of images. I’ve got challenges pending to those, as well as to the fraudulent-use-of-identifying-information statute, the online-impersonation statute, and some others.

In the course of working on these cases—and pointing out on this blog how many ways proponents of penal revenge-porn statutes get constitutional law wrong—I realized how little most lawyers actually know about free speech. I also got sued for hurting Joseph Rakofsky’s feelings, and had to pay Marc Randazza gobs of money to kick Rakofsky’s ass across the courtroom. It could probably have been done cheaper, but if it’s worth doing it’s worth overdoing, and Randazza provides entertainment value that I’m happy to pay for. Further, I had a friend file an ill-advised suit against someone for statements that were absolutely privileged, and I pulled his bacon from the fire.

Then Randazza had a client who had been sued by a Houston lawyer for hurting his feelings, and had had a default judgment entered against him, in Harris County. I’d done a good job of avoiding civil court since about my second year of practice, but I can read the rules and write a brief (a lawyer in the Piney Woods once called me “slick big city lawyer who uses the rules to his advantage”), so I signed on to carry Randazza’s bag and do the Texas Rules of Civil Procedure stuff. We got the default judgment undone, and Randazza got the case dismissed. A codefendant in that case hired me to carry his lawyer’s bag as well, and we were able to get the same result for them.

For most people, being sued is a big deal. Censorious asshats know that, and will threaten to drag people into court, or actually sue them, for hurting their feelings. Defending the First Amendment in civil court is little different than defending it in criminal court. Different rules and less money, is all.

So when the editor-in-chief of a Vietnamese newspaper reached out to me after being sued for libel by Al Hoang, a former Houston City Council member and sometime Republican candidate for the Texas Legislature because the newspaper called him a communist, I didn’t hesitate to sign on. I filed an anti-SLAPP motion, briefed it up, had a hearing last Friday, and this morning got this:

Dismissal Order in Al Hoang v. Thoi Bao

The only thing that I didn’t get was sanctions. The plaintiff, Al Hoang, a lawyer, had sued people at least four times before for hurting his feelings, but none of those cases had been dismissed under the anti-SLAPP statute, so the judge in my case didn’t sanction him. You can bet that he’ll try again, and you can bet that next time he’ll get whacked even harder.

That was fun, so I’m going to do more of it. I’ve always prided myself on doing one thing—criminal defense—really well. After almost twenty years of practice, though, there’s room in my practice to be really good at two things, and maybe in another couple of decades I’ll add another practice area and be really good at three.

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In Which Texas Sex-Assault Law is Bizarre

Texas Penal Code Section 22.011, Sexual Assault:

(a) A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor…

(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Texas Penal Code Section 25.01, Bigamy:

(a) An individual commits an offense if:

(1) he is legally married and he:

(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or

(B) lives with a person other than his spouse in this state under the appearance of being married; or

(2) he knows that a married person other than his spouse is married and he:

(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or

(B) lives with that person in this state under the appearance of being married.

So if you’re single and you rape a single person, it’s a second-degree (2–20) felony.

If you’re single and you rape a married person of the opposite sex, it’s a first-degree (5–life) felony.

If you’re married and you rape your spouse it’s a second-degree felony.

If you’re married and you rape a person of the opposite sex who is not your spouse it’s a first-degree felony.

If you rape a person of the same sex it’s a second-degree felony because you couldn’t marry him regardless of your prior marriage.

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In Which Some Lawyers Are Suckers at Best [Updated]

Dear _,

We are pleased to officially inform you that you have been chosen to receive this year’s prestigious TOP 10 Attorney Award for the state of Texas. Through a multi-phase selection process, the National Academy of Criminal Defense Attorneys (NACDA) has chosen you to receive our organization’s highest honor because of the hard work and dedication you have shown in protecting the rights of the accused.

The letter, signed by “Kelly D. Kerr, Executive Director,”1 was sent to a friend of mine by the “National Academy of Criminal Defense Attorneys, Inc.”, with a mailing address of 1629 K Street NW, Suite 300, Washington DC 20006 and a phone number of (202) 827-9985.

