2015.37: Never to Forget

Today the Harris County Criminal Lawyers Association held a ceremony in honor all of the local criminal-defense lawyers who have died. There are 125 names on the list; I’m sure we’re forgetting some, but we only started keeping track in 2006 (it was Robb Fickman’s idea, during Wendell Odom’s presidency). Most of us will never find more than fleeting fame; the purpose of the ceremony is to remember those who have fought the good fight, and might otherwise be forgotten.

We invited Harris County’s thirty-seven criminal court judges to the ceremony. Three attended:

  • The Honorable Brad Hart, Judge of the 230th District Court;
  • The Honorable Ryan Patrick, Judge of the 177th District Court; and
  • The Honorable Kristin Guiney, Judge of the 179th District Court.

The Honorable Marc Brown, Justice of the Fourteenth Court of Appeals, also attend us to show respect for our fallen comrades.

The following did not deign to attend:

  • Paula Goodhart;
  • Bill Harmon;
  • Natalie C. Fleming;
  • John Clinton;
  • Margaret Harris;
  • Larry Standley;
  • Pam Derbyshire;
  • Jay Karahan;
  • Analia Wilkerson;
  • Dan Spjut;
  • Diane Bull;
  • Robin Brown;
  • Don Smyth;
  • Mike Fields;
  • Jean Hughes;
  • Ruben Guerrero;
  • Michael McSpadden;
  • Stacey W. Bond;
  • Judge Marc Carter;
  • David Mendoza;
  • Mary Lou Keel;
  • Katherine Cabaniss;
  • Catherine Evans;
  • Denise Bradley;
  • Jeannine Barr;
  • Jim Wallace;
  • Vanessa Velasquez;
  • Renee Magee;
  • Jan Krocker;
  • Brock Thomas;
  • Susan Brown;
  • Maria T. Jackson;
  • Denise Collin; and
  • Mark Kent Ellis.

I’m sure that every one of them has a Very Important Reason for failing to post, even though they were invited a month ago and reminded at least twice since then. I doubt that any of them (except maybe Billy Harmon) would admit that the Very Important Reason is that they can’t be bothered to feign respect for our fallen brethren, and by extension to us. It is not, after all, election season, so there’s no point in pretending to respect the role of the defense or those who fulfill it.

If we had the ceremony in the summer or fall of an even year, the judicial turnout would be much higher. That’s okay: “higher” is not “better.” This way we find out who are friends really are.

Today’s ceremony was about remembrance, and I promise that in the summer and fall of even years to come, when those listed above are seeking campaign contributions, endorsements, votes, and support, the defense bar will remember.

2015.36: The Unconstitutionality of Section 33.021(c)

Here’s my brief on the unconstitutionality of the balance of Texas’s Online Solicitation of a Minor statute, Texas Penal Code Section 33.021. I have two appeals pending, both in courts that have already upheld the statute in the face of First Amendment challenges:

http://blog.bennettandbennett.com/wp-content/uploads/2015/02/Bennett-33.021c-First-Amendment-Brief.pdf

Both the Beaumont and First Courts of Appeals analyzed Section 33.021(c) as statutes regulating conduct rather than speech. This is plainly incorrect: speech that is unprotected because it incites the imminent commission of a crime is still speech.

The San Antonio Court of Appeals upheld Section 33.021(c) in the face of a vagueness challenge, holding:

The requisite intent arises within the conduct of soliciting the minor, and must exist at the time of the prohibited conduct of solicitation. Id. Indeed, it is the requirement that the defendant must solicit “with the intent that the minor will engage in sexual contact” that operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows then, that for purposes of a subsection (c) solicitation offense, it does not matter what happens after the solicitation occurs because the offense has been completed; it does not matter whether the solicited meeting actually occurs, or that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation. [AB1]

It cannot be true both that  “[I]t does not matter … that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation,” and that “The requisite intent [that the minor engage in sexual contact] … must exist at the time of the prohibited conduct of solicitation.” Either the defendant intended to engage in sexual conduct (and therefore intended to meet) or did not intend to meet (and therefore did not intend to engage in sexual conduct).

