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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2015.48: To the Potential Client

Dear PNC (we call you PNCs, for “Potential New Clients”; it’s redundant, I suppose, but “PC” is already assigned to “probable cause” and “personal computer” and “politically correct”):

You have told me repeatedly that you are innocent. You don’t mean “legally innocent”—that is, unconvicted—but “factually innocent.” I don’t know whether you’re telling me the truth or not (people lie to me all the time), but please know that it doesn’t matter to me. It won’t decrease my fee, and it won’t make me do any better job.

I consider the act of putting people in boxes to be fundamentally immoral in virtually all cases, and I don’t believe that I—or any human—have the wisdom to distinguish the few cases in which putting people in boxes is moral from the many in which it is not. So it doesn’t matter to me whether they’re factually innocent. If anything, I prefer factually guilty clients—there is less stress, and I confess that I get impish joy from cutting loose a malefactor. I’ll do the same job on behalf of the innocent, but there is no innocent-client discount.

You might wonder whether I believe your protestations of innocence. Don’t wonder. At this point, I listen without judgment. I neither believe nor (unless your story is bad to the point of incredibility) disbelieve. You don’t want a dumb lawyer, so if you are factually guilty, you don’t want a lawyer who is dumb enough to believe you when you lie to him. And you don’t want a lawyer who thinks it’s his job to judge you, so if you are factually innocent, you don’t want a lawyer who is judgmental enough to care. 

I have been training for more than twenty years for this fight against the people who are trying to put you in a box. Law school, Trial Lawyers College, trial upon trial, appeal upon appeal, hundreds upon hundreds of hours of teaching and studying continuing legal education, hundreds upon hundreds of hours of psychodrama and improv training, board certification: everything has led up to your case. 

If you really want someone to whom it is important whether you “did it,” who won’t take your case or will do a lesser job if he believes you to be factually guilty, you can get that for a lot less than my fee, but you will be buying a duller blade.

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2015.47: HB101, HB 496, HB603 Unconstitutional

There are three nonconsensual-pornography-criminalization bills before the Texas House of Representatives' Criminal Jurisprudence Committee tomorrow:

HB101 (Guillen) and HB603 (Davis of Harris) are identical:

(b) A person commits an offense if the person: (1)  intentionally displays, distributes, publishes advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and (2)  knows or should have known that the depicted person has not consented to the disclosure.

(c) It is a defense to prosecution under this section that: (1) the disclosure 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 was permitted or required by law; (2) the disclosure 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, or a provider of an information service, as defined by 47 U.S.C. Section 153, and the disclosure consisted of visual material provided by another person.

 (d)  An offense under this section is a state jail felony.

The careceral portion of HB496 (González) follows:

(b) A person commits an offense if the person: (1) by electronic means, intentionally discloses visual material depicting another person engaged in sexual conduct; (2) was in an intimate relationship with the depicted person when the visual material was created or transmitted to the person; (3) knows or should have known that the depicted person has not consented to the disclosure; and (4) discloses the visual material with the intent to cause harm to the depicted person, including mental anguish, emotional distress, actual or threatened physical violence, economic harm, harm to reputation, or harassment by a third party.

(c) 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 electronic publication that is owned or operated by the person. (d) 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.

(d) 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.

(e) It is an affirmative defense to prosecution under this section that the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure consisted of visual material provided by another person.

(f)  An offense under this section is a Class A misdemeanor.

The penal statutes these bills propose would create a restriction on speech ("visual material") that is content-based ("depicting another person engaged in sexual conduct"). Such restrictions are presumptively unconstitutional under the First Amendment.

The United States Supreme Court has, in its recent cases  involving First Amendment challenges to content-based restrictions on speech (United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577 (2010); United States v. Alvarez, 567 U.S. ___ (2012)), applied a categorical test: if the speech restricted does not fall into one of a few narrowly-defined categories of historically unprotected speech, the statute is unconstitutional. These categories are:

  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. Obscenity;
  3. Defamation;
  4. Speech integral to criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent (“Although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain”).

