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In Which We Find the Game

Mark's Blog: Defending People - Wed, 10/29/2014 - 20:23

I often say that criminal-defense trial practice is about playing “what’s really going on here?” At every phase of a trial case, we are dealing with people who aren’t telling us the whole truth, because they don’t know it, don’t know its importance, don’t want to tell it, or don’t want us to know it. The facts are usually, at first glance, bad for us (else the client wouldn’t be a client), but there is always more to the story than the facts reveal at first glance. So the criminal-defense trial lawyer’s job is to figure out what’s really going on, the interesting twist, which is probably not explicitly stated, and to turn that truth to the client’s advantage.

In improv class we’re working on finding “the game of the scene,” the interesting twist, which is probably not explicitly stated and…hey, that’s “what’s really going on here?”!

On an assault case recently a prosecutor described the disputed issue like this: “she says she pulled the gun on him because he was assaulting her; he says he was defending himself because she pulled the gun; that’s the game.” I might not agree with him that that is the game, but I agree with him that there is a(t least one) game.

Without a game there is no trial.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e ( .)

In Which the News is Good

Mark's Blog: Defending People - Mon, 10/27/2014 - 08:35

Dallas’s index Ebola Zaire patient, Thomas Duncan, was at home for four days while he was symptomatic with Ebola. His family were not infected with the virus.

While Duncan infected two nurses at the hospital during his final days (when he was leaking blood from every available orifice) he didn’t infect the people who lived with him when he was very sick—sick enough to have gone to the hospital and been sent away.

One of the commenters on my last Ebola post pointed out that Ebola has a very low basic reproduction number, R0, of about two. R0 is not an inherent characteristic of a virus, but depends on the environment. The R0 for Ebola Zaire has been calculated as 2.7 in some outbreaks, but 2.0 in this one in Africa. As long as R0 is greater than one, the disease will continue spreading. If R0 were intrinsic, Ebola Zaire would continue spreading until eventually everyone got sick. Fortunately, R0 will be lower in a more developed nation than in the Third World.

Given that neither of the people whom we know Duncan to have infected appears to have infected anyone else, R0 for Ebola Zaire in Dallas in 2014 is something less than one (2/3?).

What about the scary transmission through the air? The good thing about that is that Ebola doesn’t make you cough or sneeze. So while an infected person can, contrary to the government’s assertions, transmit the virus through the air, it’s not a mode of transmission of which the virus has evolved to take advantage (contrast a cold or flu virus, which spreads by making you expel virus-laden particles at high velocity through your mouth and nose).

So I’m downgrading my concern about Ebola in the U.S. from “do something now” to “play Whac-A-Mole as cases appear.”

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e ( .)

In Which Math is Still Hard

Mark's Blog: Defending People - Sat, 10/18/2014 - 15:57

I’ve written here several times, under the category “math is hard,” about Americans’ innumeracy with regard to risk and danger. I have a theory:

  • Americans overestimate the danger (risk times harm) of things that they are willing to do something about (terrorism!), and underestimate the danger of things that they are not willing to do something about (obesity!).
  • The government, meanwhile, has an interest in overstating the danger of things that it is profitable for corporations to do something about (terrorism!) and understating the danger of things that it is unprofitable for corporations to do something about (obesity!).

There are 8,000+—about 2^13—Ebola Zaire cases; that number is doubling monthly. There are 2^33 people on earth, give or take. That’s 33 months from one case to everybody being infected, at the current rate. We’ve used up thirteen of those months; we have twenty months left. Of course the current rate of infection can’t be sustained—the virus might not spread as fast in more affluent countries with their indoor plumbing and their medical care,1 and at some point the population becomes sparse enough that the survivors aren’t hanging out with each other much anymore.

It can spread like the common cold flu, it doubles every month, and it kills 70% of the people it infects.2 How do you stop this world-changing bug?

If you don’t already have an off-the-shelf solution (and we don’t—see fn1), it seems obvious that you buy some time by slowing it down. You quarantine everyone who wants to enter the U.S. after having been in the most-infected countries in the last thirty days.3

But there’s not much money for the corporations in a quarantine, so the government plays down the danger posed by Ebola. And the Americans who are willing to do something about it (quarantine!) overestimate the danger  while the Americans who aren’t willing to do it (it wouldn’t work!) underestimate it.