I am confident that the statute will, if the question ever reaches the Court of Criminal Appeals or the U.S. Supreme Court, be held unconstitutional. Unfortunately, I’m swimming upstream against some ill-considered authority. This would be easier if it had been done right in the first case.

2015.35: Jury Selection Rule: Pull Back the Curtain.

One of my proteges, working on an appeal, noticed how easily the prosecutor convinced a member of the jury panel to change his mind on an important issue with a tongue lashing. He posted about it publicly, admonishing potential jurors to be strong in jury selection and not let a prosecutor “bully them” into changing their opinions. It’s a fair point, but there is a lesson for the defense lawyer as well.

Jury selection is not about getting jurors to change their minds. You’re not likely to get them to change their minds in jury selection, and the prosecutor in my protege’s case probably (I wasn’t there) didn’t really get the juror to change his mind. What she did was to get the juror to say different words than he had at first; she might be able to hold the juror to that new position during deliberations, but probably not, so if she didn’t get him to say words that led to a challenge for cause she was wasting her breath.

Worse than that, when a lawyer browbeats a juror into changing his position, other jurors are not going to share their honest opinions with the lawyer for fear of being browbeaten themselves. So by being a bully, the prosecutor shuts down her own ability to get actual information from the rest of the panel.

Even worse than that, if the defense lawyer is on the ball he will get up when the prosecutor has finished talking, rehabilitate the juror, and talk with the jury about people trying to browbeat other people into changing their minds, using the prosecutor as an example.

Often an important part of the defense voir dire is to talk with the jurors about standing their ground when other people are trying to bully them into changing it: each juror’s verdict is a personal moral judgment (the language of the Colorado Method of capital jury selection); a juror should not change her verdict based on pressure from others; and a juror should not pressure others to change their verdicts. It’s improper, and unfair.

In most jurisdictions prosecutors go into jury selection with a halo of credibility because of their job. Jurors assume that what prosecutors do in jury selection is what is supposed to be done. They may not like it, but they figure that the prosecutor wears a white hat and is doing what she is supposed to. If the defense can remove that halo, the odds are evened considerably. (I think I’ve won every jury trial in which the prosecutor misstated the law in jury selection and my objection was sustained.)

When the prosecutor has demonstrated bullying behavior in voir dire, defense counsel can hold it up as an example, and the prosecutor won’t have a chance to respond. The benefits to the defense of this are several: the jurors feel free to speak freely with the defense lawyer (even more than if the prosecutor had behaved better); the prosecutor’s credibility is shattered; and the defense lawyer’s credibility increases.

In jury selection we are not trying to change jurors’ minds, but rather to win their hearts. Intellectually, at best we are going to get them to frame the game of the case in a way that favors us. Emotionally, though, we can help them trust us, like us and want to help us. By revealing to the jury panel the prosecutor’s voir dire tricks (and this applies to trick questions, bullying, and other tactic of which your kindergarten teacher would not approve) the defense lawyer reveals the prosecutor as a trickster and himself as a truth-teller. It’s a credibility bonanza for the defense.

If the defense lawyer is using tricks in voir dire, the prosecutor doesn’t get a chance to stand up afterwards and have a conversation with the jury about it, so she doesn’t get the same credibility bonanza. But juries aren’t clueless, and if you treat them unfairly they are going to do the same to you.

2015.34: Well Done, Joan Huffman!?

Joan Huffman is the Texas Senator (and former Harris County criminal judge) responsible for Code of Criminal Procedure article 38.37 section 2, which provides that extraneous offenses are admissible in the trial of someone accused of a sex crime with a child to prove “the character of the defendant and acts performed in conformity with the character of the defendant.” My brief on the unconstitutionality of that statute is here.

Not to gertrude, I am not inclined to cut Huffman any slack.

But when I read this, I was pleasantly surprised:

Section 33.021, Penal Code, is amended to read as follows:

(a)(a) In this section:

(1) “Minor” means:

(A) an individual who isrepresents himself or herself to be younger than 17 years of age; or

(B) an individual whom the actor believes to be younger than 17 years of age.

(2) “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.

(3) “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedurearouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d) It is not a defense to prosecution under Subsection (c) that :(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense
.