The expression that House Bills 101, 496, and 603 would forbid falls into none of these categories. All three bills implicate violations of privacy, but the Supreme Court has never held that violations of privacy are unprotected. House Bill 496 has an intent-to-harm element, but the Court has never held that speech is unprotected because it is intended to cause harm.

The "defenses" in subsection (c) of House Bills 101 and 603 and the "affirmative defense" in subsection (e) of House Bill 496 will not save the statutes from unconstitutionality.

Nationwide, proponents of bills like these have shown a vague handwaving lack of understanding of the First Amendment issue. In Arizona, enforcement of the nonconsensual-pornography criminalization statute was almost immediately stayed on First Amendment grounds by a U.S. District Court.

Free expression is robust in Texas criminal courts. The Court of Criminal Appeals has recently held unconstitutional two felony statutes (Online Solicitation of a Minor and Improper Photography) on First Amendment grounds. The courts are still working on unraveling the consequences to the many people who were convicted of violating these statutes. It's a bad idea for the Texas Legislature to pass another void statute.

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2015.46: Boom Goes the Thoughtcrime.

Whether he wrote DOWN WITH BIG BROTHER, or whether he refrained from writing it, made no difference. Whether he went on with the diary, or whether he did not go on with it, made no difference. The Thought Police would get him just the same. He had committed — would still have committed, even if he had never set pen to paper — the essential crime that contained all others in itself. Thoughtcrime, they called it. Thoughtcrime was not a thing that could be concealed for ever. You might dodge successfully for a while, even for years, but sooner or later they were bound to get you.

George Orwell, Nineteen Eighty-Four.

Today I got word that a district judge in Montgomery County, Texas held unconstitutional the "posession" portion of Texas's Fraudulent Use of Identifying Information statute. By criminalizing the possession of information (including knowledge) combined with the intent to harm (which is a constitutionally protected intent) or defraud the State has created a thought crime.

in Texas, unlike in Oceania, we are free to daydream, to intend to defraud as long as we do not act on that intent. The statute that creates a thought crime is unconstitutionally overbroad under the First Amendment: “Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Stanley v. Georgia, 394 U.S. 557, 566 (1969).

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2015.45: Problems in Evidence Tampering I

Suppose that a client comes to you with a problem: he has a computer hard drive full of child pornography, and he wants to know what to do with it. What do you tell him?

It's illegal for him to continue possessing the images. So you can't advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?

Under state law (Texas Penal Code section 37.09),

A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he: (1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; …

So if you don't know that an investigation is pending or in progress, you aren't breaking Texas law by advising your client to destroy the hard drive. If you do, you are.

Under federal law, though (18 U.S.C. § 1512(c)), you don't have to know that an investigation is pending to be liable for tampering with evidence:

(c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding … shall be fined under this title or imprisoned not more than 20 years, or both.

What does "corruptly" mean in this context? Hell if I know. I'll bet Philip Russell didn't think he was acting corruptly when he destroyed the child-pornography-containing hard drive, and he didn't know that an investigation was ongoing. But he got charged with violating section 1512(c) and 1519—

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

—pled them down, and wound up suspended from practicing law and confined to his home for six months for misprision of a felony. (Things could have been much, much worse. Much.)

Your client could get the hard drive out of his own possession without destroying it by delivering it to someone who doesn't know what it contains (not you, for God's sake), but he's still arguably concealing it.

It's a crime to conceal or destroy the hard drive with the intent to make it unavailable in an investigation. So it's a crime to advise someone to destroy the hard drive with the same intent. How would the government prove your intent in advising the client? Well, you're a criminal-defense lawyer; the government would probably assume that your advice to your client was aimed at making the hard drive unavailable in an investigation. Sure, it's an invalid assumption, but that won't prevent an indictment.

