2016.032: Safe From Suit, But Not From Prosecution

…That night, someone sent an e-mail to Vietnamese groups alleging appellant was going to Vietnam to “bow down” to Ho Chi Minh and the Vietnamese Communists.

. . . . .

In 2014, appellant [Al Hoang] won the Republican primary for State Representative District 149. Nguyen continued to label appellant a Vietnamese Communist. In October of that year, Nguyen reported that appellant’s father committed suicide in 2007 because appellant was a Communist. Nguyen also stated that appellant made the bomb with which he was threatened in 2012 to gain attention.

From 2010 to the time suit was filed in October 2014, articles published in Thoi Bao called appellant “a Vietnamese Communist, an agent of Vietnamese Communist, or a spy of the Vietnamese Communist [sic].” These articles were also disseminated to Vietnamese groups and over the internet.

Appellees win: Appellant had failed to provide “clear and specific evidence that the
statements of which he complains were published with actual malice….”

While Hoang v. Nguyen was pending the same panel of the Fourteenth Court of Appeals — Justices Martha Hill Jamison, John Donovan, and Marc Brown — in State v. Stubbs upheld Section 33.07 of the Texas Penal Code in the face of an overbreadth challenge.

Section 33.07 forbids using someone’s name online without his consent with intent to harm him.

The appellees’ speech in Hoang v. Nguyen — articles about Mr. Hoang disseminated over the internet — used his name online without his consent with the intent to harm him.

So while Thoi Bao and Mr. Nguyen are protected by the Texas Citizens Participation Act from frivolous lawsuits such as the one by Mr. Hoang (who will be paying my fees), they risk felony prosecution under Section 33.07 whenever they write something unfavorable about Mr. Hoang (or anybody else). And under Section 33.07 neither the truth, lack of actual malice, nor opinion is a defense.

Even if they write what they know to be the truth, they may face felony prosecution. They will have to go to trial to make an as-applied challenge to the statute (it is unconstitutional as applied to them) and nobody but them is going to pay my fees when we win.

(Part of the court’s reasoning in Stubbs was that prosecutors haven’t used 33.07 to prosecute newsmen for criticizing public officials, but prosecutors’ noblesse oblige is not part of the overbreadth analysis. That the Harris County DA did not come to the aid of her Republican brother does not mean that future DAs will abstain as well.)

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2016.031: Trial Theory (Part One of Several)

To know what to do at any point in a jury trial, we must have some theory of how the parts of the trial fit together.

In a felony jury trial with twelve jurors (and the requirement of a unanimous verdict) there are 4,095 permutations of verdicts that do not involve our client going to prison.1 There is only one permutation that convicts our client. If each juror’s verdict were independent of the others and there were a 50% chance that each juror would convict, there would be a 1 in 4,096 chance of a conviction.

But jurors’ verdicts are not independent—one juror’s verdict will affect another’s—and the chance that any given juror will acquit is not necessarily 50%.

Our goal as criminal-defense lawyers is to keep the government as far as possible from that one permutation that convicts our client. To do this we need to recognize how jurors’ verdicts are dependent on each other, and how each juror reaches a verdict.

Many trial lawyers believe that every trial is won or lost in jury selection. Modern research into human cognition suggests that once a person forms a belief, it is very difficult to change that belief. Mere evidence will not suffice to change a normal person’s belief; she will disregard evidence that contradicts her beliefs and will magnify the evidence that supports her beliefs. This is called confirmation bias. Other biases act toward the same goal: to lock a person into her initial belief.

While we make jurors promise to consider all of the evidence before reaching a decision, there is very little evidence that they actually do this.

Research with mock juries suggests that how the jury is split when it goes out predicts the verdict. A jury that is 7–5 for conviction on the first ballot will most likely convict or hang; a jury that is 11–1 for conviction on the first ballot will almost certainly hang. A jury that is 6–6 or better for the defense on the first ballot will likely not convict. It appears that it is force of personality, rather than quality of evidence, that determines whether jurors will change their minds.

So we want to have as many jurors as possible on our side when they go out (we don’t want our defense to depend on beliefs formed in the jury room), which means that we want to have as many jurors as possible on our side as early as possible.

How early is “as early as possible”? Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect.


