2015.102: This Article Friggered Me

The article is offered by everydayfeminism.com as a “one-stop 101” for those “not sure what people mean by triggering.” So while this may look like a weak-man argument, it is not.

In the motte and bailey of triggering, the motte is people with actual post-traumatic stress disorder, the symptoms of which are triggered by some event. These people hate their disease, and seek help.The bailey is people who think having a psychological disorder is cool and dramatic, and demand that the rest of the world moderate their speech and conduct to avoid “triggering” some bad feeling:

Triggering occurs when any certain something (a “trigger”) causes a negative emotional response.

The emotional response can be fear, sadness, panic, flashbacks, and pain, as well as any physical symptoms associated with these emotions (shaking, loss of appetite, fainting, fatigue, and so on).

In the bailey of triggering, anything that causes a negative emotional response is a trigger. Words make you sad? Trigger! Something frightens you? Trigger! Someone makes you angry? Trigger!1

“Triggering” is a concept ripped from post-traumatic stress disorder. But as it is used by Gillian Brown, it has nothing to do with trauma:

Sometimes, it happens through fears and phobias unrelated to trauma.

And sometimes, it happens for no reason at all.

Regardless of how somebody has become susceptible, being triggered can be just as severe and horrible for anyone.

No it can’t, you utterly horrid person. Having “negative emotions” “for no reason at all” is nothing like reexperiencing trauma in a crippling way. Using the same word to describe triggering of post-traumatic stress disorder and triggering “for no reason at all” trivializes the former. I won’t do it. I’ll describe Gillian Brown’s notion of triggering as “friggering.”

It’s not that I’ve chosen to attack the social importance of friggering by giving as an example the most laughable example I could think of; rather, everydayfeminism.com has chosen to defend the social importance of friggering by giving a more laughable example than even I could think of.

I developed health anxiety, and whenever I’m exposed to things relating to death and certain illnesses, I suddenly and quite dramatically feel all-encompassing panic spread through my entire body.

Sometimes, it goes away in seconds; at other times, it lingers for weeks, making it difficult to function normally until my mind reaches equilibrium again.

“Health anxiety.” Imagine that. I find that my health anxiety goes away when I’m eating better and exercising. That wouldn’t fit “fat activist” Gillian Brown’s politics, I realize; better to be politically correct and “dramatic” than to make incremental changes to improve her health.

Emotionally healthy people know that negative emotions are part of life. Growth comes from experiencing negative emotions. Avoiding negative emotions (as, for example, by avoiding friggers or by smoking lots of weed) keeps people from growing up.

To give a personal example, I am often triggered when I see books by Terry Pratchett. I have been told that his books are fantastic, but I cannot bring myself to read any of them because Pratchett now suffers from Alzheimer’s disease.

I have mentioned this particular trigger to friends and family before and have been met with surprise, disbelief, and remarks on how silly I’m being.

As you might imagine, such remarks are not helpful.

No, of course not, because Gillian Brown isn’t interested in real help, which would require admitting that she has a problem. Mental illness should not be stigmatized, but nor should it be normalized as Gillian Brown seeks to normalize it. I doubt that she is actually friggered by Terry Pratchett books, but if she is, she ought to be seeking mental-health care.

I get phone calls occasionally from people suffering from psychosis: the government has implanted radio transmitters in their teeth, and is posting their innermost thoughts on the sides of trucks. I advise them to get psychological help; I suspect that they would say, “as you might imagine, such remarks are not helpful.” Their loved ones didn’t get them the help they needed when they might have been receptive to it, and now their disease has taken over, and will not allow them to seek treatment.

Gillian Brown will not take responsibility for her own mental health; instead she has suggestions to “reduce the risk of” friggering:

1. Learn What the Person’s Triggers Are

2. Be a ‘Tester’

3. Look Things Up in Advance

In other words, enable.

If Gillian Brown really feels anxiety that makes it difficult to function at “things related to death and certain illnesses,” help is available. She feels such anxiety and is not in treatment, or she doesn’t feel such anxiety but pretends to. Either way, she loves the idea of being friggered more than being living a healthy life.

