Encouraging Words from an Unlikely Source

Photography has been recognized as a form of expression protected by the First Amendment. While conceding that, the court of appeals nevertheless concluded that the statute “regulates a person’s intent in creating a visual record and not the contents of the record itself.”

But that conclusion does not necessarily exempt the statute from the First Amendment’s protections. The Supreme Court has recognized that the First Amendment includes, as a component of freedom of expression, the protection of “freedom of thought,”5 including the freedom to think sexual thoughts. It is not enough to say that the statute is directed only at intent, if the intent consists of thought that is protected by the First Amendment.

Keller, P.J., 28 March 2012, dissenting from refusal to grant appellant’s petition for discretionary review in Ex Part Nyabwa, Nos. PD-0073, 0074, 0075-12, citing Stanley v. Georgia, 394 U.S. 557 (1969).

PDR Granted

I’ve been fighting a battle against Texas Penal Code Section 33.021, the Texas Online Solicitation of a Child statute, for some time now. In one pending case, I was brought in by trial counsel to be the “law man,” filing a pretrial writ of habeas corpus alleging that the statute was overbroad as written, was void for vagueness, and violated the “dormant Commerce Clause.” The trial court (Judge Joan Campbell) denied relief; we appealed, the Court of Appeals affirmed; we moved for rehearing, the Court of Appeals denied; and we filed a Petition for Discretionary Review with the Texas Court of Criminal Appeals.

Today the Court of Criminal Appeals granted our petition and ordered oral argument. I’ll be briefing the issue (for the third time—trial court, Court of Appeals, Court of Criminal Appeals), and arguing it to the court (either in Austin or in the grand and recently restored 1910 Harris County courthouse, where the court may be visiting).

Challenging a statute on Constitutional grounds is always an uphill battle, but to affirm the Court of Appeals I think the Court will have to invent a new category of unprotected speech.

Law Tech: AppointmentReminder.org

The thing that has always bugged me most about the business of law is potential clients making appointments, and then failing to post. When someone fails to appear for an appointment, I have wasted my time, which raises my blood pressure and makes me cranky.

I have, through the years, contemplated or tried various solutions—don’t make appointments more than 24 hours out; require a credit-card number to make an appointment; ask the potential new client to call me if she needed to cancel or reschedule. I had no satisfactory solution until now.

Now I’ve practically eliminated no-shows by using appointmentreminder.org to schedule appointments with potential clients. I plug the client’s appointment time and mobile number into the calendar, and the system sends her a text message the day before, and a text message the day of (it’ll also send emails and make recorded voice calls; I haven’t tried those modes), asking her to confirm, cancel, or request a callback.

I can write the scripts for the messages. Here’s what my office-appointment message looks like:

Message Appt with Mark Bennett on $APPOINTMENT_DATE at $APPOINTMENT_START_TIME. 917 Franklin, 4th Floor. Text back 1 (confirm), 5 (cancel), or 9 for me to call you.
Confirmation Message Thank you for confirming. I’ll see you then. MB.
Cancellation Message Thank you for cancelling. MB.
Requested Contact Message I’ll call you shortly. MB.

 The company claims:

Our customers find that using automated appointment reminders decreases cancellations and no-shows: the aggregate performance of all of our customers is that less than 5% of appointments are canceled or result in a no-show after the client receives a reminder. 

So far I’ve found that to be about right. The cancellations don’t bother me as much as the no-shows, and I’ve only had one of those since starting to use appointmentreminder.org.

Free 30-day trial, $29 a month for up to 100 appointments, and worth every penny.

(I’ve got no stake in it; I’m just a happy customer.)

Let My People Go

  • Geraldo G. Acosta: 255 juvenile cases / 387 misdemeanor cases/ 278 felony cases / 4.1 times the National Advisory Commission on Criminal Justice Standards and Goals recommended public-defender caseload (i.e. 200 juvenile cases or 400 misdemeanor cases or 150 felony cases per lawyer).
  • David L. Garza: 599 misdemeanor cases / 295 felony cases / 3.5 times the recommended caseload.
  • Ricardo N. Gonzalez: 444 misdemeanor cases / 63 felony cases / 3.2 times the recommended caseload.
  • Humberto Trejo: 470 misdemeanor cases / 278 felony cases / 3.0 times the recommended caseload.
  • Kerry Hollingsworth McCracken: 419 felony cases / 2.8 times the recommended caseload.
  • Juan Aguirre: 603 misdemeanor cases / 184 felony cases / 2.7 times the recommended caseload.
  • Herman Martinez: 495 misdemeanor cases / 223 felony cases / 2.7 times the recommended caseload.
  • Jorge A. Cantu: 929 misdemeanor cases / felony misdemeanor cases / 2.7 times the recommended caseload.
  • Monica Lisa Gonzalez: 395 felony cases / 2.6 times the recommended caseload. (In ten months before she joined the PD's Office.)
  • Page E. Janik: 101 misdemeanor cases / 348 felony cases / 2.6 times the recommended caseload.

