2015.30: For Shame, Professor Franks.

A wise man recently said, “If you publicly oppose criminalization of anything, zealots of criminalization will accuse you of favoring that thing.”

The argument is either ignorant or dishonest. Franks doesn’t get to plead ignorance here. She knows the argument is dishonest and she makes it anyway.

It is fair to ask, “is there some depth to which Mary Anne Franks won’t sink?” So far we haven’t found that depth.

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2015.29: We Have Seen the Enemy…

The ACLU sued on behalf of several bookstores and publishing associations, the owner of the Village Voice and 12 other alternative newsweeklies nationwide, and the National Press Photographers Association.

The groups sent Mesnard and legislative leaders a letter early this month suggesting changes to the law to address its concerns that the law was overly broad. …

“In our view, we’re just trying to ask them to add some elements that first of all protect the media with respect to images that are important historically or have news value or artistic image,” said David Horowitz, executive director of the Media Coalition, whose members include publishers, librarians and booksellers. “And trying to really focus this again on the kind of malicious invasion of privacy everyone agrees is bad behavior.”

The letter suggested that Mesnard change the law to narrow its scope to address only “revenge porn” without interfering with free speech rights. Specifically, they don’t want it to apply when the publication was in the public interest or newsworthy.

And they want it to apply only to someone who was in an intimate relationship and displays a photo that their partner expected would be private with the intent to embarrass, harass or otherwise harm the person.

Mesnard said that language would be a deal-breaker because of the need to prove intent to harm, which he said would create “a big old loophole.”

(SFGate.com).

“Newsworthy,” like “in the public interest,”  is a subjective test that state actors could use to decide whom to arrest and whom not to. As Professor Neil Richards has written, “The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor[.]”

Criminalization advocate Danielle Citron agrees with the Arizona plaintiffs and disagrees with Arizona Republican Representative J.D. Mesnard:

Revenge porn laws should also make clear that to win a conviction, prosecutors must show that the poster of the revenge porn intended to do harm.

There’s going to be a “big old loophole” in any revenge-porn statute; that loophole is called “free speech.” It is not possible to “address only ‘revenge porn’ without interfering with free speech rights.”

If the statute requires an intent to harm and has a newsworthiness or public-interest exception, it may be narrow enough to satisfy the booksellers’ interests, but it’s still going to be unconstitutional. “Everyone agrees it’s bad behavior” is not a category of unprotected speech.

Shame on the ACLU if they put their imprimatur on such a statute.

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2015.28: Billy Harmon, Hubris, and Defilement

A couple of years ago I wrote a post about the prevalence of judges coaching prosecutors:

In short, the judiciary acting as an adjunct to the prosecution shouldn’t surprise anyone. Elected judges identify with the state. There are very few who will decide close calls for the defense. There are many more who will bend over backwards to make sure the state wins. What Coker did with Jones is little different than what Narcise does with Cousteau. But Narcise doesn’t text Cousteau, or if he does Cousteau is smart enough not to commit the texts to paper.

Now I’ve found a judge who is so brazen about coaching prosecutors that he doesn’t care who knows it.

Meet Billy Harmon, Judge of Harris County Criminal Court at Law Number Two. Continue reading

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2015.27: Stalin is Smiling

I don’t think I’d heard of Brad Spangler before today, when this popped up in my feed reader:

The following message was posted on Facebook, allegedly from Brad Spangler, and I find it difficult to believe. If someone out there is trying to malign him or malign libertarianism through him, then it is a viciously sick joke. I’m suspending judgment until more is known, and I hope everyone else does the same. I am not providing the FB link because the commentary thread has been reduced to spewing hatred.

The message (purportedly) from Brad Spangler:

“…During a particularly bad period in 2004, I molested [a young relative]. I did not do so forcibly, but the betrayal of trust and resulting potential emotional fallout for her has weighed heavily on my conscience ever since, to the point of doubting my sanity and refusing to believe I had, or even could have, done such a thing.

“While I believe justice ought to be handled as a matter of restitution to the victim rather than punishment, my declining physical health, apparently from myotonic dystrophy, means I probably don’t have many years left to live in which attempts could be made at restitution. With the laptop going in for warranty exchange, worries about discovery of which web sites I had visited and further questions that might raise convinced me that facing the currently dominant accountability process, regardless of what’s right or wrong with it, is the best thing I can do for my [relative].”

In case my formatting isn’t clear, the first two paragraphs are my excerpt of Wendy McElroy’s words. The last two paragraphs (in quotes) are my excerpt of Brad Spangler’s purported message, which McElroy quoted in full.