You can't tell your client to do the smart thing and destroy the hard drive. (Why is it smart? Because the penalty for possessing child pornography is much more severe than the penalty for tampering with evidence, and if the client destroys the hard drive properly and keeps his mouth shut there will be no evidence that he has tampered with evidence.) You can't tell your client to do the dumb thing and keep the hard drive. What do you do?

We are problem solvers. We hate for the answer to be, "I can't answer that." But "I can't answer that" is the only possible advice in this situation.

You could, of course, instruct your client on certain aspects of the law: possession of child pornography is a crime; tampering with evidence is a crime; without the hard drive the government is likely to have a hard time proving that you tampered with evidence or that you possessed child pornography; if the government gets its hands on the hard drive they won't have a hard time proving that you possessed child pornography, which will certainly land you in prison; don't talk to anyone about the contents of the hard drive.

You can see how an appropriate instruction on the law might allow an intelligent client to draw his own conclusion.

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2015.44: One out of Seven—an F for McBrayer

Justin McBrayer laments the fact that our public schools are teaching our children that there are no moral facts, and therefore no moral truths. He gives seven examples, from online fact vs. opinion worksheets, of facts that kids are taught are opinions:

— Copying homework assignments is wrong.— Cursing in school is inappropriate behavior.

— All men are created equal.

— It is worth sacrificing some personal liberties to protect our country from terrorism.

— It is wrong for people under the age of 21 to drink alcohol.

— Vegetarians are healthier than people who eat meat.

— Drug dealers belong in prison.

All of these are opinions, with one possible exception of the sixth:

Copying homework assignments is wrong: May be true or false depending on circumstances. If by "assignments" you mean "the description of work to be done," the statement is wrong. If by "assignments" you mean "the answers," the statement may be right or wrong depending on the circumstances—some assignments require students to collaborate.

Cursing in school is inappropriate behavior: Often untrue. Aside from the repetition of others' words in literature and drama, occasionally an emphatic curse adds to communication.

All men are created equal: Demonstrably false. Some men are taller, some shorter; some are smarter, some dumber; some more handsome, some less.

It is worth sacrificing some personal liberties to protect our country from terrorism: McBrayer cannot possibly be serious. This is his opinion, which some others share; they are wrong. Is something that is falsely believed to be true strictly speaking an opinion?1

It is wrong for people under the age of 21 to drink alcohol: It's okay for them to vote, drive, have sex, get married, and die in foreign wars, but it's wrong for them to drink alcohol?

Vegetarians are healthier than people who eat meat: If true, this would qualify as a fact. I'm not convinced, but I'll give him this one out of mercy.

Drug dealers belong in prison: Now McBrayer is just clowning me. Some drug dealers belong in prison, maybe. But the owner of the corner liquor store? Your local barista? The checker selling cigarettes at Kroger?

In short, McBrayer is unable to distinguish opinion from fact, and thinks that society would be better if schools were not teaching kids to do so.

I disagree, of course. I'd rather live in a world of people who critically question opinions such as those that McBrayer adopts—do drug dealers belong in prison? is it worth sacrificing some personal liberties to protect our countries from terrorism?—than in a world of McBrayers who think that their opinions are fact.

McBrayer uses the example, it’s wrong to kill people for fun, as something that schools are "teaching children … is not true." While I agree with McBrayer that there is moral truth, and that this statement is true, I'm more comfortable with a citizenry willing to examine this, as well as McBrayer's opinions, than one that uncritically accepts them all as true. That it is wrong to kill people for fun is easily enough derived from other moral principles and intuitions; that It is wrong for people under the age of 21 to drink alcohol is not.


  1. Here's an example, from the same worksheets, of a statement described as fact:

    It is illegal to yell out "Fire" in a crowded movie theater.

    The instructions on the worksheet do not say to assume that the statement is true. If true, this would be fact. But it is untrue

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