2015.58: New Jersey’s Revenge-Porn Statute

c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

That’s New Jersey Statute 2C:14-9(c). It’s unconstitutional as hell, it has been the law since 2004, and there are no appellate decisions interpreting it.

Have Gun, Will Travel Business Card
Have Gun, Will Travel Business Card

I’m just sayin’.

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2015.57: 170 in Waco

More than one hundred seventy bikers are in jail in Waco on charges arising out of the Twin Peaks melee that killed nine. According to the LA Times article, in McLennan County, “there are just 100 [lawyers on the court-appointed list] and many of them do not do the kind of felony proceedings that have stemmed from Sunday’s violence.”

Each defendant has bail (not “bond”) set at $1 million at the moment; they have a constitutional (under the Texas Constitution) right to “reasonable” bail, so as they get lawyers and those lawyers file applications for writs of habeas corpus, the bail amounts will take a nosedive. In Texas (contra Las Vegas lawyer Draskovich, quoted by the LA Times) a murder doesn’t merit a million-dollar bail. In Harris County, for example, the standard bail for murder is $30,000. A person can be held without bail for capital murder, but only if the State jumps through some procedural hoops within seven days of the arrest and proves at a hearing that the proof of the crime is “evident.” Because there are very few bonding companies that can make a million-dollar bond (none in Houston, unless the defendant puts up a million dollars of collateral), a million dollars might as well be no bail.

Every biker charged in Waco will require a separate lawyer. Conflicts of interest bar one ethical lawyer from representing two defendants unless each defendant, advised by separate conflict counsel, waives the conflict. This is not to say that there are not unethical lawyers who will represent multiple defendants, but the courts can’t very well appoint conflicted counsel. So for each defendant who remains in jail (and is presumptively indigent), the courts will likely need a lawyer. I would guess that there are fewer than 25 court-appointed lawyers competent to handle a murder case in McLennan County, which leaves a huge gap.

Even those who bail out are likely to need court-appointed counsel: while the clubs probably have war chests, I doubt that they have the millions (a meager $50,000 per case times 170 cases equals $8.5 million) needed to defend everyone.

This is a fascinating situation. If the bikers (who see themselves as outlaws) stick together and reject cooperation with the law, they can gum up the McLennan County criminal-justice system for years to come.

That’s not likely to be allowed, though, because the trains must run on time. My early prediction: once the investigation is mostly complete, a move to federal court (charges could include ViCAR) for the defendants against whom the evidence lies heaviest, and dismissals or sweetheart pleas for the rest.

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2015.56: HB2777 Is Unconstitutional

House Bill 2777 (Herrero) purports to provide trial courts with broad authority to admit evidence of prior bad acts for the purpose of showing action in conformity therewith in many cases.

The statute would add an article 38.371, which would state, in pertinent part, that:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(3) the character of the defendant and acts performed in conformity with the character of the defendant.

House Bill 2777 is a derivative of the Huffman Special, article 38.37 of the Texas Code of Criminal Procedure, and like article 38.37 it violates due process. Continue reading

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2015.55: Texas SB344 vs. HB861

Texas Senate Bill 344:

By: Huffman S.B. No. 344

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 33.021(a)(1), Penal Code, is amended to read as follows:
(1) “Minor” means:
(A) an individual who is [represents 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.
SECTION 2. Section 33.021, Penal Code, is amended by amending Subsections (b), (d), and (e) to read as follows:
(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 Procedure [arouse 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.
(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.
SECTION 3. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 4. This Act takes effect September 1, 2015.

Texas House Bill 861:

84R17156 JRR-F By: Dale, King of Parker, Sheffield, Burkett,
H.B. No. 861
Frullo, et al. Substitute the following for H.B. No. 861: By: Herrero
C.S.H.B. No. 861

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 33.021(b), (d), and (e), Penal Code, are amended to read as follows:
(b) A person who is 17 years of age or older commits an offense if, with the intent to induce a minor to engage in conduct with the actor or another person that would constitute an offense under Section 21.11, 22.011, 22.021, 43.25, or 43.26 [arouse 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.
(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.
SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 3. This Act takes effect September 1, 2015.

Both bills restore the “fantasy” defense, which is the other half of the amendment required to bring Section 33.021(b) and (c) in compliance with the First Amendment.

Huffman’s Senate Bill 344 is plainly superior, on First Amendment grounds, to Dale’s House Bill 861 because Huffman’s bill eliminates the prosecution of a defendant who is talking with an adult and knows it despite the adult’s “representing” himself as a child. Dale’s bill leaves the door open to such prosecutions.

Huffman’s bill is also superior on general legal grounds. Dale’s description of the required intent under subsection (b) is “to induce a minor to engage in conduct with the actor or another person that would constitute an offense….” This language comes from Section 15.031 of the Texas Penal Code, the general solicitation-of-a-minor statute, and it will not serve the intended purpose. When a defendant induces a child to have sex with him, the child’s conduct does not constitute an offense. It is the defendant’s conduct that constitutes an offense. We know what the legislature is trying to say; Huffman’s bill says it, but Dale’s does not.

