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.”

Seems.

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.

or

…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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2016.021: CDL Behaving Badly

Lest you believe I think Harris Prosecutors have a monopoly on bad behaviorcheck out the full video, then come back. Or here’s the money shot:

Kerry is my client. Paul (on the other side of Kerry from me) is one of Kerry’s former lawyers. Buck is the lawyer for Jim, who lied for 39 years (including in three trials) about his relationship with Linda Jo, the victim. He also lied for 39 years — until the State gave him immunity — about what he knew about this book, which contains photos strikingly similar to the crime-scene photos. Jim was willing to let his lies be used to send Kerry to Death Row; he was, at the very least, depravedly indifferent to Kerry’s life and is, in my opinion, the most likely alternate suspect.1

The criminal-defense bar’s reading of the Declaration of Independence on the courthouse steps is a growing tradition. Started by Robb Fickman in Harris County, it has spread to all 254 of Texas’s counties, including Smith County, where Kerry and I had a hearing scheduled before the scheduled Declaration reading.

These Declaration readings are for the criminal-defense bar — organized by Robb Fickman and TCDLA — but the local organizers may allow others to join. So Paul was not entirely out of line in inviting Kerry to join in, and Buck wasn’t entirely out of line in objecting.

But Kerry was in line to read before the reading of this sacred document began. Since Buck objected to participating in a reading with Kerry, he could have a) had a quiet word with the President of the local criminal-defense bar, and asked that Kerry be politely asked not to participate; b) not participated himself; or c) read his part, then quietly excusing himself.

Instead of any of these grownup options Buck chose to throw a tantrum on the courtroom steps, interrupting the reading of the Declaration of Independence.

Grow up, Buck.


  1. Buck had given the State an affidavit with an incorrect opinion (that there is no way a certain ex-client of his would have been employed by the State in 1977), and did nothing to correct it when I showed him that that the ex-client was in fact used extensively by the trial prosecutor to investigate the case and testify in a change-of-venue hearing. 

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2016.020: The Intimate Privacy Protection Act of 2016

Via scribd:

(a) IN GENERAL.—Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or of the naked genitals or post-pubescent female nipple of a person, with reckless disregard for the person’s lack of consent to the distribution, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) EXCEPTIONS.—

(1) LAW ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.—This section—

(A) does not prohibit any lawful law enforcement, correctional, or intelligence activity;

(B) shall not apply in the case of an individual reporting unlawful activity; and

(C) shall not apply to a subpoena or court order for use in a legal proceeding.

(2) VOLUNTARY PUBLIC OR COMMERCIAL EXPOSURE.—This section does not apply to a visual depiction of a voluntary exposure of an individual’s own naked genitals or post-pubescent female nipple or an individual’s voluntary engagement in sexually explicit conduct if such exposure takes place in public or in a lawful commercial setting.

(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.—This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.

(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.—This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.

(c) DEFINITIONS.—In this section:

(1) Except as otherwise provided, any term used in this section has the meaning given that term in section 1801.

(2) The term ‘visual depiction’ means any photograph, film, or video, whether produced by electronic, mechanical, or other means.

(3) The term ‘sexually explicit conduct’ has the meaning given that term in section 2256(2)(A).

Let’s fisk it.

Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce…

This is the interstate-commerce hook that purports to give federal courts jurisdiction.

…to distribute a visual depiction…

The distribution of visual depictions is speech. Remember that a content-based restriction on speech is presumptively void unless the speech falls into a category of unprotected speech.

…of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or…

This makes the restriction content-based. The fact-finder has to look at the image to determine whether it violates the statute. A visual depiction of an identifiable person playing croquet does not trigger the statute, but a depiction of an identifiable person having sex does.

… of the naked genitals or post-pubescent female nipple of a person, …

I know that legislators aren’t very good at grammar, but I don’t see how this can be read other than to mean that two sorts of images are prohibited:

  1. A visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or
  2. A visual depiction of the naked genitals or post-pubescent female nipple of a person.

So a depiction of an unidentifiable person engaging in sexually explicit content does not trigger the statute unless the depiction includes his naked pink parts, in which case it doesn’t matter that he is unidentifiable. This statute, like others, will capture the innocent behavior of sharing naked baby pictures.