Googling that phone number turns up:

  • National Academy of Criminal Defense Attorneys, Inc.;
  • National Academy of Family Law Attorneys, Inc.;
  • National Academy of DUI Attorneys, Inc.;
  • National Academy of Personal Injury Attorneys, Inc.; and even
  • National Academy for Dental Professionals, Inc.

A little poking reveals that the registered agent for these five Oklahoma corporations, and for National Academy of Bankruptcy Attorneys, Inc., is either lawyer Ken D. Kerr, Jr. (DUI)2 or Shannon Rich (all the rest), both of Oklahoma City. These folks have come up with a way to extract money from pathetic lawyers desperate for validation.

The price for a Top 10 Attorney Award for the state of Texas is $350—it’s gone up since Matt Brown was chosen in Arizona last year.3 And speaking of bloggers, Murray Newman is listed by this Oklahoma corporation as one of the Top 10 Criminal Defense Attorneys in Texas! Congratulations, Murray.

You’ll notice that the National Academy of Criminal Defense Attorneys, Inc. website only shows ten lawyers in Texas; I wonder what they’ll do if more than ten suckers send in their checks—perhaps break the states with more than ten top ten lawyers down into areas, as “The National Trial Lawyers” of Dothan, Alabama has done, and break down the “Naitonal” “Top 100 Trial Lawyers” by state, practice type (civil? criminal?) and even part of the state (North New Jersey? South New Jersey?). If the 40% price increase over the last year is any indication, Rich and Kerr will keep raising their rates until exactly ten lawyers are willing to pay.

Screen Shot 2014-11-05 at 4.12.20 PM

I said “suckers” because paying $350 or even $250 for a fake honor (most of the lawyers on the top-10 list are smart enough to know that they’re not among the top 10 criminal-defense lawyers in Texas) is a sucker play.

It’s a sucker play unless you take advantage of it—knowing that you’re not legitimately among the top 10 criminal-defense lawyers in Texas, you pay the $250 or $350 and then advertise the fake honor. Paying $250 for the right to use the keywords “top 10,” when you know they don’t really apply? That’s something else entirely.

On his website trumpeting his selection, my friend Neal Davis4 parrots NACDA:

The National Academy of Criminal Defense Attorneys uses a thorough selection process to determine the top criminal defense attorneys in each state. With thousands of attorneys in each state, the NACDA’s rigorous, independent selection process resolves the challenge of attorneys claiming to be “the best” without basis for such claims.

Look at this list, Neal, and tell me that’s not a lie.

[Update: Murray didn’t pay for the honor. It’s strange that even when they include people who don’t pay, the Oklahoma corporation can only find nine lawyers to list in the top ten in Texas.]

  1. Kelly’s signature does not look practiced. I wonder whether it is fake. 

  2. Ken D. Kerr? Kelly D. Kerr? What a coincidence! 

  3. Matt’s letter was signed by Shannon Rich. 

  4. I pick on Neal, rather than Carmen, Grant, Murray, or Todd, because he is trumpeting this horseshit. 

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In Which We Look at Plea Numbers

In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.

While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.

Jed S. Rakoff, Why Innocent People Plead Guilty.

What do the numbers look like in Harris County? From November 2013 to October 2014 there were 31,076 felony cases disposed of (excluding probation-revocation cases) in the county.1 Of those, 5,501 were dismissed. Of the 25,575 undismissed felony cases, 25,205 (98.6%) were resolved with guilty pleas (which might have included plea bargains or might have been “open” pleas with no agreed punishment).

But Rakoff’s chosen statistic—percent of undismissed cases that are tried—doesn’t tell the whole story. Of the 5,871 (18.9%) of cases that didn’t end in guilty pleas in Harris County, 5,582 (95.1% of non-pleas, 18% of all dispositions) were wins for the defense—mostly dismissals,2 but 81 acquittals.