  1. Each juror’s individual verdict can be either “guilty” or “not guilty.” The combined verdict of the entire jury can be expressed as a 12-digit binary number, with each bit representing one juror’s vote, 0 for guilty and 1 for not guilty. There are 212 = 4,096 12-digit binary numbers. Only one of them, 00000000000, or 0, is a unanimous guilty verdict. 

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2016.029: Thank You

You may have noticed that I’ve added a widget to the right-hand column of “Cool Things I Really Like.” It’s stuff that I buy for myself, and can get more of if you use the links (or, with UberEats, the code “eats-nw0pp) to buy something for yourself.

I just added a link to Nootrobox. I chew their GoCubes, which are coffee (with other sparkly ingredients) in small gelatinous cubes. They’ve got other nootropics as well, and if you are interested in biohacking they have a lot of interesting stuff to read on their website.

Thank you especially to those of you who have ordered custom shirts from Original Stitch. I hope you enjoy wearing them, and think fondly of me when you do. I’ll think fondly of you, whoever you are, for helping fund my custom shirt habit.

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2016.028: Capital Murder and the Law of Parties in Texas

I wrote yesterday about Texas’s Law of Parties, and how it is different from Texas’s Felony-Murder Rule. An observant reader emailed to ask:

What about Enmund  v Florida?

An excellent question. In Enmund the U.S. Supreme Court reversed Mr. Enmund’s death sentence because he “d[id] not himself kill, attempt to kill, or intend that a killing take place or that lethal force w[ould] be employed.”

So how is it that Wood, who according to Hedayati “had no reason to anticipate” the killing, got the death penalty?

Because the jury found otherwise.

The law when Wood was prosecuted, as now, was that if a person was convicted of capital murder and the State sought death, the jury had to be asked:

(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

If the answer was “no,” the defendant was not death-eligible.

So a properly charged jury in Wood’s case must, in order for Wood to be sentenced to death, have had to find beyond a reasonable doubt that Wood at least anticipated that a human life would be taken.

And the jury was properly charged.

So before Wood was sentenced to death a jury found beyond a reasonable doubt that, at the very least, he anticipated a killing in his escapade with Reneau.

I don’t think the State should be in the business of putting people to death. But neither do I think it acceptable for a lawyer to spread untruths to get people to oppose the death penalty. And when Hedayati writes:

[N]eglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible.

That’s just untrue.

Spreading untruths for a political end is not just wrong; it’s also counterproductive. It gives ammunition to your political opponents (Look! He is so wrong he has to lie to try to win!) and it alienates your honest allies (Hi!).

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2016.027: Law of Parties and Felony-Murder Rule

Wood was convicted and sentenced to die under Texas’ arcane felony-murder law, more commonly known as the “the law of parties” — for his role as an accomplice to a killing, which he had no reason to anticipate.

(Hedayati: In Texas death row case, punishment does not fit crime.)

That Wood “had no reason to anticipate” the killing should have prevented him from being convicted under a parties theory. Here’s the Law of Parties:

Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Texas’s Law of Parties is surely draconian. But it’s distinct from the Felony-Murder Rule:

Sec. 19.02. MURDER.

(b) A person commits an offense if he:

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Calling the Law of Parties the Felony Murder Rule makes people stupider. Where did Hedayati —described by his bio in the Statesman as an attorney, but not a criminal lawyer — get the idea that they are the same thing? My guess is Wikipedia, which until I edited it just now equated the two.

What’s more, Hedayati’s premise — that the Law of Parties required Wood’s conviction — is false: If it is true that Wood “had no reason to anticipate” the murder then it is not true that the murder “should have been anticipated as a result of the carrying out of the conspiracy.” He may not have anticipated it, but in order to convict him a jury found that he should (that is, had reason to) have anticipated it.

Hedayati goes on:

Under the law of parties, those who conspire to commit a felony, like a robbery, can be held responsible for a subsequent crime, like murder, if it “should have been anticipated.” The law does not require a finding that the person intended to kill. It only requires that the defendant, charged under the law of parties, was a major participant in the underlying felony and exhibited a reckless indifference to human life. In other words, neglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible.

Where he oversold the Law of Parties on anticipation, here he undersells it on participation. The Law of Parties does not require that the defendant have been a “major participant in the underlying felony,” but only that he be a conspirator — that he have agreed with another to commit the underlying offense and that he or the other have performed an overt act. If you and I agree to rob a convenience store and you go rob the convenience store, we are conspirators.