Gillian Brown also has suggestions if somebody has been friggered:

1. Let Them Know That They Can Contact You

2. Be Physically Close to Them

3. Distract and/or Comfort Them

4. Don’t Be Judgmental

5. Don’t Beat Yourself Up If You Make a Mistake

In other words, play along and reward their bad behavior by giving them the normal attention and affection they crave. This bit makes me suspect Gillian Brown’s family life: she’s describing how people treat people they care about. Is it that she has to act friggered to get this kind of attention?

Gillian Brown gives us a peek at her family life:

I remember that once, my dad bought me a beautiful framed painting from a shop in France, inspired by my having previously seen similar paintings and saying I liked them.

Unfortunately, this particular painting had gravestones on it, which triggered me.

I told Dad this, and he said something along the lines of “I’m so, so sorry.”

I felt like the worst daughter ever for making my father feel bad when he had done something so nice for me.

If you ever find that you have caused triggering-related grief, please don’t beat yourself up over it. These incidents happen sometimes, and they cannot always be avoided.

I would instead suggest finding out whether there is anything you can do to help the person feel better, as that would be a far more productive use of both your time and theirs.

So daughter tells dad (truthfully or not) that he has inadvertently hurt her feelings, and he says, “I’m so, so sorry,” and this is… the wrong thing to do because it makes her feel bad about making him feel bad about making her feel bad.

It is generally recognized by people who aren’t batshit drama queens that “I’m so, so sorry” is intended to make its recipient feel better emotionally. It is a social shortcut, designed to cut out all of the drama between “You screwed up” and “I forgive you.” But Gillian Brown doesn’t want to cut out all of the drama. She lives for the drama. So when her dad apologizes for accidentally hurting her, she wants more; she blames him for making her feel bad about making him feel bad about making her feel bad.

No, Gillian. You definitely aren’t the worst daughter ever, but you’ve been a pretty shitty daughter.

And yes, Gillian, you should feel “guilty and pathetic” about ripping off an actual therapeutic concept from people who need it and adopting it for your own narcissistic purposes.

Gillian, I have compassion for you on a level beyond your manipulative claims of friggering; you may not know it yet, and you obviously aren’t listening to those who love you, so you won’t listen to me either, but your article is a cry for help. You are suffering not from friggering, but rather from your choice to be (or more likely to pretend to be) friggered.

Some day, Gillian, you will die. Until then, it’s a BBW—a big beautiful world—full of magic and joy, and you are choosing to spend it in a bubble of your own creation, avoiding streetwise wizards and oil paintings of tombstones.

Get help.

  1. Grinder and Bandler would call the language “semantically ill-formed” in that the speaker acts as if she has no choice in her emotional response to the trigger. They discuss the topic in Part III of The Structure of Magic II, which won’t do you much good until you’ve read The Structure of Magic, Vol. I. Fortunately, Christmas break is coming, so you’ll have time to read both. 

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2015.101: The Thanksgiving Truce

It all went wrong at the second word:

We don’t have a whole lot in common. We never have, not even back in the days when we were dumping tea into harbors and sneak attacking Hessians on Christmas Eve. America has always been less melting pot than Mulligan stew, an improvised conglomeration of ingredients, a loose affiliation of flavors, barely held together by the thin gravy of shared love of underdogs and the fervent hope that J.J. Abrams can get the Star Wars franchise back on track. We’re divided by race and religion and politics and culture and smart phone preference and a legion of lesser differences, separated into little tribes of shared interests, each of us closed off behind the walls of our individual circumstances, our personal preferences.

In truth, we have a lot in common; what we have in common is almost everything. We certainly have all of the important things in common. We all want the same things: survival, sex, affection, a better life for our children, entertainment, education.

In contrast to the things that we share, the differences between us—”race and religion and politics and culture and smart phone preferences and a legion of lesser differences”—are superficial, artificial, and trivial. We were born not knowing these differences, and when the alien invasion fleet arrives in orbit we will promptly forget them again. They are differences that were fabricated and magnified by those who would use dissension to their disadvantage: governments, churches, and corporations.

Including the Houston Chronicle.

The Chronicle’s Thanksgiving piece (subtitled “It’s the day when our differences don’t matter”) is wrong and divisive, and the Houston Chronicle is apparently bent on running it every year.


