2015.67: Texas Legislature Outlaws Sex

From Texas Penal Code Section 43.02, effective September 1:

(a) A person commits an offense if, in return for receipt of a fee, the person knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct; or
(2) solicits another in a public place to engage with the actor in sexual conduct for hire.
(b) A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct; or
(2) solicits another in a public place to engage with the actor in sexual conduct for hire.
(b-1) An offense is established under Subsection (a) regardless of whether the actor is offered or actually receives the fee. An offense is established under Subsection (b) regardless of whether the actor or another person on behalf of the actor offers or actually pays the fee.

So if you engage in sexual conduct in return for receipt of a fee, you commit a crime regardless of whether you received or even were offered a fee.

We might guess what the Texas Legislature meant to do here:

An offense is established under Subsection (a) whether the actor is offered or actually receives the fee. An offense is established under Subsection (b) whether the actor or another person on behalf of the actor offers or actually pays the fee.

Unfortunately, elections select for neither writing ability nor intelligence, so we wind up with grammatical abominations such as this (thanks again, Joan Huffman!).


Posted in Uncategorized | 6 Comments

2015.66: The Unlawful Sweetcakes Order

You’ve probably heard about the bakers in Oregon penalized $135k for refusing to bake a wedding cake for a lesbian couple. You probably haven’t read the order. I have so that you won’t have to.

(It’s long—3,000-plus words—so tl;dr: The facts are fascinating, but if you must, jump over the facts to the conclusion.)

You may have heard that the bakers were also ordered not to talk about the case (true) or that they were fined for doxxing the couple (false).1

The Kleins violated Oregon Revised Statute 659A.406; this is pretty clear: acting “on behalf of a place of public accommodation” they “denied full and equal accomodations” because of the Bowman-Cryers’ sexual orientation when they refused to bake a wedding cake for them. The Kleins do not appear to have disputed that they (actually, he, but she was held jointly and severally liable) violated 403; the issue is whether their right to exercise their religion trumps the statute.2

The Kleins were also found liable for violating Oregon Revised Statute 659A.409: publishing a communication to the effect that services would be withheld on account of sexual orientation. This finding is on shakier ground: their strongest indication that they would continue withholding services on account of sexual orientation was this note on their door:

This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart. [heart symbol]

If 409 is not facially unconstitutional, it is unconstitutional as applied; by finding that statements like that violate 409 and enjoining further violations of 409 the Commissioner of the Oregon Bureau of Labor and Industries, Brad Avakian, enjoined the Kleins from making statements like “the fight is not over.” (See also Popehat on the subject.)

But I want to talk about the damages in this case. The Commissioner could not order a fine or penalty. In fact, he gertrudes:

In [this] order, the forum considers the extent of Complainants’ emotional suffering and the cause of that suffering; and the appropriate amount of damages. Any damages awarded do not constitute a fine or civil penalty, which the Commissioner has no authority to impose in a case such as this. Instead, any damages fairly compensate RBC and LBC for the harm they suffered and which was proven at hearing. This is an important distinction as this order does not punish respondents for their illegal conduct but, rather makes whole those subjected to the harm their conduct caused.

So $135,000 is, in his opinion, fair compensation to RBC and LBC for the emotional suffering caused by Aaron Klein’s refusal to bake them a wedding cake.


This is Commissioner Avakian sending a message—a message that, as he notes, he has no authority to send—to people who would politely decline to participate in gay marriages. To justify the huge sum, he goes at length into the Bowman-Cryers’ mental suffering, most of which has only a tenuous relationship to the Kleins’ conduct.

When RBC asked AK to bake her a cake, AK “stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of AK’s and MK’s religious convictions.” Not exactly the stuff of nightmares.

RBC began crying. She felt that she had humiliated her mother, CM (who was with her) and was anxious about whether CM was ashamed of her. (CM had come to terms with RBC’s homosexuality recently—she “had believed that being a homosexual was wrong until only a few years earlier” than the cake incident.) CM walked RBC out of the store; RBC “became hysterical and kept telling CM ‘I’m sorry’ because she felt that she had humiliated CM.”

“In the car, CM hugged RBC and assured her” that RBC had not humiliated her. Just kidding. CM assured RBC that “they would find someone to make a wedding cake.”3

CM drove a short distance, then returned to Sweetcakes to talk to AK alone, leaving RBC in the car “bawling.” CM told AK that she used to think like him, “but her ‘truth had changed’ as a result of having ‘two gay children.’ AK quoted Leviticus 18:22 to CM, saying ‘You shall not lie with a male as one lies with a female; it is an abomination.'” Which would be a pretty shitty thing to say to the mother of two gay children, unless said mother had subscribed to the same philosophy herself until recently.