Go ahead and read it. I’ll wait.

Spangler was an anarchist philosopher, one of the founders of the Center for a Stateless Society (C4SS).

McElroy links to this post by Thomas L. Knapp. Knapp also wrote this post, on C4SS’s response to Spangler’s post.

A search for Spangler’s name this morning turned up the Wikipedia entry on Anarchism and Anarcho-Capitalism.

I’ll get to the content of Knapp’s posts, C4SS’s response to Spangler’s post, and the Wikipedia entry. I want to start, though, with the content of Spangler’s Facebook post.

Continue reading

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2015.26: Standard Disclaimers Always Apply

“Let me state boldly; I am against sexual assault. But…”

“I am against revenge porn. But…”

“I am not a supporter of crime or criminals.…”

Of course you are against all the bad things. So you don’t need to say it. Please don’t.

I understand the impulse: if you publicly oppose uncritically believing people who make rape accusations, you will be accused by small-minded people of favoring sexual assault. If you publicly oppose criminalization of anything, zealots of criminalization will accuse you of favoring that thing. If you defend people accused of crimes, the booboisie will infer that you support those people and their crimes.

The disclaimer is a preemptive strike against this illogical inference. But even if it’s true, it is not going to convince anyone. (If your disclaimer is, “I am a strong proponent of free speech, but…”, it’s probably not true; the second half of your sentence will tell.)

The great mass of readers are either too poorly educated to tell the difference between procedure and substance, or too dishonest to acknowledge it. The ignorant group doesn’t understand that you can fight criminalization without supporting bad conduct; the dishonest group understands, but pretends otherwise in order to quash dissent. (I’m sure you all have favorite examples of the latter, you misogynistic rape apologist you.)

This is our culture: subtlety is lost. Ignorant people may be educable, but you can’t make dishonest people honest. (Protip for telling them apart: you can’t. So you get to pick between trying to educate the dishonest, and giving up on the ignorant.)

By proclaiming your bona fides, you play into this cultural trend. You go on the defensive before you’ve been irrationally attacked. Even though you don’t mean to, you lend legitimacy to the illogical inference, opening for discussion whether you are in fact in favor of revenge porn / sexual assault / crime, when you intend to discuss how best to deal with revenge porn / sexual assault / crime.

If it goes without saying, don’t say it.

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2015.25: Deceivers and Truth-Tellers

The question comes up time and again: should lawyers portray the legal system as some wish it were, or as it really is?

Those who think we should portray the legal system as they wish it were—an accurate instrument for finding the truth, with rules that work and players who are above reproach as long as they follow those rules—are deceivers. Their deception has a purpose, perhaps—to “fake it until we make it,” or to keep the rubes from rioting—but they are deceivers nonetheless.

Those who portray the legal system as it really is are truth-tellers. When truth-tellers speak, deceivers accuse us of bringing the profession into disrepute and try to shut us down.

From the (Canadian) Law Times last month:

[Dalhousie University lawprof Elaine] Craig also takes issue with lawyer web sites that imply aggressive advocacy in sexual assault cases, a sensitive topic in light of the current debates around the reticence of victims to report sexual assaults. In her view, implying aggressive advocacy may contravene law society rules on marketing. She noted, for example, the web site of law firm Adler Bytensky Prutschi Shikhman, which pointed out that “in many sexual assault allegations, the only evidence comes from a single complainant. It is therefore critical that your lawyer be capable of conducting a thorough and exhaustive cross-examination. Depending on a host of factors, this may call for light suggestive questioning or aggressive confrontational examination.”

According to Craig, even if lawyers have a duty to engage in aggressive cross-examination, “that shouldn’t translate into your marketing platform.”

“No one is constitutionally entitled to any defence possible,” she continues.

“Whatever we rely on as the legal profession to justify that kind of conduct, that doesn’t apply to marketing.”

Fascinating, professor.

Craig seems to doubt that aggressive confrontational cross-examination is justified. But even accepting for the sake of the argument that it is, she opines that advertising such advocacy in sex-assault cases is unjustified. So it’s not in all cases that lawyers are forbidden, in Craig World, from advertising their special skills, nor in all criminal cases, but only in sex-assault cases.

The rules are different for sex assault cases. Because political correctness.