I do not tend to believe in explicit conspiracies. It’s generally unlikely, in my view, that a bad things happening in the world—a market crash, for example, or a plague—was deliberately caused by a human intelligence.

But agents—by which I mean “things that act,” and in which I include corporations, governments, and churches as well as individuals and animals—tend to act in accordance with their interests despite the intentions of their constituents.

For example:

  • A corporation seeks profit and growth; if an employee’s actions do not serve to maintain profit and growth the corporation will eventually heal itself by removing or neutralizing that employee, or the corporation will die (fail or be eaten by another corporation).
  • A government seeks control by monopolizing the use of force; if bureaucrats’ actions do not serve to maintain that control the government will eventually heal itself by removing or neutralizing that bureaucrat.
  • A church seeks intellectual monopoly; if priests’ actions do not serve to maintain intellectual monopoly, they will eventually be removed or shunted off to harmless parishes, or the church will die.

Agents’ tendency to act in accordance with their interests despite the best intentions of their constituents may be indistinguishable from the product of active intelligence; that is, it may look like a grand scheme, rather than the inexorable press of the corporate imperative.

When agents seeking different sorts of power—financial, violent, or intellectual—unite, so that the interests of a corporation are the same as those of a government, or the interests of a government and church are integrated, it might appear that there is an explicit conspiracy, leaders of church and government plotting in secret to subjugate the people. I doubt it, and both Occam’s and Hanlon’s Razors suggest that mere coincidence is a better explanation than conspiracy.1

The Chronicle’s Thanksgiving Truce piece at first blush appears positive, but it depends on a narrative—that we are in constant conflict with each other. That is the received narrative of the media and the government, and it is false: We have always been at war with Eastasia. The media prefer this narrative because conflict sells newspapers, and governments prefer it because if we are fighting over superficial, artificial, and trivial differences we are asleep to government’s depredations on our wealth and our freedom.

News is news because it is noteworthy. Conflict sells newspapers, and harmony does not, because conflict is noteworthy and harmony is not. Ask Lisa Gray which is more likely to be published in the Houston Chronicle: a feel-good article about humans getting along like they usually do, or a dark article about humans in conflict. Readers are more likely to buy (or click on) the conflict narrative, so editors are more likely to publish the conflict narrative, so writers are more likely to write the conflict narrative.

You know that “reality TV” does not reflect reality, right? Instead, it is relentlessly produced to fabricate and magnify conflict because people like to watch conflict. Do we like to watch conflict because that is our everyday life? Do we buy newspapers with stories of the harm that people do to each other because that is our everyday experience? Or do we ingest media that depict things that are not commonplace in our lives? The latter. The slurry of purported fact and opinion fed to us by the media is as overproduced as any reality TV show, and for the same reason: because, like lab apes with human porn, we like to watch conflict.

I am not a guy who’s bothered by conflict. Conflict is my profession and my sometimes-hobby. You are probably not bothered by conflict either. You are the descendant of many generations of murderous primates that won the fights that mattered. Conflict is in your genes.

@BrowningMachine @MarkWBennett I pity the first alien species to meet us. We are ferocious murder monkeys.

— Brian Knight (@BrianRKnight) November 26, 2015

When we realize that there is a threat to our existence, we meet it.2 When we see no threat to our existence, though, we fight amongst ourselves for sport, or to stay in shape.

The government and the corporations that shape the narrative through the media would not want us turning our murder-monkey attention toward them. The integrated interests of media and government produce a result—a media diet of fear and lies—that could be the brainchild of a malevolent intelligence, but is not. Cort McMurray didn’t have to know that he was writing lies to write them; Lisa Gray didn’t have to know that she was publishing lies to publish them.

But here, in advance of next November 24th, is my Thanksgiving Message:

You  have been ruthlessly stage-managed to care whether other people are brown or white, Republican or Democrat, Christian or Muslim, Mac or PC. None of that matters.

You are human, thinking meat with a beating heart. You can love, and fear, and feel joy. You have more in common with any other human than you have with the United States Government, the Democratic Party, the Southern Baptist Church, or the Houston Chronicle. Those artificial creatures have no hearts; they feel nothing. They cannot love.

