Hate-Crime Laws’ Natural Consequence

What’s up with people who oppose hate crime laws? How can you be against laws that protect people from being targeted because of their race, ethnicity, nationality, religion, disabilities, sexual orientation or gender identity?

Sing it, sister! How indeed?! And in fact most Americans favor federal hate-crime enhancements.

How about hate speech laws, which protect people from being targeted with hurtful speech because of their race, ethnicity, etc.? 51% of Democrats and 37% of Republicans favor federal hate-speech laws (same source).

And hate speech laws follow logically from hate crime. Hate-crime laws specifically punish the thought underlying less serious crimes. Thought is the parent of speech, and hate-speech laws punish the same thought that hate-crime laws punish, only more directly — by criminalizing the speech reifies such punishable thought.

It all makes perfect sense. How can you be against laws that protect people from being targeted — with deed or with word — because of their nationality, religion, etc.? Of course the government can be trusted to use those statutes to protect people from marginalized groups — the groups that those historically running the government have historically marginalized. Right?

Well, maybe not. Louisiana’s Blue Lives Matter law is being used to prosecute resisting arrest as a hate crime against that historically marginalized group, the police.

Criminal-defense lawyers know that “resisting arrest” is what you get charged with when the police rough you up a little bit.1 There are rarely any witnesses other than the cops, and they have no compunctions about lying in support of each other.

Any suckers want to bet that hate-crime laws in states with “Blue Lives Matter” laws will get more play in enhancing punishment for crimes against non-cops because of their disabilities, sexual orientation, etc. than for crimes against cops?

Of course not. If you give government a tool, it will use that tool to protect its stooges first. Cops had plenty of protection against crimes before “Blue Lives Matter” laws — assaulting a cop was more serious than assaulting a “civilian,” and killing a cop was a capital offense. American law has long made it very clear that cop lives matter more than the lives of the people they are supposed to protect.

And now in States with “Blue Lives Matter” laws the police are officially a “protected class.”

So let’s talk about “hate speech.”

If the police are a protected group for purposes of hate-crime laws, they will be one for purposes of hate-speech laws. And so will every thin-skinned legislator, prosecutor, and President in the Republic. These folks protect each other. And “stirring up hatred” against the police, or the Texas Legislature, or Congress, or the Harris County District Judges, will be a felony.

How can you be against laws that protect people from being targeted because of their race, ethnicity, nationality, religion, disabilities, sexual orientation or gender identity? Knowing how government will use such laws, how can you not?

  1. If they send you to the hospital, they charge you with aggravated assault on a cop. You’re welcome. 

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There Goes a Man

I learned this weekend that the Honorable Herb Ritchie, whom I took to task (albeit without naming him, since he was only an example of the implicit corruption that is tolerated at the Harris County courthouse because it always has been tolerated) here for soliciting money from lawyers who would be practicing before him, is returning contributions made by lawyers with cases pending before him “in order to avoid even the appearance of impropriety.”

I don’t know what prompted his decision, and I don’t care. Kudos to Judge Ritchie, and may he be a harbinger of a new less-corrupt age at the Harris County Criminal Justice Center.

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Ogg? More Like Ugh, Amirite?

Without all of the clothes rending and teeth gnashing about how David Temple murdered his wife (I am familiar with the evidence, and I doubt that he did), I agree with Murray Newman (as often I do) that Kim Ogg should ask that an attorney pro tem be appointed to decide how to proceed in the David Temple case,1 now that the Court of Criminal Appeals has reversed Temple’s conviction.

Temple wants to be exonerated; I sympathize, but I’m not sure how he gets from here — with charges pending — to there. If the State dismisses his case, he has not been exonerated. If he goes to trial and wins, he has not been exonerated (because “not proven beyond a reasonable doubt” is not “some other dude did it”). If he isn’t convicted again he can’t file another 11.07 writ.

Maybe Stan Schneider has some vehicle in mind for compelling Judge Johnson to have a hearing on actual innocence and compel the State to participate, but an 11.07 writ is the only way that I know of for his client to be found actually innocent (his actual-innocence claim was rejected by the Texas Court of Criminal Appeals, which doesn’t mean that he isn’t actually innocent just as an acquittal doesn’t mean that he is). If the State moves to dismiss the case, Temple can object, but Judge Johnson can dismiss the case over his objection.

