Austin Criminal Defense Lawyer

Post Hoc Ergo Propter Hoc

jamie@austindefense.com (Jamie Spencer) — Sat, 07 Nov 2009 04:24:36 -0600

From the San Francisco Chronicle article “Report: Pot use, arrests rising in California”:

Marijuana arrests in California are increasing faster than the nationwide rate, and African Americans are being booked for pot-related crimes much more often than whites, a new report says.

But despite the rise in arrests and in the seizure of marijuana plants, use of pot in California has increased slightly, said the report, part of a nationwide study released Thursday by a Virginia researcher.

Isn’t arresting folks for marijuana possession supposed to discourage use?

In both California and the United States as a whole, "we keep arresting more and more people, but it's not having a deterrent effect," said Jon Gettman, an adjunct assistant professor of criminal justice at Shenandoah University in Winchester, Va.

Clearly no deterrent effect. But let’s use some drug warrior logic here. Gateway theory proponents like to argue that since most heroin users started their controlled substance journey with marijuana, that marijuana leads (inevitably?) to harder drugs. After all, according to them, correlation proves causation.

But wait a minute, new wrinkle. So an increase of arrests precedes an increase in usage? If they’re going to be consistent, the drug warriors need to start arguing that the arrests are causing higher use rates.

The Bad News Is... You're The One Out Of A Hundred

jamie@austindefense.com (Jamie Spencer) — Fri, 06 Nov 2009 11:15:53 -0600

From an email several months back:

Writing on behalf of my son. We are completely frustrated with our attorney choice.

They told us 99% it would be dismissed in our first meeting. Court date arrives and then a new attorney starts on the case. There was no hope it would be dismissed.

The email continues to talk about the parent’s frustration about surcharges, and driver’s license suspension issues that they were never advised about. Which means, of course, that by the time the email comes to me, the son has already plead guilty.

I called and talked to them, and wasn’t a lot of help, except I asked a few questions and was able to at least explain the law, and the situation they were in post plea and conviction. There are quite a few collateral consequences for DWI convictions in Texas, and a halfway decent lawyer will at least explain those to someone so they, the client, can make an informed decision about whether to try or plead the case.

But 99%? You fell for that one? A lawyer tells you there’s a ninety-nine percent chance of getting a DWI dismissed without doing any work on the case? Hasn’t read the police report, hasn’t seen the video…

But I guess if you believe that, you’ll accept the lawyer’s later explanation: hey, I didn’t say 100%. The 99%, that’s all my other clients.

Contempt of Bailiff

jamie@austindefense.com (Jamie Spencer) — Wed, 04 Nov 2009 20:05:41 -0600

Anyone searching for a niche blog topic could do well blogging about contempt of court. Stories like these are getting more and more common (even if this one is beyond the pale):

According to the Sheriff's Office, attorney Henry Ferro was sitting in an area designated for inmates when bailiff Anthony Riggins asked him to move. Ferro stood up and moved to another designated area for inmates. When he was asked to move again, he allegedly uttered a curse word and left the courtroom. The judge was not present during this exchange.

According to other bailiffs and attorneys who were present at the time, Riggins followed Ferro out of the courtroom, where he apparently told the lawyer that he "can't disrespect the court like that." The bailiff then handcuffed the attorney.

Can’t disrespect the court? The courtroom maybe? Naaah. Just a simple case of... I’ve got a gun, and you can’t dis me!

Everything's Bigger In Texas

jamie@austindefense.com (Jamie Spencer) — Fri, 23 Oct 2009 20:50:21 -0600

Criminal lawyer Thomas Gallagher writes about a case, Minnesota v. Peck, decided by his state’s Supreme Court which overruled a trial court’s determination that including the bong water as a “mixture” used to calculate the weight of methamphetamine possessed by a defendant would be “unjust”.

The difference in the weight of the meth alone vs. the weight including the bong water (approximately 37 grams) raised the offense to a first degree drug felony punishable by a maximum of 30 years, and if I have my Minnesota law right, and I very well might not, a minimum sentence of 87 months, or 7 years and 3 months. Assume the defendant would be probation eligible otherwise, and you Yankee lawyers can write in to tell me I’m wrong.