Rakoff implicitly writes off those dismissed cases as inconsequential. They are not. There are 22 courts trying felonies in Harris County. If each of them tried a case to a jury a week with two weeks off a year they could try 1,100 cases. This is a theoretical maximum—that trial pace would crush most judges. If 5,871 defendants refuse to plead guilty in a year, at least 4,771 of their cases will be dismissed because of sheer numbers.

When occasionally some naive young lawyer proposes that the defense bar shut down the system, he doesn’t realize that we are already doing it; as long as at least 1,100 people are refusing to plead guilty, each additional defendant who doesn’t plead forces the State to dismiss someone’s case. It might not be that defendant’s case, but something has to give.

Almost every case I’ve ever had dismissed was dismissed after my client rejected a plea offer and I had prepared for trial. Many of them were dismissed on the eve of trial, or with a jury in the hall. The 5,501 dismissals in Harris County were not “because of a mistake in law or fact or because the defendant had decided to cooperate,” as Rakoff describes dismissals in federal court. Sure, in a few of them the State had decided that they had gotten it wrong—charged the wrong guy, or the right guy with the wrong thing—but most of those cases were dismissed because the defendant refused to plead guilty and the State decided that its time would be better spent elsewhere.

Rakoff’s experience is in federal court, where small numbers of cases are dismissed, and where the sentencing guidelines, by rewarding early guilty pleas, discourage defense brinkmanship and encourage government brinkmanship. It’s easy and convenient to write off those few dismissals as prosecutors doing what the law or facts require, or rewarding cooperators. Closer to earth, where most criminal prosecutions actually take place,3 the dynamic can be quite different. Not that the federal system doesn’t need reform to remove the concentration of power from the hands of petty functionaries, but the picture drawn in federal court does not represent the rest of the country. The dynamic is different in Harris County, at least.

  1. Numbers are from the Office of Court Administration

  2. Though some of those dismissals don’t count for much, since they were consideration for pleas to other charges. 

  3. In 2012 the Department of Justice filed charges against 85,621 defendants nationwide—fewer than were filed in L.A. County and Harris County combined 

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In Which Cultures Clash

I recently had a discussion with a lawyer from another culture. One of my clients is a potential witness in one of his cases, and my client got tired of hearing from him. So I sent the lawyer a brief email asking that he not contact my client anymore. I said “please” and “thank you,” but otherwise didn’t mitigate my speech. Because the rule is very simple:

in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(Texas Disciplinary Rule of Professional Conduct 4.02). I’ve been on both sides of the situation many times, and there’s never been any drama: you might push the bounds in dealing with someone whom you don’t know to be represented regarding that subject, but if another lawyer asks you not to talk to his client about the subject of his representation, you just don’t. It’s a matter not only of the law (the rule), but also of respect for the lawyer-client relationship.

The lawyer got upset that I had asked him not to speak to my client. He told me that my client was his witness, that he didn’t care about the rule, and that he would talk to my client if he wanted to. I think he wanted to fight me over it. His culture, you see, is a culture of honor, and apparently I had inadvertently1 offended him by asking him not to talk to my client.

If I were so assiduously looking for opportunities to take offense, I’m sure I would find it everywhere. I can’t imagine that would be much fun; it might make personal relationships difficult to maintain. And if the people who I perceived as having slighted me rejected and even laughed at2 the idea of letting me fight them to restore my honor, I’m sure that it would be very frustrating. I might even lash out, which in a culture of law could land me in jail and jeopardize my license.

So I don’t know how it works out, being a culture-of-honor lawyer in a big-city criminal courthouse. I suspect that long-term results are mixed at best.

  1. I do try not to offend people inadvertently. 

  2. While I reject this guy’s invitations to fight, I’m not laughing at them—I take violence, including the threat of violence, very seriously. 