Both bills limit the subsection (e) defense to violations of subsection (c) (actual solicitation). I think the reasoning may be that a defendant who is married to a child does not intend to commit a crime if he solicits her for sex. But age proximity and marriage are affirmative defenses under the predicate statutes; does the existence of an affirmative defense mean that the conduct would not be an offense?1 We don’t want to prosecute defendants for talking dirty to their spouses or their age-appropriate girlfriends, so why not simplify by applying the defense to (b) and (c)?


  1. Further, the 18-year-old boyfriend who solicits his three-years-young girlfriend for sex may still be violating Texas Penal Code Section 43.25, which has an affirmative defense only for a two-year age difference 

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2015.54: Statute of Limitations Law Geekery

In 2010 D is charged with communicating through a commercial online service in a sexually explicit manner with a minor under Section 33.021(b) of the Texas Penal Code.

He is convicted in 2011 and put on probation, which he complies with until 2014, when the Texas Court of Criminal Appeals rules that Section 33.021(b) is unconstitutional.

In 2015  D files an application for writ of habeas corpus in the trial court. His case is reopened and the charge is dismissed.

The State charges D under Section 33.021(c) of the Texas Penal Code with soliciting the same minor to meet him, through a commercial online service, with the intent that the minor would engage in sexual contact with him.

The statute of limitations for online solicitation of a minor is the catch-all three years under Texas Code of Criminal Procedure article 12.01(7).1 So at first blush it would appear that the 33.021(c) prosecution is barred by limitations.2

The statute of limitations is tolled during the pendency of an indictment, information, or complaint.3

But there is no charge pending while the defendant is on probation.4

But “during the pendency” begins with the day the charge is filed in a court of competent jurisdiction, and ends with the day the accusation is, by an order of a trial court having jurisdiction, determined to be invalid for any reason.5

But if there was a charge pending, it was not a 33.021(c) charge.6

But the Court of Criminal Appeals has held (in Hernandez, which was the appeal of a drug case) “that the first indictment tolls the statute of limitations if both indictments allege the same conduct, same act, or same transaction, even if the offenses charged do not fall within the same statute.”7

So the question comes down to whether both indictments allege the same conduct, same act, or same transaction. That’s a really interesting question to this law geek.

In Hernandez the defendant was charged in both indictments with the possession of the same drugs; the first indictment charged it as amphetamine, and the second charged the same substance as methamphetamine.

Since you can communicate explicitly without soliciting a meeting, and you can solicit a meeting without communicating explicitly, they could be separate acts. But since you could solicit a meeting in a sexually explicit way, they could be the same act.

Absent some indication of what specific message D was prosecuted for in 2010, whether the statute of limitations is tolled might depend on whether any soliciting communication was also sexually explicit.

If D’s lawyer had filed a motion to quash the 33.021(b) indictment in 2010 because it didn’t give him sufficient notice “to plead the judgment that may be given upon it in bar of any prosecution for the same offense”—Texas Code of Criminal Procedure article 21.04—the State might have had to plead the specific communication that was explicit, so that now the State could only prosecute him under 33.021(c) for that communication.

But who among us thought to file such motions to quash? I didn’t, and I doubt that anyone else did. So D is left in 2015 fighting about whether the State is prosecuting him now for the same conduct, same act, or same transaction. There may be a lesson in there.


  1. You could argue, depending on the conduct that was solicited, that there is no limitation under article 12.03(c); I don’t think that’s right 

  2. Hooray! 

  3. Booo! 

  4. Hooray! 

  5. Booo! 

  6. Hooray! 

  7. Booo! 

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2015.53: Get a Grip, Gaas

That’s a cop allowing a girl to get out of a minor-in-possession ticket by winning a game of rock-paper-scissors.

Here‘s Burleson County Precinct 2 Constable Dennis Gaas’s take:

Gaas says he found out about the incident last night. This morning he told all three officers that they will not be allowed to work security at future Chilfests. He also notified the two departments the officers work for so they can decide whether further action is warranted. Gaas declined to say what departments the three officers work for.

Giving the underage drinker a break is not what got the officers in trouble. Gaas says doing so is an officer’s discretion. But when they “play games to get someone out of a ticket, I have a problem with that,” Gaas said.

Gaas said he hired officers from nearly 60 agencies to work security. They issued 113 citations. According to the Burleson County Sheriff’s Office, 44 people were arrested at Chilifest.

Gaas was upset by the officers’ actions saying, “it gives all of us a bad name.”

No, it doesn’t. Humorless twits like you give “all of you” a bad name. The cop cut a girl a break; he should have. He gave her a few seconds of stress; that’s okay too. Texas Monthly’s take is smart, but I think they’re missing what’s really going on here. They’re missing it because the girl won the first round.

I think that Gaas and Texas Monthly’s Dan Solomon assume that the officer would have written the girl a ticket had she thrown paper the first time. I’m not convinced. Rock-paper-scissors can be played best-of-n, where n is any positive odd number.

I hunch that if the girl had lost the first round the officer would have offered best-of-three, and kept throwing scissors.

