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2015.69: The Montgomery County Online-Solicitation Litigation

Mark's Blog: Defending People - Thu, 07/30/2015 - 22:51

Yesterday Kelly Case, Judge of the 9th District Court in Montgomery County, Texas, found the remainder of Section 33.021 of the Texas Penal Code unconstitutional, and dismissed the case against a defendant charged with that crime.1

Scared White Republican Voters are up in arms. Phil Grant is up in arms.2

Judge Kelly Case and prosecutor Phil Grant both took the same oath: to preserve, protect, and defend the Constitution and laws of the United States and of this State. In holding the remainder of Section 33.021 unconstitutional, Case kept his oath. In his criticism of the decision, Grant calls into question his ability to keep his own oath.

Section 33.021 is a content-based restriction on speech. A content-based restriction on speech is presumptively invalid. Unless the State shows that the statute meets strict scrutiny — that it is, that it is narrowly tailored to further a compelling governmental interest, a judge is bound by his oath to find it unconstitutional. Absent any authority binding him to hold the statute constitutional, Judge Case was bound by oath to do what he did yesterday.

There should be nothing special about a district court judge holding a statute unconstitutional. It should happen regularly. Constitutions trump statutes, and appellate courts have found three Texas statutes unconstitutional under the First Amendment in the last two years alone.3 Yet when Judge Case follows his oath to defend the Constitution, people are surprised. Phil Grant gnashes his teeth, and the defense bar cheers.

There is a word for a judge who violates his oath to defend the Constitution. That word is corrupt. A judge who fails to defend the Constitution, for fear of losing his job or for hope of pecuniary gain or for any other reason, is a corrupt judge.

A judge who takes into account the wishes of the voters or of prosecutors in deciding not to hold a statute unconstitutional is as corrupt as a judge who takes money to rule a certain way. It avails the corrupt judge nothing to say that he would have ruled the same way regardless of the corrupt influence.

I can count on one hand the Harris County judges who are willing always to do the right thing despite how it will look to the voters. To most of my judicial readers: what’s it like, being corrupt? How does it feel to know that I know that you’re corrupt?

Judge Case is not corrupt. Phil Grant wishes Judge Case were corrupt, and rants against Judge Case because Judge Case is not corrupt and does not subordinate his oath to reelection. Phil Grant would incite corruption in the judiciary. Phil Grant wants to be a judge himself. Because of his visceral reaction to Judge Case following his oath, we can safely assume that when Phil Grant is judge he will relegate his own oath.

The Montgomery County Criminal Lawyers Association responded to Phil Grant’s statements in the Conroe paper. Here’s my favorite bit:

if Mr. Grant is incapable of protecting the children of Montgomery County without the help of unconstitutional statutes, then he is incapable of keeping his own oath, and is unfit to be either a prosecutor or judge.

Can you not see the problem here, Phil?

  1. You can stop calling and emailing to tell me about it. I was there. 

  2. To hear Phil Grant tell it, you would think that Montgomery County is a hotbed of pedophilia. Why is that? Are the SWRVs who flee the scary diversity of the city for the scared whiteness of MoCo especially prone to kiddy diddling? 

  3. District judges have held another two statutes unconstitutional; three including 33.021(c). 

2015.68: A Texas Online-Solicitation Law Roadmap

Mark's Blog: Defending People - Thu, 07/30/2015 - 18:15

Here’s a quick summary (more than a soundbite, less than a brief) of the status of the remains of Texas’s online-solicitation-of-a-minor statute.

The statute forbids adults soliciting people whom they believe are minors to have sex, but it also forbids their soliciting other adults whom they believe to be adults to have sex, as well as soliciting people to not have sex (that is, fantasy communications or communications with no intent to meet).

Soliciting a child to have sex, with the intent that a crime be committed, is unprotected speech.

Soliciting someone you believe to be a child to have sex, with the intent that a crime be committed, is probably unprotected speech.

But soliciting an adult to have sex is generally protected speech. And making solicitive noises to a child, with no intent to actually carry through, is protected speech. It’s the intent to commit a (non-speech) crime that makes the speech unprotected.

So section 33.021, as it currently stands, forbids protected speech as well as unprotected speech.

The law will change as of September first, to correct this problem.1

Here’s what Joan Huffman, the sponsor of Senate Bill 344, wrote in her Statement of Intent:

The current statute is overbroad. Though the statute was enacted to impose sanctions upon those who engage in Internet conversations with minors with an intent for physical contact to take place, the statute’s sexually explicit communication provision contains no requirement that an actor ever possess the intent to meet the child.

Like Section 33.021(b), the current Section 33.021(c) contains no requirement that an actor ever possess the intent to meet the child. It appears to, but the requirement that subsection (c) gives, subsection (d) takes away:

(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through 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: …

(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.

“The actor did not intend for the meeting to occur” would, if not for (d)(2), be an inferential-rebuttal defense: it negates the “intent that the minor will engage…” element of the offense. If “the actor did not intend for the meeting to occur” is not a defense, then “intent that the minor will engage…” is not an element (because inferential rebuttal of an element is always a defense).

Likewise, “The actor was engaged in a fantasy at the time of commission of the offense” would inferentially rebut intent; if “fantasy” is not a defense then “intent” is not an element.

So what have the courts said about this argument? There are four cases:

In Ex Parte Lo, the Court of Criminal Appeals addressed 33.021(c) in dicta:

Section 33.021 of the Texas Penal Code is titled “Online Solicitation of a Minor.” It includes subsection (c) — a provision that prohibits and punishes an actor who uses electronic communications to “solicit” a minor, “to meet another person, including the actor, with the intent that the minor will engage in” certain sexual behavior.[20] Such solicitation statutes exist in virtually all states and have been routinely upheld as constitutional because “offers to engage in illegal transactions [such as sexual assault of a minor] are categorically excluded from First Amendment protection.”[21] Thus, it is the conduct of requesting a minor to engage in illegal sexual acts that is the gravamen of the offense. The First Court of Appeals previously upheld the constitutionality of the Texas online-solicitation-of-minors statute.[22] That specific provision is not at issue in this case, but it provides an excellent contrast to the provision that is at issue.

Subsection (c) was not at issue in Lo; to my eternal embarrassment I hadn’t yet looked closely at the interplay of (c) with (d) and (a), so I held out (c) as an example to the Court of Criminal Appeals of a constitutional statute, which resulted in this bit of dicta. Fortunately, though, dicta are not binding.

Footnote 22 of Lo links to Maloney v. State, the First Court of Appeals’ 2009 case upholding 33.021(c) in the face of overbreadth and vagueness challenges. Maloney, a published opinion, is the major obstacle to relief. Justice Higley wrote the opinion in Maloney, and made the same mistake that that intermediate court later made in Lo: “applying an incorrect standard of review.” That is, a content-based restriction on speech is presumptively invalid, and the First Court in Maloney treated 33.021(c) as presumptively valid. When the burden shifts to the State, everything changes.

At the end of April I had oral argument in Ex Parte Wheeler, in the First Court of Appeals. The panel to which I argued included Justice Jennings (who wrote the erroneous opinion in Ex Parte Lo) and Justice Higley (whose opinion in Maloney v. State the First Court will have to overrule to invalidate the statute). We’re waiting for an opinion on that case, which will — thanks to the court hearing oral argument — at least apply the correct standard of review. If the court reaches the correct result, the Court of Criminal Appeals will most likely grant discretionary review; if the court applies the correct standard but reaches the wrong result, I will petition for discretionary review, and hope the Court of Criminal Appeals is interested.

So Lo‘s 33.021(c) language is dicta and is not binding. Maloney‘s 33.021(c) language is published and binding on courts within the First Court of Appeals’ geographic jurisdiction, but Maloney applied the wrong standard of review and will be revisiting 33.021(c) in light of Lo.

There are two other cases that the State relies on in support of the remnants of Section 33.021. First, there is the published San Antonio opinion in Ex Parte Zavala. In Zavala the defendant argued that the statute was vague, but not that it was overbroad. In finding that the statute, with conflicting subsections (c) and (d), was not vague, the San Antonio court made this baffling statement:

The crime of soliciting a minor under section 33.021(c) is committed, and is completed, at the time of the request, i.e., the solicitation. … 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 … 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.

Zavala didn’t answer the overbreadth question; it’s a published opinion, but it is binding only on courts within the geographic jurisdiction of the San Antonio Court of Appeals.

The case that did answer the overbreadth question is Victorick, out of the Beaumont Court of Appeals. In Victorick the Court of Appeals, like the First Court in Lo and Maloney, applied the wrong test:

Victorick makes a facial challenge to the statute and he must therefore prove the statute is unconstitutional in every application, and that it could never be constitutionally applied to any defendant under any set of facts or circumstances.

This is not the law. When the statute is a content-based restriction on speech, the burden is on the State to show that the statute is constitutional, and the State must prove that the statute meets the very high standard of strict scrutiny.

The Beaumont court ignored this standard, writing:

On the other hand, if the statute punishes conduct rather than speech, the courts apply a “rational basis” level of review to determine if the statue has a rational relationship to a legitimate state purpose.

For this proposition the Beaumont court cited Broadrick v. Oklahoma. Neither on the cited page nor on any other does Broadrick say anything about a “rational basis” test. The Beaumont court seems to have pulled its proposition from thin air.

The Beaumont court and others (including the State in every brief they’ve filed anywhere in Texas) reads far too much into this line from Broadrick:

where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep

They read too much into it because recent Supreme Court cases2 make clear that whether speech or expressive conduct is involved the overbreadth of a statute must be real and substantial.

The Supreme Court does not treat expressive conduct differently than speech, and speech does not become unprotected merely because you call it conduct. But the State’s defense of Section 33.021(c) hinges on this:

A conduct based restriction is presumed constitutional and requires a rational basis standard of review.