Let’s also ignore why there would be meth residue in a bong; the opinion doesn’t make it clear, probably because there is no good reason for it. Of course, that doesn’t stop the arresting officer from hazarding a guess at the hearing:

When asked why a narcotics user would keep bong water, Rauenhorst replied, “for future use . . . either drinking it or shooting it in the veins.”

Yeah, right. And college freshman leave empty pizza boxes scattered all over their apartment because they plan on doing a science project in the future on the effects of pepperoni stains on cardboard. Dopers make most of their decisions because they are really concerned about what’s going to happen tomorrow. They’re known for making a lot of plans for the future. No chance the defendant just passed out on the couch, leaving the bong on the coffee table while she slept it off, eh officer?

Gallagher’s analysis:

This defeats the legislative purpose of treating larger quantities more harshly. Worse – it makes no sense. It is absurd.

What is a bong? It is a water pipe. A water pipe, such as a bong, can be used to smoke tobacco, marijuana, methamphetamine (as in the Peck case), or anything that can be smoked. Smokers view the water which has been used to filter and cool the smoke as something disgusting, not unlike a used cigarette filter, to be discarded – sooner or later. The used water is not commonly used for any other purpose.

He notes that a user might accidently dissolve one tenth of a gram of meth in twenty six grams of water and end up with a 30 year sentence. I am not impressed. Sounds like those Minnesotan legislators are soft on crime to me. Why just the other day, Austin Defender pointed us to a similar Texas case:

In Ex parte Kinnett, for example, a guy dumped his meth in the toilet. The cops scooped the water out, weighed it, and used the weight of the toilet water as the basis for his prosecution. Since they scooped more than 600 grams of water out of the toilet, that put him over the limit for a 1st degree felony.

The jury gave him 85 years in prison. (Along with a $250,000 fine – more, I suspect than his trailer was worth.) The Texas Court of Criminal Appeals was just fine with that. This is, the Court said, what the legislature intended.

For what it’s worth, the actual amount of meth was 0.0274 grams, for a toilet-water to methamphetamine ratio of 24,197:1.

Drug War logic and reasoning is faulty everywhere, but the sentences are bigger in Texas.

The Doctrine Of "Necessary Englishness"

jamie@austindefense.com (Jamie Spencer) — Thu, 22 Oct 2009 01:33:06 -0600

I predicted some humorous tidbits would come from D.A. Confidential, and I’ll predict now that this post may be hard for DAC to top. I’m going to forgo substantive comments, merely hinting at the subject matter, hopefully forcing you to click through and actually read the original. (You know how new bloggers get obsessed with watching their stats.)

A total guess here on my part: the defense lawyer simply handed this motion to the prosecutor in court as a joke – it’s not file stamped after all. The response is brilliant.

Thrashing Pecans

jamie@austindefense.com (Jamie Spencer) — Wed, 21 Oct 2009 02:29:45 -0600

“You don’t get a figure like mine by eating salads for lunch,” I often say, when it is either necessary or, more likely, merely personally amusing to point out that I’m no longer the fittest of the fit. But I still have a few friends left from childhood that remember me as a scrawny kid, constantly on the move, never staying still, always running, bicycling, shooting hoops, not per se “exercising” in the 40-something meaning of the word, on treadmills or ellipticals, but let’s say… “very active”. (And I wonder where my children get their energy from.)

One of many “activities” was climbing trees, for example, the State Tree of Texas, the great Pecan. Of course, any tree is good for scaling when you’re eight to twelve years old, but to bastardize the famous bank robber Willie Sutton’s misquote: Why did you climb the pecan tree? Because that’s where the pecans are.

In fact, there were pecan trees all over my neighborhood, both around my home, school and church. The statute of limitations has now passed – by a few decades or so – so it’s probably safe for me to admit that I was a juvenile delinquent. And I hung out with the wrong crowd. That’s right, my friends and I would not only climb pecan trees, but we would even “cause the pecans to fall” from the branches, scramble down, crack and eat to our hearts delight.

From Section 3101.010 of the Texas Government Code:

§ 3101.010. Thrashing Pecans

(a) A person commits an offense if the person causes pecans to fall from a pecan tree by any means, including by thrashing, unless the tree is located on:

(1) land owned by the person causing the pecans to fall;

(2) privately owned land, and the person causing the pecans to fall has the written consent of the owner, lessee, or authorized agent of the owner or lessee;

(3) land owned by the state or a political subdivision of the state and in the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the land or from the mayor of the municipality; or

(4) land owned by the state or a political subdivision of the state and outside the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the property or from the county judge of the county.