So that’s the end of the matter, right? RBC, already bawling in the car, doesn’t need Leviticus quoted at her; she needs a mother’s love. It would have been a crappy cake anyway. I mean, how could a heterosexual pastry chef possibly be any good?

Oh, no. Because, apparently addicted to drama, CM returns to the car, where her child has been bawling while CM discusses theology with AK, and tells RBC “that AK had told her that ‘her children were an abomination unto God.'” Since she had raised RBC as a Southern Baptist, her telling RBC that AK thought she was an abomination (a message that RBC had surely gotten from church and family, including CM, for most of her life) “made her feel as if God made a mistake when he made her, that she wasn’t supposed to be, and that she wasn’t supposed to love or be loved, have a family, or go to heaven.” In other words, all of the feelings that had made her flee Texas (whence she and her brother had moved so that they “could be more accepted in the community”) for the Pacific Northwest.

CM drove RBC, still crying, home, where LBC asked what had happened, and Drama Mama CM related to LBC what AK had told RBC and what AK had told CM—”your children are an abomination.” Raised Catholic, LBC recognized the Leviticus quote, and was “shocked.”4 LBC took AK’s words to mean “‘this is a creature not created by God, not created with a soul; they are unworthy of holy love; they are not worthy of life.’ She immediately thought that this never would have happened if she had not asked RBC to marry her and felt shame because of it. She also worried that this might negatively impact CM’s acceptance of RBC’s sexual orientation.”

LBC tried to soothe RBC. RBC pushed her away. “LBC lost her temper and started yelling that she ‘could not believe this had happened’ and that she could ‘fix’ things if RBC would just let her.”5

One of LBC and RBC’s two foster daughters was “extremely agitated from events at school that day.” LBC could not calm her, and RBC was unavailable (presumably because she “continued crying and spend much of that evening in bed”). LBC did not know how to handle the situation. That night, she was “very upset, cried a lot, and was hurt and angry.”

CM called Lauren at the wedding venue and told her that Sweetcakes, whom Lauren had recommended, had refused them cake service. She also posted a review on Sweetcakes’s Facebook wedding page and on another wedding website recommending that gay couples avoid Sweetcakes’s “because they discriminate against gay people.”

Lauren emailed RBC and LBC wanting the details. That evening (same evening she was unavailable to console her young daughter) RBC emailed Lauren back: “This is twice in this wedding process that we have faced this kind of bigotry”; this is an interesting detail unexplained in Avakian’s order.

LBC, the partner who got the story from CM, filled out an online complaint form with the Oregon DOJ. She stretched the truth ((In his order, Avakian found that LBC “had a strong tendency to exaggerate and over-dramatize events…Her testimony was inconsistent in several respects with more credible evidence.” In short, she was not a truthful witness.)) a bit: “Today…we went for our cake tasting…. We were then informed that our money was not equal, my fiancé reduced to tears.”

RBC’s brother AC got home and had a 30-minute conversation with LBC and RBC about what happened.

All of that happened on the first day, January 17, 2013.

The next day, RBC “felt depressed and questioned whether there was something inherently wrong with the sexual orientation she was born with and if she and LBC deserved to be married like a heterosexual couple.”

The church she came up in would say that she and LBC did not deserve to be married; her mother would, until recently, have agreed; but these thoughts became Aaron Klein’s fault when he refused to sell her a cake.6 RBC spent most of the day in her room, trying to sleep.

The days following were rough. RBC had difficulty controlling her emotions and cried a lot; LBC and RBC argued because RBC couldn’t control her emotions. “They had not argued … since moving to Oregon.”

RBC became more distant in her family relationships. She and her brother AC were not as close “for a little bit.” She questioned whether she could be a good mother because of her difficulty controlling her emotions.7 She was still “very sad and stressed” a week later.

LBC felt “extreme anger, outrage embarrassment, exhaustion, frustration, intense sorrow, and shame as a reaction to AK’s refusal to provide a cake. She felt sorrow because she couldn’t console E, she could not protect RBC, and because RBC was no longer sure she wanted to be married.… she was not sure she could protect RBC if any similar incidents occurred.”8

Drama-queen CM took over responsibility for contacting the wedding vendors. She found a gay-friendly bakery (amazing!) and made an appointment. CM did most of the talking until they got to the design of the cake; the bakery charged $250 for the cake (which AK would have charged $600 for).

The Oregon DOJ sent a copy of the complaint to AK; AK posted a copy on his website. He had only seventeen friends (though the page was apparently public), and he took down the posting the same day. Meanwhile, one of LBC’s friends9 emailed her to tell her to look at the posting. LBC did, and called the couple’s lawyer.10

On February 1, LBC found out that AK’s refusal to make their wedding cake had made the news. She may have found out because RBC got a call from a talk radio host and called LBC.