For this proposition the State cites Victorick, which in turn cites Broadrick, which doesn’t say that.

In any case, Victorick is an unpublished opinion, and is not binding authority anywhere.

To sum up: Lodicta, not binding; Zavala — vagueness only, binding only in San Antonio area; Maloney — under attack in Wheeler, binding only in Houston appellate district; Victorick — goofy, unpublished, not binding.

Next I’ll talk, in light of this roadmap, about the litigation this week in Conroe that has brought Judge Kelly Case unfair and unethical criticism from Phil Grant and the Montgomery County District Attorney’s Office.

Then I’ll talk about why Phil Grant’s criticism was unethical, and what it shows about his fitness for office.

  1. The new law comes close to being right; it may be close enough to survive an as-written challenge, but I can envision as-applied challenges. 

  2. Such as Ferber, in 1982, but there’s no reason the State should know about that. 

2015.67: Texas Legislature Outlaws Sex

Mark's Blog: Defending People - Sat, 07/18/2015 - 11:51

From Texas Penal Code Section 43.021, effective September 1:

(a) A person commits an offense if, in return for receipt of a fee, the person knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct; or
(2) solicits another in a public place to engage with the actor in sexual conduct for hire.
(b) A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct; or
(2) solicits another in a public place to engage with the actor in sexual conduct for hire.
(b-1) An offense is established under Subsection (a) regardless of whether the actor is offered or actually receives the fee. An offense is established under Subsection (b) regardless of whether the actor or another person on behalf of the actor offers or actually pays the fee.

So if you engage in sexual conduct in return for receipt of a fee, you commit a crime regardless of whether you received or even were offered a fee.

We might guess what the Texas Legislature meant to do here:

An offense is established under Subsection (a) whether the actor is offered or actually receives the fee. An offense is established under Subsection (b) whether the actor or another person on behalf of the actor offers or actually pays the fee.

Unfortunately, elections select for neither writing ability nor intelligence, so we wind up with grammatical abominations such as this (thanks again, Joan Huffman!).


2015.66: The Unlawful Sweetcakes Order

Mark's Blog: Defending People - Sun, 07/12/2015 - 20:28

You’ve probably heard about the bakers in Oregon penalized $135k for refusing to bake a wedding cake for a lesbian couple. You probably haven’t read the order. I have so that you won’t have to.

(It’s long—3,000-plus words—so tl;dr: The facts are fascinating, but if you must, jump over the facts to the conclusion.)

You may have heard that the bakers were also ordered not to talk about the case (true) or that they were fined for doxxing the couple (false).1

The Kleins violated Oregon Revised Statute 659A.406; this is pretty clear: acting “on behalf of a place of public accommodation” they “denied full and equal accomodations” because of the Bowman-Cryers’ sexual orientation when they refused to bake a wedding cake for them. The Kleins do not appear to have disputed that they (actually, he, but she was held jointly and severally liable) violated 403; the issue is whether their right to exercise their religion trumps the statute.2

The Kleins were also found liable for violating Oregon Revised Statute 659A.409: publishing a communication to the effect that services would be withheld on account of sexual orientation. This finding is on shakier ground: their strongest indication that they would continue withholding services on account of sexual orientation was this note on their door:

This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart. [heart symbol]

If 409 is not facially unconstitutional, it is unconstitutional as applied; by finding that statements like that violate 409 and enjoining further violations of 409 the Commissioner of the Oregon Bureau of Labor and Industries, Brad Avakian, enjoined the Kleins from making statements like “the fight is not over.” (See also Popehat on the subject.)

But I want to talk about the damages in this case. The Commissioner could not order a fine or penalty. In fact, he gertrudes:

In [this] order, the forum considers the extent of Complainants’ emotional suffering and the cause of that suffering; and the appropriate amount of damages. Any damages awarded do not constitute a fine or civil penalty, which the Commissioner has no authority to impose in a case such as this. Instead, any damages fairly compensate RBC and LBC for the harm they suffered and which was proven at hearing. This is an important distinction as this order does not punish respondents for their illegal conduct but, rather makes whole those subjected to the harm their conduct caused.

So $135,000 is, in his opinion, fair compensation to RBC and LBC for the emotional suffering caused by Aaron Klein’s refusal to bake them a wedding cake.


This is Commissioner Avakian sending a message—a message that, as he notes, he has no authority to send—to people who would politely decline to participate in gay marriages. To justify the huge sum, he goes at length into the Bowman-Cryers’ mental suffering, most of which has only a tenuous relationship to the Kleins’ conduct.

When RBC asked AK to bake her a cake, AK “stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of AK’s and MK’s religious convictions.” Not exactly the stuff of nightmares.

RBC began crying. She felt that she had humiliated her mother, CM (who was with her) and was anxious about whether CM was ashamed of her. (CM had come to terms with RBC’s homosexuality recently—she “had believed that being a homosexual was wrong until only a few years earlier” than the cake incident.) CM walked RBC out of the store; RBC “became hysterical and kept telling CM ‘I’m sorry’ because she felt that she had humiliated CM.”

“In the car, CM hugged RBC and assured her” that RBC had not humiliated her. Just kidding. CM assured RBC that “they would find someone to make a wedding cake.”3

CM drove a short distance, then returned to Sweetcakes to talk to AK alone, leaving RBC in the car “bawling.” CM told AK that she used to think like him, “but her ‘truth had changed’ as a result of having ‘two gay children.’ AK quoted Leviticus 18:22 to CM, saying ‘You shall not lie with a male as one lies with a female; it is an abomination.'” Which would be a pretty shitty thing to say to the mother of two gay children, unless said mother had subscribed to the same philosophy herself until recently.

So that’s the end of the matter, right? RBC, already bawling in the car, doesn’t need Leviticus quoted at her; she needs a mother’s love. It would have been a crappy cake anyway. I mean, how could a heterosexual pastry chef possibly be any good?

Oh, no. Because, apparently addicted to drama, CM returns to the car, where her child has been bawling while CM discusses theology with AK, and tells RBC “that AK had told her that ‘her children were an abomination unto God.'” Since she had raised RBC as a Southern Baptist, her telling RBC that AK thought she was an abomination (a message that RBC had surely gotten from church and family, including CM, for most of her life) “made her feel as if God made a mistake when he made her, that she wasn’t supposed to be, and that she wasn’t supposed to love or be loved, have a family, or go to heaven.” In other words, all of the feelings that had made her flee Texas (whence she and her brother had moved so that they “could be more accepted in the community”) for the Pacific Northwest.

CM drove RBC, still crying, home, where LBC asked what had happened, and Drama Mama CM related to LBC what AK had told RBC and what AK had told CM—”your children are an abomination.” Raised Catholic, LBC recognized the Leviticus quote, and was “shocked.”4 LBC took AK’s words to mean “‘this is a creature not created by God, not created with a soul; they are unworthy of holy love; they are not worthy of life.’ She immediately thought that this never would have happened if she had not asked RBC to marry her and felt shame because of it. She also worried that this might negatively impact CM’s acceptance of RBC’s sexual orientation.”

LBC tried to soothe RBC. RBC pushed her away. “LBC lost her temper and started yelling that she ‘could not believe this had happened’ and that she could ‘fix’ things if RBC would just let her.”5

One of LBC and RBC’s two foster daughters was “extremely agitated from events at school that day.” LBC could not calm her, and RBC was unavailable (presumably because she “continued crying and spend much of that evening in bed”). LBC did not know how to handle the situation. That night, she was “very upset, cried a lot, and was hurt and angry.”

CM called Lauren at the wedding venue and told her that Sweetcakes, whom Lauren had recommended, had refused them cake service. She also posted a review on Sweetcakes’s Facebook wedding page and on another wedding website recommending that gay couples avoid Sweetcakes’s “because they discriminate against gay people.”

Lauren emailed RBC and LBC wanting the details. That evening (same evening she was unavailable to console her young daughter) RBC emailed Lauren back: “This is twice in this wedding process that we have faced this kind of bigotry”; this is an interesting detail unexplained in Avakian’s order.

LBC, the partner who got the story from CM, filled out an online complaint form with the Oregon DOJ. She stretched the truth ((In his order, Avakian found that LBC “had a strong tendency to exaggerate and over-dramatize events…Her testimony was inconsistent in several respects with more credible evidence.” In short, she was not a truthful witness.)) a bit: “Today…we went for our cake tasting…. We were then informed that our money was not equal, my fiancé reduced to tears.”

RBC’s brother AC got home and had a 30-minute conversation with LBC and RBC about what happened.

All of that happened on the first day, January 17, 2013.

The next day, RBC “felt depressed and questioned whether there was something inherently wrong with the sexual orientation she was born with and if she and LBC deserved to be married like a heterosexual couple.”

The church she came up in would say that she and LBC did not deserve to be married; her mother would, until recently, have agreed; but these thoughts became Aaron Klein’s fault when he refused to sell her a cake.6 RBC spent most of the day in her room, trying to sleep.

The days following were rough. RBC had difficulty controlling her emotions and cried a lot; LBC and RBC argued because RBC couldn’t control her emotions. “They had not argued … since moving to Oregon.”

RBC became more distant in her family relationships. She and her brother AC were not as close “for a little bit.” She questioned whether she could be a good mother because of her difficulty controlling her emotions.7 She was still “very sad and stressed” a week later.

LBC felt “extreme anger, outrage embarrassment, exhaustion, frustration, intense sorrow, and shame as a reaction to AK’s refusal to provide a cake. She felt sorrow because she couldn’t console E, she could not protect RBC, and because RBC was no longer sure she wanted to be married.… she was not sure she could protect RBC if any similar incidents occurred.”8

Drama-queen CM took over responsibility for contacting the wedding vendors. She found a gay-friendly bakery (amazing!) and made an appointment. CM did most of the talking until they got to the design of the cake; the bakery charged $250 for the cake (which AK would have charged $600 for).