Other humans have all been ruthless stage-managed, as you have, to care about trivial, superficial, and artificial differences, and to have different priorities than you, and different ways of achieving the same goals.

But with a few pathological exceptions, none of them are your enemies. A few of them have taken their instructions to heart, so that they may some day become an imminent threat to the survival of those for whom you are responsible; if they do, destroy them, literally. Otherwise—if physical violence is not called for—it truly does not matter what they believe. So take any argument with a grain of salt. If it doesn’t help educate you, entertain you, find you affection, or get you laid, you need not engage.

On Thanksgiving day you will, if you are lucky, break bread with other human beings, and set aside your petty differences for the day. Maybe you’ll cook for them, or flirt with them, or share a drink, a laugh, or a game. Remember, the other 365 days of the year, that this, and not those differences, is what is real.


  1. Does it matter whether what we see happening is mere coincidence or the product of conspiracy? 

  2. There is such a threat: some eventual extinction event; as more people realize it, we will turn more of our attention toward it, and if it is not by then too late we will avoid it. The spread of a medieval theocracy in the Middle East will have to be stopped first. 

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2015.100: Sotomayor on Kretzer and Volberding

From Holiday v. Stephens, 557 U.S. ___ (2015):

Statement of JUSTICE SOTOMAYOR, respecting the application for stay of execution and denial of certiorari.

A federal statute entitles defendants sentenced to death to court-appointed counsel during “all available post-conviction process.” 18 U. S. C. §3599(e). This statute requires counsel to “represent the defendant in … proceedings for executive or other clemency as may be available to the defendant.” Ibid.; see Harbison v. Bell, 556 U. S. 180, 185–186 (2009). Pursuant to §3599, Raphael Holiday asked his court-appointed counsel—Seth Kretzer and James Volberding—to petition the State of Texas for clemency. App. to Pet. for Cert. 5a. His attorneys declined, however, because of their belief that there was “no chance at all that a clemency petition would be granted.” Id., at 11a (internal quotation marks omitted).

Holiday asked a Federal District Court to appoint a new attorney who would file his petition for clemency. The court denied his request. The court recognized that §3599 compelled it to appoint new counsel if “the interests of justice” require. Ibid. (quoting Martel v. Clair, 565 U. S. ___, ___ (2012) (slip op., at 7); (internal quotation marks omitted). But given the “representations” of Holiday’s attorneys, the court found new counsel unwarranted. App. to Pet. for Cert. 11a.

This denial was an abuse of discretion. When Congress authorized federally funded counsel to represent clients in clemency proceedings, it plainly “did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.” Harbison, 556 U. S., at 194 (quoting Hain v. Mullin, 436 F. 3d 1168, 1175 (CA10 2006) (en banc); internal quotation marks omitted). Yet this is exactly what happened here. Although the “‘interests of justice’ standard contemplates a peculiarly context-specific inquiry,” Martel, 565 U. S., at ___ (slip op., at 13), it surely precludes a court from rejecting a substitution motion solely because it agrees with the appointed attorneys’ premonitions about clemency.

Executive clemency is fundamentally unpredictable. Clemency officials typically have “complete discretion” to commute a defendant’s sentence based on “a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations.” Ohio Adult Parole Authority v. Woodard, 523 U. S. 272, 278, 281 (1998) (principal opinion); see Tex. Const., Art. IV, §11; Tex. Code Crim. Proc. Ann., Art. 48.01 (Vernon Supp. 2014). By granting death-eligible defendants an attorney, “Congress ensured that no prisoner would be put to death without meaningful access to th[is] ‘ “fail safe” ’ of our justice system.” Harbison, 556 U. S., at 194 (quoting Herrera v. Collins, 506 U. S. 390, 415 (1993)). So long as clemency proceedings were “available” to Holiday, §3599(e), the interests of justice required the appointment of attorneys who would represent him in that process. Cf. Christeson v. Roper, 574 U. S. ___, ___ (2015) (per curiam) (slip op., at 8) (reversing the denial of a substitution motion under §3599 despite the “host of procedural obstacles” confronting the petitioner’s claims). The District Court’s denial did not adequately account for Holiday’s statutory right.