(Source, via Robb Fickman.)

That's ten lawyers doing the work of roughly thirty. Some of these people are my friends, and I feel terribly for them, being driven so hard by judges forcing court appointments on them. Some of them have private practices as well; there is no way that this much work—doing a thorough, conscientious job on every case—leaves them any time for sleep or meals, much less fun.

As Paul Kennedy points out, the worst-abused of these poor lawyers, Geraldo G. Acosta, was compelled to take an average of 3.5 new cases a day in 2011, which means that he resolved an average of 3.5 cases a day in 2011. If he spent only 9.5 hours on each case, he got 20 hours off during the entire year.

This can't be good for the health, either physical or mental, of these ten lawyers. It's amazing that they haven't cracked already. It is heartbreaking.

But maybe you and I can make a difference. I urge you to join me in calling on Harris County's judges to stop working my friends like rented mules.

We might even save their lives.

Cultivating Requisite Variety?

Jury selection, properly conducted, is an unscripted improvisational exercise. In Free Play: Improvisation in Life and Art, violinist Stephen Nachmanovitch writes of the need for “technique to burn” to an improviser:

Galurnphing ensures that we rernain on the upside of the law of requisite variety. This fundanmental law of nature states that a system intended to handle x amount of information must be able to lake on at least x different states of being. In photography, for example, if we want to capture three levels of light, we need a camera with at least three apertures or shutter speeds. In music, if we want to transmit three kinds of emotion, We need to be able to draw the bow or blow our breath or strike the keys with at least three kinds of touch—preferably many more. This is what we call “having technique to burn”—having more powerful and flexible means available to us than we need in any given situation. A would-be artist may have the most profound visions, feelings, and insights, but without skill there is no art. The requisite variety that opens up our expressive possibilities comes from practice, play, exercise, exploration, experiment. The effects of nonpractice (or of insufficiently risky practice) are rigidity of heart and body, and an ever-shrinking compass or available variety.

The law of requisite variety applies to jury selection no less than any other system. The lawyer who has scripted her jury selection can handle one situation, to wit a cooperative panel giving the predictable answers.  Lawyers who have tried cases know how often we get cooperative panels giving predicted answers: never. So the lawyer with a script needs backup techniques for dealing with the jurors who don’t want to go by the script—who want to volunteer information, or argue, or quibble, or not talk at all.

My Sixteen Rules for Better Jury Selection are tools that can be used when the panel goes off-script; they can also obviate the script. Because if you have technique to burn, you don’t need the script in the first place.

(Another rule: Laugh at yourself first—humor is powerful, but only if you are willing to be the butt of the joke. Give me a pithy name for this one. Maybe screw up and stay happy?)

The artist needs “practice, play, exercise, exploration, experiment.” How is the new lawyer to develop the requisite variety to pick a jury, without doing so at the early clients’ expense?

I have inklings of an answer—jury selection is talking to strangers, so talk to strangers; jury selection is improvisational theatre, so take some improv classes; jury selection is listening, so learn active listening and apply it in everyday life—but they are not entirely satisfactory. In truth I do not know.

A Proud Moment

Recalling one of the proudest moments of my career. I'd been practicing law for about five months. My client, who had been badly "hometowned" in court in Palestine, Texas, in the Piney Woods, had moved from there to Houston with her child. I moved to transfer the case to Houston while there was a motion to enforce pending against her in Palestine, so transfer would have deprived the hometown judge of authority to enforce the decree. The ex-husband's lawyer hadn't bothered to respond to my motion to support. The whole of his argument to the court was, "Mr. Bennett is a slick big-city lawyer who uses the rules to his advantage."

I loved it.

The motion was denied, of course—welcome to the Piney Woods, slick big-city lawyer—but the mandamus was a slam-dunk.

ProTip:What to Do if There’s a PI Surveilling You

Peter A. Barone: Asshat Prosecutor of the Day

This came in today:

Hello to all,  

This is an announcement regarding ASA Peter A. Barone. On January 7, 2013 Peter A. Barone finished his final defense for his Ph.D. and was officially announced as Dr. Peter A. Barone.

