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Recent Blog Posts
Felonious Political Advertising
Texas's Online Impersonation statute, Penal Code Section 33.07:
(a) A person commits an offense if the person, without obtaining the other person's consent and with the intent to harm... any person, uses the name or persona of another person to:(1) create a web page on a commercial social networking site or other Internet website; or...(c) An offense under Subsection (a) is a felony of the third degree.
("Harm" includes any disadvantage.)
So this (archived version) is a third-degree felony.
I'll be including it in my next brief challenging the statute.
Credibility and Charisma for Criminal-Defense Lawyers
If jurors decide cases based on beliefs reached early in the case, how can we best affect their decisions?
Ideally we will show them two things before the evidence begins: A story, and credibility.
Maybe we'll talk some other time about telling the story-what makes a good story, and how to tell it.
Credibility is something that we should be attentive to every moment of trial. Every action-ours, our clients', our staff's, friendly witnesses'-should maximize credibility. Nothing will sink a case faster than lead counsel losing credibility with the jury. For that reason, if you can be the one to show the jury why the prosecutor is not to be trusted you win twice.
I consider credibility to be the same as trust to be the same as likability to be the same as attractiveness to be the same as charisma. In in-person transactions, if you like somebody you trust them and if you trust them you like them and if they are attractive (as opposed to repulsive; not just physically) they have credibility and if they have charisma you like them, find them attractive, trust them and give them credibility.
The Wrong Place for Common Sense
These many cognitive biases we all have-confirmation bias, fundamental attribution bias, and so forth-were once our friends. They helped our species reach the top of the food chain by allowing us to make snap judgments that, at the time, were right often enough to justify how often they were wrong. But "at the time" was before they built the Harris County Criminal Justice Center. Before we started living together in cities, even. Probably before we started growing our food instead of pursuing it.
In the modern world the balance is different-we are much less often exposed to things that will eat us if we take the time to apply reason and logic instead of making a correct snap judgment. We have more access to information, and more time to reflect on it before making most decisions.
We have a popular name for these cognitive biases. We call them, collectively, "common sense." Cognitive biases are-common sense is-what we rely on when reason and logic fail us.
Origin Story
Fundamental attribution bias is the cognitive bias that leads us to attribute people's actions, good or bad, to their character rather than to circumstances. A person of whom we have no opinion and for whom we have no ingroup/outgroup associations leading to an opinion, but whom we learn has done a bad thing, we generalize ((Remember: When we form our cognitive map of the world we generalize, distort, and delete.)) as a bad person; such a person who does a good thing, we generalize as a good person.This is why you get at most one chance to make a first impression.
Once we have generalized a person as good or bad, we look at everything that he does in light of that generalization. Good people get the benefit of the doubt when they do bad things; bad people do not get the benefit of the doubt when they do good things.This is the battleground in many criminal jury trials.
Something bad has happened. The State wants to pin it on the defendant, turn him into a bad person, and then get the jury to hold him culpable because he is a bad person. The defense wants to disrupt this chain, either preemptively (for example, with ingroup associations) making the defendant a good person, keeping the State from pinning it on the defendant, or fighting the uphill battle of showing the jury that the defendant is a good person despite the bad thing.
Lies We Tell (About) Juries
(Please forgive typos in this and surrounding posts. I'm traveling, and writing on an old iPad and a bluetooth keyboard, so there is some lag between the typing and the appearance of words on screen. I may come back and clean up later.)
What if there were a secret about the way that jurors decided cases, the knowledge of which would give you an advantage over almost any adversary. Would you want to know it?
What if using that secret to your clients' advantage required you to believe it. Would you be willing to believe it?
And what if believing that secret required you to accept something uncomfortable about yourself. Would you accept it?
The stated premise of a criminal jury trial is that jurors are objective verdict-reaching machines. We tell them to wait and consider all of the evidence before reaching a decision, and not to be influenced by feeling or emotion.
Most lawyers who try cases treat these as realistic injunctions, and try their cases as though jurors will hold off making a decision until all of the evidence is in. This is how we are taught to try cases.