The Oregon DOJ sent a copy of the complaint to AK; AK posted a copy on his website. He had only seventeen friends (though the page was apparently public), and he took down the posting the same day. Meanwhile, one of LBC’s friends9 emailed her to tell her to look at the posting. LBC did, and called the couple’s lawyer.10

On February 1, LBC found out that AK’s refusal to make their wedding cake had made the news. She may have found out because RBC got a call from a talk radio host and called LBC.

The couple became afraid that their foster children would be taken away.11 LBC’s headaches increased; she felt intimidated and became fearful. Their lawyer sent out a press release requesting privacy.

There was a protest outside the bakery on February 9th; RBC and LBC both made comments on the Facebook page organizing the boycott “in which they indirectly identified themselves as the person who sought the wedding cake and thanked people for their support.”

On February 12, 2013, the Oregon Department of Justice emailed a copy of the complaint to the media. The findings of fact do not mention whether DOJ redacted the complainants’ names and addresses first—a fact that Avakian surely would have mentioned had it been true.

After the DOJ publicized their complaint, LBC had a confrontation with “an aunt who had physically and emotionally abused her as a child and also owned all of the family property”: “the aunt insisted through social media that LBC drop the complaint. She also called LBC and told her she was not welcome on family property and she would shoot LBC ‘in the face’ if LBC ever set foot on the family’s property in Ireland or the United States.” LBC was devastated “as it meant she could not visit her mother or grandmother, both of whom lived on family property.12

Meanwhile, “RBC’s sister, who believed that homosexuals should not be allowed to get married, wrote a Facebook message to teh Kleins to tell them that she supported them. This was a ‘crushing blow’ to RBC, and it hurt her and made her very angry at her sister.”

From February 1, 2013, “many people have made ‘hate-filled’ comments through social media and in the comments sections of various websites that were supportive of Respondents and critical of or threatening to Complainants. These comments and the media attention caused RBC stress, anger, pain, frustration, suffering, torture, shame, humiliation, degradation, fear that she would be harassed at home because the DOJ complaint with Complainants’ home address had been posted on Facebook, and the feeling that her reputation was being destroyed.”

“The publicity from the case and accompanying threats from third parties on social media made RBC ‘scared’ for the lives of A, E, LBC, and herself.”

I assume that Avakian included all the facts “necessary to provide context to Complainants’ claim for damages” and omitted all the facts irrelevant to that claim. For example, if he hadn’t considered, as part of their damages claim, the fact that people were shitty to them on the Internet,13 he would have omitted that fact. If someone had harassed the complainants at home he would have included that fact.

Consider how things might have been different had CM—who until recently might herself have quoted Leviticus to LBC and RBC—kept her mouth shut after talking to AK. While RBC was very upset by the denial of cake, it was CM’s words to her that had her doubting her worthiness. LBC’s reaction, too,  was not triggered only by AK’s refusal to bake the cake, nor by AK telling RBC that she was an abomination (he didn’t), but also and more significantly by CM telling LBC that AK had told her, CM, that “her children” were an abomination.

What’s really going on here? CM’s recent acceptance of RBC’s sexual orientation is so tenuous, in the view of RBC’s life partner, that the baker quoting scripture is a threat to it. I hunch that, consciously or not, CM wanted LBC and RBC to feel shitty about their sexual orientation.

If someone says something shitty to you about me, and you relay it to me, you are not doing me a favor; any emotional harm I suffer as a result is on you. The burden should have been on the BOLI to show that any emotional harm was caused by the Kleins. But Commissioner Avakian made no effort to distinguish between the effect of the denial of accommodation, and the effect of CM stirring up trouble.

AK never initiated contact with the media. He did not give the complainants’ names to the media. He never told the media anything but the truth. Even if he had  done more to spread the story than post the complaint for a few hours and respond to media inquiries, it would not be appropriate to hold him responsible for the Internet’s reaction to the story: if you sue someone and people find out and say mean things about you, the defendant is not liable for your hurt feelings. Yet Avakian did not try to distinguish between the effect on the complainants of the denial of accommodation and the effect on them of filing a complaint with the state.

We take our victims as we find them, and someone breaking the law by refusing accomodation based on a forbidden distinction assumes the risk that the potential customer is on the edge of breakdown already because of incompetent parenting and a repressive upbringing. But he doesn’t and shouldn’t assume the risk that the potential customer’s family will make things worse.

So the Kleins are not responsible for CM telling RBC and LBC that AK told CM that her gay children were an abomination. Nor are they responsible for any of the effects of that statement.

The Kleins are not responsible for LBC’s aunt threatening to shoot her in the face.

The Kleins are not responsible for RBC’s sister not supporting her against the Kleins.

The Kleins are not responsible for the community’s response to LBC and RBC’s complaint. They are especially not responsible for others’ hateful comments.

RBC and LBC were not harassed at home. The Kleins are not responsible for RBC’s fears that they would be.

The Kleins should no more have to pay for the harm that Rachel and Laurel Bowman-Cryer suffered because of the complaint they filed than they should get credit for the free cake the Bowman-Cryers got from Charm City Cakes.

By including in his assessment these myriad effects that the Kleins had nothing to do with, Avakian shows his true and unlawful intent: to punish the Kleins and make an example of them disproportionate to the damage that they caused.

  1. Posts to that effect are based on this language in the order:

    The Agency’s theory of liability is that since Respondents brought the case to the media’s attention and kept it there by repeatedly appearing in public to make statements deriding Complainants, it  was foreseeable that this attention would negatively impact Complainants, making  Respondents liable for any resultant emotional suffering experienced by Complainants. The Agency also argues that Respondents are liable for negative third party social media directed at Complainants because it was a foreseeable consequence of the media attention.

    That is the Agency’s theory of liability, that is, one party’s argument. What did the Commissioner think of that theory?

    The Commissioner concludes that … the facts related solely to emotional harm resulting from media attention do not adequately support an award of damages.

    So the wildly popular theory that the Kleins paid damages for doxxing the Bowman-Cryers is based on a reading-comprehension failure. (See also Eugene Volokh on this subject.)

    Should the Kleins have paid damages for doxxing the Bowman-Cryers? Well, no, if for no other reason than that they didn’t dox them. They published the first page of the Bowman-Cryers’ complaint, on which the Bowman-Cryers had put their address, on their Facebook page for less than a day at a time that they had 17 “friends.” The Oregon Department of Justice sent the same information to the media two weeks later.

    Even if the Kleins had researched and published the Bowman-Cryers’ identities, liability would not be appropriate: people seeking state to have the state punish other people risk community scorn, and ought to. 

  2. My view is that it does. The Kleins should be free not to do business with the Bowman-Cryers, just as I am free not to do business with the Kleins. 

  3. Protip: when your grown child becomes hysterical about a cake, it’s not about the cake.

    This is mostly true of non-grown kids too. 

  4. Gambling in Casablanca? 

  5. We are getting a clear picture of unstable people raised in dysfunctional families. 

  6. As though by compelling us to treat strangers nicely the state could erase all our self-doubt and emotional pain. 

  7. What parent hasn’t? 

  8. It’s interesting how people fall into stereotypical gender roles. 

  9. More drama! 

  10. The complainants had lawyered up. 

  11. The “Love Joy Feminism” blog post that started the “doxxing” rumor also said that “State officials told the Bowman-Cryers that if they couldn’t protect the foster children in their home from the harassment that resulted from the Klein’s public posting of their home address, etc., they would lose the children.” This is untrue: they had been instructed, before the cake incident, that it was their responsibility to make sure that the foster children’s “information was protected.” 

  12. See the note above about Commissioner Avakian’s comments on LBC’s testimony. 

  13. Gambling in Casablanca? 

2015.65: Teach. For America.

Mark's Blog: Defending People - Sat, 07/11/2015 - 14:44

I described in An Apostrophe too Far why, despite the undeniable truth that the criminal justice system would crash if every defendant refused to plead guilty, defense lawyers cannot crash the system. Tl;dr: “Prisoner’s dilemma writ large.

I hypothesized a criminal-justice system, ours in micro, processing 100 defendants a year, with capacity for four jury trials (for Harris County, multiply by about 300). Twenty defendants of the hundred don’t plead guilty, and eighteen of those twenty get their cases dismissed. Of the last two, one defendant is convicted and one is acquitted.

Each additional defendant who doesn’t plead guilty will force the State to try or dismiss a case—his or someone else’s. There is theoretically capacity for another two jury trials, but the system doesn’t love jury trials, so a dismissal is more likely than another jury trial. For every additional defendant who refuses to plead guilty, there will likely be another dismissal.

I observed that The cases that are tried or dismissed are those in which the defendant assesses a trial as more valuable than the government does (or the government assesses a trial as essentially valueless). If we can increase defendants’ assessment of the value of trial, more defendants will refuse to plead guilty. How do we do that?

Defendants get their cues for valuing trial from society (including their cellies), from the radio receivers in their heads, and from their lawyers. We can’t do anything about the receivers in their heads; we can do a little (like writing blog posts about how many cases get dismissed) about society’s messages about the value of not pleading guilty; we can do more about the lawyers.

Every lawyer communicates to her client her own assessment of the value of pleading not guilty. She might do it explicitly, or she might do it without knowing it. The client relies on the lawyer’s assessment because it is the best information the client has. At best, the lawyer’s assessment is objective and accurate. At the worst, the lawyer’s irrational fear of trial or her unwonted self-confidence poisons her assessment.