The couple became afraid that their foster children would be taken away.11 LBC’s headaches increased; she felt intimidated and became fearful. Their lawyer sent out a press release requesting privacy.

There was a protest outside the bakery on February 9th; RBC and LBC both made comments on the Facebook page organizing the boycott “in which they indirectly identified themselves as the person who sought the wedding cake and thanked people for their support.”

On February 12, 2013, the Oregon Department of Justice emailed a copy of the complaint to the media. The findings of fact do not mention whether DOJ redacted the complainants’ names and addresses first—a fact that Avakian surely would have mentioned had it been true.

After the DOJ publicized their complaint, LBC had a confrontation with “an aunt who had physically and emotionally abused her as a child and also owned all of the family property”: “the aunt insisted through social media that LBC drop the complaint. She also called LBC and told her she was not welcome on family property and she would shoot LBC ‘in the face’ if LBC ever set foot on the family’s property in Ireland or the United States.” LBC was devastated “as it meant she could not visit her mother or grandmother, both of whom lived on family property.12

Meanwhile, “RBC’s sister, who believed that homosexuals should not be allowed to get married, wrote a Facebook message to teh Kleins to tell them that she supported them. This was a ‘crushing blow’ to RBC, and it hurt her and made her very angry at her sister.”

From February 1, 2013, “many people have made ‘hate-filled’ comments through social media and in the comments sections of various websites that were supportive of Respondents and critical of or threatening to Complainants. These comments and the media attention caused RBC stress, anger, pain, frustration, suffering, torture, shame, humiliation, degradation, fear that she would be harassed at home because the DOJ complaint with Complainants’ home address had been posted on Facebook, and the feeling that her reputation was being destroyed.”

“The publicity from the case and accompanying threats from third parties on social media made RBC ‘scared’ for the lives of A, E, LBC, and herself.”

I assume that Avakian included all the facts “necessary to provide context to Complainants’ claim for damages” and omitted all the facts irrelevant to that claim. For example, if he hadn’t considered, as part of their damages claim, the fact that people were shitty to them on the Internet,13 he would have omitted that fact. If someone had harassed the complainants at home he would have included that fact.

Consider how things might have been different had CM—who until recently might herself have quoted Leviticus to LBC and RBC—kept her mouth shut after talking to AK. While RBC was very upset by the denial of cake, it was CM’s words to her that had her doubting her worthiness. LBC’s reaction, too,  was not triggered only by AK’s refusal to bake the cake, nor by AK telling RBC that she was an abomination (he didn’t), but also and more significantly by CM telling LBC that AK had told her, CM, that “her children” were an abomination.

What’s really going on here? CM’s recent acceptance of RBC’s sexual orientation is so tenuous, in the view of RBC’s life partner, that the baker quoting scripture is a threat to it. I hunch that, consciously or not, CM wanted LBC and RBC to feel shitty about their sexual orientation.

If someone says something shitty to you about me, and you relay it to me, you are not doing me a favor; any emotional harm I suffer as a result is on you. The burden should have been on the BOLI to show that any emotional harm was caused by the Kleins. But Commissioner Avakian made no effort to distinguish between the effect of the denial of accommodation, and the effect of CM stirring up trouble.

AK never initiated contact with the media. He did not give the complainants’ names to the media. He never told the media anything but the truth. Even if he had  done more to spread the story than post the complaint for a few hours and respond to media inquiries, it would not be appropriate to hold him responsible for the Internet’s reaction to the story: if you sue someone and people find out and say mean things about you, the defendant is not liable for your hurt feelings. Yet Avakian did not try to distinguish between the effect on the complainants of the denial of accommodation and the effect on them of filing a complaint with the state.

We take our victims as we find them, and someone breaking the law by refusing accomodation based on a forbidden distinction assumes the risk that the potential customer is on the edge of breakdown already because of incompetent parenting and a repressive upbringing. But he doesn’t and shouldn’t assume the risk that the potential customer’s family will make things worse.

So the Kleins are not responsible for CM telling RBC and LBC that AK told CM that her gay children were an abomination. Nor are they responsible for any of the effects of that statement.

The Kleins are not responsible for LBC’s aunt threatening to shoot her in the face.

The Kleins are not responsible for RBC’s sister not supporting her against the Kleins.

The Kleins are not responsible for the community’s response to LBC and RBC’s complaint. They are especially not responsible for others’ hateful comments.

RBC and LBC were not harassed at home. The Kleins are not responsible for RBC’s fears that they would be.