If the girl hadn’t caught on to the game by best-of-five, then, well, she was intoxicated and probably should have been ticketed.

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2015.52: Hot Texas First Amendment Action

Ex Parte J.I.L. (that’s the real name; it’s a juvenile case) is pending in the Fifth Court of Appeals in Dallas. Cocounsel Josh Andor of McKinney and I are challenging the constitutionality of the Online Impersonation statute, Texas Penal Code Section 33.07. I had to go to Collin County to make this challenge because the Harris County DA’s Office had been dismissing online-impersonation cases out from under me when I filed writs.

But recently in the 209th District Court here in Harris County the State filed a response to my writ challenging Section 33.07. So maybe the Online Impersonation statute isn’t dead in Harris County. Amusingly but unfortunately the State included this in its response: Continue reading

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2015.51: Trends in Policing

I was picking one of my kids up from school the other day when a guy in a clapped-out Ford Taurus drove by the crowded schoolyard honking his horn and screaming obscenities (“shitbag” was one).

Curious, I tracked the car to the City of Houston, then to the Houston Police Department, then to Senior Police Officer George Garcia of the Criminal Intelligence Division, who was using the car on city business. I guess the Houston Police Department has a new policy of drive-by shitbaggings at elementary schools.

Well done, Senior Police Officer George Garcia. Well done.

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2015.50: Possibly the Worst Scaled Question Ever

From a sexual-assault appeal I’m working on:

I want to ask everybody on the panel the following question: How likely do you think a child would be to lie about being sexually abused? One is very likely; two, likely; three, unlikely; four, very unlikely.

As a criminal-defense lawyer who has represented people who have been falsely accused of sexually abusing children, my answer is “four, very unlikely.” But I interpret the question to mean, “any given child.” And that’s the truth: any given child will most likely not lie about being sexually abused—will never have the opportunity or the motivation. But it just takes one false accusation to ruin a guy’s whole day.1

Now, if I, despite being more skeptical about allegations of sexual abuse than the vast majority of people, would be likely answer at the conservative conviction-friendly end of your scale, how likely is it that you’ll get any meaningful information from a jury panel?

Four.

What a waste of time. About par for the course for the State’s voir dire.


  1. If I read the question to mean “how likely is it that some child somewhere will lie at some time about being sexually abused,” my answer would be “one, very likely; in fact, inevitable.” And you wouldn’t know how I was interpreting your stupid fucking question. 

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2015.49: Unlawful Disclosure of Intimate Visual Material in Texas

House Bills 101, 496, and 603, which I wrote about here and testified against in Austin, have been left pending in committee.

Senate Bill 1135, “UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL,” was voted out of the Senate Criminal Justice Committee. (I didn’t go to Austin to testify; I considered my public duty done, and my right to say “I told you so” earned, the first time.) It provides:

(a) In this section:
(1) “Promote” and “sexual conduct” have the meanings assigned by Section 43.25.
(2) “Visual material” has the meaning assigned by Section 43.26.
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person engaged in sexual conduct;
(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to the visual material; or
(B) information or material provided by a third party in response to the disclosure of the visual material.
(c) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person engaged in sexual conduct and the actor makes the threat to obtain a benefit:
(1) in return for not making the disclosure; or
(2) in connection with the threatened disclosure.
(d) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection
(b) on an Internet website or other forum for publication that is owned or operated by the person.
(e) It is not a defense to prosecution under this section that the depicted person:
(1) created or consented to the creation of the visual material; or
(2) voluntarily transmitted the visual material to the actor.
(f) It is an affirmative defense to prosecution under Subsection
(b) or
(d) that:
(1) the disclosure or promotion is made in the course of:
(A) lawful and common practices of law enforcement or medical treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure or promotion is permitted or required by law;
(2) the disclosure or promotion consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or
(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.
(g) An offense under this section is a Class A misdemeanor.

….

For this statute to be constitutional, the nonconsensual and harmful disclosure of visual material depicting an identifiable person engaged in sexual conduct in violation of the person’s reasonable expectation of privacy would have to fall into some category of unprotected speech.

The category does not yet exist:

  • Harmful speech is not unprotected, and should not be. We are not a nation of snowflakes who need government protection from hurt feelings.
  • Speech depicting sexual conduct is not unprotected, and should not be.
  • Speech violating privacy and nonconsensual speech about another person are not unprotected, and should not be. The idea that we can control what is said about us is inimical to American ideals of free speech.

Since the speech restricted does not fall into a recognized category of unprotected speech, under current Supreme Court (and Court of Criminal Appeals) jurisprudence this statute does not pass First Amendment muster. Proponents of this law would have to convince the Supreme Court to recognize a new category of historically unprotected speech that covers most of the speech forbidden by the statute. That’s long odds.

I’d like for this bill to pass so that I can make a few bucks,1 and put another notch on my gun,2 killing this statute.  But the Senate doesn’t look like it’s in a hurry to vote on it.


  1. Please can we make it a felony? 

  2. What’s the record for getting Texas penal statutes held unconstitutional? 

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