Nor does either the Law of Parties or the Felony-Murder Rule require that the party “exhibit a reckless indifference to human life.” The former requires that the murder “should have been anticipated”; the latter requires “an act clearly dangerous to human life.”

The idea that I can be executed for a death that I didn’t cause, didn’t help with, and didn’t anticipate is harsh. Most people, presented with the actual law, might agree that it is too harsh. But making things up is unhelpful, and is likely to backfire when people realize that you haven’t told the truth. The law is not complicated, and Hedayati should have gotten it right before sending it in for publication.

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2016.025: Carl David Ceder Learns The 12 Rules of The Blawgosphere

I did not write the following post. Scott Greenfield wrote it and posted it to Simple Justice in 2013. Carl David Ceder has filed what appears to be a fraudulent DMCA takedown letter regarding it (because Scott used Carl’s JC Penney portrait as an illustration).

On the chance that the takedown succeeds for a moment, I bring you Scott Greenfield’s …

Carl David Ceder Learns The 12 Rules of The Blawgosphere

When I received the email from Dan Hull at What About Clients/Paris? it wasn’t hard to imagine the look of exasperation on his face.  There are few people in the blawgosphere who have had their content ripped off more consistently than Dan, and unlike the rest of us whose posts ended up on some scammer’s website, Dan’s was different. The thief always seemed to be a lawyer.  Lawyers just wanted what Dan wrote.

This time it was a young Dallas/Fort Worth criminal defense lawyer named Carl David Ceder, who had lifted wholesale one of Hull’s best known and most appreciated posts, his12 Rules of Client Service. This was first posted in 2006 and may be the post for which Hull is best known.

And there it was, on 2007 Houston law grad Carl David Ceder’s website, in all its glory. No permission. Not even credit. Just as if this kid came up with it all by himself, instead of stealing it from Dan Hull.

So I asked Dan if he sent the kid an email, and he told me he sent the kid a question, whether Ceder wrote the 12 Rules himself? But Hull heard nothing back and was off to Hanover, New Hampshire to conduct a Sensitivity training Seminar for the Dartmouth College rugby team.  Again.

Not being particularly inclined to let things go so easily, I sent Ceder an email as well:


I’m a criminal defense lawyer in New York and have a blog called Simple Justice. It’s pretty well regarded and widely read. Even in Texas. It’s come to my attention that you have posted a page on your website about the “12 Rules for Client Service.”

These were written by a buddy of mine, Dan Hull, for his blog. I note that you have neither permission to take his content or have even given Hull credit for the content.

This is a matter of some concern. Stealing content is frowned upon.

I plan to write about what you’ve done tomorrow. The question is what to write about. I ask two things of you: tell me how it came to happen that this content appears on your website as if it was yours, and tell me what you plan to do about it. Your answers to these questions will dictate what I write about, and likely what others will have to say about you. If I don’t hear from you, I will assume the worst.

If you have made a mistake, I would hope you would acknowledge it and correct it. If someone put your website together for you, and they stole the content without your realizing it, that would also be worth knowing. I await your response today. Either way, you should anticipate a post about this tomorrow.

Scott Greenfield

No word back from Carl.  There are many possibilities, that he was away for the holiday weekend. That he really doesn’t exist. That he doesn’t check his email during the winter months.


If you can’t trust this face, who can you trust?

Or that this young lawyer, an Avvo 10 “Pro” despite his youth and inexperience, never thought he would get caught stealing from more experienced lawyers in order to market himself.

Curiously, Ceder’s Avvo profile oozes with sincerity, spelling issues notwithstanding:

I can tell you with absolute and complete honesty that all of my client and peer endorsement reviews on this AVVO account are completelely [sic] and 100% authentic. My office takes great pride in our work, and it brings us great joy when our former clients or a professional colleague endorses the work of my law practice. I fully realize that there will come a time when someone may write a bad, negative, or even a “so-so review.”

So what exactly does “absolute and complete honesty” mean when coming from a kid lawyer busy marketing the crap out of himself on the interwebz who steals the content of another lawyer and tries to pass it off as his own?  Redundancy aside, it means nothing. You just destroyed the one thing that no lawyer can afford to lose, integrity. Falsus in uno. falsus in omnibus, kid.