Despite the District Court’s error, I reluctantly join the Court’s decision to deny Holiday’s petition for certiorari. After the court rejected Holiday’s request for new counsel, his original attorneys eventually submitted a clemency application on his behalf. This application proved unsuccessful—and likely would have benefited from additional preparation by more zealous advocates. Yet this Court, unlike a state court, is likely to have no power to order Texas to reconsider its clemency decision with new attorneys representing Holiday.

She’s right about that last bit now, at least, since Volberding and Kretzer’s client has been killed.

So how does it feel, boys? Making the big time like this?

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2015.99: A Little Texas Ethics Law for Volberding and Kretzer

I do not like lawyers making censorious threats.

I do not like lawyers failing to understand the ethical rules.

I especially do not like lawyers making censorious threats based on their failure to understand the ethical rules.

So when I saw that Wes Volberding (Baylor, clerkship) and Seth Kretzer’s (UT Law Review, clerkship) in their letter to Gretchen Sween, who was trying to help Raphael Holiday get new appointed lawyers, who would be both competent and willing to keep fighting for him, wrote:

We also direct that you cease communication with our client. It appears you have been corresponding with him, and probably have been to see him without our consent or permission. While Rule 4.02 of the Disciplinary Rules allows you to respond to his letters, if you have gone to see him and acquired confidential information, and used that information to intervene in his case, then you have stretched Rule 4.02 beyond any reasonable interpretation. We respectfully urge you to go no farther.

—my blood pressure spiked.

Rule 4.02 says:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Those first four words are important, but it seems that Mr. Volberding and Mr. Kretzer do not understand them. Rule 4.02 only applies to a lawyer representing a client talking to some other represented person about the subject of the representation. If I represent Fred, and you represent Fred, you don’t need my permission to talk with Fred.

If Sween doesn’t represent anybody, Sween doesn’t need Mr. Volberding’s or Mr. Kretzer’s consent to talk to Mr. Holiday. If Sween represents Holiday, Sween doesn’t need Mr. Volberding’s or Mr. Kretzer’s consent to talk to Mr. Holiday. And obviously Mr. Holiday doesn’t need Mr. Volberding’s or Mr. Kretzer’s permission to talk to Sween or whoever else he wanted to talk to.

Sween can respond to Holiday’s letters, meet with him, acquire confidential information, correspond with people on his behalf, even have a copy of his file (“their file on him”) if Holiday wants her to. And there’s fuck-all that Mr. Volberding and Mr. Kretzer can do about it.

Messrs. Volberding and Kretzer filed egotistic and testosterone-drenched pleadings that deprived their client of hope, and probably shortened his life. I’m still processing their letters and pleadings, and the fact that they decided not to file a clemency petition on their client’s behalf because “A clemency petition just gives an inmate false hope.” I may return to this story once I’ve made sense of that moral, ethical, and legal mess.

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2015.98: Fidelity Says “No” to Chappell’s Scheme

I sent Fidelity a copy of Matthew Chappell’s email proposing that I act as a front man, using my name to allow him to get referrals from their Preferred Attorney list.1

I received a prompt emailed reply from their (a?) Director of Wealth Planning Product Management in Merrimack, New Hampshire:

Dear Attorney Bennett – this is outside the scope of our program.

Thank you!

That’s short and sweet. No surprises there. So Chappell’s suggestion that Fidelity would not be defrauded under his scheme is, it appears, false.

I’m sending my correspondent a link to this blog post, in case Fidelity is concerned about Chappell’s “family friends at Fidelity Investments who promise me AT LEAST one new client a week (Estate Planning) if I were able to get on their Preferred Attorney’s List” outside the scope of Fidelity’s program.

  1. I probably wouldn’t have bothered if Chappell hadn’t reminded me that he was there by incompetently threatening to sue me

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2015.97: Volberding and Kretzer Just. Give. Up.

I have heard—and I believe it—that the worst thing about being under a death sentence is knowing that that date is coming, facing a date certain, watching the explicit number of days you have left become smaller and smaller and smaller until.

It’s unnatural.