The raw numbers—doubling every 20-30 days; 70% mortality—seem pretty compelling to me. Do I overestimate the danger? It’s possible, but if Ebola cases double in eleven days in a hospital in Dallas, I think it’s reasonable to be extremely concerned about what’s going to happen when it hits the Harris County Jail, and to look to the government to at least try to delay that catastrophe.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e ( .)
  1. Or it might:

    • 9/24: Duncan symptomatic.
    • 9/25: Duncan goes to hospital. Is sent home.
    • 9/28: Duncan returns to hospital via ambulance.
    • 9/30: Officials confirm that Duncan tested positive for Ebola.
    • 10/8: Duncan dies.
    • 10/11: Pham tests positive for Ebola.
    • 10/15: Vinson tests positive for Ebola.

    So the first known Ebola case was known in Dallas on September 28th. Seventeen days later, there were three known cases. That’s equivalent to doubling every ten or eleven days—in a state-of-the-art hospital in a modern city among people who knew that Duncan had Ebola, and how to avoid catching it. We should know in the next week—t+25—whether Duncan infected other people before being admitted to the hospital; we should know in three weeks whether Pham or Vinson infected anyone before testing positive. 

  2. It’s not very good at its job, which is to replicate. But it is good at killing its hosts. 

  3. This is different than the cargo-cult solution of barring flights from the most-infected countries. Airplanes don’t carry viruses, people carry viruses. 

In Which We Are Being Lied To

Mark's Blog: Defending People - Sat, 10/18/2014 - 13:37

[via The White House.]

I’ll take the last point—which may be literally true—first: “Ebola is not spread through casual contact with someone who has no symptoms of the disease.” Per the CDC, “Initial signs and symptoms are nonspecific and may include fever, chills, myalgias, and malaise. … The most common signs and symptoms reported from West Africa during the current outbreak from symptom-onset to the time the case was detected include: fever (87%), fatigue (76%), vomiting (68%), diarrhea (66%), and loss of appetite (65%).” So as long as everyone you have casual contact with does not have a fever, feel chilled, have muscle aches, have diarrhea or vomiting, or feel worn out or not hungry, you’re probably okay. But those symptoms are nonspecific, which means that people who don’t obviously have Ebola (have you ever had fever, fatigue, vomiting, diarrhea, and loss of appetite without having Ebola Zaire?) may be infectious.

“Ebola is not spread through casual contact with someone who has no symptoms of the disease” is cold comfort. Ebola Z is spread through bodily fluids “including but not limited to urine, saliva, sweat, feces, vomit, breast milk, and semen.” Ever have involuntary contact with a stranger’s saliva (cough, cough)? Sweat (don’t touch that doorknob)? Other bodily fluids (achoo)?

Sneezing and coughing bring us to the White House Lie, which I call the Droplet Deception: “Ebola is not spread through air.”

The medical consensus, it appears, is that Ebola cannot be transmitted via an airborne route. But what doctors mean by “airborne” is not what most Americans mean by “airborne.”

If you are standing three feet from me, and I’m sick with a virus, and I sneeze, and you become infected by the virus by inhaling or otherwise touching microscopic droplets from that sneeze, is the virus airborne? Most people would say “yes.”

Doctors would say, “not necessarily.” There’s an explanation here: experts distinguish between “droplets” and “an airborne route.” Ebola Z cannot, it appears, be transmitted through the latter (involving droplet nuclei that have a very high surface-area-to-mass ratio and so can remain suspended in air currents indefinitely), but can certainly be transmitted through the former—droplets travelling through the air.

When you use a word in an unusual way, knowing that your audience doesn’t understand it the same way, it’s deceptive. “Ebola Z is not spread by an airborne route” is literally true (a doctor might say) but it is nevertheless deceptive to the general public.

“Ebola Z is not spread through the air,” however, is a flat-out lie. It is not in any sense—literal, metaphorical, or other—true.

Ebola Z is spread through the air like some viruses we know well—the common cold, for example. What does the White House think the American people would do if they knew that truth?

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e ( .)

In Which My Good Deed is Punished

Mark's Blog: Defending People - Thu, 10/16/2014 - 11:49

On April 5th TSU law student Amir Tavakkoli sent me this message via my website:

Your name: Amir Tavakkoli
Your E-mail Address: [redacted]
Your Phone Number: [redacted]
The defendant’s Name: Amir Tavakkoli
The defendant’s date of birth: [redacted]
The court: Texas Court of Criminal Appeals/Appeal from 9th COA
The case number: 09-13-00082-CR
Your message to Bennett & Bennett:
Dear Mr. Bennett:

I hope this email finds you well. My name is Amir Tavakkoli and I am graduating from law school in May. You may know me from my days working at the Texas Criminal Justice Coalition. I have a request.