The Kleins should no more have to pay for the harm that Rachel and Laurel Bowman-Cryer suffered because of the complaint they filed than they should get credit for the free cake the Bowman-Cryers got from Charm City Cakes.

By including in his assessment these myriad effects that the Kleins had nothing to do with, Avakian shows his true and unlawful intent: to punish the Kleins and make an example of them disproportionate to the damage that they caused.

  1. Posts to that effect are based on this language in the order:

    The Agency’s theory of liability is that since Respondents brought the case to the media’s attention and kept it there by repeatedly appearing in public to make statements deriding Complainants, it  was foreseeable that this attention would negatively impact Complainants, making  Respondents liable for any resultant emotional suffering experienced by Complainants. The Agency also argues that Respondents are liable for negative third party social media directed at Complainants because it was a foreseeable consequence of the media attention.

    That is the Agency’s theory of liability, that is, one party’s argument. What did the Commissioner think of that theory?

    The Commissioner concludes that … the facts related solely to emotional harm resulting from media attention do not adequately support an award of damages.

    So the wildly popular theory that the Kleins paid damages for doxxing the Bowman-Cryers is based on a reading-comprehension failure. (See also Eugene Volokh on this subject.)

    Should the Kleins have paid damages for doxxing the Bowman-Cryers? Well, no, if for no other reason than that they didn’t dox them. They published the first page of the Bowman-Cryers’ complaint, on which the Bowman-Cryers had put their address, on their Facebook page for less than a day at a time that they had 17 “friends.” The Oregon Department of Justice sent the same information to the media two weeks later.

    Even if the Kleins had researched and published the Bowman-Cryers’ identities, liability would not be appropriate: people seeking state to have the state punish other people risk community scorn, and ought to. 

  2. My view is that it does. The Kleins should be free not to do business with the Bowman-Cryers, just as I am free not to do business with the Kleins. 

  3. Protip: when your grown child becomes hysterical about a cake, it’s not about the cake.

    This is mostly true of non-grown kids too. 

  4. Gambling in Casablanca? 

  5. We are getting a clear picture of unstable people raised in dysfunctional families. 

  6. As though by compelling us to treat strangers nicely the state could erase all our self-doubt and emotional pain. 

  7. What parent hasn’t? 

  8. It’s interesting how people fall into stereotypical gender roles. 

  9. More drama! 

  10. The complainants had lawyered up. 

  11. The “Love Joy Feminism” blog post that started the “doxxing” rumor also said that “State officials told the Bowman-Cryers that if they couldn’t protect the foster children in their home from the harassment that resulted from the Klein’s public posting of their home address, etc., they would lose the children.” This is untrue: they had been instructed, before the cake incident, that it was their responsibility to make sure that the foster children’s “information was protected.” 

  12. See the note above about Commissioner Avakian’s comments on LBC’s testimony. 

  13. Gambling in Casablanca? 

Posted in Uncategorized | 4 Comments

2015.65: Teach. For America.

I described in An Apostrophe too Far why, despite the undeniable truth that the criminal justice system would crash if every defendant refused to plead guilty, defense lawyers cannot crash the system. Tl;dr: “Prisoner’s dilemma writ large.

I hypothesized a criminal-justice system, ours in micro, processing 100 defendants a year, with capacity for four jury trials (for Harris County, multiply by about 300). Twenty defendants of the hundred don’t plead guilty, and eighteen of those twenty get their cases dismissed. Of the last two, one defendant is convicted and one is acquitted.

Each additional defendant who doesn’t plead guilty will force the State to try or dismiss a case—his or someone else’s. There is theoretically capacity for another two jury trials, but the system doesn’t love jury trials, so a dismissal is more likely than another jury trial. For every additional defendant who refuses to plead guilty, there will likely be another dismissal.

I observed that The cases that are tried or dismissed are those in which the defendant assesses a trial as more valuable than the government does (or the government assesses a trial as essentially valueless). If we can increase defendants’ assessment of the value of trial, more defendants will refuse to plead guilty. How do we do that?

Defendants get their cues for valuing trial from society (including their cellies), from the radio receivers in their heads, and from their lawyers. We can’t do anything about the receivers in their heads; we can do a little (like writing blog posts about how many cases get dismissed) about society’s messages about the value of not pleading guilty; we can do more about the lawyers.

Every lawyer communicates to her client her own assessment of the value of pleading not guilty. She might do it explicitly, or she might do it without knowing it. The client relies on the lawyer’s assessment because it is the best information the client has. At best, the lawyer’s assessment is objective and accurate. At the worst, the lawyer’s irrational fear of trial or her unwonted self-confidence poisons her assessment.