So death penalty lawyers fight for every minute of time, for every chance they might find something that might get their clients another minute of time:

From here on, the lawyer’s job is to be creative.  Investigate again. Search for the really unlikely.  Float whatever.  And put together the clemency pitch.  Because, as we say in this business, once in a while pigs do fly.  And because what the hell.

People fight because as long as we are fighting there is hope, and without hope we might as well be already dead. Lawyers fight because that’s what we do.

But that’s not what happened in Raphael Holiday’s case. Raphael Holiday’s lawyers, Wes Volberding and Seth Kretzer, stopped fighting.

Well, they didn’t stop fighting. They just stopped fighting for Holiday, but they fought to keep Holiday and lawyer Gretchen Sween from fighting:

Volberding and Kretzer opposed the motion and sent Sween a letter threatening to seek sanctions if she did not stay away from their client.

I’d love to know what the basis is for those sanctions. Mr. Holiday had the right to talk to other lawyers, and seek other counsel. Ms. Sween had the right to talk to Mr. Holiday, and to help him seek other counsel. I can think of no reason for threatening sanctions.

Maybe they had a reason to stop fighting for their client. Why did they stop fighting for their client?

“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

Volberding and Kretzer took away hope. They decided to take away hope. They decided it was time for their client to just give up and agree to be dead. They made decisions that were not theirs to make.
Here‘s the full discreditable story.

Jeff Gamso writes about it. Scott Greenfield writes about it. I don’t have anything else to say, except that if the story is accurate, Wes Volberding and Seth Kretzer are a disgrace to the bar.

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2015.96: Wilco Water

There must be something in the water in Williamson County, Texas. After defeating John Bradley (that asshole), Jana Duty, who had never prosecuted an adult felony case, became District Attorney.

For her first adult felony jury trial, Duty chose a “delayed strangulation” case that even Bradley had recognized to be a dog. She bought found a witness who would testify that strangulation could cause death up to two years later.

During the trial there was an issue about Duty hiding evidence (my understanding is that the defense lawyer had asked her for a video; Duty had said she didn’t have it; at trial it turned out that she had had it, and knew she had), and a mistrial was declared. When Duty wanted to retry the case, the defense said, “not so fast,” arguing (essentially) that retrial was jeopardy-barred because it was the prosecutor’s misconduct that had caused the mistrial.

In the course of these proceedings, on March 20 Duty had sought a gag order from the court. On April 9 the court had issued the gag order. Then on May 7 Duty violated the gag order that she had requested by talking to the Austin American Statesman about a defense motion. The judge scheduled a hearing on May 8, and ordered Duty to be there.

She didn’t show up

because the judge wouldn’t tell her what it was about, and because it was only going to be a 10- to 15-minute hearing.

. . . . .

After missing that hearing, Duty sent an email to Kennon and other attorneys in the case that said: “If you feel I need to be reprimanded for communicating with the Statesman, I understand. But making a public spectacle out of punishing me just hurts everyone. No one will come out unscathed.”

(This is really one of those read-the-whole-article situations.)

After missing the hearing, in May Duty also sent one of her minions to file a motion to rescind the gag order, contending that it was unconstitutional.

And of course in July Duty filed a petition for writ of mandamus with the Court of Criminal Appeals, complaining that the district court had not been authorized to issue the gag order that she had asked it to issue. This was after she had tried to file petitions for writs of mandamus related to the same murder case in the Third Court of Appeals in May and June.

To recap:

  • March 20: Request gag order.
  • April 9: Get gag order.
  • May 6: Violate Gag order.
  • May 8: Blow off hearing.
  • May 13: Move to rescind gag order.
  • May 27: File mandamus in Austin Court of Appeals.
  • June 9: File mandamus in Austin Court of Appeals.
  • July 16: File mandamus in Court of Criminal Appeals.

In August visiting judge Doug Shaver (a retired judge out of Harris County) heard the contempt proceeding against Duty, and promptly sentenced her to 10 days in jail and a $500 fine.

Jana Duty's Mugshot
Jana Duty’s Mugshot

Sometimes people who are batshit insane don’t realize that it is obvious to the rest of the world that they are batshit insane. In any rational county, Jana Duty wouldn’t make it through the next Republican primary. She has made a laughingstock of them and cost the county a fortune.