Maybe a ticket, fine only, right? Not so.

(b) An offense under this section is a misdemeanor and on conviction is punishable by:

(1) a fine of not less than $5 or more than $300;

(2) confinement in the county jail for a term not to exceed three months; or

(3) both a fine and confinement.

Moral of the story: when you start having so many criminal laws that some of them are buried in sections numbered beyond the first couple of thousand, and/or not even in the penal code, you might be going to far.

(h/t: austin defender via grits)

Prosecuting Significant Marijuana Traffickers

jamie@austindefense.com (Jamie Spencer) — Tue, 20 Oct 2009 17:30:35 -0600

The Department of Justice sent a memo on Monday to all its prosecutors regarding federal prosecution of marijuana cases in States that have legalized the use of medical marijuana. From the memo:

One timely example underscores the importance of our efforts to reduce and eventually eliminate the prosecution of marijuana offenses: marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels. Since 90 to 95% of the cost of marijuana is directly attributable to its criminalization, rather than to the plant itself, refusing to prosecute marijuana offenders will deny criminal organizations worldwide a substantial part of their income.

No, no no. I’m kidding, of course. Here’s what it really says:

One timely example underscores the importance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels.

Sigh.

D.A. Confidential

jamie@austindefense.com (Jamie Spencer) — Thu, 15 Oct 2009 16:24:00 -0600

A new criminal law blog in Austin has popped up recently, but unlike those I recently posted about, this one comes in the black hat variety. That’s right: it’s written by a prosecutor.

It’s not the first blog offering by a Travis County prosecutor. The Adventures of Steanso has been around longer than almost any other Austin law blog, criminal or otherwise. But as he admitted recently, he “rarely talk(s) about the day to day specifics of (his) job on” the blog. (Also worth noting, he started blogging while he still wore the white hat and worked for defense lawyer Pat Ganne.)

And now we have “D.A. Confidential” whose subtitle promises that all our criminal law needs will be met with news, issues, trivia, and the occasional literary twist. In one of his/her first posts, our anonymous prosecutor tells us:

My original plan was to blog about the secrets that haunt the halls of the D.A.'s office, to reveal the intrigues that torment the unknowing and entertain the cognoscenti, but never leak from the airtight offices.

But then I remembered how much I love my job.

Rumor has it that DAC decided, probably wisely, to seek permission from the top dogs re starting a blog, so some of the juiciest tidbits may still go unpublished, but it’s a promising start. Posts so far include a review of the initial processing of a criminal case at the D.A.’s office, a comment about the faked intoxilyzer records scandal, the author’s types of cases by percentage, book recommendations and some humor.

Blog on DAC. And if there are other prosecutor bloggers out there, in any jurisdictions, I try to keep track of those and add them to my RSS reader, so send me a heads up if you're starting one, and I'll do my best to link back to it.

Perjury For Filing A Writ Of Habeas Corpus?

jamie@austindefense.com (Jamie Spencer) — Thu, 01 Oct 2009 02:44:50 -0600

Reading between the lines from this KXAN news story, “Man Faces Life In Prison for Perjury”:

A Liberty Hill man faces life in prison for aggravated perjury charges after claiming he was innocent following a plea bargain with the Williamson County District Attorney’s Office.

Prosecutors say Markus Peavy had made false statements in his plea bargain and the writ when claiming he was not guilty of DWI charges. Peavy is two years into a 55-year sentence for a fourth DWI conviction.

The defendant must have signed paperwork and been sworn in to give oral testimony at his plea of guilty two years ago – either “in exchange” for an agreed sentence of fifty-five years, or possibly plead unnegotiated, i.e., threw himself on the mercy of the court (not usually a good idea in Wilco).

At some point in the penitentiary, a jail house lawyer either helps him file or files a writ on his behalf, alleging among other things, that he is innocent. A sworn “this is true and correct” affidavit is signed by the defendant and filed with the writ.

Texas Penal Code Section 37.03, Aggravated Perjury:

(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1) is made during or in connection with an official proceeding; and

(2) is material.

(b) An offense under this section is a felony of the third degree.