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(1) the actor was married to the minor; or

(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

That is what Texas’s Online Solicitation of a Minor statute, Texas Penal Code Section 33.021, will look like if Huffman’s proposed amendment, SB 344, passes in its current form. It is not quite right, but is much closer to constitutional than the statute as it exists now. It will also be much harder for the State to prove—constitutionality and prosecutorial convenience are a zero-sum game.

In subsection (a) Huffman proposes eliminating the “represents himself or herself to be” language from the definition of minor, so that a “minor” will be either an actual minor or someone the defendant believes to be a minor. So on the one hand if the “minor” is a cop the State will have to prove beyond a reasonable doubt that the defendant believed the cop’s “minor” schtick.

On the other hand it appears at first blush that the revised statute would allow a defendant to be held liable for talking dirty to an actual minor pretending to be an adult, even if the defendant believed the minor to be an adult, as an adult can be held liable for having sex with a minor who is pretending to be, and believed to be, an adult.

It would appear that way only at first blush, though, because the dirty talk prohibition now requires the intent to commit a sex crime against a child. So even if the “minor” is a minor pretending to be an adult the State will have to prove that the defendant intended to do something to a child, which presupposes that the defendant believed a child was somehow involved.

I’m not entirely happy with describing the offense as “communicat[ing] in a sexually explicit manner with a minor” “with the intent to commit” (for example) sexual assault. At best it’s clumsy, with no explicit connection between the sexual assault and the communication.

At worst it renders the statute unconstitutional again. The communication itself is constitutionally protected, and the state of mind itself is constitutionally protected. It is only when the intent is put into action, either physically or with a solicitation, that it can be constitutionally forbidden. “Incitement” is only unprotected if the speech is intended to induce or commence illegal activities.

So, for example, if D communicates in a sexually explicit manner with A while he intends to commit sexual assault with an unrelated B, the communication would still be constitutionally protected.

Or if D communicates in a sexually explicit manner with A and intends to commit sexual assault with A, but if the speech is not intended to induce or commence the sexual assault or any other illegal activity, the speech is constitutionally protected.

This may be a narrow class of protected speech that is criminalized; I haven’t yet worked through whether this invalidates the statute as to D or as written, but it seems to me that subsection (b) could be more clearly written:

(b) A person who is 17 years of age or older commits an offense if, with the intent to commit induce or commence commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with athe minor; or

(2) distributes sexually explicit material to athe minor.

With these small changes, the statute is almost in line with First Amendment incitement law. The only element of incitement that isn’t in the statute is imminence: for incitement to be unprotected speech the defendant must intend that a crime be imminent. There is, as you might imagine, not a lot of case law on imminence. If you stuck “the imminent” in between “commence” and “commission,” you’d have a statute that I’d have difficulty attacking (which is not to say that I won’t come up with something):

(b) A person who is 17 years of age or older commits an offense if, with the intent to induce or commence the imminent commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with the minor; or

(2) distributes sexually explicit material to the minor.

So that’s (b).

Subsection (c), as it is now, is unconstitutional because, in conjunction with subsection (a)(1)’s definition of minor to include anyone who represents himself to be a minor; and subsection (d)’s exclusion of fantasy and lack-of-intent defenses, it criminalizes speech that is not incitement, and is therefore protected by the First Amendment. Huffman’s edits to (a)(1) and (d) eliminate this unconstitutionality. To nail it down, imminence should be an element in (c) as well—

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will imminently engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

—but the lack of imminence is a minor problem compared with the explicit elimination of fantasy and lack-of-intent defenses.

Subsection (e)(2) still creates a defense for the defendant who, believing a cop who is older than the defendant to be a minor, solicits the cop to have sex. There is no good reason that a 33-year-old defendant can legally solicit a minor who happens to be a 36-year-old cop, but a 40-year-0ld defendant cannot. While the legislature is mucking around in this statute it ought to rewrite (e)(2) as well:

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(2) the actor was not more than three years older than the minorthe younger of (A) the age of the minor; and (B) the age the actor believed the minor to be; and the minor consented to the conduct.

There’s probably an even better way to write that, but you get the gist: the age defense should be available if the nineteen-year-old defendant believed he was chatting with a sixteen-year-old, but it should not be available if the nineteen-year-old defendant believed he was chatting with a thirteen-year-old but was actually chatting with a forty-year-old cop (because, as a rule of thumb, a “thirteen-year-old” cruising for sex on the Internet is a forty-year-old cop).