I doubt that Mr. Temple would be willing to be convicted just to have another shot at total exoneration, and I doubt that he would choose a trial over a dismissal, but the decision whether he should be retried should be made by a prosecutor with no dog in the fight — without the ego stake that the Holmes / Rosenthal / Anderson DA’s Office had, and without the appearance of a conflict of interest that the Ogg DA’s Office has.

Devon Anderson had serious problems with conflicts of interest. Several times she should have asked for the appointment of prosecutors pro tem because of the appearance of impropriety.

I suppose Kim Ogg is not immune from the implicit corruption that she, I, and all of us have been swimming in for our entire careers. But still, I expected better.

  1. Murray suggests the AG’s Office; this is a great idea if you want the job done incompetently. 

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Harris County Corruption: You’re Soaking In It! (Update X2)

(Updated first to include appropriate soundtrack: )

Item the First:

Cheating Prosecutor, Now Defense Lawyer
On his first day as a criminal-defense lawyer, cheating prosecutor Justin Keiter gets appointed to five serious felonies.

Justin Keiter — caught making an unethical argument to a jury, caught hiding Brady information, and not having his contract renewed at the Harris County District Attorney’s Office — has on his first day as a criminal defense lawyer been appointed to five serious felony cases. Keiter admits that all he has is his reputation; that reputation among the criminal-defense bar is as a cheat. ((Sue me, baby, sue me. Sue. Me.))

Now, some of those recently fired by Kim Ogg or by the voters will make good criminal-defense lawyers. I even have hope for some for whom my colleagues see no hope, and I’m not entirely discounting the possibility that Keiter will, though it strikes me as extremely remote — barring a road-to-Damascus conversion1 he’s most likely marking time until he can find another gig cheating to put people in prison.2

But no criminal-defense lawyer should be practicing on first-degree felonies out of the gate. A former prosecutor is no exception. And I doubt that Messrs. Jonson, Gray, and Burkett would be enthusiastic about being their court-appointed lawyer’s first human clients.

No matter what the judges want to pretend, prosecutorial experience is no substitute for defense experience. And the judges’ own procedures require them to “take into account the individual qualifications of the attorney with respect to the nature of the case [and] a reasonable and impartial allocation of appointments among the attorneys qualified to accept appointments.” As slim as the chances that Keiter was appointed three clients on his first day pursuant to “a reasonable and impartial allocation” are, the chances that his individual qualifications qualify him to defend people facing ignominy and life in prison are slimmer.

So. What’s going on here? Judges showing mercy to this man who never showed any mercy to the unfortunates who fell subject to his little tyranny. Mercy is not earned; it reflects not on the recipient but on the giver.3 Even if Keiter deserves to be drummed out of the profession, his family do not deserve to go hungry. But the futures of the accused are not suitable welfare for disgraced former prosecutors.

There are competent, experienced criminal-defense lawyers who could have been appointed to represent these three men. Judges appointed Keiter instead. I do not think they are corrupt.4 I think they just don’t think about how corrupt they look.

Item the Second:

Download (PDF, Unknown)

That’s a Harris County District Court Judge-Elect, sending a letter on December 30th soliciting money to “retire his debt.”5 Of course a letter sent December 30th would arrive after January 2nd, when the judge was already on the bench, so what this really is is a sitting judge soliciting money from lawyers6 who will be practicing before him to donate to help him repay his debts.

(Update: according to the judge’s “8-day report,” filed eight days before the election, he had no campaign debt, and had already repaid himself $6,808.24 for personal expenditures from campaign funds from 2012 to that date. Which is … interesting.)

Will there be a quid pro quo? Read Influence: We are naturally inclined to reciprocate when people do us favors. I’d like to believe that there will be no quid pro quo — I want a system in which the facts and merit triumph over petty bribery every time7 — but I don’t. Reciprocity is a social force difficult to overcome.