Putting aside general notions of decency, fair play, common sense, judicious use of taxpayer monies and simply grading for creativity alone…? Williamson County District Attorney John Bradley gets an A+ on this one.

You walk into court, swear under oath that you are guilty, and then later swear in your writ that you are not. Seems to fit the language if not the intent of the statute.

But wait a minute. How are they going to prove which was the lie? Was he lying the first time, when he said he was guilty? Or the second time, when he said he wasn’t?

Doesn’t matter.

Texas Penal Code Section 37.06 Inconsistent Statements:

An information or indictment for perjury under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the declarant has made statements under oath, both of which cannot be true, need not allege which statement is false. At the trial the prosecution need not prove which statement is false.

Of course, they’ve already extracted the 55 out of him without even going to trial the first time around. What’s going on here? I think his trial defense lawyer, Scott Steele, hits it right on the nose:

"Maybe they are trying to make a point not to engage in the procedure if they do a plea bargain,” said Steele.

Aha! The chilling effect. Stack a few 25 to life sentences on top of a few defendant’s plea bargains, and you’ll put the jail house writ writers out of business (and maybe some appellate criminal defense lawyers too).

I wonder how long Christopher Ochoa is going to get?

[Update: Guilty. 30 years. Stacked.]

Three Whole Years Of Blogging

jamie@austindefense.com (Jamie Spencer) — Thu, 01 Oct 2009 01:01:01 -0600

This blog turns three years old today. Actually, I think the first live post may have been “Logical Fallacies and Marijuana Decriminalization” posted on September 21, 2006, and there were several articles written prior to putting the blog online, but I forgot to comment on the anniversary last week, so I’m arbitrarily moving it to October 1st. (I also reserve the right to re-forget and bump the birthday to the middle of October next year.)

I was researching gifts for my blog, but didn’t like the traditional anniversary presents of leather or crystal, and I finally came across a link from Amazon’s ListMania.

So, should I get my blog Candy Land, a Richard Scarry book, or a Mr. Potato Head?

Overheard

jamie@austindefense.com (Jamie Spencer) — Wed, 30 Sep 2009 13:39:17 -0600

Waiting in line for a down elevator after getting out of court this morning, a lawyer and a client talking about having the ignition interlock on his car "the whole time" while his case was pending:

Client: I haven’t gotten into any trouble for almost two years.

Lawyer: …and for you, that’s actually really impressive.

The lawyer had a big grin on his face, and the client laughed.

This May Be A Case Where We Need To Utilize Discretion

jamie@austindefense.com (Jamie Spencer) — Mon, 28 Sep 2009 01:24:54 -0600

Here’s a quiz for you.

A young woman is trying to use a depleted and/or somehow otherwise broken fire extinguisher to put out the flames engulfing her car. (Right now. This is happening right in front of you.)
You tell her to wait while you run and get another extinguisher. Having made that promise, you decide not to dilly dally, but instead to run across the street to the nearest establishment that might have one.

Unfortunately, you don’t technically make it all the way across the street, because you are hit by a car. You are flung 15 to 20 feet, you require medical attention in the form of a staple in your head and a neck brace at the ER, you will walk around with a limp for a few days, but good grief, you were hit by a car and you’ll survive. Quit complaining, right?

So here’s the quiz part. You…

(a) Are given a key to the city by the Mayor for your good deed .

(b) Are awarded a free scholarship for the rest of your studies (let’s say, hypothetically, to finish the last two years of your finance degree at Texas A&M).

(d) Are given a $300 ticket for failure to yield the right of way, or not using the crosswalk by College Station Police Officer B. Fife while you are still in the hospital.

If you picked (d) you are well suited to join the Aggieland police force, currently accepting applications. And what does the actual police department in question have to say about the fact that the prosecutor was so embarrassed by this set of facts that they felt compelled to dismiss the ticket?

College Station police said they are reviewing the case to see if the ticket was warranted.

"I have talked to the commander of the officer involved in that, and he is looking into it," said Lt. Rodney Sigler, a spokesman for the College Station Police Department. "There is a time to utilize discretion, and this may be a case where we need to."

Maybe. We’re not 100% sure, so we’re forming an entire “Special Committee of Wise Men” to look into it. If they determine that in fact he needs to be prosecuted then we’ve got the whole two year statute of limitations to refile the charges.