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In Which We Find the Game

I often say that criminal-defense trial practice is about playing “what’s really going on here?” At every phase of a trial case, we are dealing with people who aren’t telling us the whole truth, because they don’t know it, don’t know its importance, don’t want to tell it, or don’t want us to know it. The facts are usually, at first glance, bad for us (else the client wouldn’t be a client), but there is always more to the story than the facts reveal at first glance. So the criminal-defense trial lawyer’s job is to figure out what’s really going on, the interesting twist, which is probably not explicitly stated, and to turn that truth to the client’s advantage.

In improv class we’re working on finding “the game of the scene,” the interesting twist, which is probably not explicitly stated and…hey, that’s “what’s really going on here?”!

On an assault case recently a prosecutor described the disputed issue like this: “she says she pulled the gun on him because he was assaulting her; he says he was defending himself because she pulled the gun; that’s the game.” I might not agree with him that that is the game, but I agree with him that there is a(t least one) game.

Without a game there is no trial.

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In Which the News is Good

Dallas’s index Ebola Zaire patient, Thomas Duncan, was at home for four days while he was symptomatic with Ebola. His family were not infected with the virus.

While Duncan infected two nurses at the hospital during his final days (when he was leaking blood from every available orifice) he didn’t infect the people who lived with him when he was very sick—sick enough to have gone to the hospital and been sent away.

One of the commenters on my last Ebola post pointed out that Ebola has a very low basic reproduction number, R0, of about two. R0 is not an inherent characteristic of a virus, but depends on the environment. The R0 for Ebola Zaire has been calculated as 2.7 in some outbreaks, but 2.0 in this one in Africa. As long as R0 is greater than one, the disease will continue spreading. If R0 were intrinsic, Ebola Zaire would continue spreading until eventually everyone got sick. Fortunately, R0 will be lower in a more developed nation than in the Third World.

Given that neither of the people whom we know Duncan to have infected appears to have infected anyone else, R0 for Ebola Zaire in Dallas in 2014 is something less than one (2/3?).

What about the scary transmission through the air? The good thing about that is that Ebola doesn’t make you cough or sneeze. So while an infected person can, contrary to the government’s assertions, transmit the virus through the air, it’s not a mode of transmission of which the virus has evolved to take advantage (contrast a cold or flu virus, which spreads by making you expel virus-laden particles at high velocity through your mouth and nose).

So I’m downgrading my concern about Ebola in the U.S. from “do something now” to “play Whac-A-Mole as cases appear.”

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In Which Math is Still Hard

I’ve written here several times, under the category “math is hard,” about Americans’ innumeracy with regard to risk and danger. I have a theory:

  • Americans overestimate the danger (risk times harm) of things that they are willing to do something about (terrorism!), and underestimate the danger of things that they are not willing to do something about (obesity!).
  • The government, meanwhile, has an interest in overstating the danger of things that it is profitable for corporations to do something about (terrorism!) and understating the danger of things that it is unprofitable for corporations to do something about (obesity!).

There are 8,000+—about 2^13—Ebola Zaire cases; that number is doubling monthly. There are 2^33 people on earth, give or take. That’s 33 months from one case to everybody being infected, at the current rate. We’ve used up thirteen of those months; we have twenty months left. Of course the current rate of infection can’t be sustained—the virus might not spread as fast in more affluent countries with their indoor plumbing and their medical care,1 and at some point the population becomes sparse enough that the survivors aren’t hanging out with each other much anymore.

It can spread like the common cold flu, it doubles every month, and it kills 70% of the people it infects.2 How do you stop this world-changing bug?

If you don’t already have an off-the-shelf solution (and we don’t—see fn1), it seems obvious that you buy some time by slowing it down. You quarantine everyone who wants to enter the U.S. after having been in the most-infected countries in the last thirty days.3

But there’s not much money for the corporations in a quarantine, so the government plays down the danger posed by Ebola. And the Americans who are willing to do something about it (quarantine!) overestimate the danger  while the Americans who aren’t willing to do it (it wouldn’t work!) underestimate it.

