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Recent Blog Posts
Overbreadth: It's Simpler than You Think
From 1791 to the present... the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never included a freedom to disregard these traditional limitations. These historic and traditional categories long familiar to the bar-including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct-are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.
U.S. v. Stevens.
Although the First Amendment stands against any freewheeling authority to declare new categories of speech outside the scope of the First Amendment, the Court has acknowledged that perhaps there exist some categories of speech that have been historically unprotected but have not yet been specifically identified or discussed in our case law. Before exempting a category of speech from the normal prohibition on content-based restrictions, however, the Court must be presented with persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.
Against My Better Judgment
"Enjoy the lawsuit I'm in the process of filing against you, psycho, arrogant, inferiority complex-ridden moron."
-Matthew, then.
"I was just trying to make a living. I didn't intend to defraud anyone. I was desperate, and desperation knows no boundaries."
-Matthew, now.
I have now removed Matthew's last name from my posts about him and their URLs. I cannot conveniently remove it from his demand letter, and I will not remove it from my commenters' comments. Whether Greenfield or Tannebaum or anyone else who wrote about Matthew's attempts to enlist me in a scheme to defraud Fidelity Investments is not my business.
I have gone as far as empathy requires me to go, and I have done so against my better judgment. Here I explain.
At the time, two and a half years ago, I held Matthew up as an example of why it is a waste of time to counsel lawyers privately about their ethical lapses: I had warned Matthew privately that he was proposing fraud, and he had declined to take my good advice, all before my first blog post.
Lawyers Needed to Litigate Against R.W. Lynch
Thanks to the several blog posts I've written about crooked lawyer-marketing company R.W. Lynch, I get about a call a month from some lawyer who signed a contract with R.W. Lynch before doing due diligence, and wants to know how to get out of it.
Literally. The. Potential.
Suing crooked marketing companies is not one of my fields of practice. If you know someone who would be interested, especially if they have some experience with R.W. Lynch, have them drop me an email.
I'll have plenty of referrals for them.
Never Argue Angry
I've got a case against a likely-soon-to-be-former member of the Smith County, Texas District Attorney's Office in which I'm challenging the constitutionality of Texas's revenge-porn statute, section 21.16(b) of the Texas Penal Code.
Court of Appeals? That's in the basement.
It is one of several such appeals I have pending. I've had oral argument in the Waco Court of Appeals (not recorded) and Houston's First Court of Appeals (video), and I've got a case pending in the Beaumont Court of Appeals, but that court won't give oral argument because it already knows all about free-speech law. ((Ugh.)) This morning I had argument in the Tyler Court of Appeals (not recorded).
It's very "suburban den circa 1979." But nice.
Before the argument, I walked over to shake opposing counsel's hand. He didn't accept the proffered handshake.
"Have you ever heard," I asked, "that rudeness is a weak man's imitation of strength?"
Michael Corleone Gave Money to the Church
At 12:15 there will be an "Award Presentation Honoring Sens. Whitmire and Huffman; Reps. Smithee and Herrero and the Honorable J. Keller."
I googled those names, and the first thing that I found that they all have in common is membership in the Timothy Cole Exoneration Review Committee.
Hey.
Let's talk about exoneration.
Exoneration for actual innocence is politically palatable across the spectrum. Should someone who can prove that he is factually innocent be punished? Almost everybody would say "no." ((How much of an opportunity actually innocent people should have to prove their actual innocence is a different question.))
Due process for people who may not be actually innocent is not nearly as popular a cause. In the abstract people support it, but when it comes down to cases they really don't care if people who obviously did bad things got a fair shake, or had effective counsel, or were legally searched. Actually, it's not so much that they don't care as that the scared white republicans who elect judges like Sharon Keller and senators like Joan Huffman prefer less due process for criminals.
Contempt for the System? I Can't Imagine Why!
[Edited to add: I have been asked whether this is fictional. The dialogue is not. The first judge's comments can be found here and here. The interaction between the second judge and the mentally ill defendant is from this appellate opinion.]
INT JUDGE'S CHAMBERS.
We see a JUDGE, sitting comfortably behind his desk, talking to a REPORTER, who is taking diligent notes.
JUDGE: Over the 36 years I've been on the bench, the defendants' attitudes have changed. Most no longer have any respect for the rule of law.The young black men – and it's primarily young black men rather than young black women – charged with felony offenses, they're not getting good advice from their parents.
Sometimes an Argument is Really an Argument
This is no less true of judges than other lawyers.Free-speech law has developed a lot in 30 years; most of that change has been in the last decade. Occasionally we'll get an oral argument in which one of the judges knows has read Alvarez, Stevens, Reed, Brown, and some of the other post-2009 Supreme Court free-speech cases, and it's a real joy.
This is not one of those cases. Here the State in its brief cited no Supreme Court more recent than 1989.
Imagine the discussion we could have had if the judges had read some Supreme Court First Amendment cases since law school!
Declare Victory and Go Home
The Fifth Circuit has ruled on the Harris County misdemeanor judges' 5-million-dollar appeal of Judge Rosenthal's injunction requiring them to stop using bail as an instrument of oppression by denying personal bonds to indigent people.
The Fifth Circuit vacated the injunction, requiring two changes:
To give the courts 48, rather than 24 hours to make an individual bail assessment; and
Not to require factfinders to make a written statement of the reasons for their bail decisions.
[pdf-embedder url="/wp-content/uploads/2018/02/17-20333_ODonnell-v.-Harris-County.pdf" title="17-20333_ODonnell v. Harris County"]
It's time for the fourteen criminal court at law judges to declare victory and go home. ((Just between you and me, this opinion is a rout for the judges. The changes are small, and the current injunction remains in place until Judge Rosenthal modifies it.))
The Chase Bank Whodunnit
12/13/2017 in Hong Kong, I realize that what I thought was the PIN for debit card is not the PIN for the debit card.
I call Chase to get the debit card PIN. I make the call from my hotel room.
I give Chase debit-card services all identifying information for my debit card, including mother's maiden name.
Chase debit-card services tells me they can't send me my debit card number because my address has recently changed. This is odd because I haven't changed my address recently. Debit-card services tell me that the address change came from the credit-card department, and begin to connect me.
I establish with the credit-card department that the "address change" was a switch from ZIP+4 to ZIP+6.
In this telephone call, which began with a call about my debit card, nobody says or inputs my credit card number.
For the six months before this I had had no contact with the bank about either card, and experienced no fraud.
The next day, December 14, 2017, there are three fraudulent charges to my credit card:
One More Thing
Art. 11.12. WHO MAY PRESENT PETITION. Either the party for whose relief the writ is intended, or any person for him, may present a petition to the proper authority for the purpose of obtaining relief.
Not only could a DA's Office ask the court to appoint counsel under article 11.074 of the Texas Code of Criminal Procedure, but they could also file an application for writ of habeas corpus on behalf of a person unlawfully convicted.
They could do so with or without the person's consent, and nobody is in a better position than the DA's Office to know whether a defendant would benefit from habeas relief-the only reason a defendant should not seek relief from an unlawful conviction is if the DA's Office intends to file other charges when habeas relief is granted, and only the DA's office knows for sure if it intends that.
I know of at least two cases in which people got habeas relief from a conviction for the unconstitutional section 33.021(b), only to wind up with worse deals for other charges. Not privy to the DA's intentions, I have advised many people, based on the limited information that I have-whatever I can shake loose from prior counsel, or from the DA's Office with a Public Information Act request-this this is a possibility. Some have not taken the risk. ((The rest have taken the risk and not been prosecuted.))
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