I filed a writ of habeas corpus last year for a 2006 misdemeanor conviction that I have which is giving me immigration issues. This is the only thing on my record. When I google my name, there is a link to your cite that takes it straight to the opinion for my writ. As a lawyer, you know the importance of reputation and the use of google by perspective employers. While I know that I must disclose my misdemeanor to employer, I do not necessarily want to let everyone know about the immigration issue and hope to put it in the past. I am requesting that you remove this case from your list. The case number is 09-13-00082-CR from the Ninth Court of Appeals and discretionary review denied by TX Court of Criminal Appeals.

Thank you for your understanding.

Here‘s the page Tavakkoli was asking that I remove. It’s on a site I created to automatically republish in HTML format the opinions of Texas’s appellate courts in criminal cases.1

As a matter of principle I won’t remove a blog post unless I got the facts objectively wrong. The opinion in question is public information and always will be. It’s available directly from the court here. There are other public records—on the Ninth Court of Appeals site, on the Montgomery County Clerk’s site, on Publicdata.com, and on the Harris County District Clerk’s website2—about Tavakkoli’s criminal history. But knowing the importance of reputation, not wanting to contribute to Tavakkoli’s issues, and being a nice guy (at least until I get poked with a stick) I changed all occurrences of Tavakkoli’s name to “A.T.”

A month later Tavakkoli emailed me again:

Hi Mr Bennett

I hope this email finds you well. Sorry for the inconvenience, however, it seems that the content is still active on your site. Below is a message I receive from google when I request to remove the URL.

Analyzing URL


The content is still live on the web.
Before Google can remove it from our search results, the site owner needs to take down or update the content.
Thank you!

Amir Tavakkoli
Research Editor, Thurgood Marshall Law Review
Vice President, Thurgood Marshall School of Law Class of 2014

I had already updated the content. I responded:

Your name is not on that page.

He replied:


May we please remove the whole link? Although the name does not show on the page, when my name is searched “Amir Tavakkoli Houston”, the link is still at the top and a quick reading of it shows enough identifying information, such as born and raised in Iran, that the reader would know it is me.

Thank you for your attention.

I wrote back:

In short, no. Your problem is with Google. Stop bugging me.

To which Tavakkoli responded:

If you were in my situation, what would you have done? I am in no way trying to bug you or disrespect you. Like you, I have other things to focus on as well, like preparing for the bar. A removal of the link from your site would solve this issue.

I have just graduated from law school and looking for a job, and you know that this information can be very hurtful.

You will not receive any more emails from me.

That was May 31st. I thought that was the last of it: I had done Amir Tavakkoli the entirely unnecessary favor of redacting his name, and his beef was with the search engines for continuing to index the site as though it contained his name.

In fact, if I google <Amir Tavakkoli Houston> the Texas Criminal Slip Opinions page doesn’t turn up on the first page of results. How do I know? Because I did so. Why did I do so? Because today this came in the mail:

“Other appropriate action,” “defamatory,” “file a frivolous suit,” “save us both time and headaches,” “exercise my other options,” all wrapped in a certified letter. Does that look like a censorious threat to you?

It did to me.

Now most people, threatened with time-wasting and headache-inducing litigation over online content that doesn’t matter much in the grand scheme of things,3 will just take the content down.

Even some law schools, faced with the threat of litigation over First Amendment freedom, will cave in.

Because the set of people who have the resources and will to resist such a threat is small, those who belong to that set have a duty to make their resistance public and vocal, to discourage others who might send censorious threats. See, e.g., Ruben Guerrero; Joseph Rakofsky.

If an asshat gets a private email correcting his censorious ways, maybe he learns. If his threats are made public, maybe others learn.

“Play nice,” Tavakkoli’s friends will say. And if he had merely, say, done a shitty job defending someone and then cooperated with the government in the writ case, I would be inclined to counsel him privately—I’ve learned that lesson. But censorious threats are different. The intent of such threats is to keep information out of the public eye. To respond to them privately is to accede to them. I mentor law students and young lawyers, but  a law student doesn’t get a special dispensation for trying to quash my speech, any more than a judge does. I had played nice, and I got threatened with a lawsuit. Playing nice again is not the appropriate response.