I have contributed to judicial campaigns because the candidates belonged on the bench, or because their opponents did not. Once a judge is on the bench, I see no reason to contribute to “retire a judge’s debt,” other than the possibility that my clients might get some advantage from it. The only way for a sitting judge to collect money from people with cases before him, without the appearance of impropriety, would be to accept them only through a blind trust, so that the judge does not know about the donations.8

And guess what: Nobody is going to donate money to a judge who doesn’t know about the donation because they want that quid pro quo.

The corruption in the Harris County criminal courthouse would be so clear to a visitor from Vulcan, or to Savonarola. But we — even otherwise-ethical judges who strive to avoid not only impropriety but also the mere appearance of impropriety — are so steeped in it that we don’t even see how dirty the water is in which we swim.

  1. Saul was a prosecutor, you know: A persecutor is a prosecutor on the wrong side of history. 

  2. In truth, I think the cheaters should belong in the prosecutorial bar. 

  3. Keiter would certainly have disagreed. 

  4. If I did, I would name them. 

  5. And that’s the sound of my name being hurriedly removed from every other judge’s mailing list. 

  6. I’m pretty sure I wasn’t the only one. 

  7. Corrupt people are corrupt. Anyone who cheats cheats for himself. The lawyer who behaves corruptly for his client will behave corruptly for himself to his client’s detriment when given a chance. 

  8. A challenging arrangement, given that records of donations are public. 

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Pay Attention to Attention

Two books that influenced my thinking in 2016 were Matthew Crawford’s The World Beyond Your Head and Robert Cialdini’s Pre-Suasion.

Crawford is a philosopher and BMW motorcycle mechanic. His first book, Shop Class as Soulcraft (also recommended) was about the value of making things. The World Beyond Your Head is about how entities — government, media, and corporations — capture our attention to satisfy their own needs. The most striking portion of The World Beyond Your Head was a discussion of the science used by programmers of casino video slot machines to capture and hold the attention of gamblers “to extinction” — until they have no more money to put in the machines.

Cialdini is a psychologist. His first book was Influence (also recommended, though the principles of Influence are revisited in Part 3 of Pre-Suasion). Pre-Suasion is a guide to capturing and holding people’s attention to persuade them to do what we want them to. Attention is central to persuasion because what is salient is important, and what is focal is causal. The positive (offensive?) use of Cialdini’s pre-suasion principles by criminal-defense lawyers in jury trials will keep. (If you want to join me and some others in investigating it, email me.) The takeaway from the Crawford and Cialdini books relevant to this post is:

There are people using science to get your attention, and they do not have your best interests at heart. They will use this science to harm you, and often they do.

Attention is Currency

Pay attention: You have a limited number of seconds of attention, and you can spend a second on only one thing. There are no refunds, however, for buyer’s remorse. If you have a choice between a better thing to pay attention to and a worse thing, and you choose the worse thing, you are harmed by, at the very least, the opportunity cost of choosing wrong.

Those who would use science to get your attention (hello Facebook!) are calling your attention to things that are profitable to them, not things that are beneficial to you. They are arbitraging your attention, and in fact the less value they can give for it the better.

We love to argue, and we hate for people to be wrong on the internet. But people use this to our disadvantage. They say things that are wrong just to get us to argue with them, because while we are arguing with them they have our attention. And attention to something makes that thing important to our minds (what is salient is important). So they control our minds by controlling our attention.

Keep your attention your own.

Given the choice between being passively entertained and educating myself, I’ll choose the latter. Given the choice between face time with human beings and screen time, I’ll choose the former. But I am not here to tell you what you should spend your attention on. If I were to, you might argue with me. And I’d be winning because I would have directed your attention to … attention.

We rationalize the importance of whatever it is that we are paying attention to: “I am watching The Bachelor to give my brain a break from all of the hard work it has been doing,1 and anyway it gives me insights into the thought processes of those stupid people who watch it unironically.” Once your attention has been captured, it’s hard to regain it.

So the only way to pay attention only to those things that make our world better (by making our lives and the lives of those we care about easier, more interesting, more fun, and generally better) is to keep our attention out of the greasy hands of those who would take it for a pittance in the first place.