If the lawyer’s assessment is accurate, the client can rely on it. If the lawyer has an irrational fear of trial, she’s probably going to lose,1 so the client can rely on that assessment as well. The danger for the client lies in relying on the lawyer’s inappropriately optimistic prognosis.

For purposes of this post we are not worried about that last situation—for the sake of the system it’d be better if more lawyers had pathologically rosy outlooks, because then fewer defendants would plead guilty. In fact, one way that we might get more defendants to refuse to plead guilty is to get lawyers to believe more in their ability to win more cases. If our concern is the clients’—rather than the client’s—interest then we want to encourage criminal-defense lawyers to view trial more optimistically, whether or not that optimism is merited.2

How might we encourage criminal-defense lawyers to view trial more optimistically? One way would be to pretend to teach them to be better lawyers—to teach fake CLE, and pretend to give them more tools to use to win their trials.

There may be a downside to this brilliant idea: that some lawyers might, as a result of fake education, wind up trying cases that they shouldn’t have, losing them, and losing their optimism because losing sucks. Such lawyers may might discouraged and view trial even more pessimistically than they did before. So fake education may3 be detrimental to the system in the long run.

Besides, fake CLE seems like a lot of work. If we’re going to go to the effort of putting on a show, we might as well give teach them to be better trial lawyers.

There are a very few criminal-defense lawyers who are natural-born trial lawyers. I don’t know many of them. There are a few criminal-defense lawyers who are flat-out incompetent, beyond all hope of repair. The vast majority of us can learn to be better.

Training better trial lawyers will have an exponential effect because society’s view of trial will feed back the results of our tweak to the system: the more cases are dismissed, the more defendants will refuse to plead guilty, and the more cases will be dismissed.

When we see injustice, we can ignore or accept it (and, like Anita Hill, “get as much as you can out of it”), we can make a big show of our outrage, or we can take action to fix it. “An Apostrophe Too Far” was inspired by @NormDeGuerreEsq’s tweet. Reading Norm, the outrage is palpable, but the action is wanting.

I favor action over outrage. Outrage is easier, but it never fixed anything. Norm, you want a solution to the problems of overcriminalization, of overprosecution, of overimprisonment? You and I are not the first lawyers to discover that the system is broken, and that by setting everything for trial we could bring it to its knees. But we have wargamed this time after time, and we cannot ethically take general action at the client’s potential expense.

You’ll never go on strike because you know that if you’re the only one you’ll just get hammered down. So if doing a conscientious job for each client isn’t enough for you, get out there and start teaching.

  1. It’s a self-fulfilling prophecy. 

  2. So: Go you! You can win that trial! 

  3. It amuses me that whether fake education is harmful might be subject to discussion. 

2015.64: Functional Mindfulness II

Mark's Blog: Defending People - Thu, 07/09/2015 - 15:14

In medieval Europe litigants would arm themselves and beat the hell out of each other to resolve what might now be considered legal issues. The loser was obviously in the wrong. Some litigants could select champions to do their fighting for them. I doubt that this happened often1 but it would have been in both the litigant’s and his champion’s interest for the champion to be as good at his job as possible: shattered bones aren’t healed by “I spent all the time I possibly could to prepare for this. I did the best I can. And I am a good champion.

Anyway, “trial lawyer as swordsman” is not a huge metaphorical stretch.

In Keith Johnstone’s Impro for Storytellers 2 he relates:

A Japanese swordsman wrote that if you fight someone who has no plan, you’ll be thinking, I’ll do such and such! as your severed head bounces down the temple steps!3

Johnstone is, I suspect, paraphrasing this Munenori quote:

Once the fight has started, if you get involved in thinking about what to do, you will be cut down by your opponent with the very next sword blow.

Doing without thinking is functional mindfulness (or being “in the moment” on stage, “in the zone” on the sports field, or “in the flow” in the studio). When you’re mindful, you do everything that needs to be done at the right time but nothing that doesn’t need doing, all without thinking about it, and it all goes by effortlessly. You start trial, you notice everything, you respond appropriately, and suddenly it’s time to go home for the night and you’re not ready to stop telling your client’s story yet.

Does that sound like something you might like? Being the guy with no plan, aware of everything going on around you and dealing with it unhesitatingly, instead of the guy whose head is bouncing down the steps? Flowing through trial, and winning?

Would you like to learn the One Cool Trick for doing without thinking in trial? If someone who taught mindfulness for lawyers could teach you that, how much would it be worth to you?

Well, you’re out of luck. Life is pain, princess. Anyone who tells you otherwise is selling something.

Functional mindfulness is not a means but an end. The swordsman is not deadly because he is mindful; it is his deadliness that makes him mindful. He can do without thinking because he has practiced every parry and cut a thousand times learning and ten thousand more times polishing. The swordsman doesn’t think about what he is going to do because he doesn’t have to. In battle his training and experience will take over. Like his breathing, his technique will take care of itself. In the honing of his craft, he has found mindfulness.

Have you done your ten thousand reps? If not, get to it.

If the stresses of life interfere with your doing your job—helping your clients—you might try meditation to help you deal with those. An abstract mindfulness practice is good for making everything else less stressful so that you can focus on the thing of paramount importance. Defending people will be stressful. Defending people should be stressful. Your client’s future is at stake, and you will make mistakes. “I did the best I can. I am a good lawyer.” is not an appropriate response to the mistakes that you made that might have harmed your client.

If you want to be a better lawyer, do your ten thousand reps, and beat yourself up about every loss or almost-loss. Once you’ve done your ten thousand reps and have technique to burn, you’ve probably found functional mindfulness on your own.

  1. Most lawyers are exceedingly trial-averse; how much more trial-averse would litigants and their representatives be if losing meant disfigurement or death? 

  2. Swordsmanship, trial, improv: it’s all the same thing. 

  3. Then Johnstone adds, “Well, he didn’t put it exactly like that.”  

2015.63: Functional Mindfulness for Trial Lawyers I

Mark's Blog: Defending People - Thu, 07/09/2015 - 10:37

This is totally adorable:

Jim, a litigator with a busy practice, spends 20 minutes each morning practicing something called mindfulness meditation.

Meditation is great, but meditation is to mindfulness as “litigators” are to trial lawyers.

I’ve written about mindfulness before; the topic is getting some attention now. Scott Greenfield sees two threads of discussion: a) stress release for lawyers (which should be uncontroversial; and b) “put[ting] personal happiness ahead of … responsibilities, … claim[ing] under the guise of mindfulness that stress is an excuse to fail to do your job, to fail to fulfill your responsibility to your client.” Scott picks this quote as an exemplar:

Practice cognitive restructuring. Recognize that your thoughts are not facts. Let’s imagine you’re at a hearing and the judge says, “Well, what about the decision in Smith vs. Jones? Why shouldn’t that apply in this case?” Assuming you have no idea what the judge is talking about, your mind might think, “I didn’t prepare enough. I’m a bad lawyer.” You can use cognitive restructuring and challenge your thoughts by saying, “I spent all the time I possibly could to prepare for this hearing. I did the best I can. And I am a good lawyer.”

While you probably guessed, “Stuart Smalley,” it‘s by Jeena Cho, who “offers training programs on using mindfulness and meditation to reduce stress while increasing focus and productivity.” But it isn’t couched as mindfulness advice, so it might not be the best example for Scott to choose.

(If it is intended as mindfulness advice, it’s shitty mindfulness advice. The mindful lawyer in that situation isn’t going to be thinking about whether she’s a bad lawyer or a good lawyer. She’s going to be lawyering, and saving judgment for the postmortem, when she will, if she is worth her salt, accept that she screwed up and resolve not to do so again, even though the path to that acceptance and resolve is through regret and self-doubt. Our mistakes that hurt our clients should hurt us too.)

There is nothing mystical or magical about mindfulness. It’s just an altered mental state, “altered” not because it’s unnatural, but because mostly we spend our lives outside it, judging ourselves or thinking about what happened before or what happens next. Before we called in mindfulness we called it “the zone,” or “the moment,” or “the flow,” as in, “I was in….” It’s a focus on the job at hand, and only that.

Meditation is easy. When you meditate, there is no job at hand, except to breathe. You get into the zone, focusing only on your breathing and then—since your breathing will, left alone, take care of itself—on nothing. Meditation can teach you what mindfulness feels like.

The trick is getting into that focused state, and staying there, when there is a difficult, stressful, and frightening job to be done. Being mindful while you are sitting on a cushion in your living room focusing on your breathing is a whole nother thing than being mindful when your client is facing life in a cage, a cop is making shit up on the stand, the judge is threatening you with contempt, and your second chair just passed you a note saying that your key witness decided not to honor her subpoena.

Complete focus on the job at hand in that situation is functional mindfulness. It’s a third way, which Scott doesn’t acknowledge, probably because the hucksters of mindfulness for lawyers are not selling it.

Easy solutions sell. Stress relief sells. Affirmation sells. Functional mindfulness doesn’t sell, and I’m going to show you why.

2015.62: An Apostrophe That Means Everything

Mark's Blog: Defending People - Wed, 07/08/2015 - 10:53

Public defender “Norm DeGuerre” asks:

Bringing the system to its knees is in you clients’ best interest. Why aren’t we doing it? @nytimes http://t.co/S0i8NG1lP6

— Norm DeGuerre (@NormDeGuerreEsq) July 7, 2015

The answer is simple: because we do not serve our clients’ best interest. We serve our client’s best interest. And what is in the clients’ best interest has nothing to do with what is in the client’s best interest.

Put more concretely: say that there are 100 people charged with felonies, and the court system could, by keeping up a grueling pace, conduct four jury trials1. If everyone demanded a jury trial there is no way the criminal-justice system could convict everyone; 96 cases would have to be dismissed. But the system could convict four people.