If the lawyer’s assessment is accurate, the client can rely on it. If the lawyer has an irrational fear of trial, she’s probably going to lose,1 so the client can rely on that assessment as well. The danger for the client lies in relying on the lawyer’s inappropriately optimistic prognosis.

For purposes of this post we are not worried about that last situation—for the sake of the system it’d be better if more lawyers had pathologically rosy outlooks, because then fewer defendants would plead guilty. In fact, one way that we might get more defendants to refuse to plead guilty is to get lawyers to believe more in their ability to win more cases. If our concern is the clients’—rather than the client’s—interest then we want to encourage criminal-defense lawyers to view trial more optimistically, whether or not that optimism is merited.2

How might we encourage criminal-defense lawyers to view trial more optimistically? One way would be to pretend to teach them to be better lawyers—to teach fake CLE, and pretend to give them more tools to use to win their trials.

There may be a downside to this brilliant idea: that some lawyers might, as a result of fake education, wind up trying cases that they shouldn’t have, losing them, and losing their optimism because losing sucks. Such lawyers may might discouraged and view trial even more pessimistically than they did before. So fake education may3 be detrimental to the system in the long run.

Besides, fake CLE seems like a lot of work. If we’re going to go to the effort of putting on a show, we might as well give teach them to be better trial lawyers.

There are a very few criminal-defense lawyers who are natural-born trial lawyers. I don’t know many of them. There are a few criminal-defense lawyers who are flat-out incompetent, beyond all hope of repair. The vast majority of us can learn to be better.

Training better trial lawyers will have an exponential effect because society’s view of trial will feed back the results of our tweak to the system: the more cases are dismissed, the more defendants will refuse to plead guilty, and the more cases will be dismissed.

When we see injustice, we can ignore or accept it (and, like Anita Hill, “get as much as you can out of it”), we can make a big show of our outrage, or we can take action to fix it. “An Apostrophe Too Far” was inspired by @NormDeGuerreEsq’s tweet. Reading Norm, the outrage is palpable, but the action is wanting.

I favor action over outrage. Outrage is easier, but it never fixed anything. Norm, you want a solution to the problems of overcriminalization, of overprosecution, of overimprisonment? You and I are not the first lawyers to discover that the system is broken, and that by setting everything for trial we could bring it to its knees. But we have wargamed this time after time, and we cannot ethically take general action at the client’s potential expense.

You’ll never go on strike because you know that if you’re the only one you’ll just get hammered down. So if doing a conscientious job for each client isn’t enough for you, get out there and start teaching.

  1. It’s a self-fulfilling prophecy. 

  2. So: Go you! You can win that trial! 

  3. It amuses me that whether fake education is harmful might be subject to discussion. 

Posted in Uncategorized | 11 Comments

2015.64: Functional Mindfulness II

In medieval Europe litigants would arm themselves and beat the hell out of each other to resolve what might now be considered legal issues. The loser was obviously in the wrong. Some litigants could select champions to do their fighting for them. I doubt that this happened often1 but it would have been in both the litigant’s and his champion’s interest for the champion to be as good at his job as possible: shattered bones aren’t healed by “I spent all the time I possibly could to prepare for this. I did the best I can. And I am a good champion.

Anyway, “trial lawyer as swordsman” is not a huge metaphorical stretch.

In Keith Johnstone’s Impro for Storytellers 2 he relates:

A Japanese swordsman wrote that if you fight someone who has no plan, you’ll be thinking, I’ll do such and such! as your severed head bounces down the temple steps!3

Johnstone is, I suspect, paraphrasing this Munenori quote:

Once the fight has started, if you get involved in thinking about what to do, you will be cut down by your opponent with the very next sword blow.

Doing without thinking is functional mindfulness (or being “in the moment” on stage, “in the zone” on the sports field, or “in the flow” in the studio). When you’re mindful, you do everything that needs to be done at the right time but nothing that doesn’t need doing, all without thinking about it, and it all goes by effortlessly. You start trial, you notice everything, you respond appropriately, and suddenly it’s time to go home for the night and you’re not ready to stop telling your client’s story yet.

Does that sound like something you might like? Being the guy with no plan, aware of everything going on around you and dealing with it unhesitatingly, instead of the guy whose head is bouncing down the steps? Flowing through trial, and winning?

Would you like to learn the One Cool Trick for doing without thinking in trial? If someone who taught mindfulness for lawyers could teach you that, how much would it be worth to you?

Well, you’re out of luck. Life is pain, princess. Anyone who tells you otherwise is selling something.