…with reckless disregard for the person’s lack of consent to the distribution…

This is the culpable mental state, or mens rea, requirement. It’s not very strong. While it’s greater than Mary Anne Franks’s proposed “knew or should have known” (negligence) standard, it doesn’t satisfy Danielle Citron’s demand that “it is crucial to craft narrow statutes that only punish individuals who knowingly and maliciously invade another’s privacy and trust.”

…shall be fined under this title or imprisoned not more than 5 years, or both.

Five years in prison for reckless conduct. Five years for sharing naked-baby pictures on Facebook. Five years for conduct that may or may not have caused some real-world harm.

(b) EXCEPTIONS.—

(1) LAW ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.—This section—

(A) does not prohibit any lawful law enforcement, correctional, or intelligence activity;

(B) shall not apply in the case of an individual reporting unlawful activity; and

(C) shall not apply to a subpoena or court order for use in a legal proceeding.

The usual authoritarian exceptions: what is forbidden and presumed harmful when engaged in by the people is expressly permitted to the state.

(2) VOLUNTARY PUBLIC OR COMMERCIAL EXPOSURE.—This section does not apply to a visual depiction of a voluntary exposure of an individual’s own naked genitals or post-pubescent female nipple or an individual’s voluntary engagement in sexually explicit conduct if such exposure takes place in public or in a lawful commercial setting.

The commercial-porn-and-exhibitionism exception.

(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.—This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.

The you-can-trust-government provision. I discuss it here; as Professor Neil Richards writes, “the power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor.”

(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.—This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.

I’ll leave this to the Section 230 experts.

(c) DEFINITIONS.—In this section:

(1) Except as otherwise provided, any term used in this section has the meaning given that term in section 1801.

(2) The term ‘visual depiction’ means any photograph, film, or video, whether produced by electronic, mechanical, or other means.

(3) The term ‘sexually explicit conduct’ has the meaning given that term in section 2256(2)(A).

Here, for future reference, is that definition:

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

There was a spate of state revenge-porn statutes passed in the last couple of years. There have not been many of prosecutions under these statutes. This suggests that the problem is not as great as the criminalizers led the state legislatures to believe.

The Intimate Privacy Protection Act of 2016 is a content-based restriction on speech, unconstitutional under current Supreme Court caselaw. In order for the Supreme Court to uphold it, it would have to recognize a category of historically unprotected speech that includes nonconsensual pornography. Check out my discussion of defining such a category here, beginning at “So how would we…”.

IPPA’s advocates have written a presumptively unconstitutional statute. They have not suggested a path to constitutionality. They address a problem that has not been overwhelming state criminal-justice systems.

Perhaps there are better uses for Congress’s time.

 

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2016.019: Scurry Scurry, Scurrae

A couple of days ago in felony court a guy who was supposed to go into custody decided that he didn’t want to go. The bailiff and the process server (both Harris County Sheriff’s Deputies) wrestled him to the ground. While they were having some difficulty subduing him, someone (the court coordinator, I think — I was focused on the wrestling match) came up to the two prosecutors who were standing near me, whispered, “the deputies have guns, and he might get a gun, so you should go in the back,” and led them out of the courtroom, leaving me, the third prosecutor, and everyone in the audience to — in that imagined scenario — get shot by the out-of-control defendant.

I could have left too, but in my view the risk that the guy would a) get a gun; b) discharge it; and c) hit me was smaller than the risk that I would twist my ankle leaving the courtroom. If I’d thought otherwise, I would have politely but persuasively suggested that the audience (and the third prosecutor) leave.1 Why? Because while I have a keen sense of self-preservation, that sense doesn’t exclude the preservation of other people.

I don’t get up at trial and loudly claim to represent the people of Harris County in trial, and then skitter quietly into my hole, leaving those same people to fend for themselves, when I imagine a threat to my own skin.

But hey, Harris County prosecutors. You do you.


  1. I probably wouldn’t have left, on the theory that if he got a gun the chance that the guy not hit me was much larger than the chance that he would, and in that margin I might be helpful. 

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2016.018 Why It’s Time to Repeal the First Amendment

I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. I admire the Founders for establishing a representative democracy that has survived for over two centuries.

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The First Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it’s important to understand that they got it wrong — and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don’t know it now, but under the original document, Mitt Romney would be serving as President Obama’s vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment, which set up the system we currently have of the president and vice president running for office together.

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways, including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country’s first 20 years. They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them).

There are others flaws that have been fixed (such as about voting and Presidential succession), and still other flaws that have not yet been fixed (such as about equal rights for women and land-based representation in the Senate), but the point is the same — there is absolutely nothing permanently sacrosanct about the Founders and the Constitution. They were deeply flawed people, it was and is a flawed document, and when we think about how to make our country a more perfect union, we must operate with those principles in mind.