Unfortunately, sometimes counties that are batshit insane don’t realize that it is obvious to the rest of the world that they are batshit insane.

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2015.95: WTAF STCL

From Matthew Chappell’s November 13, 2015 demand letter:

Under Texas law Chapter 18A Section 1.1, it is unlawful to engage in defamation of another’s character and reputation. The elements for defamation are as follows:
1. The defendant published a statement of fact
2. The statement referred to the plaintiff
3. The statement was defamatory
4. The statement was false
5. With regard to the truth of the statement, the defendant was
1. acting with actual malice
6. The plaintiff suffered pecuniary injury.

Texas statutes are generally organized into codes—Penal Code, Civil Practice and Remedies Code, Probate Code, and so forth. Those Codes are divided into chapters dealing with particular subjects. Chapter 18 of the Texas Code of Criminal Procedure, for example, deals with search warrants.

There is no “Chapter 18A” in any Texas code that I can find, much less any Chapter 18A dealing with defamation.

So at first I was puzzled what “Texas law Chapter 18A Section 1.1” is. It is meaningless, cite soup. There is no such defamation-related law in Texas.

So I puzzled over it for a while, then I thought to google various combinations of <Texas law Chapter 18A Section 1.1 defamation>, and somehow I blundered into <18a defamation>, which brought up this result:

Screen shot of google result for 18a defamation
Screen shot of search result for <18a defamation>.

The form number (18A:3) looked familiar to me from using O’Connors practice guides. And sure enough, the link went to a copy of O’Connor’s form for an original answer in a defamation case.

So then I looked for <O’Connors forms 18a> and found that “Chapter 18A” refers to the “defamation” chapter of O’Connor’s Texas Causes of Action (Amazon link).

O’Connor’s books are awesome and indispensable and authoritative, but they are not legal authority. They are a good place to start if you want to figure out what the elements of a defamation claim are. You shouldn’t cite to them, but if you were to do so you wouldn’t refer to them as “Texas law.”

With his initial proposal Matthew Chappell called into question his own ethics. With his response to my first post he called into question his own judgment. With his cease-and-desist letter he calls into question his own competence: what kind of lawyer cites to “Texas law Chapter 18A Section 1.1”? An incompetent one.

Yes, in my opinion Matthew Chappell is not only unethical and foolish, but also incompetent.

Of course, the great thing about hiring an incompetent lawyer to write your will is that by the time his incompetence is discovered, you’ll be dead anyway, so you won’t care.

Is this your demand letter, Matthew Chappell?

Why do people write cease-and-desist letters anyway? According to this site (which may be where Chappell got his template),

A Cease & Desist Letter is often times the first step to asking an individual, or a business, to stop an illegal activity. The purpose of the letter is to threaten further legal action if the behavior does not stop.

According to another site,

Sometimes the threat of legal action is enough to compel someone to change what they are doing.

Well, that worked. I was going to leave Chappell alone, until he sent me a stupid fucking cease-and-desist letter. So now I’ve written two more posts, Scott Greenfield has written a post (I outsourced my apology to him), Brian Tannebaum has written a post (he has a an ethics opinion), and Keith Lee has written a post (reminding us of the Streisand Effect).

Few people wish to get involved in the paperwork and courtroom appearances that a defamation lawsuit would require.

It’s a nice theory, but obviously not applicable here. The proportion of people who “wish to get involved in the paperwork and courtroom appearances that a defamation lawsuit would require” is, I suspect, substantially higher within {people who defend lawsuits for a living} than outside it, and highest of all within the subset {people who defend the First Amendment for a living}.

Not only would a successful lawsuit end up causing the accused party more money for court costs, but it would take up the accused party’s time and could even damage their reputation.

I am fairly sure that if Chappell can find his way to the courthouse and come up with $350 to file suit against me, not only will I not be paying court costs, but Chappell’ll be paying Marc Randazza’s fees and sanctions under Texas’s anti-SLAPP statute. (That’s “Chapter 27 of the Texas Civil Practice Remedies Code.”)

A cease and desist letter is a way of giving someone a chance to stop what they are doing and avoid the hassle of a legal fight.

So apparently the cease-and-desist letter is not widely recognized as chum to throw into the water for the practical blawgosphere to have a feeding frenzy on.