We’ve got 100 people facing charges. Divide them roughly, for the purpose of illustration, into five tranches. 20 have a 90% chance of being convicted, 20 have a 70% chance of being convicted at trial, 20 have a 50% chance of being convicted at trial, 20 have a 30% chance of being convicted at trial, and 20 have a 10% chance of being convicted at trial.

The government offers each defendant a plea bargain with a sentence discounted according to the government’s view of the defendant’s chances of winning at trial: the guy who has an 90% chance of getting 20 years and a 10% chance of walking gets a eighteen-year offer. If a defendant’s assessment of the value of a trial to him2 is less than or equal to the government’s, he makes a deal. The cases that are tried or dismissed are those in which the defendant assesses a trial as more valuable than the government does (or the government assesses a trial as essentially valueless).

By controlling the dockets and the plea offers the government keeps rational defendants and ethical, competent lawyers from crashing the system.

The defense wins eighteen outright (mostly dismissals, with a not guilty), the parties try two (one of which is a not guilty), and the other 81 are resolved with guilty pleas (numbers? numbers!).

But the defense could do better, right? Because the most the government could convict, if everyone insisted on a trial, is four. Well, sure, and if the defense bar could act monolithically and disregard the client’s best interest in favor of the clients’, 96 cases would be dismissed and only four poor schmucks would go down hard. But we aren’t and we can’t.

@NormDeGuerreEsq We’ve been through this before. What’s good for the “cause” comes at the expense of the individual. Can’t have that either.

— Scott Greenfield (@ScottGreenfield) July 7, 2015

It’s frustrating. I feel Norm’s pain. I wish there were something we could do about it. Something good for the cause, but not at the expense of the individual.

Ah, but there is! Stay tuned.


  1. In Harris County, multiply these numbers by about 300 

  2. Taking into account such ineffables as principle. 

2015.61: Unlawful Disclosure or Promotion of Intimate Visual Material

Mark's Blog: Defending People - Tue, 07/07/2015 - 16:54

Texas’s new revenge-porn statute, Texas Penal Code Section 21.16, is effective 9/1/2015. It’s unconstitutional (content-based restriction on speech, and no recognized exception applies), but it’s “only” a class A misdemeanor, so defendants will be less motivated to take the time and spend the money to hire me to fight it, and lawyers taking their cases will be less motivated to seek my help:

(a) In this section:
(1) “Intimate parts” means the naked genitals, pubic area, anus, buttocks, or female nipple of a person.
(2) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.
(3) “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse.
(4) “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.
(5) “Visual material” means:
(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or
(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;
(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to the visual material; or
(B) information or material provided by a third party in response to the disclosure of the visual material.
(c) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct and the actor makes the threat to obtain a benefit:
(1) in return for not making the disclosure; or
(2) in connection with the threatened disclosure.
(d) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for publication that is owned or operated by the person.
(e) It is not a defense to prosecution under this section that the depicted person:
(1) created or consented to the creation of the visual material; or
(2) voluntarily transmitted the visual material to the actor.
(f) It is an affirmative defense to prosecution under Subsection (b) or (d) that:
(1) the disclosure or promotion is made in the course of:
(A) lawful and common practices of law enforcement or medical treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure or promotion is permitted or required by law;
(2) the disclosure or promotion consists of visual material depicting in a public or commercial setting only a person’s voluntary exposure of:
(A) the person’s intimate parts; or
(B) the person engaging in sexual conduct; or
(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.
(g) An offense under this section is a Class A misdemeanor.
(h) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.

2015.60: Another Day, Another Lawyer Ego Scam

Mark's Blog: Defending People - Tue, 07/07/2015 - 16:27

I’ll admit it: I sometimes envy guys like Steve Fairlie a bit.

Meet Steve Fairlie of North Wales, Pennsylvania. Steve is:

But it isn’t these meaningless “honors,” unrecognized by our peers and valuable only as far as they can be dishonestly sold to potential clients as meaningful, that make me envy Steve.

Rather, I envy Fairlie because, recognizing that other lawyers like him would pay to have their egos stroked, he created the National Association of Distinguished Counsel, handing out to ego-starved lawyers the honor of calling themselves “the Nations Top One Percent.” Oh, and selling merchandise: a plaque for $150, a personalized statute for $300, a personalized video for $400. I envy, just a bit, the chutzpah of taking insecure lawyers’ money for imaginary recognition so that the lawyers can deceive potential clients. Every time I see another of these scams, I think “I really ought to do that.”

Then I think, “that pond must be fished out by now.”

Then the next time another lawyer ego scam pops up I realize that I was wrong.

Is it possible that there is an unlimited market for stroking insecure lawyers’ egos?

There are organizations that recognize quality lawyering; they’ve been around for more than a few years; they don’t charge lawyers “membership dues” to advertise their meaningless honors; and they offer more benefits than just bragging rights. But they’re probably not going to honor you.

(Carl David Ceder is a “Top One Percent” lawyer, along with a bunch of Texas criminal-defense lawyers I’ve never heard of and a couple I have. Bring a First-Aid Kit!)



2015.59: Revenge Porn Statutes and Confidentiality

Mark's Blog: Defending People - Sun, 05/24/2015 - 19:26

If I were to write a penal statute that was a content-based restriction on speech, I would come prepared with an explanation of how the statute passed constitutional muster, since such restrictions are presumptively invalid.

The proponents of revenge-porn-criminalization statutes never have picked a constitutional justification for their statutes. Instead they have, in post after article after column, thrown a bunch of possible justifications at the wall, hoping that something will stick.

When I visited the topic in January, Danielle Citron had written an article on Forbes.com entitled “Debunking the First Amendment Myths Surrounding Revenge Porn Laws.” In it she threw a couple of theories against the wall: “disclosing private communications about purely private matters” and “confidentiality.”

In a lengthy post fisking Citron, I wrote “Since maybe three people will have gotten this far in this post, I will give more thought to a breach-of-confidence revenge-porn-criminalization statute and write a post on that.”

Now Citron has made another run at it, highlighting confidentiality. So I guess it’s time to write a post on that.

“Breach of confidentiality” is not a category of speech that the Supreme Court has recognized as unprotected. Citron hangs her confidentiality hat on Cohen v. Cowles Media, in which the issue was whether the First Amendment barred damages against a newspaper for a violation of its promise of confidentiality (spoiler: it did not).

Cohen is a civil case; those who would criminalize speech like to pretend that the rules applicable in civil cases also apply in criminal cases. This is untrue. Even in civil cases, the rules are different depending on whether there is money at stake, or a prior restraint. In civil cases, there are no as-written attacks on statutes, but the civil proceeding most similar to an as-written attack on a statute is an attack on a prior restraint: when the legislature passes a content-based restriction on speech, the effect is the same as that of a court issuing a prior restraint on speech, except much broader.

And as Justice Brennan wrote in his concurrence to Nebraska Press Association v. Stuart:

[T]here is effectively an absolute prohibition of prior restraints of publication of Any material otherwise covered within the meaning of the free press guarantee of the First Amendment.

While there is no absolute prohibition of content-based penal restrictions on speech, such restrictions are presumed to be invalid and subjected to strict scrutiny. Civil judgments in cases between private parties—as in Cohen v. Cowles—are not subject to such scrutiny.

Of Cohen, Citron writes, “Breaches of confidentiality have no First Amendment salience.” I would go further: breaches of confidentiality have no First Amendment relevance. Cohen is a red herring. It did not find a “breach of confidentiality” exception to the First Amendment. Rather, Cohen was decided on the unexceptional principle that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”

Citron writes:

We can contract around the First Amendment. That is why we can criminalize breaches of confidentiality related to health data (HIPAA), federal agency records (the Privacy Act of 1974), and nude images.

So what about HIPAA?  What about the Privacy Act?

42 USC § 1320 d-6 criminalizes the wrongful disclosure of individually identifiable health information. 5 USC § 552a criminalizes the prohibited disclosure of individually identifiable information by an officer or employee of an agency. It’s an interesting question whether either content-based restriction on speech passes constitutional muster; neither has been tested yet. So saying that we can criminalize breaches of confidentiality related to nude images for the same reason that we can criminalize breaches of confidentiality related to other things begs the question.

And that—Cohen, HIPAA, Privacy Act—is the full extent of Citron’s confidentiality argument. An irrelevant case and two untested statutes.

If the government wrote a penal statute of general applicability forbidding all breaches of confidentiality regardless of content, revenge porn could be punished under that statute. The statute would not be subjected to strict scrutiny under the First Amendment because it would not be content-based.

But revenge-porn statutes are by definition content-based. Citron’s proposed “criminal law [that] would apply only to publication of nude images in circumstances where the perpetrator and the victim had an implicit or explicit understanding that the image would be kept confidential” would be a content-based (“nude images”) restriction on speech, and therefore presumptively invalid.

The government has the burden of showing how a content-based restriction on speech is constitutional. To do so it must show that there is not a real and substantial set of potential unconstitutional applications of the statute—that is, applications to protected speech.

The Supreme Court has listed the narrow categories of speech that it recognizes as unprotected:

  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. Obscenity;
  3. Defamation;
  4. Speech integral to criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

“Violations of privacy” are not a category of unprotected speech.

“Intentional infliction of emotional distress” is not a category of unprotected speech.

“Breaches of confidence” is not a category of unprotected speech.

Eugene Volokh’s suggestion that nudity posted without consent constitutes obscenity is “fascinating” only because it’s a dumb idea from a smart guy. No revenge-porn criminalization statute I’ve seen includes the elements of obscenity, but if revenge porn were obscene then current obscenity statutes could be used to deal with it.

Some revenge porn might incidentally fall into a category of unprotected speech—might be obscene, might be child pornography, might be defamatory—but revenge porn qua revenge porn fits into no category of unprotected speech, and so is protected.