Functional mindfulness is not a means but an end. The swordsman is not deadly because he is mindful; it is his deadliness that makes him mindful. He can do without thinking because he has practiced every parry and cut a thousand times learning and ten thousand more times polishing. The swordsman doesn’t think about what he is going to do because he doesn’t have to. In battle his training and experience will take over. Like his breathing, his technique will take care of itself. In the honing of his craft, he has found mindfulness.

Have you done your ten thousand reps? If not, get to it.

If the stresses of life interfere with your doing your job—helping your clients—you might try meditation to help you deal with those. An abstract mindfulness practice is good for making everything else less stressful so that you can focus on the thing of paramount importance. Defending people will be stressful. Defending people should be stressful. Your client’s future is at stake, and you will make mistakes. “I did the best I can. I am a good lawyer.” is not an appropriate response to the mistakes that you made that might have harmed your client.

If you want to be a better lawyer, do your ten thousand reps, and beat yourself up about every loss or almost-loss. Once you’ve done your ten thousand reps and have technique to burn, you’ve probably found functional mindfulness on your own.

  1. Most lawyers are exceedingly trial-averse; how much more trial-averse would litigants and their representatives be if losing meant disfigurement or death? 

  2. Swordsmanship, trial, improv: it’s all the same thing. 

  3. Then Johnstone adds, “Well, he didn’t put it exactly like that.”  

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2015.63: Functional Mindfulness for Trial Lawyers I

This is totally adorable:

Jim, a litigator with a busy practice, spends 20 minutes each morning practicing something called mindfulness meditation.

Meditation is great, but meditation is to mindfulness as “litigators” are to trial lawyers.

I’ve written about mindfulness before; the topic is getting some attention now. Scott Greenfield sees two threads of discussion: a) stress release for lawyers (which should be uncontroversial; and b) “put[ting] personal happiness ahead of … responsibilities, … claim[ing] under the guise of mindfulness that stress is an excuse to fail to do your job, to fail to fulfill your responsibility to your client.” Scott picks this quote as an exemplar:

Practice cognitive restructuring. Recognize that your thoughts are not facts. Let’s imagine you’re at a hearing and the judge says, “Well, what about the decision in Smith vs. Jones? Why shouldn’t that apply in this case?” Assuming you have no idea what the judge is talking about, your mind might think, “I didn’t prepare enough. I’m a bad lawyer.” You can use cognitive restructuring and challenge your thoughts by saying, “I spent all the time I possibly could to prepare for this hearing. I did the best I can. And I am a good lawyer.”

While you probably guessed, “Stuart Smalley,” it‘s by Jeena Cho, who “offers training programs on using mindfulness and meditation to reduce stress while increasing focus and productivity.” But it isn’t couched as mindfulness advice, so it might not be the best example for Scott to choose.

(If it is intended as mindfulness advice, it’s shitty mindfulness advice. The mindful lawyer in that situation isn’t going to be thinking about whether she’s a bad lawyer or a good lawyer. She’s going to be lawyering, and saving judgment for the postmortem, when she will, if she is worth her salt, accept that she screwed up and resolve not to do so again, even though the path to that acceptance and resolve is through regret and self-doubt. Our mistakes that hurt our clients should hurt us too.)

There is nothing mystical or magical about mindfulness. It’s just an altered mental state, “altered” not because it’s unnatural, but because mostly we spend our lives outside it, judging ourselves or thinking about what happened before or what happens next. Before we called in mindfulness we called it “the zone,” or “the moment,” or “the flow,” as in, “I was in….” It’s a focus on the job at hand, and only that.

Meditation is easy. When you meditate, there is no job at hand, except to breathe. You get into the zone, focusing only on your breathing and then—since your breathing will, left alone, take care of itself—on nothing. Meditation can teach you what mindfulness feels like.

The trick is getting into that focused state, and staying there, when there is a difficult, stressful, and frightening job to be done. Being mindful while you are sitting on a cushion in your living room focusing on your breathing is a whole nother thing than being mindful when your client is facing life in a cage, a cop is making shit up on the stand, the judge is threatening you with contempt, and your second chair just passed you a note saying that your key witness decided not to honor her subpoena.

Complete focus on the job at hand in that situation is functional mindfulness. It’s a third way, which Scott doesn’t acknowledge, probably because the hucksters of mindfulness for lawyers are not selling it.

Easy solutions sell. Stress relief sells. Affirmation sells. Functional mindfulness doesn’t sell, and I’m going to show you why.

Posted in Uncategorized | 1 Comment

2015.62: An Apostrophe Too Far

Public defender “Norm DeGuerre” asks:

The answer is simple: because we do not serve our clients’ best interest. We serve our client’s best interest. And what is in the clients’ best interest has nothing to do with what is in the client’s best interest.