Even aside from the folly of sending this letter to a guy who fancies himself1 a First Amendment and trial lawyer after you’ve been specifically warned … even aside from substantive ignorance of defamation law …

How do you get through law school and not know how to write even an approximately correct cite?

For your next cause of action, Mr. Chappell, instead of filing suit against me and getting your ass handed to you by Marc Randazza, may I suggest an educational malpractice suit against South Texas College of Law?

  1. Not without good reason, to be fair. 

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2015.93: Spaghetti Prosecution in Waco

Here is one of the indictments arising from the Waco Twin Peaks killings:

Download the PDF file .

This indictment charges three offenses: Murder (“Code: 19.02”), Aggravated Assault (“22.02”), and two counts Engaging in Organized Criminal Activity (“71.02”).

Murder and Aggravated Assault are lesser-included offenses of the two EOCA counts. “Committing the offense as a member of a criminal street gang” makes an agg assault a first-degree felony, and makes a murder a fifteen-to-life crime.

To convict this defendant of the most serious offense charged the State would have to prove at least (under the law of parties):

  • That the defendant intended to promote or assist the commission of some felony;
  • That murder resulted, and should have been anticipated as a result of the carrying out of that crime;
  • That the defendant solicited, encouraged, directed, aided, or attempted to aid another person to commit that felony; and
  • That the defendant did so as a member of a criminal street gang.

Here’s an interesting question: to convict the defendant of the EOCA, does the State have to prove beyond a reasonable doubt which person was murdered, or can the jury give a general verdict, so that they all agree that a murder occurred, just not which one? The answer ought to be “no,” but the State might argue that “commits murder” is just a manner or means of committing EOCA, and a jury does not have to be unanimous on which manner and means a defendant has used to commit an offense.1 If that were correct, then the jurors wouldn’t even have to be unanimous on which underlying offense—murder or aggravated assault—the defendant was responsible for.

If the State had any confidence that they could prove their case—that D, as a member of a criminal street gang, deliberately assisted someone in committing a felony that predictably resulted in a certain person’s case—they would have pled each murder separately. What they are hoping to do is throw a bunch of stuff at the wall, and hope that something sticks. If the State pleads, “D murdered A or B or C or … Z,” the jury is much more likely to convict out of sheer confusion than if the State pleads “D murdered A” as one count, “D murdered B” as another, and so forth.

The unit of prosecution for EOCA as pled is not the criminal street gang, but rather the underlying offense.2 So murdering A as a member of a criminal street gang is a separate offense from murdering B as a member of a criminal street gang. Multiple offenses arising from one “criminal episode” may be alleged in a single indictment, but they must be pled in separate counts.

If we take the gang allegations out of the picture (the State could abandon those allegations at any time) it seems obvious to me that the murders and aggravated assaults are even more improperly pled. The State has pled ten murders in one paragraph, and twenty-three aggravated assaults in the other. That’d be a separate ground for quashing the indictment.

The Waco defendants haven’t paid me enough to research the issue, but their lawyers should certainly be considering motions to quash.

In Texas, motions to quash must be filed by the earlier of a) the formal motion-filing deadline, if there is one; and b) the day before trial. I’d wait till the last possible moment to file a motion to quash so that the State can waste as much time riding a defective charging instrument as possible before I force them to choose a different horse.

What good does a motion to quash do in this case? If it’s denied, something interesting is preserved for appeal, and the lesser-included agg assault and murder are probably off the table because the only way the indictment works is if it’s for a single count of EOCA pled in two separate pairs of two paragraphs. If the motion to quash is granted, the State has to rewrite their indictment to match the law—one count for each murder, one count for each aggravated assault, and sixty-six counts of EOCA.

Either way, the State’s options for proving the case are narrowed. Which is, as Martha Stewart might have said, “a good thing.”

  1. For example, if four jurors believe beyond a reasonable doubt that D murdered C by stabbing him, four believe that D murdered C by beating him, and four believe that D murdered C by shooting him, they may find D guilty of murdering C. 

  2. If they had pled EOCA by conspiring, the conspiracy would be the unit of prosecution, and it could include multiple deaths. 

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