Dr. Barone spent 5+ years obtaining his degree and would like to request that during formal court proceedings that you please refer to him by his proper and legal title, that being Dr. Barone. This request is similar to the manner in which the sitting judge is called Judge or Your Honor, or as his fellow attorneys are addressed as counselor or Mr. or Ms., and not by their first name during formal proceedings. 

Dr. Barone would like to thank his fellow colleagues for their cooperation in this matter in advance and realizes that at times it is difficult to remember a title change and is willing to assist by advising and correcting his colleagues during official proceedings of his new and permanent title if they inadvertently forget.     

Victor Garcia-Herreros
Legal Assistant for Dr. Peter Barone
State Attorney’s Office of Highlands County
411 S. Eucalyptus Street
Sebring, FL 33870
Fax: (863)402-6563

Here, rife with grammatical errors, is Barone’s bio. Before he defended his dissertation he was calling himself “Professor PETER A. BARONE, ESQ., Ph.D.(c), LL.M, JD, MSM, CPP.”

No self-respecting lawyer gives himself the honorific “Esq.”; there is something seriously wrong with a lawyer who not only insists on being called by an honorific that, outside of the academy, is traditionally reserved for physicians, but also will “assist by advising and correcting his [fellow] colleagues during official proceedings of his new and permanent title if they inadvertently forget.”

I could have great fun with this if he were in my jurisdiction.

Ubi Jus, Ibi Remedium?

Two things:

First, Texas’s “improper photography” law, in our witless legislature made it a felony to broadcast or transmit a visual image of a person without that person’s consent and with the intent to arouse or gratify anyone’s sexual desire.

So if you have a Republican friend whom you think will be sexually excited by this…

Hillary Yelling

…and you email it to him, you’ve just committed a felony. You could lose your right to vote, your right to hold public office, and your right to own a firearm.

I kid you not.

But the overbroad statute was probably written by our moronic legislature to address transmission or broadcast of sexually explicit images without the subject’s consent.

So if you have a friend whom you think will be sexually excited by a sexually explicit photograph of, say, a porn star—provided gratis on the star’s website—and email that image to your friend, you’ve just committed a felony.

But the overbroad statute was probably written by our imbecilic legislature to address transmission or broadcast of sexually explicit images without the subjects’ consent and to which the subject would object—malicious transmission.

Which brings us to this lawsuit against a revenge-porn website. The plaintiffs took nude pictures of themselves and sent them to significant others, or they allowed others to take pictures of them, and after the significant others became less significant the pictures wound up on websites that collect such things, publish them, and then apparently demand money for their removal. (See also Marc Randazza’s discussion of IsAnybodyDown.com.) The plaintiffs are suing for intentional infliction of emotional distress (IIED)—intentionally or recklessly, by extreme and outrageous conduct, causing severe emotional distress.

Take it as a given that the republication is intentional, that it caused severe emotional distress to the plaintiffs, and that it was intended to cause emotional distress (“revenge” porn, right?). The subject of the speech (publication of photographs being “speech”) is not of public concern, so free speech does not bar the publishers being held liable. Aside from whether they are protected by Section 230 of the Communications Decency Act, the likely question in civil court is whether their conduct was extreme and outrageous—a good question for a jury. 

Which brings us back to criminal law: the portion of Texas’s “improper photography” law purporting to ban transmission or broadcast is substantially overbroad: at the very least it reaches a great deal of expression (sending the picture of the Secretary of State; sharing the picture of the porn star) that is and should be protected free speech. An overbroad restriction on speech is void as written. So the criminal prosecution of the revenge-porn publishers, whose communications arguably should not be protected, would fail in the face of a concerted free-speech defense.

If Texas legislators were to learn to read, read a book or two, and then rewrite the statute to cover only malicious transmission, would it pass First Amendment muster? For it to do so, the Supreme Court would have to define a new category of unprotected speech, since revenge porn doesn’t fit into any of the existing categories—fighting words, obscenity, libel, and child pornography.

That could happen, but it’s a long way down the road.



(There is one way these plaintiffs could have avoided this emotional distress: they could not have shared images that they didn’t want the rest of the world to see. A variation of the New York Times rule (never write anything you wouldn’t want published on the front page of the NYT) applies. If you have kids, talk to them about this.)

I Don’t Watch Law And Order Either.

I want to see Zero Dark Thirty, but I won’t pay to see it.

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