In the face of yet another mass publication of nonconsensual pornography, now is the time to acknowledge a profound but obvious truth – the First Amendment is wrong for this country and needs to be jettisoned. We can do that through a Constitutional amendment. It’s been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth), and it must be done now.

The First Amendment needs to be repealed because it is outdated, a threat to liberty and a privacy suicide pact. When the First Amendment was adopted in 1791, there were no communications devices remotely like the laptop computer and many of the advances of modern communication were long from being invented or popularized.

Sure, the Founders knew that the world evolved and that technology changed, but the communications devices of today that are easily accessible are vastly different than anything that existed in 1791. When the First Amendment was written, the Founders didn’t have to weigh the risks of one man offending thousands all by himself. Now we do, and the risk-benefit analysis of 1791 is flatly irrelevant to the risk-benefit analysis of today.
Speech-rights advocates like to make this all about liberty, insisting that their freedom to speak is of utmost importance and that restricting their freedom would be a violation of basic rights.

But liberty is not a one way street. It also includes the liberty to enjoy a night out with friends, loving who you want to love, dancing how you want to dance, in a club that has historically provided a refuge from the hate and fear that surrounds you. It also includes the liberty to go to and send your kids to kindergarten and first grade so that they can begin to be infused with a love of learning. It includes the liberty to go to a movie, to your religious house of worship, to college, to work, to an abortion clinic, go to a hair salon, to a community center, to the supermarket, to go anywhere and feel that you are free to do to so without having to weigh the risk of being hurt by someone wielding a communication device that can easily offend or embarrass you and countless others.

The liberty of some to speak cannot take precedence over the liberty of everyone to live their lives free from the risk of having their dignity harmed. It has for too long, and we must now say no more.

Finally, if we take the free-speech lobby at their word, the First Amendment is a suicide pact to our privacy. As they say over and over, the only way to fight hate speech is with more speech. In other words, please those who engage in hate speech by encouraging even the vast majority of Americans who do not speak up to speak.

Just think of what would have happened to Hulk Hogan if there had been many others writing. On a crowded, dark, loud Internet, after Gawker posted, imagine if others took out their computers and started writing back. Yes, maybe they would have chastised Gawker, but how would anyone else have known what exactly was going on? How would it not have devolved into mass confusion and fear followed by a large-scale argument without anyone knowing who was the good guy with a computer, who was the bad guy with a computer, and who was just caught in the middle? The offense toll could have been much higher if more people were armed.

The free-speech lobby’s mantra that more people need to speak freely will lead to an obvious result — more people will be offended. We’d be walking down a road in which hate speech is a common occurrence, all because the First Amendment allows it to be.

At this point, bickering about the niceties of textual interpretation, whether the history of the amendment supports this view or that, and how legislators can solve this problem within the confines of the constitution is useless drivel that will lead to more of the same. We need a mass movement of those who are fed up with the long-dead Founders’ view of the world ruling current day politics. A mass movement of those who will stand up and say that our founding document was wrong and needs to be changed. A mass movement of those who will thumb their nose at FIRE, an organization that is nothing more than the political wing of the country’s wrongthinkers, and say enough is enough.

The First Amendment must be repealed, and it is the essence of American democracy to say so.

(As well as the First, obviously the Second.)

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2016.017: I’m The Asshole the Robs Deserve

“Rob” commented:

An investment banker closing a factory that has been a small town’s economic lifeblood and shipping those jobs off to Indonesia is creating value for the shareholders, and thus doing what is ethical and appropriate within the context of how he chooses to make his living. It’s choosing to make his living this way which makes him an asshole.

A CIA operative who waterboards a terror suspect is doing what is correct and expected within the context of how he chooses to make his living. It’s choosing to make his living this way that makes him an asshole.

Someone who chooses to make his living destroying rape victims on the stand is an asshole, or at least has a mean streak a mile wide.

Some of you might expect me to argue with this. Surprise!: Rob is right in the end.1

“Say please, say thank you, take your turn, don’t cuss in church, respect authority”: A society has agreed behavioral norms, which help people to live together comfortably in that society. A society’s norms are, roughly, the things you needed to know that you learned in kindergarten. Most people break these norms in private or occasionally without consequence, but people who  violate society’s norms consistently and defiantly are “assholes” to those who follow the norms.2

When I talk about a society’s norms I’m not talking about the law, which is a formal system overlaid on the norms.

