Recent Blog Posts

Dishonest but Undivided

 Posted on February 02, 2018 in Uncategorized

Integrity (N)

  1. The quality of being honest and having strong moral principles.

  2. The state of being whole and undivided.

In response to this letter, Dawn Boswell of the Tarrant County District Attorney's Office's Conviction "Integrity" Unit (C"I"U) sent me this:

[pdf-embedder url="/wp-content/uploads/2018/02/Tarrant-County-11074-writ-letter.pdf" title="Tarrant County 11074 writ letter"]

Article 11.074 of the Texas Code of Criminal Procedure obviously doesn't require the DA to ask the court to appoint counsel to people whom the DA knows to have been convicted under unconstitutional statutes.

And if you wanted to argue that the DA couldn't ask the court to appoint counsel to people whom the DA knows to have been convicted under unconstitutional statutes, you could take Ms. Boswell's position:

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How is a Criminal Law not a Prior Restraint?

 Posted on February 02, 2018 in Uncategorized

The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.

Alexander v. United States.

A criminal statute restricting speech based on its content also forbids certain communications in advance of the time that such communications are to occur.

So what is the difference?

A criminal statute is made by the legislature, rather than the executive or judicial branch. That's a distinction, but is it a difference?

Can the State constitutionally do with legislation something that it cannot, consonant with the First Amendment, do administratively? It seems unlikely-state action is state action.

The other distinction between prior restraints and criminal laws is that the former are generally aimed at particular speakers, and the latter are not. I can see an argument for that distinction making prior restraints more constitutionally suspect than content-based restrictions (because they chill speech more directly), and an argument for that distinction making criminal statutes more suspect than content-based restrictions (because they chill more people's speech).

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The State's Revenge Porn Arguments 5: “Essentially Intolerable Invasions of Privacy.R

 Posted on February 01, 2018 in Uncategorized

Failing to make the case that revenge porn falls into one of the categories of unprotected speech listed by the Supreme Court in its recent cases (notably Stevens and Alvarez), the State does some jailhouse lawyering.

"Jailhouse lawyering" is bad legal analysis, usually involving taking some snippet of language out of context and loading it with great significance.

There are some competent lawyers in prison law libraries, but there are also a lot of people who want to get a certain result and can read, but don't understand how the law actually works.

Same with Texas DAs' Offices.

Here's the snippet the DAs latch onto and load with great significance:

The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.

That's from Cohen v. California, the Supreme Court's 1971 "fuck the draft" case.

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The State's Revenge-Porn Arguments 4: Speech Integral to Criminal Conduct

 Posted on January 31, 2018 in Uncategorized

Having failed to justify section 21.16(b) of the Texas Penal Code as an obscenity statute, the State seeks hope elsewhere in the Supreme Court's enumeration of categories of historically unprotected speech.

Aha! Speech incident to criminal conduct!

Section 21.16(b) restricts only speech causing harm, and that's criminal conduct, right?

Well, no.

To be speech integral to criminal conduct, the speech has to be an integral part of conduct in violation of a valid criminal statute.

We harm each other in many different ways. We offend, and embarrass, and outrage each other. There is no valid criminal statute forbidding it. Nor should there be.

The only thing that makes the speech restricted to section 21.16(b) criminal is... section 21.16(b). As the State conceded in Lopez, pending in the Beaumont Court of Appeals,

It is bootstrap-pulling to argue that a statute is constitutional because it falls within a category of statutes that prohibits behavior.

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The State's Revenge-Porn Arguments 3: Obscenity

 Posted on January 31, 2018 in Uncategorized

Failing to convince the court that section 21.16(b) of the Texas Penal Code does not restrict speech, and failing to convince the court that section 21.16(b) of the Texas Penal Code is not a content-based restriction, the State is in trouble. Recent Supreme Court authority-Stevens in 2010, Alvarez in 2012-has made clear that speech is protected from content-based restriction unless it falls into a category of historically unprotected speech.