The raw numbers—doubling every 20-30 days; 70% mortality—seem pretty compelling to me. Do I overestimate the danger? It’s possible, but if Ebola cases double in eleven days in a hospital in Dallas, I think it’s reasonable to be extremely concerned about what’s going to happen when it hits the Harris County Jail, and to look to the government to at least try to delay that catastrophe.

  1. Or it might:

    • 9/24: Duncan symptomatic.
    • 9/25: Duncan goes to hospital. Is sent home.
    • 9/28: Duncan returns to hospital via ambulance.
    • 9/30: Officials confirm that Duncan tested positive for Ebola.
    • 10/8: Duncan dies.
    • 10/11: Pham tests positive for Ebola.
    • 10/15: Vinson tests positive for Ebola.

    So the first known Ebola case was known in Dallas on September 28th. Seventeen days later, there were three known cases. That’s equivalent to doubling every ten or eleven days—in a state-of-the-art hospital in a modern city among people who knew that Duncan had Ebola, and how to avoid catching it. We should know in the next week—t+25—whether Duncan infected other people before being admitted to the hospital; we should know in three weeks whether Pham or Vinson infected anyone before testing positive. 

  2. It’s not very good at its job, which is to replicate. But it is good at killing its hosts. 

  3. This is different than the cargo-cult solution of barring flights from the most-infected countries. Airplanes don’t carry viruses, people carry viruses. 

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In Which We Are Being Lied To

White House Ebola Graphic

[via The White House.]

I’ll take the last point—which may be literally true—first: “Ebola is not spread through casual contact with someone who has no symptoms of the disease.” Per the CDC, “Initial signs and symptoms are nonspecific and may include fever, chills, myalgias, and malaise. … The most common signs and symptoms reported from West Africa during the current outbreak from symptom-onset to the time the case was detected include: fever (87%), fatigue (76%), vomiting (68%), diarrhea (66%), and loss of appetite (65%).” So as long as everyone you have casual contact with does not have a fever, feel chilled, have muscle aches, have diarrhea or vomiting, or feel worn out or not hungry, you’re probably okay. But those symptoms are nonspecific, which means that people who don’t obviously have Ebola (have you ever had fever, fatigue, vomiting, diarrhea, and loss of appetite without having Ebola Zaire?) may be infectious.

“Ebola is not spread through casual contact with someone who has no symptoms of the disease” is cold comfort. Ebola Z is spread through bodily fluids “including but not limited to urine, saliva, sweat, feces, vomit, breast milk, and semen.” Ever have involuntary contact with a stranger’s saliva (cough, cough)? Sweat (don’t touch that doorknob)? Other bodily fluids (achoo)?

Sneezing and coughing bring us to the White House Lie, which I call the Droplet Deception: “Ebola is not spread through air.”

The medical consensus, it appears, is that Ebola cannot be transmitted via an airborne route. But what doctors mean by “airborne” is not what most Americans mean by “airborne.”

If you are standing three feet from me, and I’m sick with a virus, and I sneeze, and you become infected by the virus by inhaling or otherwise touching microscopic droplets from that sneeze, is the virus airborne? Most people would say “yes.”

Doctors would say, “not necessarily.” There’s an explanation here: experts distinguish between “droplets” and “an airborne route.” Ebola Z cannot, it appears, be transmitted through the latter (involving droplet nuclei that have a very high surface-area-to-mass ratio and so can remain suspended in air currents indefinitely), but can certainly be transmitted through the former—droplets travelling through the air.

When you use a word in an unusual way, knowing that your audience doesn’t understand it the same way, it’s deceptive. “Ebola Z is not spread by an airborne route” is literally true (a doctor might say) but it is nevertheless deceptive to the general public.

“Ebola Z is not spread through the air,” however, is a flat-out lie. It is not in any sense—literal, metaphorical, or other—true.

Ebola Z is spread through the air like some viruses we know well—the flu, for example. What does the White House think the American people would do if they knew that truth?

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