Put more concretely: say that there are 100 people charged with felonies, and the court system could, by keeping up a grueling pace, conduct four jury trials1. If everyone demanded a jury trial there is no way the criminal-justice system could convict everyone; 96 cases would have to be dismissed. But the system could convict four people.

We’ve got 100 people facing charges. Divide them roughly, for the purpose of illustration, into five tranches. 20 have a 90% chance of being convicted, 20 have a 70% chance of being convicted at trial, 20 have a 50% chance of being convicted at trial, 20 have a 30% chance of being convicted at trial, and 20 have a 10% chance of being convicted at trial.

The government offers each defendant a plea bargain with a sentence discounted according to the government’s view of the defendant’s chances of winning at trial: the guy who has an 90% chance of getting 20 years and a 10% chance of walking gets a eighteen-year offer. If a defendant’s assessment of the value of a trial to him2 is less than or equal to the government’s, he makes a deal. The cases that are tried or dismissed are those in which the defendant assesses a trial as more valuable than the government does (or the government assesses a trial as essentially valueless).

By controlling the dockets and the plea offers the government keeps rational defendants and ethical, competent lawyers from crashing the system.

The defense wins eighteen outright (mostly dismissals, with a not guilty), the parties try two (one of which is a not guilty), and the other 81 are resolved with guilty pleas (numbers? numbers!).

But the defense could do better, right? Because the most the government could convict, if everyone insisted on a trial, is four. Well, sure, and if the defense bar could act monolithically and disregard the client’s best interest in favor of the clients’, 96 cases would be dismissed and only four poor schmucks would go down hard. But we aren’t and we can’t.

It’s frustrating. I feel Norm’s pain. I wish there were something we could do about it. Something good for the cause, but not at the expense of the individual.

Ah, but there is! Stay tuned.


  1. In Harris County, multiply these numbers by about 300 

  2. Taking into account such ineffables as principle. 

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2015.61: Unlawful Disclosure or Promotion of Intimate Visual Material

Texas’s new revenge-porn statute, Texas Penal Code Section 21.16, is effective 9/1/2015. It’s unconstitutional (content-based restriction on speech, and no recognized exception applies), but it’s “only” a class A misdemeanor, so defendants will be less motivated to take the time and spend the money to hire me to fight it, and lawyers taking their cases will be less motivated to seek my help:

(a) In this section:
(1) “Intimate parts” means the naked genitals, pubic area, anus, buttocks, or female nipple of a person.
(2) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.
(3) “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse.
(4) “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.
(5) “Visual material” means:
(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or
(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.
(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 with the person’s intimate parts exposed or 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 with the person’s intimate parts exposed or 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 in a public or commercial setting only a person’s voluntary exposure of:
(A) the person’s intimate parts; or
(B) the person engaging in sexual conduct; 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.
(h) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.

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2015.60: Another Day, Another Lawyer Ego Scam

I’ll admit it: I sometimes envy guys like Steve Fairlie a bit.

Meet Steve Fairlie of North Wales, Pennsylvania. Steve is:

But it isn’t these meaningless “honors,” unrecognized by our peers and valuable only as far as they can be dishonestly sold to potential clients as meaningful, that make me envy Steve.

Rather, I envy Fairlie because, recognizing that other lawyers like him would pay to have their egos stroked, he created the National Association of Distinguished Counsel, handing out to ego-starved lawyers the honor of calling themselves “the Nations Top One Percent.” Oh, and selling merchandise: a plaque for $150, a personalized statute for $300, a personalized video for $400. I envy, just a bit, the chutzpah of taking insecure lawyers’ money for imaginary recognition so that the lawyers can deceive potential clients. Every time I see another of these scams, I think “I really ought to do that.”

Then I think, “that pond must be fished out by now.”

Then the next time another lawyer ego scam pops up I realize that I was wrong.

Is it possible that there is an unlimited market for stroking insecure lawyers’ egos?

There are organizations that recognize quality lawyering; they’ve been around for more than a few years; they don’t charge lawyers “membership dues” to advertise their meaningless honors; and they offer more benefits than just bragging rights. But they’re probably not going to honor you.

(Carl David Ceder is a “Top One Percent” lawyer, along with a bunch of Texas criminal-defense lawyers I’ve never heard of and a couple I have. Bring a First-Aid Kit!)



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2015.59: Revenge Porn Statutes and Confidentiality

If I were to write a penal statute that was a content-based restriction on speech, I would come prepared with an explanation of how the statute passed constitutional muster, since such restrictions are presumptively invalid.

The proponents of revenge-porn-criminalization statutes never have picked a constitutional justification for their statutes. Instead they have, in post after article after column, thrown a bunch of possible justifications at the wall, hoping that something will stick.

