Category: criminal defense

  • 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 […]

  • Criminal Defense and the Societal-Good Heresy [updated]

    [Updated to include David Hardaway’s name, at his request.] A defense lawyer appeals his client’s second DWI conviction, arguing that the client should be punished for a first DWI because the State did not plead or prove the first conviction (which acted to enhance the class-B misdemeanor first DWI to a class-A second) in the […]

  • Beware The Friggerogenic Video

    Yesterday we had Trial by Myspace. Today Scott has Assault by Twitter in the First Degree, riffing off an article by a lawprof whose theory is that by sending a link to an epileptogenic video to a journalist, the sender committed an assault: “intentional creation of a reasonable apprehension of imminent bodily harm.” An assault by threat, as […]

  • 2016.037: Before You Plead that Online-Solicitation Case …

    Regular readers know that for nearly three years, since right after killing the dirty-talk portion of Texas’s Online Solicitation of a Minor statute, I’ve been going after the balance of that statute, which appears at first to forbid only actual solicitation (which is unprotected speech), but on further reading explicitly criminalizes protected fantasy by eliminating […]

  • Today Only?

    In the markets of South and Southeast Asia, where I learned to haggle, one of the gambits used by vendors is to claim that the offered price has to be accepted right now: “for you, today only, fifteen Rupees!” They never mean it. Turn and walk away, and the price goes down. Leave and come […]

  • Sometimes the Texas Legislature Gets it Right

    Add this to the list of reasons that Texas is a better place to practice criminal defense law: Art. 38.075. Corroboration of Certain Testimony Required (a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time […]

  • Trial Bonding

    Defending people should be personal. A human being has put his future in your hands, and someone is trying to take that future away. “Don’t take it personally” is lousy advice; it may not be necessary to care about the human being you’re defending, but it helps—when a lawyer cares about his client, the jury […]

  • Mmmmm…Chicha!

    Houston DUI lawyer Paul Kennedy, in Going for the Gut, calls to our attention this Boston Globe article by Drake Bennett about how disgust may shape our moral judgments. A few thoughts: First, one of the experiments discussed: In one study, [psychologist Jonathan Haidt] had some of his unfortunate test subjects respond to four vignettes […]

  • The Hunting of Justice (An Agony in Eight Fits)

    We have heard talk of “justice.” Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves—whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human […]

  • A(n Ex-)Prosecutor’s Principles

    Quoth Vincent Bugliosi, in a comment posted by John Kindley: ‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. […]