The State remembers something about obscenity. It looks at its law-school conlaw textbook ((Just kidding. Actually Wikipedia.)) and sees:

The Miller test was developed in the 1973 case Miller v. California. It has three parts:

  1. Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

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All But Their Four Fastest.

 Posted on January 31, 2018 in Uncategorized

Our Mission: To receive, analyze and preserve physical and digital evidence while adhering to the highest standards of quality, objectivity and ethics.

(Houston Forensic Science Center.)

HFSC will redo the forensic analysis in the homicide case to ensure law enforcement and prosecutors have accurate, reliable information that will assist in their investigation.

(KHOU, with annoying autoplay video.)

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The Defections Begin

 Posted on January 26, 2018 in Uncategorized

I have butted heads with Mike Fields, judge of Harris County Criminal Court at Law Number 14, more than once, and found him a worthy adversary. He is a big guy, imposing both physically and in personality, and he'll push you around if you let him. That rubs a lot of people the wrong way. But if you push back, he will yield when you show him he's wrong, ((When we've butted heads, he always has been wrong. But I'm willing to consider the possibility that he won't always be.)) and shake hands afterward.

Now, citing his conscience, Fields has defected from the judges' appeal of the bail lawsuit. (As I had said it was time to do.)

The appeal continues, but Fields's defection gives the other fourteen judges who remain in it some both motivation and cover to defect as well. It's like a multiple-defendant federal criminal trial: the fewer defendants remain standing, the more quickly the numbers dwindle. Nobody wanted to be the first to defect (that's the cover) but everybody really doesn't want to be the last (that's the motivation).

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Word of the Year, 2018

 Posted on January 25, 2018 in Uncategorized

Every year ((Starting in 2017.)) instead of making resolutions I choose a word of the year. The word of the year is a guiding principle, something to focus on to make my world better.

Last year's word was "Attention." It was a huge success: by paying attention to attention I was able to eliminate many unrewarding demands on my attention-to stop paying attention to things that didn't give me a return on that payment. Attention is limited, and by paying less attention to those things that offered no reward, I was able to pay more attention to those things that offered rewards.

I mostly stopped watching TV (once I was paying attention to attention, it caused my brain stress to be in situations in which my attention was being deliberately manipulated and arbitraged), bailed on Twitter, read more books, turned off pointless annoyances, read less news, blocked emails from a couple of crazies on the local criminal-defense list, and served my clients and my family better.

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Trial Lawyer Lesson: The Risk of “So You're Saying”

 Posted on January 24, 2018 in Uncategorized

Scott Greenfield has a post this morning that highlights a journalist's paraphrase, in an interview, of her subject's words.

This has become a ubiquitous problem, in media, on social media, everywhere (which is why it's ubiquitous). You say "it's snowing," and someone else responds, "so you're saying it's the worst blizzard ever?" Obviously not, but that puts you in the position of either responding by saying the obvious, "no, that's not what I said," and creating the appearance of defensiveness plus contributing to your statement being hijacked and taken down some dark, orthogonal path you never intended nor desired to go.

When I've taught jury selection lately, one of the open questions I've left is whether, in actively feeding back to a juror something that she has said, the lawyer should parrot or paraphrase.

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Defection Time

 Posted on January 23, 2018 in Uncategorized

The Hearing Officers' testimony that they do not "know" whether imposing secured money bail will havethe effect of detention in any given case, e.g., Hearing Tr. 4-1:141, 4-2:16, and their testimony thatthey do not intend that secured money bail have that effect, is not credible.

That's from U.S. District Judge Lee H. Rosenthal's April 2017 Memorandum and Opinion Setting Out Findings of Fact and Conclusions of Law in ODonnell v. Harris County et al.

Having a U.S. District Judge call your testimony "not credible" is never good. It is especially bad if you are a defendant, a government employee, and a magistrate. The two hearing officers who testified, according to the docket, were Blanca Villagomez and Eric "I didn't know if it would be good for my career" Hagstette.

Judge Rosenthal is as calm, measured, courteous, and attentive as you could possibly wish a judge to be.

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