So ask yourself, before you turn on the TV: Can I spend the next hour learning something? Writing something that will educate and entertain others? Reading an enduring classic of world literature?

If so (and when will it ever not be so?) you might choose to attend to that other thing instead.

  1. If your brain needs a break, take a nap. 

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A Blue-Star Push of Corruption in the HCDAO

It looks like Harris County prosecutors are making one last-lap effort at proving Murray’s anonymous commenters wrong and guaranteeing infamy for the prosecutorial tenure of Devon Anderson. Here’s an email from the DA elect to the outgoing First Assistant, Judge Belinda Hill:


Please be advised that I have received several phone calls on my personal cell phone and at my law firm from a sex trafficking victim, the mother of a child who was sexually assaulted, and two parents of murdered children-all of whom have cases pending with the Harris County District Attorney’s Office. These crime victims have been contacted by individuals identifying themselves as assistant district attorneys. The callers deliberately misinformed the crime victims about the status and well-being of their cases, and then told them to call me personally to complain. The prosecutor identified by the sex trafficking victim is Justin Keiter.

A frantic rape victim’s mother called me to say she was notified by VINE that the a defendant accused of raping her child had been released because of case dismissal by the prosecutor, Nick Socias, who had failed to contact her about the dismissal. Last night I spoke with a woman whose daughter is the victim of a capital murder. She received an anonymous phone call by a person identified as a prosecutor who not only misinformed her about the status of her case, but made false statements about me, including stating that I would never seek the death penalty in her case, currently scheduled for Feb. 2017. The prosecutor handling her case is Gretchen Flader.

The purpose of this communication is to inform Ms. Anderson and you that the use of official and confidential information available only to the prosecutors handling these cases is unethical and possibly illegal. I urge you to immediately halt the access to all official information by these prosecutors and any others engaged in these despicable actions.

Additionally, please take immediate action to ensure that all records (personal cell phone, personal and work email, etc.) from each person involved are immediately preserved so that a full investigation can be undertaken.

To say that these actions re-victimize people who have already suffered enough is an understatement. In the name of professionalism and common decency, I urge you both to take appropriate action immediately.


Kim Ogg
Harris County District Attorney-Elect

(Here’s Channel 13’s coverage of Ogg’s press conference this morning.)

Devon Anderson Weighs In

Never one to be left behind in the corruption sweepstakes, Devon Anderson has given a wealthy and politically connected defendant an early Christmas gift: She (personally) dismissed Rick Perry’s personal lawyer’s misdemeanor DWI case, claiming:

He qualified for pretrial intervention and completed all of the requirements typically mandated for a first offender DWI defendant.

Line prosecutors dismiss DWIs all the time. And in a politically fraught case such as this, it’s not unreasonable for the elected DA to put her name on the dismissal. But Anderson’s public justification for the dismissal is blatantly untrue. DWI pretrial intervention (which is not available in County Criminal Court at Law Two, where the case fell) requires at least a year to complete. And if the defendant had completed pretrial intervention requirements, he would have known it. Which he didn’t:

My case was dismissed because there wasn’t enough evidence to prove in court that I was driving while intoxicated,” he said. “I shouldn’t have been arrested in the first place.

Strong Enough Medicine?

Ogg has announced that thirty-seven prosecutors’ contracts will not be renewed in January. Thirty-eight including Anderson. Some good people. Some … well ….

Has Ogg removed all of the vipers from the nest? Seems doubtful.

How many corrupt prosecutors do there need to be for you to distrust your DA’s office? Studies have shown that people willing to work in corrupt organizations are themselves more personally corrupt than people unwilling to do so.

Seems obvious.

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The CRFA: Don’t Start Celebrating Yet.

Protip: the government is not in the business of protecting free speech; any apparently pro-speech statute should be viewed most skeptically.