When I visited the topic in January, Danielle Citron had written an article on Forbes.com entitled “Debunking the First Amendment Myths Surrounding Revenge Porn Laws.” In it she threw a couple of theories against the wall: “disclosing private communications about purely private matters” and “confidentiality.”

In a lengthy post fisking Citron, I wrote “Since maybe three people will have gotten this far in this post, I will give more thought to a breach-of-confidence revenge-porn-criminalization statute and write a post on that.”

Now Citron has made another run at it, highlighting confidentiality. So I guess it’s time to write a post on that.

“Breach of confidentiality” is not a category of speech that the Supreme Court has recognized as unprotected. Citron hangs her confidentiality hat on Cohen v. Cowles Media, in which the issue was whether the First Amendment barred damages against a newspaper for a violation of its promise of confidentiality (spoiler: it did not).

Cohen is a civil case; those who would criminalize speech like to pretend that the rules applicable in civil cases also apply in criminal cases. This is untrue. Even in civil cases, the rules are different depending on whether there is money at stake, or a prior restraint. In civil cases, there are no as-written attacks on statutes, but the civil proceeding most similar to an as-written attack on a statute is an attack on a prior restraint: when the legislature passes a content-based restriction on speech, the effect is the same as that of a court issuing a prior restraint on speech, except much broader.

And as Justice Brennan wrote in his concurrence to Nebraska Press Association v. Stuart:

[T]here is effectively an absolute prohibition of prior restraints of publication of Any material otherwise covered within the meaning of the free press guarantee of the First Amendment.

While there is no absolute prohibition of content-based penal restrictions on speech, such restrictions are presumed to be invalid and subjected to strict scrutiny. Civil judgments in cases between private parties—as in Cohen v. Cowles—are not subject to such scrutiny.

Of Cohen, Citron writes, “Breaches of confidentiality have no First Amendment salience.” I would go further: breaches of confidentiality have no First Amendment relevance. Cohen is a red herring. It did not find a “breach of confidentiality” exception to the First Amendment. Rather, Cohen was decided on the unexceptional principle that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”

Citron writes:

We can contract around the First Amendment. That is why we can criminalize breaches of confidentiality related to health data (HIPAA), federal agency records (the Privacy Act of 1974), and nude images.

So what about HIPAA?  What about the Privacy Act?

42 USC § 1320 d-6 criminalizes the wrongful disclosure of individually identifiable health information. 5 USC § 552a criminalizes the prohibited disclosure of individually identifiable information by an officer or employee of an agency. It’s an interesting question whether either content-based restriction on speech passes constitutional muster; neither has been tested yet. So saying that we can criminalize breaches of confidentiality related to nude images for the same reason that we can criminalize breaches of confidentiality related to other things begs the question.

And that—Cohen, HIPAA, Privacy Act—is the full extent of Citron’s confidentiality argument. An irrelevant case and two untested statutes.

If the government wrote a penal statute of general applicability forbidding all breaches of confidentiality regardless of content, revenge porn could be punished under that statute. The statute would not be subjected to strict scrutiny under the First Amendment because it would not be content-based.

But revenge-porn statutes are by definition content-based. Citron’s proposed “criminal law [that] would apply only to publication of nude images in circumstances where the perpetrator and the victim had an implicit or explicit understanding that the image would be kept confidential” would be a content-based (“nude images”) restriction on speech, and therefore presumptively invalid.

The government has the burden of showing how a content-based restriction on speech is constitutional. To do so it must show that there is not a real and substantial set of potential unconstitutional applications of the statute—that is, applications to protected speech.

The Supreme Court has listed the narrow categories of speech that it recognizes as unprotected:

  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.”

“Violations of privacy” are not a category of unprotected speech.

“Intentional infliction of emotional distress” is not a category of unprotected speech.

“Breaches of confidence” is not a category of unprotected speech.

Eugene Volokh’s suggestion that nudity posted without consent constitutes obscenity is “fascinating” only because it’s a dumb idea from a smart guy. No revenge-porn criminalization statute I’ve seen includes the elements of obscenity, but if revenge porn were obscene then current obscenity statutes could be used to deal with it.

Some revenge porn might incidentally fall into a category of unprotected speech—might be obscene, might be child pornography, might be defamatory—but revenge porn qua revenge porn fits into no category of unprotected speech, and so is protected.

Citron writes, “What about the argument that statutes proscribing the unauthorized publication of nude photos require an intent to harm? The ACLU has argued that revenge porn laws should only punish intentional, malicious privacy invaders.” Citron herself has taken this position:

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.

So it’s interesting that Citron now attributes that position to the ACLU, without copping to it herself.

Shame on the ACLU, by the way, for taking that position.

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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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