I wouldn’t ordinarily suggest improvements to make a penal statute constitutional, but since I don’t have a philosophical problem with the state punishing people who are truly trying to pick up kids for sex on the Internet, and Joan Huffman seems to be headed in the right direction on this one, I’m happy to help.

2015.33: In Which I Gertrude About Gertruding about Gertruding

I would never say that I don’t need to prove that I don’t need to prove that I’m opposed to cops being murdered. Because it’s obvious that I don’t need to prove that I don’t need to prove that I oppose murder, and rape, and revenge porn, and all of the other bad things. It goes without saying. And nobody would suggest that I need to prove that I need to prove that I’m opposed to bad things unless I proactively insisted that such was not the case.

So, once and for all, not only am I opposed to all the bad things, but also I don’t need to prove it. And furthermore I don’t need to prove that.

I hope it’s obvious. I would hate to have to prove that I don’t need to prove that I don’t need to prove that I oppose all of the bad things.

(I want Urban Dictionary credit for coining the verb “to gertrude,” meaning “to create doubt in a proposition by insisting upon it.”)

2015.32: Texas Lawyers, Don’t Be That Guy

Some lawyers are reportedly interpreting Ethics Opinion 646 to mean that they can give their clients copies of discovery produced under Article 39.14 of the Texas Code of Criminal Procedure, despite Article 39.14(f)‘s admonition that:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

39.14(f) is the law. Ethics Opinion 646 doesn’t change that, and the opinion really couldn’t be more clear:

Because article 39.14 requires an “open file” policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures.

The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act.

There are whiny chickenshit prosecutors who are cruising for examples of defense lawyers violating the Michael Morton Act, so that they can get their tame scared-white-republican legislators to shove through changes.

Don’t be that guy who gives his clients copies of offense reports and screws up discovery for the rest of us.

2015.31: Ethical Question—Privilege vs. Best Interest

Hypo: In a Texas criminal case, defense counsel receives a video recording in discovery from the state. Assume that she needs to prepare her witnesses for cross-examination by talking to them about the contents of the video. The defendant forbids her from showing the video to the witnesses or even telling them what it shows. She does her best to convince him to allow it, but he refuses.

How does this shake out?

Generally, the defendant has the right to make the strategic decisions in his case (plead guilty? jury or bench trial? jury or judge for punishment? seek lesser-included offense?) but trial counsel makes the tactical decisions (what witnesses to call, what questions to ask). ((Others have characterized the dichotomy as “fundamental” vs. “strategic” decisions, a mixing of metaphors.))Good judgment isn’t what made the client a client. A lawyer has to maintain control over the defense. Often a client will want the lawyer to do things that would be disastrous to the client’s strategic goals; a lawyer can and should refuse. Whether to show the video to potential witnesses, to prepare them to testify, seems to fall under the category of “tactical decisions.” The lawyer has a responsibility to keep the client from making disastrous mistakes. And the video isn’t a secret—the State had it first.

But in Texas criminal cases, according to Rule of Evidence 503(b)(2),

a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.

That seems pretty clear: the lawyer wouldn’t have known about the contents of the videotape if not for the attorney-client relationship, so the client has a privilege to prevent her from disclosing them.

How does this clash between the best interest of the client and the lawyer-client privilege shake out?

The lawyer may be tempted to do what is best for the client’s case, because that’s what she has been hired to do. The lawyer must resist the temptation. There’s ego involved—for her own gratification the lawyer would rather win the case than lose it. The lawyer must set aside her ego.

What if the lawyer will, following the client’s instructions, be ineffective?

Neither the Supreme Court nor this court has ever held that a lawyer provides ineffective assistance by complying with the client’s clear and unambiguous instructions not to present evidence.

Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir.2007).

The privilege must win. The privilege, sacrosanct, should always win. The criminal-defense lawyer should, like Pat McCann, be willing, to go to jail to preserve the privilege.

But what if the lawyer interprets 503(b)(2) nonliterally, so that “any other fact” does not include information that would not be covered by the attorney-client privilege under the rules that we learn in law school?