So I wrote most of this post.

But then I found that Tavakkoli had been endorsed for HCCLA student membership by TSU lawprof Lydia Johnson, so I talked with her, explaining the problem—a kindness warranted only by my fondness for Professor Johnson. I guess she talked with Amir, because he emailed me last night:

Dear Mr. Bennett:

I hope this email finds you well. I want to apologize if my previous correspondence appeared to be demanding or threatening. I did not have any intentions to make a threatening letter or to disrespect you. I was merely trying to protect my best interests the only way I knew how. Please excuse my actions.

I have made mistakes in the past and take full responsibility for them. I have been paying the consequences for my mistakes since the time they occurred (2006) and continue to do so to this day. I believe I should pay the penalty for my mistakes, but how long should a young man who has turned his life around with great goals and aspirations be punished? I have to live my life with the shame and embarrassment every day when my family and friends become aware of my misdemeanor in 2006 (commonly known as my criminal background.) I know that in the back of their minds, some people think of me as a criminal. And they think once a criminal, always a criminal. They do not look at the details of the case and the fact that it is a class B misdemeanor, or that it happened so long ago. Or the fact that I only pleaded guilty because I did not have effective counsel. All they see is the criminal record. And this is why even though I graduated in the top 5% of my class, competed nationally in advocacy competitions, served as the Vice President, stayed active in community service and volunteer programs throughout these years, and provided for my family, I am facing issues with immigration trying to get my citizenship. Because all immigration officials see is the “criminal” in me.

I understand that most of these issues are beyond your control and I have to deal with them, but you can reduce or help control the damage I inflicted on myself. I am opening a law firm in Houston soon (awaiting bar results) and the name of the law firm will be A.T. Law Firm. As a new lawyer, my reputation is everything. Like you, I too share the feelings that individuals should be given a second chance. And that sometimes there is more to the story than the “police has arrested the individual, thus, he must be a criminal.” This is why I will dedicate my life to helping individuals, like you have done for so many years. My goal is to someday reach the status of lawyers like you and Professor Johnson. I don’t know if I will be blessed enough to do so, but I know that I will give it my best shot and feel humbled that I even get a chance.

I, too, love writing and I know that removing an article or an opinion that is published under your name is not a simple task. I ask that you do so to help a colleague’s life. Professor Johnson has indicated that you are the type of seasoned lawyer who will wake up in the middle of the night to assist someone in need. I am extending an open hand and asking that you consider making an exception by removing my information from your blog. I intend to join HCCLA and learn from lawyers like you. If you can consider giving me this opportunity to start fresh, I hope to one day be able to work with you and maybe even work on a research project with you.

I apologize for my hasty response, without consulting with a seasoned lawyer on how to best resolve this matter. I would like to have an opportunity to meet you in person and apologize. Thank you for your consideration.


Amir Tavakkoli, JD

I don’t think Tavakkoli understands what’s going on here. I had unequivocally taken removal of the post off the table months before, and nothing about his threat had inclined me to change my mind. To the contrary, I’m inclined to reverse my first act of kindness. If Tavakkoli isn’t smart enough to appreciate it, nobody benefits from it.

If you’re Tavakkoli or a friend of his you might think his last email a perfectly good response to the situation. You would be wrong. “I want to apologize if…” is not an apology. “I did not have any intentions to make a threatening letter…” is a lie. And Tavakkoli had more than six months to write his “hasty response.” I explained most of this to Tavakkoli, and gave him another chance, of which he didn’t avail himself.

Draw your own conclusions about the judgment exhibited by Tavakkoli in the service of his own cause, and the relevance of that judgment to his fitness to exercise judgment in the service of other people’s causes; I’ve drawn mine.

Do a good deed for someone, and get threatened with suit if you don’t go even further? There’s an easy solution to that problem: Amir Tavakkoli, snort my taint.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e ( .)
  1. The courts publish their opinions in PDF format, so the site does some data extraction, which isn’t quite ready for prime time. 

  2. A driving-while-license-invalid conviction, despite Tavakkoli’s assertion that the Montgomery County possession of marijuana was “the only thing on [his] record.” 