Citron writes, “What about the argument that statutes proscribing the unauthorized publication of nude photos require an intent to harm? The ACLU has argued that revenge porn laws should only punish intentional, malicious privacy invaders.” Citron herself has taken this position:

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.

So it’s interesting that Citron now attributes that position to the ACLU, without copping to it herself.

Shame on the ACLU, by the way, for taking that position.

2015.58: New Jersey’s Revenge-Porn Statute

Mark's Blog: Defending People - Wed, 05/20/2015 - 21:17

c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

That’s New Jersey Statute 2C:14-9(c). It’s unconstitutional as hell, it has been the law since 2004, and there are no appellate decisions interpreting it.

Have Gun, Will Travel Business Card

I’m just sayin’.

2015.57: 170 in Waco

Mark's Blog: Defending People - Wed, 05/20/2015 - 21:10

More than one hundred seventy bikers are in jail in Waco on charges arising out of the Twin Peaks melee that killed nine. According to the LA Times article, in McLennan County, “there are just 100 [lawyers on the court-appointed list] and many of them do not do the kind of felony proceedings that have stemmed from Sunday’s violence.”

Each defendant has bail (not “bond”) set at $1 million at the moment; they have a constitutional (under the Texas Constitution) right to “reasonable” bail, so as they get lawyers and those lawyers file applications for writs of habeas corpus, the bail amounts will take a nosedive. In Texas (contra Las Vegas lawyer Draskovich, quoted by the LA Times) a murder doesn’t merit a million-dollar bail. In Harris County, for example, the standard bail for murder is $30,000. A person can be held without bail for capital murder, but only if the State jumps through some procedural hoops within seven days of the arrest and proves at a hearing that the proof of the crime is “evident.” Because there are very few bonding companies that can make a million-dollar bond (none in Houston, unless the defendant puts up a million dollars of collateral), a million dollars might as well be no bail.

Every biker charged in Waco will require a separate lawyer. Conflicts of interest bar one ethical lawyer from representing two defendants unless each defendant, advised by separate conflict counsel, waives the conflict. This is not to say that there are not unethical lawyers who will represent multiple defendants, but the courts can’t very well appoint conflicted counsel. So for each defendant who remains in jail (and is presumptively indigent), the courts will likely need a lawyer. I would guess that there are fewer than 25 court-appointed lawyers competent to handle a murder case in McLennan County, which leaves a huge gap.

Even those who bail out are likely to need court-appointed counsel: while the clubs probably have war chests, I doubt that they have the millions (a meager $50,000 per case times 170 cases equals $8.5 million) needed to defend everyone.

This is a fascinating situation. If the bikers (who see themselves as outlaws) stick together and reject cooperation with the law, they can gum up the McLennan County criminal-justice system for years to come.

That’s not likely to be allowed, though, because the trains must run on time. My early prediction: once the investigation is mostly complete, a move to federal court (charges could include ViCAR) for the defendants against whom the evidence lies heaviest, and dismissals or sweetheart pleas for the rest.

2015.56: HB2777 Is Unconstitutional

Mark's Blog: Defending People - Tue, 04/28/2015 - 10:56

House Bill 2777 (Herrero) purports to provide trial courts with broad authority to admit evidence of prior bad acts for the purpose of showing action in conformity therewith in many cases.

The statute would add an article 38.371, which would state, in pertinent part, that:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(3) the character of the defendant and acts performed in conformity with the character of the defendant.

House Bill 2777 is a derivative of the Huffman Special, article 38.37 of the Texas Code of Criminal Procedure, and like article 38.37 it violates due process.

Article 38.37 purports to allow the admission of character-conformity evidence in cases involving alleged sex offenses against children. Abel Herrero’s article 38.371 would broaden the rule to apply to offenses against family members, complainants in dating relationships, people formerly in dating relationships, complainants who are or were in dating relationships with people with whom defendants are or were in dating relationships, and people living together. This is a solution looking for a problem. What’s more, it’s unconstitutional.

Admission of evidence for the purpose of demonstrating general character propensity violates due process.

Texas Rule of Evidence 404(b)(1) prohibits admission of “Evidence of a crime, wrong, or other act … to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” House Bill 2777 purports to abrogate this rule in certain cases.

But even aside from Rule 404(b)(1), the admission of evidence to show the character of the defendant as proof of his conformity with that character violates the defendant’s right to due course of law under the Texas Constitution and due process under the United States Constitution. Admission of such evidence also violates the defendant’s right to trial by an impartial jury, his right to be informed of the nature and cause of accusations against him, his right to effective assistance of counsel, his right to be presumed innocent until proven guilty, and other rights guaranteed to him under established principles of law.

The existence of due process rights can be established by showing a settled historical usage in the United States and in England. In order to determine whether a particular right constitutes a portion of the “due process” accorded to a party, the Supreme Court of the United States has long held that historical precedent ought to be the principal guide. Murray v. Hoboken Land & Improvement Co., 59 U.S. 272, 276-7 (1856). The Court reaffirmed this principle in Hurtado v. California, 116 U.S. 516, 528 (1884), observing that if due process protections are to be any restraint whatsoever on legislative power, they must be understood to go beyond the current law of the land as embodied in statute.

A legal process, according to the Court, “must be taken to be due process of law, if it can show the sanction of settled usage in England and in this country.” Id. Much more recently, the Court has rearticulated the boundaries of due process rights as the “fundamental conceptions of justice which lie at the base of our civil and political institutions.” Dowling v. United States, 493 U.S. 342, 353 (1990). Here the Court cautions against judicial creation of new due process rights, but holds to the principle that historically-established rights should be respected.

Exclusion of Character-Propensity Evidence in History

The inadmissibility of character-propensity evidence is a long-settled rule in the common law of the United States and England. Thus, this principle bears the required ‘sanction of settled usage’ for consideration as a due process right.

In Pre-1776 England

Disfavor of character-propensity evidence is expressed in the common law of England over 300 years ago. In Hampden’s Trial (King’s Bench, 1684), Lord Chief Justice Withins discusses the exclusion of evidence of prior forgeries in a prosecution for forgery. In Harrison’s Trial (King’s Bench, 1692), Lord Chief Justice Holt famously interrupted the examination of a witness when propensity evidence was offered, exclaiming “Hold! Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.”

In Pre-Revolutionary America

Inadmissibility of propensity evidence was established early in the history of American jurisprudence. For instance, prior to the American Revolution, a Massachusetts court held that evidence of prior “bawdy” behavior at a residence was inadmissible in the defendant’s current prosecution for operating a house of ill repute. Rex v. Doaks, Quincy’s Mass. Reports 90 (Mass. Super. Ct. 1763).

In Post-Revolutionary America

The principle that character-propensity evidence must be excluded has been repeatedly recognized by U.S. courts throughout the country’s history. In Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), the defendants were charged with murder following an attempt to rob, and the prosecution introduced evidence that the defendants had committed other robberies before the one involved in the crime charged. The Court, in an opinion by the first Mr. Justice Harlan, held the evidence of other crimes inadmissible: “Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death.” 142 U.S., at 458, 12 S.Ct., at 295. The opinion reaffirmed the principle that “[h]owever depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence and only for the offense charged.” Id.

In Brinegar v. United States, 338 U.S. 160, 174 (1949), the Supreme Court ruled in a whiskey smuggling case that evidence of prior similar acts was inadmissible. In so deciding, the Court noted that the standards it was applying were “historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty, and property.” The Court went further in Michelson v. United States, 335 U.S. 469, 475 (1948), observing that “courts that follow the common law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish the probability of his guilt…. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.”

In an opinion dissenting in part and concurring in part in Spencer, Chief Justice Warren noted that our jurisprudence indicates that character propensity evidence is offensive to due process:

While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause. Evidence of prior convictions has been forbidden because it jeopardizes the presumption of innocence of the crime currently charged. A jury might punish an accused for being guilty of a previous offense, or feel that incarceration is justified because the accused is a ‘bad man,’ without regard to his guilt of the crime currently charged.

Spencer v. Texas, 385 U.S. 554, 573-575, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (Warren, C.J., dissenting in part and concurring in part) (footnotes omitted).

Several United States courts have specifically held that admitting character-propensity evidence in a criminal trial can violate the defendant’s right to due process. After detailed analysis of the historical grounding of the right at issue, the Ninth Circuit Court of Appeals ruled in McKinney v. Rees, 993 F.2d 1378, 1385 (9th Circ. 1993) that the introduction of character-propensity evidence had rendered the defendant’s trial fundamentally unfair in violation of his due process rights. The First and Fourth Circuits have also characterized the rule prohibiting character propensity evidence as constitutional in dimension. See United States v. Ferrer-Cruz, 899 F.2d 135, 143 (1st Cir. Puerto Rico 1990) (“The prohibition against the introduction of “[e]vidence of other crimes … to prove the character of a person in order to show action in conformity therewith,” [is] mandated by Fed. R. Evid. 404(b) as well as due process …”); Lovely v. United States, 169 F.2d 386, 389 (4th Cir.1948) (“The rule which thus forbids the introduction of evidence of other offenses having no reasonable tendency to prove the crime charged, except in so far as they may establish a criminal tendency on the part of the accused, is not a mere technical rule of law. It arises out of the fundamental demand for justice and fairness which lies at the basis of our jurisprudence.”). Dissenting in Estelle v. McGuire, 502 U.S. 62, 79 (1991), Justice O’Connor reasoned that if introduction of propensity evidence served to relieve the prosecution of its proper burden to prove all elements of the offense beyond a reasonable doubt, then the introduction of such evidence must violate the due process clause of the Fourteenth Amendment.