The Criminal Trial Lawyer's Place in the World
Criminal trial lawyering is a subcategory of trial lawyering, which is a subcategory of persuasion, whihc is a subcategory of communication.
So the criminal trial lawyer, to be better at her craft, could study the lessons of other trial lawyers (personal-injury lawyers, for example). That's obvious. The good thing about personal-injury lawyers is that they are fighting over money. ((It's also the bad thing about them.)) Because they are fighting over money they have money to spend on investigations into being better trial lawyers. Few are motivated to do so, but those that are, are also financially able.
Less obviously, the criminal trial lawyer, to be better at her craft, could study other persuaders, such as salesmen, and preachers, and politicians and other conmen. Salesmen write ad nauseum about how to be better salesman-How to Win Friends and Influence People is a classic manual of persuasion. I don't know that preachers write about their craft, but they can be watched in action. The art of the con is more opaque, but no less worthy of study.
My Attention, and Barriers to it
I decided near the end of last year that my word for this year would be "attention." I would pay attention to what I was paying attention to, and to what I was getting in return f0r these payments of the scarcest asset I possess.
I pretty quickly realized that I couldn't stand watching sitcoms, or tv generally, or listening to commercial radio, or watching popular media. I could see how all of these media used the science of attention to capture my attention (and how they thearbitraged it to their advertisers.
And I got to read a lot more.
I've had a couple of occasions lately to apply my attention studies directly to real human beings, as opposed to electronic media. Younger lawyers with substance-abuse or other mental-health problems would email me late at night, demanding to know why I thought thus or such of them, or why I behaved coldly toward them at a social function years ago that I had long since forgotten.I then invited both not to communicate with me anymore; I filtered their emails to junk on the off chance that they would not accept my invitations.
Why the Lo Test Will Prevail
Here I expressed confidence that the Texas Court of Criminal Appeals will eventually straighten out the law on what makes a regulation content based, putting various speech-restricting statutes that intermediate Texas Courts have found not to be content-based regulations back on the table.
Why the confidence? Because I'm right.
Okay: Also because while the Court of Criminal Appeals can dodge the issue procedurally for a while, they cannot close every procedural door. Eventually they will have to correct an intermediate court that has called a content-based regulation content-neutral. Either that, or the Supreme Court will grant cert when Texas courts uphold some unusually preposterous content-based restriction (like a statute forbidding someone's name without his consent online with intent to harm) as not content based.
The Texas Court of Criminal Appeals adopted a test in Ex parte Lo and Ex parte Thompson: "If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content based." They could renounce that test, but they won't, for three reasons.
Sterner Days for Texas Free-Speech Law
Situation excellent: On Wednesday the Texas Court of Criminal Appeals affirmed the Beaumont Court of Appeals in Leax v. State.
When the Court of Criminal Appeals granted discretionary review on Leax, I thought it would be the culmination of almost four years of fighting that began with this post after I realized that section 33.021 of the Texas Penal Code, in which the Texas Legislature created a constitutionally valid offense in subsection (c) and then eliminated one of the elements that made it constitutional in subsection (d), was not constitutional.
The first litigation was in a case called Wheeler. I filed a habeas petition in the trial court in June 2014. The trial court denied relief, we appealed, and the First Court of Appeals allowed oral argument in April 2015. Oral argument went well, I thought-I wrote then that the opinion would "at least apply the correct standard of review," that is, strict scrutiny.
Texas's New Nondisclosure Law
When Texas first passed its nondisclosure statute, it allowed some people with successfully completed deferred-adjudication probation to seek an order of nondisclosure effectively sealing the public records of their arrest. Nondisclosure had to be "in the best interest of justice," so it was effectively at the trial court's discretion.
Since then the right to nondisclosure has been broadened.
Section 411.074 General requirements for Nondisclosure
To be eligible for nondisclosure, every defendant must:
Neither have been convicted nor been placed on deferred-adjudication probation during the waiting period applicable to the case;
Not be seeking nondisclosure for:
An offense requiring sex-offender registration;
Aggravated kidnapping;
Murder; Capital Murder;
Trafficking of Person;
Injury to Child, Elderly, or Disabled;
Abandoning or Endangering Child;
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