Here’s the congress.gov summary of HR 5111, the Consumer Review Fairness Act of 2016:

(Sec. 2) This bill makes a provision of a form contract void from the inception if it: (1) prohibits or restricts an individual who is a party to such a contract from engaging in written, oral, or pictorial reviews, or other similar performance assessments or analyses of, including by electronic means, the goods, services, or conduct of a person that is also a party to the contract; (2) imposes penalties or fees against individuals who engage in such communications; or (3) transfers or requires the individual to transfer intellectual property rights in review or feedback content (with the exception of a nonexclusive license to use the content) in any otherwise lawful communications about such person or the goods or services provided by such person.
A “form contract” is a contract with standardized terms: (1) used by a person in the course of selling or leasing the person’s goods or services, and (2) imposed on an individual without a meaningful opportunity to negotiate the standardized terms. The definition excludes an employer-employee or independent contractor contract.

The standards under which provisions of a form contract are considered void under this bill shall not be construed to affect:

legal duties of confidentiality;
civil actions for defamation, libel, or slander; or
a party’s right to establish terms and conditions for the creation of photographs or video of such party’s property when those photographs or video are created by an employee or independent contractor of a commercial entity and are solely intended to be used for commercial purposes by that entity.
Such standards also shall not be construed to affect any party’s right to remove or refuse to display publicly on an Internet website or webpage owned, operated, or controlled by such party content that: (1) contains the personal information or likeness of another person or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic; (2) is unrelated to the goods or services offered by or available at such party’s website; or (3) is clearly false or misleading.

A provision shall not be considered void under this bill to the extent that it prohibits disclosure or submission of, or reserves the right of a person or business that hosts online consumer reviews or comments to remove, certain: (1) trade secrets or commercial or financial information; (2) personnel and medical files; (3) law enforcement records; (4) content that is unlawful or that a party has a right to remove or refuse to display; or (5) computer viruses or other potentially damaging computer code, processes, applications, or files.

A person is prohibited from offering form contracts containing a provision that is considered void under this bill.

Enforcement authority is provided to the Federal Trade Commission (FTC) and states.

The FTC must provide businesses with nonbinding best practices for compliance.

Nothing in this bill shall be construed to limit, impair, or supersede the Federal Trade Commission Act or any other federal law.

Can Congress restrict contracts governed by state law? Doubtful. The bill itself, which is being heralded on the Twitter Machine as a victory for free speech, doesn’t even make a genuflection toward Interstate Commerce:

The term “covered communication” means a written, oral, or pictorial review, performance assessment of, or other similar analysis of, including by electronic means, the goods, services, or conduct of a person by an individual who is party to a form contract with respect to which such person is also a party.

In fact, “Nothing in this section shall be construed to affect any cause of action brought by a person that exists or may exist under State law.”

So Congress isn’t pretending that it can make contract provisions void under State law. Not directly. But it’s “unlawful for a person to offer a form contract containing a provision described as void,” and the FTC can enforce the law, which means that there is a potential $10,000 civil penalty per violation. State attorneys general can also enforce the law in federal court. So Congress will make these contract provisions void under State law by extinguishing them entirely.

There are public-policy reasons for not allowing consumers to contract away their right to publicly criticize companies they do business with.

There are also public-policy reasons for allowing them to do so. Responding to public criticism is a cost that much be priced into the product or service, and a seller and consumer of a non-necessary good might reasonably agree that the right to publicly criticize is not worth the added cost of the product or service. Not everybody is selling widgets, and some products and services are such that even when everything is done perfectly the consumer might complain, and the provider might be barred from responding (see, e.g., “criminal defense”). I’ve never discouraged clients from leaving reviews

In my view, the reasons for allowing consumers to enter into these contracts outweigh the reasons for preventing it, but reasonable minds might differ. Using the coercive power of the state to save people from getting into contracts that they are not happy with is just not my thing.

Exceptio probat regulam in casibus non exceptis.

But this should bother even Free-Speech Twitter:

Nothing in paragraph (1) shall be construed to affect—

(C) any party’s right to remove or refuse to display publicly on an Internet website or webpage owned, operated, or otherwise controlled by such party any content of a covered communication that—

(i) contains the personal information or likeness of another person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic;

(ii) is unrelated to the goods or services offered by or available at such party’s Internet website or webpage; or

(iii) is clearly false or misleading; …

The implication is that one must display on his own website whatever criticism of his goods or services consumers want him to publish there, provided that it is (i) not politically incorrect or (iii) clearly false or misleading.