I don’t know “law society rules on marketing”; they may indeed forbid “implying aggressive advocacy” in sex-assault cases. Canada’s a strange place, eh? Craig’s complaint, more specifically, is that such advertising may be inconsistent with:

…the rule requiring lawyers to encourage public respect for the administration of justice and to conduct oneself in a manner that reflects favourably on the legal profession and that inspires the confidence, respect and trust of the community, the duty to maintain client confidentiality and to uphold the reputation of the legal profession, the duty of competence, the obligation to communicate in a manner that is consistent with the proper tone of a professional communication from a lawyer, and the requirement that public statements by a lawyer concerning a client’s affairs are in the best interests of the client and not for the purpose of publicity or self-promotion…

So advertising that doesn’t encourage public respect for the administration of justice is improper. But whether advertising encourages public respect for the administration of justice is mostly subjective. Professor Craig may have one view of what the public should look for in a criminal-justice system (gentle treatment of complainants); I have a very different one (a fighting chance for the accused).

By acting as though sex-assault complainants aren’t given any more special treatment than the law requires, Adler Bytensky encourages public respect for the administration of justice, as the law society rules require. He’s telling the truth. It’s only those who think that sex-assault cases call for less due process who will see aggressive cross-examination of a sex-assault complainant as a bad thing for the system.

The criminal-justice system is imperfect, and it’s important that it get things as right as possible. Aggressive cross-examination, when it is appropriate, is an engine for getting to the truth. If the Crown can’t prove its case in the face of a zealous defense, then the system has worked.

Even if the defendant really did it.

“All parties were drinking at a New Years Eve Party. The Complainant became intoxicated and unconscious. The Complainant’s partner and L.H. placed the Complainant in L.H.’s bed due to her intoxicated state. The Complainant became ill, thus her partner and L.H. cleaned up both the Complainant and the area where she became ill. The next morning the Complainant alleges L.H. sexually assaulted her in her sleep. DNA analysis was completed on the Complainant’s underwear and tested positive for L.H.’s DNA. Results: Jury acquitted Mr. L.H. of all charges.”

Craig then noted some of her concerns: “Individuals cannot consent to sex while unconscious. By describing this sequence of events, and then noting that the accused’s DNA was found in the complainant’s underwear but not offering any other details of the case besides the acquittal, this advertisement may leave the reader with the impression that the client was factually guilty. No other information about the case is given.”

Any practicing lawyer recognizes that there are other explanations for these facts than factual guilt. Among them:

  • LH may have had consensual sex with Complainant before she was intoxicated;
  • LH may have had consensual sex with Complainant after she regained consciousness;
  • LH may have had sex with Complainant’s partner, who then touched LH’s underwear;
  • Someone may have planted LH’s DNA or Complainant’s underwear;
  • Complainant may have sat on something containing LH’s DNA; and
  • Complainant may have sexually assaulted LH after she regained consciousness.

That strikes me as the point of the lawyer’s (Sean Robichaud of Ontario) advertising: a story that appears to people like Craig like a foregone conclusion of guilt may, in the hands of the right lawyer, turn into an acquittal.

And sure there’s much more to Robichaud’s story than he’s telling in his ad. That’s just a teaser. Robichaud gives us only the facts that the client, the Crown, and Robichaud might have started with when the client was charged, and tells us what the ultimate result was. What happened in between is the work that Robichaud got paid to do. It’s a before-and-after shot. While Robichaud may advertise how he worked his magic, he has no obligation to.

Sure, this might leave the reader with the impression that LH was factually guilty (and I would take issue with it if the reader could determine LH’s identity from the information Robichaud gives). But “factually guilty people are sometimes acquitted” isn’t the indictment of the system that “factually innocent people are sometimes convicted” is. The easier we make it to convict the factually guilty, the easier it becomes to convict the factually innocent. Yes, factually guilty people are sometimes acquitted. That’s the truth.

Craig doesn’t take issue with the advertising as deceptive. She can’t: although told with a purpose, it’s truthful. Deception would lie in suppressing the truth.

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2015.24: What’s the Message?

When four felony prosecutors quit or are fired from the Harris County DA’s Office in a week, I try to tease out the pattern, or the message that is being sent.

  • #3 in the 182nd.
  • Chief in Court 4.
  • Assistant in Forfeiture Division.
  • Chief in the 176th.

What do these four lawyers (there may be more that I haven’t heard of) have in common? What message does their discharge send to the rest of the office? No idea. I haven’t heard any gossip that doesn’t strike me as bullshit. So this post is just a placeholder for now; I’ll return to it when I have a theory.

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2015.23: Hacking the DWI Checkpoint

If law is the operating system for society, then good lawyers are hackers. In the criminal justice system, there are white-hat hackers and black-hat hackers; which are which depends on your point of view. If you favor safety over freedom, prosecutors wear white hats and people like me wear black. If you prefer freedom to safety, it’s the other way around.