For example, American society’s norms for treatment of victims include deference. The law does not include this. Instead, under the law, the “victim” is just a witness whose story gets tested like any other. American society’s norms for treatment of people accused of wrongdoing include shunning. The law does not. Instead, under the law, the accused is innocent until proven guilty.

But overlaying a formal system on the norms does not eliminate the norms. There are cases in which the law mimics the norms, as in crimes mala prohibita. And even when the law differs from the norms, the norms are still there, and decent people are expected to follow them most of the time. So for example you might, in your ordinary life, reflexively believe a woman who claims that she was raped, but still be able to serve on a jury if the law required you to presume the accused innocent.

You see what I’m getting at here: The criminal-defense lawyer shatters these (and other) norms. She flouts the will of society, routinely and proudly. When society tells her that she should follow the norms — that she should believe the victim, not slut-shame, not victim-blame — she has the gall to tell society that it, and not she, is wrong. So the criminal-defense lawyer is — if not definitionally, then damn near — an asshole. What’s more, when society (in the form of, say, Rob) tells the criminal-defense lawyer she’s an asshole for defending people accused of rape, she laughs in Rob’s doughy face and tells him to go fuck himself. So not only is she defiant about violating the norms, but she’s defiant about defiantly violating the norms, which is the greatest sin of all — “don’t be an asshole” is a norm of paramount importance to comfortable people like Rob3 because is the fear of being an asshole that society uses to keep people from breaking the norms.
Rob would never be a criminal-defense lawyer or a CIA officer or an investment banker. Good for Rob -0b -b. B- ba- Baa. None of us should live any farther from society’s norms than we want to. Baaa.
This won’t be the first time I’ve copped to being an asshole. I comfort the afflicted, and am an asshole to the comfortable, and I’m okay with that. Because it it’s Rob or his son or nephew who is falsely accused of rape, he’s going to want a criminal-defense lawyer who is more than willing to “destroy” the lying complainant on the witness stand.I am not the asshole the Robs of the world need right now, but when the day comes, I’ll still be here.


  1. I’ll leave the niggling details to the nitpickers. 

  2. If that isn’t definitional, it’s damn near. 

  3. So much so that calling someone an “asshole” is seen as a harsh insult! 

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2016.016: Jill Filipovic Makes Readers Stupider

When someone writing for a popular website says:

Before I was a journalist full-time, I was a lawyer. I didn’t do criminal defense work, but I am the daughter of a public defender, and the friend, former classmate, and former colleague of dozens of defense lawyers. I’m not a religious person, but if there is anything I believe is the Lord’s work, it is criminal defense, especially as a public defender for the indigent. It is under-paid, vilified, time-sucking, emotionally depleting work. It is also the backbone of our justice system. It is the last line of defense — the only line of defense — for millions of people, many of them young men, many of them poor, many of them of color, in a criminal justice system that houses more people in prisons than any society in the history of the world. Here in the United States, we put people in jail for a very long time and we ostracize them when they come out, breeding cycles of crime, poverty, and marginalization. Large corporations profit from this mass incarceration; politicians are elected because of it. We have built a moral disaster, and criminal defenders are some of the only bulwarks against that.

… you just know there’s a big “but” coming along.

And sure enough:

There’s an opportunity and an obligation for the legal profession here too. While the American Bar Association offers lots of information on representing or recommending legal counsel to victims of sexual violence, there’s far less guidance on the ethics of defending those accused. There’s no question that it is of course ethical to defend accused rapists, but the how matters. Does a zealous defense require going down every possible avenue, including those that feed into misogyny and victim-blaming — and which create future case law that entrenches misogyny and victim-blaming as par for the course in defending sexual violence cases? How does one draw the line, even, between victim-blaming and painting the circumstances in a light most favorable to your client — especially if your only defense is consent? Do lawyers have an obligation only to the individual client before them, or is there some greater duty we owe society to not cement its greatest ills into place — which would require not playing on racial animus or sexism or other forms of bias that lawyers can, and routinely do, manipulate to further their case?

These are not easy questions, and, even among feminist lawyers, there are not simple, clear answers. What is obvious is that we are long overdue for a profession-wide grappling.

Criminal defense is the Lord’s work … but maybe not if it feeds into misogyny and victim-blaming. It is (“of course”) ethical to defend accused rapists, as long as you don’t defend them too zealously.