This is the opposite of free speech; it is a content-based restriction on silence, requiring certain content but allowing other content to not be published.

Especially troubling is the way that the permitted deletions are defined: speech that

contains the personal information or likeness of another person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic

Congress is saying that it will “protect” critical speech that is not “inappropriate with respect to … intrinsic characteristic,” but not speech that is.


If that doesn’t give free-speech lawyers pause, I don’t know what will.

See protip, supra.

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Requisite Variety: More than Just a Good Idea

 Scott Greenfield has a visceral reaction to mindfulness for lawyers: being ‘in the moment’ is for idiots.

I find Scott’s reaction more than a bit bizarre: While there are apparently charlatans selling a feel-good philosophy by the name of mindfulness to stressed-out lawyers, there also exists an altered mental state, commonly referred to as mindfulness, that it benefits our clients for us to achieve. That an experienced and established trial lawyer would reject this mental state outright is puzzling.

Like any beneficial mental state (or mindset), though, mindfulness is not universally beneficial. I solve many of my clients’ problems not when I am focused on them but when I am doing other things — driving, for example — as my mind drifts. If I were mindful and wholly present to the drive between Dallas and Houston, rather than in trance and on autopilot, I would lose valuable problem-solving time. 

I am keenly aware of the bad things that will happen to people if I don’t do my job perfectly. But when the time comes for action (to spit upon my hands, hoist the black flag, and begin slitting throats, so to speak) I set that awareness aside. Picture yourself walking along a two-foot-wide beam four hundred feet above the ground. Feel your heartrate increase. You might even notice a little tremor somewhere in your body. Now lower the beam to four inches above the ground. Whole different feeling, right?

The drifting mind is the flipside of mindfulness. There is some task at hand; when I am mindful almost all of my attention is on that task (trying a case, for example). When my mind is drifting almost none of my attention is on that task (commuting, for example). But even my drifting mind is not unprofitably engaged. I’m not wallowing in anxiety or regret. I’m not borrowing future unhappiness by worrying about things that are beyond my control. I’m not beating myself up over past mistakes that are also beyond my control. I’ve never been susceptible to those sorts of voices, which I find neither entertaining nor educational. And for as long as I can remember I’ve been able easily to shut off all of the voices in my head to get things done.

Too much mindfulness is not a widespread problem in America. To the contrary, Americans are largely crippled by neurosis. Most people have trouble stilling those unprofitable voices of self-criticism, regret, and fear for things beyond their control. A mindfulness practice — whether sitting in the lotus position or washing dishes or playing on the improv stage or whatever — that teaches lawyers how to still those voices cannot help but help their clients when the time comes for action. Mindfulness is a more useful mental state than neurosis.

A Polish chess grandmaster once said, “Tactics is what you do when there is something to do; strategy is what you do when there is nothing to do.”

A drifting mind is strategic. Mindfulness is tactical. Cultivate both.

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Is Your Mind Set?

Karl went to the store to buy a set of tools to fix his car. Only when he got home did he discover that all of the wrenches were SAE instead of metric. Discouraged, he walked back toward the store.

On the way Karl stopped, deep in thought. But while he stood there the freshly poured concrete of the sidewalk set, and Karl lost his best pair of shoes. Demoralized, he turned back home in his socks.

But Karl got lost in the dark, because the sun had already set. And for all we know he still wanders lost, in his stockinged feet, carrying the wrong set of tools.

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Donald Trump will keep his campaign promises just like he keeps promises in business: only as and when it continues to suit his interests.

The wall will not be built unless Trump invests in the Mexican ladder industry, in which case Mexico will not pay for it.

The yard man and the busboy will not be deported.

The rust belt will go on rusting. 

Unemployment will rise.1

ISIS will not be defeated.

America’s economic decline will continue as Trump’s and Clinton’s mutual cronies get richer. 

And Trump will cast the blame on others.

Meanwhile, there’s not a whole lot that you or I can do about it, so let’s love our people, do our work, and enjoy the show. 

  1. Those jobs are lost to machines; not to Mexicans. A modern billion-dollar steel mill employs four hundred people, not fifty thousand. 

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