Two circuits have held that due process is implicated by the admission of other crimes evidence, for purposes other than to show conduct in conformity therewith, in the absence of a limiting instruction. See Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir.1981) (holding that it violated due process for the jury to hear “repeated references to the defendant’s criminal past without any limiting instruction to relate this evidence only to the firearm violation and to disregard it altogether in considering the murder count”); Murray v. Superintendent, Ky. State Penitentiary, 651 F.2d 451, 453 (6th Cir.1981) (noting that the Sixth Circuit has held that “[t]he logical converse of [Spencer] is that it is unfair and violative of due process if evidence of other crimes is admitted without a limiting instruction”). The clear import of these cases is that the influence of character propensity evidence on the jury is so prejudicial as to violate the constitution.

Cases Construing Statutes Permitting Character Propensity Evidence

Judicial acceptance of legislative changes to the propensity evidence rule does not mean that the principle of excluding propensity evidence has been abrogated, nor does it mean that protection of this right is no longer guaranteed by due process. At the very least, admission of such evidence is still governed by “general strictures” such as the requirement to weigh the probative value of evidence against its potential for prejudice. See United States v. Guardia, 135 F.3d 1326, 1331 (1998), affirming a trial court’s decision in a sexual assault trial to exclude testimony of four women who alleged that the defendant had sexually assaulted them in a fashion similar to the accusation.

Two states have struck down similar states, notwithstanding the judicial discretion to exclude unduly prejudicial evidence. The Supreme Court of Missouri declared a Missouri statute allowing admission of evidence of prior sexual crimes unconstitutional under the Missouri Constitution even though the statute contained a balancing clause similar to Federal Rule of Evidence 403. State v. Ellison, 239 S.W.3d 603, 607–08 (Mo. 2007). The court noted the long line of Missouri cases prohibiting admission of prior criminal acts as propensity evidence and held “[e]vidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant’s propensity to commit the crime with which he is presently charged. There are no exceptions to this rule.” Id. at 606 (citation omitted).

Likewise, the Iowa Supreme Court invalidated the admission of evidence of sexual abuse of other victims pursuant to Iowa Code section 701.11. State v. Cox, 781 N.W.2d 757 (Iowa 2010). The court concluded that evidence of the “defendant’s sexual abuse of other victims under Iowa Code section 701.11 based only on its value as general propensity evidence violates the due process clause of the Iowa Constitution.” Id. at 772. However, such evidence could “be admitted as proof for any legitimate issues for which prior bad acts are relevant and necessary, including those listed in [Iowa Rule of Evidence] 5.404(b) and developed through Iowa case law.” Id. at 768.

The language of article 38.371(b)(3) is also found in Texas Code of Criminal Procedure article 38.37. No Texas appellate court has been called upon to determine whether Article 38.37 §§2, 2-A offends due process by permitting consideration of character propensity evidence. But Texas cases assessing the constitutionality of Section 38.37, §1(b) [permitting extraneous offense evidence committed by the defendant against the child who is the victim of the alleged offense to show the state of mind and relationship of the defendant and the child] have upheld this section because such evidence has relevance beyond character propensity. In Jenkins v. State, 993 S.W.2d 133 (Tex. App.-Tyler 1999, pet. ref’d), the court of appeals held that the provision was constitutional because it permits introduction of evidence relevant to several non-character-conformity purposes, such as to show “the states of mind of the defendant and child and their relationship;” to show “how one in a position demanding care and guidance of a related person, has failed in such duty and has adopted an unnatural attitude;” to “explain the charged act—an act that would otherwise seem wholly illogical and implausible to the average juror;” and to show “that a peculiar relationship exists, but also how and why the defendant achieved dominance over the child.” Id. at 135. This position was adopted by other courts. Brantley v. State, 48 S.W.3d 318, 329–30 (Tex.App.-Waco, 2001, pet.ref’d); Martin v. State, 176 S.W.3d 887, 900 (Tex.App.-Fort Worth 2005, no pet.).

One Texas court has implicitly held that a statute permitting consideration of character propensity evidence would run afoul of due process requirements. In Bush v. State, 958 S.W.2d 503, 505 (Tex. App.-Fort Worth 1997), the court rejected the appellant’s argument that article 38.36 of the Code of Criminal Procedure expands the admissibility of extraneous acts in violation of rule 404(b):

Article 38.36 merely codifies the age-old res gestae, or same transaction contextual evidence, exception and adds the catch-all phrases “relationship between the defendant and the deceased” and “state of mind of the defendant at the time of the offense.” These two phrases necessarily encompass intent, opportunity, motive, plan, scheme, identity, absence of mistake or accident and knowledge, as well as all other logical inferences which may arise from the previous dealings between the victim and the defendant. Therefore, we hold that article 38.36 does not expand rule 404(b) and, thus, does not offend notions of due process.

Id.at 505 (emphasis added).

In sum, these cases demonstrate that the prohibition of evidence of general character propensity is so deeply embedded in tradition and historical jurisprudence as to create a substantive due process right. Accordingly, evidence of extraneous conduct for the sole purpose of general character propensity must be excluded on due process grounds, and House Bill 2777, which would purport to admit such evidence, is unconstitutional.

2015.55: Texas SB344 vs. HB861

Mark's Blog: Defending People - Wed, 04/22/2015 - 14:16

Texas Senate Bill 344:

By: Huffman S.B. No. 344

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
SECTION 1. Section 33.021(a)(1), Penal Code, is amended to read as follows:
(1) “Minor” means:
(A) an individual who is [represents 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.
SECTION 2. Section 33.021, Penal Code, is amended by amending Subsections (b), (d), and (e) to read as follows:
(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 Procedure [arouse 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.
(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.
SECTION 3. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 4. This Act takes effect September 1, 2015.

Texas House Bill 861:

84R17156 JRR-F By: Dale, King of Parker, Sheffield, Burkett,
H.B. No. 861
Frullo, et al. Substitute the following for H.B. No. 861: By: Herrero
C.S.H.B. No. 861

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
SECTION 1. Sections 33.021(b), (d), and (e), Penal Code, are amended to read as follows:
(b) A person who is 17 years of age or older commits an offense if, with the intent to induce a minor to engage in conduct with the actor or another person that would constitute an offense under Section 21.11, 22.011, 22.021, 43.25, or 43.26 [arouse 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.
(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.
SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 3. This Act takes effect September 1, 2015.

Both bills restore the “fantasy” defense, which is the other half of the amendment required to bring Section 33.021(b) and (c) in compliance with the First Amendment.

Huffman’s Senate Bill 344 is plainly superior, on First Amendment grounds, to Dale’s House Bill 861 because Huffman’s bill eliminates the prosecution of a defendant who is talking with an adult and knows it despite the adult’s “representing” himself as a child. Dale’s bill leaves the door open to such prosecutions.

Huffman’s bill is also superior on general legal grounds. Dale’s description of the required intent under subsection (b) is “to induce a minor to engage in conduct with the actor or another person that would constitute an offense….” This language comes from Section 15.031 of the Texas Penal Code, the general solicitation-of-a-minor statute, and it will not serve the intended purpose. When a defendant induces a child to have sex with him, the child’s conduct does not constitute an offense. It is the defendant’s conduct that constitutes an offense. We know what the legislature is trying to say; Huffman’s bill says it, but Dale’s does not.

Both bills limit the subsection (e) defense to violations of subsection (c) (actual solicitation). I think the reasoning may be that a defendant who is married to a child does not intend to commit a crime if he solicits her for sex. But age proximity and marriage are affirmative defenses under the predicate statutes; does the existence of an affirmative defense mean that the conduct would not be an offense?1 We don’t want to prosecute defendants for talking dirty to their spouses or their age-appropriate girlfriends, so why not simplify by applying the defense to (b) and (c)?

  1. Further, the 18-year-old boyfriend who solicits his three-years-young girlfriend for sex may still be violating Texas Penal Code Section 43.25, which has an affirmative defense only for a two-year age difference 

2015.54: Statute of Limitations Law Geekery

Mark's Blog: Defending People - Sun, 04/19/2015 - 20:57

In 2010 D is charged with communicating through a commercial online service in a sexually explicit manner with a minor under Section 33.021(b) of the Texas Penal Code.

He is convicted in 2011 and put on probation, which he complies with until 2014, when the Texas Court of Criminal Appeals rules that Section 33.021(b) is unconstitutional.

In 2015  D files an application for writ of habeas corpus in the trial court. His case is reopened and the charge is dismissed.

The State charges D under Section 33.021(c) of the Texas Penal Code with soliciting the same minor to meet him, through a commercial online service, with the intent that the minor would engage in sexual contact with him.

The statute of limitations for online solicitation of a minor is the catch-all three years under Texas Code of Criminal Procedure article 12.01(7).1 So at first blush it would appear that the 33.021(c) prosecution is barred by limitations.2

The statute of limitations is tolled during the pendency of an indictment, information, or complaint.3

But there is no charge pending while the defendant is on probation.4

But “during the pendency” begins with the day the charge is filed in a court of competent jurisdiction, and ends with the day the accusation is, by an order of a trial court having jurisdiction, determined to be invalid for any reason.5

But if there was a charge pending, it was not a 33.021(c) charge.6

But the Court of Criminal Appeals has held (in Hernandez, which was the appeal of a drug case) “that the first indictment tolls the statute of limitations if both indictments allege the same conduct, same act, or same transaction, even if the offenses charged do not fall within the same statute.”7

So the question comes down to whether both indictments allege the same conduct, same act, or same transaction. That’s a really interesting question to this law geek.

In Hernandez the defendant was charged in both indictments with the possession of the same drugs; the first indictment charged it as amphetamine, and the second charged the same substance as methamphetamine.