  3. Possession of marijuana, reckless driving, driving with license suspended—all of that has little to nothing to do with one’s fitness to practice law. If Tavakkoli wanted to be a criminal-defense lawyer, he could even make a virtue of his experience as a defendant: “I pleaded guilty on bad advice. I’ll never let you do the same.” You’re welcome. 

In Which I Defend, Against Franks and Citron, Your Right to Sext

Mark's Blog: Defending People - Tue, 10/14/2014 - 15:38

In the same way that sovereign citizens and jailhouse lawyers take snippets of language from cases and quote them as gospel truth, applicable in all cases, anti-revenge-porn zealots take snippets of language from cases and quote them as gospel truth, applicable in all cases:

While Bennett has accurately described categories of speech that the Supreme Court has deemed “unprotected,” there are other types of speech that are lesser-protected. The most established example of lesser-protected speech is commercial speech.

The Supreme Court has also recognized that “speech on matters of purely private concern” receives “less stringent” protection from the First Amendment (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985)). That sounds quite a bit like the speech Citron is talking about when she says that revenge porn bans should be limited to private communications between people in a trusting relationship. And footnote 190 of Citron and Mary Anne Franks’s article, Criminalizing Revenge Porn, suggests that this is precisely the area of First Amendment doctrine Citron is referencing.

The distinction between speech of purely private concern and that of legitimate public concern has been invoked by the Supreme Court in public-employee speech cases, among them Pickering v. Board of Education; Connick v. Myers; and City of San Diego v. Roe. Public employees may speak freely on matters of public concern. Outside of matters of public concern, their speech is less protected. A governmental employer may impose on the speech of its employees restraints that would be unconstitutional if applied to the general public.

The 2004 unanimous opinion in San Diego v. Roe is instructive: John Roe was fired from his job as a San Diego cop for making pornography. The Court concluded that Officer Roe’s porn did not qualify as a matter of public concern.

Speech of purely private concern is not less protected from prosecution. I have not found a challenge to a criminal statute in which the Supreme Court invoked the distinction between speech of purely private concern and that of legitimate public concern. But if the Court did, we know from San Diego v. Roe that pornography is not a matter of public concern.

Danielle Citron and Mary Anne Franks profess support for people’s right to take erotic pictures of themselves and send them to their intimate partners. Two things put the lie to this:

  • Their eagerness to adopt Eugene Volokh’s goofy suggestion that the Court might treat revenge porn (“along with many consensual depictions of nudity”) as obscenity; and
  • Their willingness to import a “purely private concern” test into First Amendment criminal law.

If the Court treats many consensual depictions of nudity as obscenity, or if speech of purely private concern receives less-stringent protection, then the creators of erotic images will risk criminal sanction along with those who publish them without consent.

Citron’s and Franks’s argument for revenge porn being less protected as purely private speech depends on those snippets of language from as-applied challenges in tort and public-employee cases applying to as-written challenges in criminal cases. Supreme Court jurisprudence is all over the board, and there have been changes both radical and incremental in First Amendment law in the last century. A test that applies in an as-applied public-employee case or a tort case doesn’t necessarily apply in an as-written criminal case; nor should it. Nor does a test used in 1985 necessarily apply in 2014.

So how, if we can’t rely on language from 1985’s as-applied defamation case, Dun & Bradstreet, Inc. v. Greenmoss Builders, do we predict what the Supreme Court will do with a challenge to a revenge-porn statute?

We look at what the Supreme Court has done in recent years in procedurally analogous cases.

Procedurally, a challenge to a revenge-porn statute will be an as-written criminal statutory challenge. The best guide we have for how the Court will analyze a revenge-porn statute is the Court’s recent as-written-statutory-challenge cases, such as U.S. v. Stevens, 2010’s crush-film case, or U.S. v. Alvarez, 2012’s “stolen valor” case.

In both of these cases the Court applied, with no mention of strict scrutiny, the categorical test that I described in First Amendment 101; in neither of these cases did the Court even bother to discuss whether the speech (commercial depictions of animal cruelty in one; untrue claims of military service in the other) were “commercial speech,” were “matters of purely private concern,” or otherwise could evade the categorical test.

So no, speech “of purely private concern” neither receives less protection in the criminal context, nor should receive less protection than speech of legitimate public concern. Even zealots should be able to see the slippery slope we’re on if the Supreme Court signs off on their cocakmamie theories.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e ( .)


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