Whichever way it is, there are people getting paid to use the rules of the system, or to change them if possible, to their clients’ advantage. If a good criminal-defense lawyer can find a way to get her client out of trouble, she’ll do so.

Those who think they’ve found a magical way to get or stay out of trouble that lawyers aren’t using often believe that the lawyers aren’t using it because they are part of a conspiracy to keep the truth from the public. But there is no British Accreditation Registry, no secret agreement among lawyers to conceal from the public the source code of the system. In fact, that source code is open-source. Interpreting it requires training and experience, though, and the Uniform Commercial Code is not foundational.

Matt Brown (in Tempe next to the Olive Garden) and Scott Greenfield both wrote recently about a video that has been circulating purporting to show how to get through a DWI checkpoint unscathed. Per Brown:

An interesting DUI checkpoint video has been circulating lately. In it, the driver gets through without even rolling down his window, passing by with ease thanks to a plastic bag attached to his car with a string. The bag contained his license, registration, insurance information, and a note saying “I remain silent,” “No searches,” and “I want my lawyer.” As clever as it may be, it’s also dangerous to think it will always be that easy.

Greenfield notes that there is a lawyer, Warren Redlich, behind the video:

But that there have been more than 2.2 million views of this video, as of this writing, based on Warren Redlich’s legal incisiveness suggests that there will be a whole lot of stupid happening on the roads.  While this may comport with Warren’s libertarian politics, it’s just truly bad and deeply disturbing lawyering.

If you try this and things don’t work nearly as well as the video, give Warren a call. I’m sure he will be there to defend you pro bono.  And maybe he’ll win, if the cop doesn’t show up again.

He apparently doesn’t think it’s a good idea. Neither does Brown, who writes:

I’d only recommend doing what the guy in the video did to people who are not breaking any laws…. If you try the stunt in the video and it turns out you have a high blood alcohol concentration, drugs in the car, or are doing something else illegal, it will probably never work.

I have to disagree with Brown. I’d only recommend doing what the guy in the video did if you are breaking the law, and if the cops are going to detect that you are—for example, if you have a high blood alcohol content or a car full of weed smoke. There are a thousand ways the police can get you out of the car (they are more experienced at legal hacking than you are, and they lie with impunity), and if they go to that trouble they are going to make your life more difficult even if you weren’t really doing anything wrong (in Texas, checkpoints are illegal, but almost everything is an arrestable offense). You may beat that rap, but you won’t beat the ride. (Section 1983 suit? Ha. Good luck with that.)

If, however, you were doing something wrong, then by throwing up lawful obstacles to the detection of your crime you increase your chances of eventually beating the rap. The more legal puzzles the police have to solve to gather evidence against you, the more likely it is that they will screw something up and make the evidence suppressible.

Of course, if you were doing something wrong you probably would have avoided the checkpoint in the first place, and if you were intoxicated and didn’t avoid the checkpoint you probably wouldn’t have the presence of mind to dangle your documents out the window.

Have no fear, though. You can always fall back on this:

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2015.22: Illinois’s Revenge-Porn Statute

Here’s the meat of Illinois’s new revenge-porn criminalization statute:

720 ILCS 5/11-46 Sexual exploitation via non-consensual dissemination of a sexual act or intimate parts.

(b) A person commits sexual exploitation via non-consensual dissemination of a sexual act or intimate parts when he or she:

(1) intentionally disseminates an image of another identifiable person who is engaged in a sexual act or whose intimate parts are exposed; and

(2) the person knows or should have known the other person has not consented to the dissemination.

(c) Exemptions. The following activities are exempt from the provisions of this Section.

(1) The intentional dissemination … made under a criminal investigation that is otherwise lawful.

(2) The intentional dissemination … for the purpose of, or in connection with, the reporting of unlawful conduct.

(3) The intentional dissemination … where the images involve voluntary exposure in public or commercial settings.

(4) The intentional dissemination … when the dissemination serves a lawful public purpose.

It is a class four felony: the penalty is from one to three years in prison.

Danielle Citron is of the opinion that a revenge-porn statute should “only punish individuals who knowingly and maliciously invade another’s privacy and trust.” The Illinois statute does not do so.

It has a “public purpose” exception to satisfy the Weiner-picture fetishists, but a public-purpose exception doesn’t save an otherwise-unconstitutional statute. Professor Neil Richards argues that the power to decide whether speech is legitimate, is the power to censor.

Under this, as under the Arizona statute that has been put on hold in U.S. District Court, innocent baby pictures would be felonious.

Carrie Goldberg likes it.