Since you can communicate explicitly without soliciting a meeting, and you can solicit a meeting without communicating explicitly, they could be separate acts. But since you could solicit a meeting in a sexually explicit way, they could be the same act.

Absent some indication of what specific message D was prosecuted for in 2010, whether the statute of limitations is tolled might depend on whether any soliciting communication was also sexually explicit.

If D’s lawyer had filed a motion to quash the 33.021(b) indictment in 2010 because it didn’t give him sufficient notice “to plead the judgment that may be given upon it in bar of any prosecution for the same offense”—Texas Code of Criminal Procedure article 21.04—the State might have had to plead the specific communication that was explicit, so that now the State could only prosecute him under 33.021(c) for that communication.

But who among us thought to file such motions to quash? I didn’t, and I doubt that anyone else did. So D is left in 2015 fighting about whether the State is prosecuting him now for the same conduct, same act, or same transaction. There may be a lesson in there.

  1. You could argue, depending on the conduct that was solicited, that there is no limitation under article 12.03(c); I don’t think that’s right 

  2. Hooray! 

  3. Boo0! 

  4. Hooray! 

  5. Booo! 

  6. Hooray! 

  7. Booo! 

2015.53: Get a Grip, Gaas

Mark's Blog: Defending People - Wed, 04/15/2015 - 21:46

That’s a cop allowing a girl to get out of a minor-in-possession ticket by winning a game of rock-paper-scissors.

Here‘s Burleson County Precinct 2 Constable Dennis Gaas’s take:

Gaas says he found out about the incident last night. This morning he told all three officers that they will not be allowed to work security at future Chilfests. He also notified the two departments the officers work for so they can decide whether further action is warranted. Gaas declined to say what departments the three officers work for.

Giving the underage drinker a break is not what got the officers in trouble. Gaas says doing so is an officer’s discretion. But when they “play games to get someone out of a ticket, I have a problem with that,” Gaas said.

Gaas said he hired officers from nearly 60 agencies to work security. They issued 113 citations. According to the Burleson County Sheriff’s Office, 44 people were arrested at Chilifest.

Gaas was upset by the officers’ actions saying, “it gives all of us a bad name.”

No, it doesn’t. Humorless twits like you give “all of you” a bad name. The cop cut a girl a break; he should have. He gave her a few seconds of stress; that’s okay too. Texas Monthly’s take is smart, but I think they’re missing what’s really going on here. They’re missing it because the girl one the first round.

I think that Gaas and Texas Monthly’s Dan Solomon assume that the officer would have written the girl a ticket had she thrown paper the first time. I’m not convinced. Rock-paper-scissors can be played best-of-n, where n is any positive odd number.

I hunch that if the girl had lost the first round the officer would have offered best-of-three, and kept throwing scissors.

If the girl hadn’t caught on to the game by best-of-five, then, well, she was intoxicated and probably should have been ticketed.

2015.52: Hot Texas First Amendment Action

Mark's Blog: Defending People - Wed, 04/15/2015 - 21:02

Ex Parte J.I.L. (that’s the real name; it’s a juvenile case) is pending in the Fifth Court of Appeals in Dallas. Cocounsel Josh Andor of McKinney and I are challenging the constitutionality of the Online Impersonation statute, Texas Penal Code Section 33.07. I had to go to Collin County to make this challenge because the Harris County DA’s Office had been dismissing online-impersonation cases out from under me when I filed writs.

But recently in the 209th District Court here in Harris County the State filed a response to my writ challenging Section 33.07. So maybe the Online Impersonation statute isn’t dead in Harris County. Amusingly but unfortunately the State included this in its response:

He’s right: Section 33.07 is similar to Section 33.021(b). But that “pet. granted” bit in the cite means that something else could happen in the case, and what happened in that case is that the Court of Criminal Appeals reversed the court of appeals on that very issue and held Section 33.021(b) unconstitutional. You might have heard about it. It made the news.

But the state’s strategy won’t be set by the prosecutor who thinks that Lo upheld Section 33.021(b). So if Judge McSpadden upholds the constitutionality of Section 33.07 we’ll appeal and the State will dismiss rather than get an adverse ruling on appeal; and if Judge McSpadden grants habeas relief and holds the statute unconstitutional, the State will not appeal.1

That’s okay, because I have J.I.L. in Dallas, but J.I.L. also includes interesting procedural issues about the appeal of the denial of habeas relief on behalf of a juvenile. Apparently there aren’t a lot of applications for writs of habeas corpus filed on behalf of juveniles and appealed. So that case may be resolved on issues other than the unconstitutionality of the statute. If so, I may need other vehicles for that particular challenge. (So if you know a lawyer defending an online impersonation case anywhere in Texas, have her call me.)

Fortunately, the Texas Legislature seems to have no intention of amending Section 33.07, so we have plenty of time to kill that statute. The same can’t be said of Section 33.021; amendments to that statute that are making their way through the legislature would do away with the major points of unconstitutionality. That’s a good thing, but there have been hundreds of people convicted under the current, unconstitutional, Section 33.021(c). If nobody makes a pretrial challenge to the statute as it is now and succeeds, all of those people are stuck with felony convictions and sex-offender registration for violating a void statute.

I am doing my part to challenge 33.021(c) before it changes. I have a pretrial writ pending in Abilene (where the appeal will go to the Eastland Court of Appeals) and Conroe (Beaumont Court of Appeals), and I have appeals pending in the First Court of Appeals and the Beaumont Court of Appeals.

The Beaumont court had upheld Section 33.021(c) in the face of a constitutional challenge in Victorick v. State, but that opinion is unpublished (and so of no precedential value), and it doesn’t appear that the argument for why Section 33.021(c) is unconstitutional was clearly made or understood.

The First Court of Appeals had also upheld Section 33.021(c) in the face of a constitutional challenge in the published opinion of Maloney v. State. Justice Higley wrote that opinion, holding that:

the incidence of the State seeking to prosecute two consenting adults engaging in online role playing or “fantasy” would likely be exceedingly low. See Ferber, 458 U.S. at 773, 102 S.Ct. at 3363; Smith, 806 N.E.2d at 1265. Considering the overly broad scope and purpose of section 33.021, we have been given no basis to believe that prosecutions of consenting adults engaging in role-playing would amount to any more than a “tiny fraction” of all prosecutions under the statute.

How often the State would seek to prosecute people engaging in constitutionally protected age play wasn’t quite the right question to ask, for:

The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

U.S. v. Stevens.

The right question would, rather, have been how often the State could seek to prosecute people engaged in age play. The relevant inquiry is whether constitutionally protected age play is substantial compared to the legitimate sweep of the statute.

The answer to that inquiry is “yes.” While the First Court in Maloney arguably didn’t have any basis to believe that prosecutions of consenting adults engaged in age play would be more than a tiny fraction of prosecutions,2 the First Court in W. has reason—an uncontroverted affidavit from an age play expert—to believe that age play is substantial. And while it might not be substantial compared to vanilla sex, age play is, I will bet, more prevalent than sexual abuse of children.

The First Court in Lo cited Maloney approvingly, and was reversed by the Court of Criminal Appeals. Justice Jennings wrote the First Court’s opinion in Lo. My panel in W. is Justices Jennings, Hudson, and Higley. At the end of the day it turned out that I was right, and Justice Jennings wrong, in Lo. I contend that, because she didn’t have enough information about age play, Justice Higley was wrong in Maloney. The court has that information now.

The First Court has granted oral argument in W. It’ll be the afternoon of April 29th. I have to think that they wouldn’t bother if they weren’t open to abrogating Maloney.

Killing Section 33.021(c) will get a bunch of people out of prison and off probation, but not as many as killing Section 32.51, Fraudulent Use or Possession of Identifying Information, will. This is one that people are doing lots of prison time for. I have several pretrial writs in the pipeline, but the only case that has hit the Court of Appeals got dismissed when the State read my brief.3

Prosecutors seem to think that Section 32.51 forbids only identity theft, but it forbids “using” someone’s “identifying information” without their consent with intent to “harm” them. “Using” is undefined, so it takes its usual meaning; “identifying information” is anything that, alone or in conjunction with something else, can be used to identify someone; “harm” is anything reasonably regarded as loss, disadvantage, or injury. So if I speak (use) your name without your consent with the intent to damage your reputation, embarrass you, or offend you (any of which a jury might reasonably regard as loss, disadvantage or injury) I can be prosecuted for a felony.

What’s more, if I know (possess) your name without your consent with the intent to damage your reputation, embarrass you, or offend you, I can be prosecuted for a felony.

What’s more, if I possess the identifying information of more than three people, I am presumed to have the intent to harm or defraud another. Remember telephone books? Possessing the white pages (possessing the identifying information of more than 50 people without their consent; intent to harm is presumed) is a first degree felony, the same level of offense as murder.

But I’m just being a paranoid First Amendment zealot when i worry about such things, right? No government official would ever dream of using such a law to attack critics, right?

  1. What does it take to get Harris County DA Devon Anderson to defend the constitutionality of a statute? 

  2. The counterargument is that the fact that the Legislature explicitly excluded a fantasy defense is itself evidence that fantasy prosecutions will be substantial. 

  3. Thanks again, Harris County. 

2015.51: Trends in Policing

Mark's Blog: Defending People - Wed, 04/15/2015 - 18:59

I was picking one of my kids up from school the other day when a guy in a clapped-out Ford Taurus drove by the crowded schoolyard honking his horn and screaming obscenities (“shitbag” was one).

Curious, I tracked the car to the City of Houston, then to the Houston Police Department, then to Senior Police Officer George Garcia of the Criminal Intelligence Division, who was using the car on city business. I guess the Houston Police Department has a new policy of drive-by shitbaggings at elementary schools.

Well done, Senior Police Officer George Garcia. Well done.

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