It takes hard work and experience to come up with something of the quality of the 12 Rules of Client Service.  It takes nothing more than a mouse to steal it.  And if you think creating the 12 Rules is hard, it’s nothing compared to training the Dartmouth Rugby Team to be sensitive.  On the other hand, writing a blawg post about another kid lawyer who steals content and lacks integrity takes no effort at all.

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2016.024: #AllPeopleLie

From Popehat (h/t Scott Greenfield):

It is currently fashionable for defense attorneys to say “clients lie” and “most clients are guilty.” I wouldn’t agree with either proposition. Everybody lies; I don’t think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It’s just that criminal defense scenarios require a level of precision and accuracy that most human interactions don’t.

Being an effective and responsible criminal defense attorney doesn’t require believing everything a client says, exactly. The policy could be better described as “trust, but verify.” The key isn’t to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don’t, you’re not defending the client — you’re defending your stereotype of the client.

“Everybody lies” is like “all lives matter.” It doesn’t contradict the narrower statement to which it is intended to respond. Of course clients lie, because clients are people in terrifying and stressful circumstances and people in terrifying and stressful circumstances lie. Sometimes, a wise and benevolent man said years ago, they are lying to themselves as well.

“Currently fashionable” is a contemptful little phrase, and inaccurate in the same way that “clients lie” is inaccurate. It has always been true that clients lie to their criminal-defense lawyers.1 Maybe the saying of it is a fad, but I doubt it — competent lawyers have, as far as I know, always acknowledged that their clients might not be telling them the truth. So we doubt and we doublecheck and we red-team.

Ken is right, in a painfully obvious made-for-ATL way, that a lawyer should take what the client says seriously.And I’m right when I say that it doesn’t matter to me whether you did it or not. And Scott is right when he points out that a lying client may squander the defense’s scarce resources.

It’s not the lawyer’s case but the client’s. And if the client wants to waste scarce defense resources on rabbit trails, that’s his stupid prerogative. But if you are the client, and you know these three things:

  • That your lawyer is going to take what you say seriously;
  • That it doesn’t matter to her whether you did it or not; and
  • That rabbit trails are going to make it less likely that she can actually find a defense that will work for you.

Are you going to lie to your lawyer? Or are you going to tell her the truth, so that she can focus her energy on the defenses that might have some basis in fact?

I like to think my clients are smart enough to do the latter.

I’d like to, but it’s not true. Because even my clients — awesome as they are — don’t always tell me the truth, “taking what the client says seriously” can’t mean following every lead. I’m not going to waste resources on something that won’t help the client. For example, if the client’s story is impossible2 given the facts beyond change. Or if the client’s story would, if true, do more harm than good.3

Taking what the client says seriously does not mean not questioning it. To the contrary, if we take the client’s story seriously we are going to look for the evidence that would advance it and for the evidence that would refute it. Because if we don’t beat on the client’s story, it’s likely to collapse when the State starts beating on it.

All clients want us to believe them, but there is a special class of clients who need for us to believe them. Despite being told repeatedly, and registering their understanding, that our job is not to judge them, they proclaim that need loudly and often: “I need you to believe me.” They might even express a desire that you not red-team their case.

No, those alarm bells you are hearing are not just in your head.

  1. Ken says he also disagrees that “most clients are guilty,” but he doesn’t elaborate. 

  2. Not merely implausible. Implausible things happen every day. 

  3. “I’m telling you, she was asking for it.” Dude, she’s six

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2016.023: Law Profs Love Media Attention

From here:

Eugene Volokh, a professor at UCLA School of Law, told Vocativ in an email that he is “not a fan of most privacy-based speech restrictions,” but said “this law seems quite narrow, and pretty clearly defined.”


There is no “seem” to it. The law says what it says. There is nothing more to it than this. Either you have read it and thought about it and redteamed it to figure out how narrow it is, or you make a handwavy statement to the press about how it “seems.” For those not familiar with the ways of lawyers, this is not an opinion on the constitutionality of the Internet Privacy Protection Act. It’s not at all hard to imagine a “but” following it. Like:

…but it is not as clearly defined as it seems.


…but it is not narrow enough to pass First Amendment muster.

From the same piece:

Similarly, Neil Richards, a First Amendment scholar and law professor at Washington University, underscored the importance of revenge porn laws being narrow enough so they aren’t “used as tools of censorship that threaten our commitment to free expression, including sexually-explicit expression,” but said, “I think on balance, this is a very well-drafted law.”