That’s not what the rule says, but perhaps the lawyer could, by stretching, reasonably read the rule to allow disclosure of the video to the potential witnesses. Maybe the lawyer is setting aside her ego to make this call. Maybe the client’s concerns are misplaced, and disclosure would truly be in his best interest. Maybe if the client grieves the lawyer the State Bar would agree with the lawyer’s interpretation.

The best interest of the client and the lawyer-client privilege are guiding principles. If not for clients we would not have jobs, and if not for the privilege our clients could not trust us and we could not do our jobs. That the privilege must win is my own judgment. A lawyer might feel that the client’s best interest must win. I would call this “playing God,” disagree with it in harsh terms, and file a grievance if the client sought my help.

Or a lawyer might weight the two principles equally; in that case (and only in that case) it would be acceptable for the lawyer to consider policy, which can’t trump either the privilege or the client’s best interest. For the criminal-defense lawyer, policy favors privilege. In the vast majority of cases the client will benefit from reading the privilege more broadly, and if we accede to a narrow reading in one case we may sacrifice our ability to argue in all of those other cases that the rule says what it means.

2015.30: For Shame, Professor Franks.

A wise man recently said, “If you publicly oppose criminalization of anything, zealots of criminalization will accuse you of favoring that thing.”

The argument is either ignorant or dishonest. Franks doesn’t get to plead ignorance here. She knows the argument is dishonest and she makes it anyway.

It is fair to ask, “is there some depth to which Mary Anne Franks won’t sink?” So far we haven’t found that depth.

2015.29: We Have Seen the Enemy…

The ACLU sued on behalf of several bookstores and publishing associations, the owner of the Village Voice and 12 other alternative newsweeklies nationwide, and the National Press Photographers Association.

The groups sent Mesnard and legislative leaders a letter early this month suggesting changes to the law to address its concerns that the law was overly broad. …

“In our view, we’re just trying to ask them to add some elements that first of all protect the media with respect to images that are important historically or have news value or artistic image,” said David Horowitz, executive director of the Media Coalition, whose members include publishers, librarians and booksellers. “And trying to really focus this again on the kind of malicious invasion of privacy everyone agrees is bad behavior.”

The letter suggested that Mesnard change the law to narrow its scope to address only “revenge porn” without interfering with free speech rights. Specifically, they don’t want it to apply when the publication was in the public interest or newsworthy.

And they want it to apply only to someone who was in an intimate relationship and displays a photo that their partner expected would be private with the intent to embarrass, harass or otherwise harm the person.

Mesnard said that language would be a deal-breaker because of the need to prove intent to harm, which he said would create “a big old loophole.”

(SFGate.com).

“Newsworthy,” like “in the public interest,”  is a subjective test that state actors could use to decide whom to arrest and whom not to. As Professor Neil Richards has written, “The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor[.]”

Criminalization advocate Danielle Citron agrees with the Arizona plaintiffs and disagrees with Arizona Republican Representative J.D. Mesnard:

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.

There’s going to be a “big old loophole” in any revenge-porn statute; that loophole is called “free speech.” It is not possible to “address only ‘revenge porn’ without interfering with free speech rights.”

If the statute requires an intent to harm and has a newsworthiness or public-interest exception, it may be narrow enough to satisfy the booksellers’ interests, but it’s still going to be unconstitutional. “Everyone agrees it’s bad behavior” is not a category of unprotected speech.

Shame on the ACLU if they put their imprimatur on such a statute.

2015.28: Billy Harmon, Hubris, and Defilement

A couple of years ago I wrote a post about the prevalence of judges coaching prosecutors:

In short, the judiciary acting as an adjunct to the prosecution shouldn’t surprise anyone. Elected judges identify with the state. There are very few who will decide close calls for the defense. There are many more who will bend over backwards to make sure the state wins. What Coker did with Jones is little different than what Narcise does with Cousteau. But Narcise doesn’t text Cousteau, or if he does Cousteau is smart enough not to commit the texts to paper.

Now I’ve found a judge who is so brazen about coaching prosecutors that he doesn’t care who knows it.

Meet Billy Harmon, Judge of Harris County Criminal Court at Law Number Two. Continue reading

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