So let’s run through the First Amendment analysis:

Does it restrict speech? Yes: dissemination of an image is speech.

Is the restriction content-based? Yes: the image must be of an identifiable person engaged in a sexual act or with intimate parts exposed. So it violates the Grumpy-Cat Rule. So it’s presumptively unconstitutional.

To be upheld it has to pass the categorical test applied by the Supreme Court in Stevens and Alvarez. Under that test, a substantial amount of the forbidden speech must not be protected. Protected speech is all speech that doesn’t fall into a category of historically unprotected speech.

All categories of historically unprotected speech have not necessarily been recognized by the Supreme Court yet. But the categories so far recognized are:

  • Advocacy intended, and likely, to incite imminent lawless action;
  • [Distribution of] obscenity;
  • Defamation;
  • Speech integral to [non-speech] criminal conduct;
  • So-called “fighting words”;
  • Child pornography;
  • Fraud;
  • True threats; and
  • Speech presenting some grave and imminent threat the government has the power to prevent.

Some of the speech forbidden by the Illinois statute might incidentally be unprotected—it might be obscenity or child pornography—but there is no recognized category that includes the bulk of speech forbidden by section 5/11-46.

So to uphold the statute a court would have to recognize a new category of unprotected speech that covered at least almost all of the speech forbidden by the statute. I’ve discussed what that means here; the short version is that it’s hard to see what category this speech might fit into that wouldn’t also cover a great deal of speech that benefits society. We’ll see what the pro-criminalization folks propose.

 

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2014.21: How to Ask for Advice

Sarah “Bennett’s Brain Emeritus” Wood of the Harris County PD’s Office is the queen of all things mentorly. After the Harris County Criminal Lawyers Association had tried for years to create a functioning mentorship program it was Sarah who created the Second-Chair Program, which has been cranking out better-trained criminal-defense lawyers for at least six years. Sarah also runs the PD’s internship program and the Future Appointed Counsel Training Program (FACT), which connects Gideon’s Promise-trained young lawyers with experienced mentors for a two-year stint.

One component of the Harris County criminal bar’s mentorship regimen is monthly brainstorming sessions, also organized by Sarah. We’ll gather in the ready room on the seventh floor of the courthouse at lunchtime, HCCLA will order in food, and people will share their case issues and ask for advice from more-experienced lawyers.

These sessions are often frustrating for the more-experienced lawyers. Having given some thought to what makes them so, I’ve got some advice to offer those seeking advice.

First, and most importantly, before you ask for advice do whatever legal research you can yourself. You’d better have spent some time on the problem before bringing it to mentors. Not doing so is lazy and disrespectful—if your mentors thought your time was more valuable than theirs, you would be the mentors and they would be the proteges. If you haven’t already done a bunch of online research, their advice is probably going to be “get back with us after you’ve spent some time on Westlaw” or Lexis or CaseMaker (free to Texas lawyers through the State Bar) or even Google Scholar.

Second, before you ask for advice know your facts inside and out. Be ready to answer questions about them. Not knowing your facts wastes your mentors’ time as well. How are we supposed to help you if you can’t tell us who the car was registered to?

Third, when you ask for advice, explain what you think the problem is (“how do I suppress the dope?”). Then explain what work you’ve already done to find the answer (“I searched CaseMaker for cases involving searches of personal property incident to arrest post-Arizona v. Gant“). Then—and only then—explain the facts.

Inexperienced lawyers usually turn this sequence around backwards, and start explaining the facts first. This is a cultural impulse, I think: when we are tested in school our teachers give us the fact pattern first and then ask questions about it. But our teachers know what facts are relevant.

If you are not the one doing the testing, giving the facts first is terribly inefficient because you don’t necessarily know what facts are important and the people who are trying to help you have no idea what facts to listen for. If you put the facts first you will waste your mentors’ time with rabbit trails, and you will leave things out so that they will have to circle back after you’ve finally gotten to your explanation of what you think the problem is.

If you start with the problem, when you get to the facts the mentors can discard those that are irrelevant and can ask pointed questions to flesh out those that you have omitted. They can also find other defenses that you haven’t thought of—often younger lawyers will fail to spot the issues—but that’s secondary.

The same rule applies for potential clients asking lawyers for help: explain the problem (or what you think it is) first, then explain the facts that you think are important.

If you’re doing this in writing, more paragraph breaks are better than fewer. It is harder to extract information from run-on paragraphs than from bullet points. If you’re doing it orally, slow down for the same reason.

Because the easier you make it to help you, the more people will be able—and want—to help you.

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