On balance. Well-drafted.

This is also not an opinion on the constitutionality of the proposed law. Imagine:

…but, well-drafted though it is, it is not likely to pass constitutional muster.

If Volokh or Richards were to opine that this proposed statute passed constitutional muster, it would be hard to square that endorsement with their writings on privacy and the First Amendment.

Here’s Eugene “Seems” Volokh:

This article has made three arguments. First, despite their intuitive appeal, restrictions on speech that reveals personal information are constitutional under current doctrine only if they are imposed by contract, express or implied. There may possibly be room for restrictions on revelations that are both extremely embarrassing and seem to have virtually no redeeming value, such as unauthorized distribution of nude pictures or possibly the publication of the names of rape victims, and perhaps for speech that makes it substantially easier for people to commit crimes against its subjects. Even these, though, pose significant doctrinal problems.

Second, expanding the doctrine to create a new exception may give supporters of information privacy speech restrictions much more than they bargained for. All the proposals for such expansion—whether based on an intellectual property theory, a commercial speech theory, a private concern speech theory, or a compelling government interest theory—would, if accepted, because strong precedent for other speech restrictions, including ones that have already been proposed. The analogies between the arguments used to support information privacy speech restrictions and the arguments used to support the other restrictions are direct and powerful. And accepting the principles that the government should enforce a right to stop others from speaking about us and that it’s the government’s job to create “codes of fair information practices” controlling private parties’ speech may shift courts and the public to an attitude that is more accepting of government policing of speech generally. The risk of unintended consequences thus seems to me quite high.

. . . . .

…[T]he one approach, though, that I think is entirely unsound is to simply ignore the potential free speech consequences. The speech restrictions that courts validate today have implications for tomorrow. Only by considering these implications can we properly evaluate the true costs and benefits of any proposed information privacy speech restriction.

And here is Richards:

Just because the disclosure tort is largely unconstitutional, it does not mean that many of the psychological injuries it seeks to remedy are not substantial.

Here, apropos of IPPA’s “bona fide” exception, is Neil “Tools of Censorship” Richards again:

The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor.

Richards also once wrote (with Daniele Citron) in support of revenge-porn criminalization:

We can regulate it if it is distributed in violation of an express or implied trust and an expectation of privacy. And we can regulate it if it is intended to intimidate, threaten or harass and accomplishes that purpose.

The Supreme Court’s jurisprudence does not support those statements. But even if it does, the proposed IPPA does not contain as an element “violation of an express or implied trust.” It does not contain as an element the intent to intimidate, threaten or harass. So the proposed statute fails to fulfill even Richards and Citron’s own criteria for a revenge-porn statute.

It would probably be unfair to suggest that Eugene “Seems” Volokh and Neil “Tools of Censorship” Richards haven’t read the proposed IPPA: They’ve read it enough to say “seems” and “well-drafted.” It’s not unfair, though, to suggest that they haven’t engaged with it. They haven’t read it, thought about it, and redteamed it.

To redteam the statute, proponents will have to answer the questions that opponents will raise in court, and justify their answers:

  • Does the statute restrict speech?
  • Does the statute restrict speech based on its content?

If the answer to these two questions is “yes,” (it will be, because “porn”) then the statute is presumptively unconstitutional and the proponents will have to answer these questions:

  • Does the statute restrict only speech in a recognized category of historically unprotected speech?
  • If the statute does not restrict only such unprotected speech, is the overbreadth of the statute not real and substantial?

Here is where the proponents have not yet come up with more than vague hand-wavy answers. The speech forbidden by IPPA falls into no as-yet-recognized category of unprotected speech. That doesn’t stop the Supreme Court from recognizing a hitherto-unrecognized category of historically unprotected speech. But what would that exception be, and how would it affect speech other than what we think of as revenge porn?

It might surprise you to learn that the professionally aggrieved advocates of revenge-porn criminalization have not answered those questions.

The proponents of criminalizing revenge porn are playing in the big leagues now. The first prosecution under the new statute is going to be on a fast train to the Supreme Court, and some Assistant Federal Public Defender smarter than me, Volokh, and Richards combined is going to be driving the train.

Now is the time to decide how to define the category of unprotected speech that the proponents expect the Supreme Court to adopt. And now is the time to consider, as Volokh says, the “implications for tomorrow.”


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