Jill Filipovic says these “are not easy questions.” That may be true among the ethically clueless, but they actually are easy questions among the only lawyers whose opinion matters: not “the profession,” but the criminal-defense lawyers who face from day to day the question, “how hard should I come at this witness?”

Filipovic casts herself as one of those facing these questions: “is there some greater duty we owe society…?” Filipovic is not one of us. Most lawyers are not criminal-defense lawyers. They might like to think of themselves as being in the club with Atticus Finch, but they aren’t. They belong to very different clubs, they make different impacts on the world, and most importantly they have different measures of success. Criminal-defense lawyers don’t generally give a damn what these other lawyers think about what we do.

Why? Because unless you are on our jury, our contract — the Sixth Amendment — trumps your feelings about the job we are doing, the questions you are asking, or the arguments we are making. We figure — and Filipovic’s article (she’s the daughter of a public defender, no less) confirms — that if you are not one of us you have no clue about the ethics of the job.

So: You want to shame us into going easy on accusers? The Sixth Amendment trumps your shame. You want to call it “victim blaming” when we don’t go easy on accusers? The Sixth Amendment trumps your catchphrases. You want the ABA to offer guidance on defending those accused of rape in a politically correct way? Screw the ABA. The Sixth Amendment trumps that too.

There is plenty of opportunity for social activism when we are off duty, but the criminal-defense lawyer’s sole duty to society in the representation of a client is to defend the client as zealously as the law permits. This is neither a close call or a new idea:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.

—Henry Peter Brougham, 1st Baron Brougham and Vaux. (H/T Nicholas Sarwark.)

(I’ve also written about this here.)

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2016.015: A Prosecutor is Falsely Accused

I’m not buying it.

I don’t believe that Harris County ADA Justin Keiter “used his DEA thugs to write a JUDGELESS WARRANT to attempt to terrorize Dr. Blanchette by Trashing Her Office, in an attempt to get even for Dr. Blanchette helping put Justin’s father away for another 20 years.”

The sins of the father are not the sins of the son. Unless I am very much mistaken (and I seldom find myself so mistaken about people’s motivation) Keiter is motivated to zealotry by the desire to distance himself from his father’s crimes. The allegation that he “has been Covering up Crimes of his Father for Years” strikes me as unlikely in the extreme. Blanchette’s erratic capitalization — one hallmark of a nutjob — does nothing to make her accusations more credible.

So: False? Probably.

Defamatory? Possibly. Keiter, being a public figure,1 must show that Blanchette wrote with actual malice — not that she wanted to hurt him, but that she knew that her accusations were false or acted in reckless disregard of their falsity. This may be untrue — Blanchette may well believe that Keiter did the things she has accused him of.

Damages? The accusations are incredible enough that I doubt that Keiter can prove much in the way of actual damages. He still has his job, and I doubt that anyone in the DA’s Office believes the accusations any more than I do. Actual damages? Nominal.

Exemplary damages? I happened upon this petition because I read every defamation petition filed with the Harris County District Clerk, and have done so for over a year. Keiter’s lawyers have done something that I don’t believe I’ve ever seen done in a lawsuit in this county: they pled in the petition that they sent a cease-and-desist letter as required by Section 73.055 of the Texas Civil Practice and Remedies Code before a plaintiff can maintain a defamation suit. (They pled that it was under “§73.005,” but that typo is probably harmless.) Most lawyers suing people for defamation don’t make the required request for retraction, which is fatal to a request for exemplary damages and may be fatal to the suit itself. By jumping through the procedural hoops Keiter’s lawyers have at least maintained the possibility of exemplary damages.

The next step for Blanchette, once she gets served with the petition and hires a lawyer, will be to file an answer, and then an anti-SLAPP motion under Chapter 27 of the Civil Practice and Remedies Code. She will have to show that her statements were “made in connection with a matter of public concern” — easy enough — and Keiter will then have to “establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question” — including actual malice. If he doesn’t, his case gets dismissed and he gets to pay Blanchette’s legal fees. If he does, the case goes forward.

That Blanchette knew her allegations to be false (or was reckless about whether they were) is a tough make-or-break proposition, but fortunately for Keiter the court can allow “specified and limited discovery relevant to the motion,” including Blanchette’s deposition.

Won’t that be fun!

Keiter v Blanchette Petition


  1. The accusations relate to his conduct as a public official. 

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