Insert appropriate Aggie Joke here.

Silly Wabbit

jamie@austindefense.com (Jamie Spencer) — Sat, 26 Sep 2009 23:37:25 -0600

Robert Guest complains that he is not psychic. For example, on Avvo Answers, a commonly asked query goes like this: “I’ve been charged with X, what kind of sentence will I get?” His response:

Let's see. Without knowing the facts, court, prosecutor, legal issues, or your criminal history you want me to guess the outcome of a case based upon the charge? Really?

If I was that good I'd guess lottery numbers, not criminal case outcomes. A lawyer can't, and shouldn't guesstimate plea offers without a working knowledge of the facts, the legal issues, and the court/prosecutor.

I could quote the range of punishment and state that "You could get anything from the maximum sentence to a dismissal", such a large margin of error ensures 100% accuracy, but doesn't help defendants.

Silly Wobert, doesn’t he know? It’s easy as pie. Why there’s even a phone number you can call “to see if your case can be dismissed!”

A Special Place In Hell

jamie@austindefense.com (Jamie Spencer) — Thu, 17 Sep 2009 02:40:43 -0600

Byron Sage was a special agent in the FBI’s Austin office when he was called in to be the lead negotiator with the Branch Davidian’s during the infamous 1993 standoff. He was interviewed last year, along with other government agents, local Waco law enforcement, and some of the survivors, by Pamela Colloff in her Texas Monthly 15th anniversary article “The Fire That Time”. (Unfortunately, full access to TM articles is subscription only, or I’d provide a link to the article.)

I’ve come to terms with the fact that no one will ever be able to know what happened at Mount Carmel, especially regarding the key issue: was the fire started by those inside or out. (But see, and I mean see, put it on your Netflix queue right now, the 1997 documentary Waco: The Rules of Engagement; you still won’t know what really went down, but you’ll be convinced that the official government line, especially as sold by the federal prosecutors at the trial, was deliberately false, aka “a lie”.)

Decent article if you feel like reading a retrospective on the subject, but here’s the part that jumped out at me. At the top of the magazine cover is the teaser for the article, “ ‘There’s a special place in hell for David Koresh.’ An oral history of the Branch Davidian standoff”. Where’s that come from?

Well, the article is primarily a series of quotes from participants inside and out, and frankly it seems slightly skewed towards the FBI’s official version of events, although there are plenty of dissenting viewpoints from insiders. The quotes take us on a chronological journey of the whole crisis, and by the time the building is in flames, we read this quote from the main negotiator:

I was in a daze. I walked outside and I could feel the heat radiating on my face from two hundred yards away.

The building was collapsing in on itself and reduced to about eighteen inches of rubble.

I stood there and watched that place burn. I’ll never forget the stench and the heat and the magnitude of that moment. Rounds were cooking off, and there were explosions every now and then.

Fair description from an on scene witness, I’m sure. But here’s how that quotation ends, and it's from the guy whose only job description was to attempt to convince the Davidians that the FBI wanted to end the standoff peacefully:

….I don’t give a damn about the parents; it was their decision to stay inside. They’re responsible for it… There’s a special place in hell for David Koresh.

In the ellipses he talks about the children who died, and expresses appropriate sympathy for them. And it’s probably a natural human reaction by many who feel they know the facts to feel anger at the parents for subjecting their little ones to even the slightest possibility of such a terrible and horrifying demise.

But, even if it was fifteen years after the fact, doesn’t saying “I don’t give a damn about the parents” tell us he was probably the wrong person to assign the job of chief negotiator? No wonder the survivors said they didn’t feel they could trust what the FBI was telling them. Maybe they instinctively knew the agency just didn’t give a damn about them at all.

Less Than Eight Hundred And Fifty Thousand!

jamie@austindefense.com (Jamie Spencer) — Tue, 15 Sep 2009 23:33:30 -0600

Only 847,863 arrests for marijuana offenses in the U.S. last year.

Translation: slightly less than last year, or the second most ever, depending on how you want to look at it.

The Slightest Personal Impulse To Reprisal

jamie@austindefense.com (Jamie Spencer) — Tue, 08 Sep 2009 10:07:00 -0600

Admit it. When someone calls you a “fool” or perhaps something worse, you want to respond. And not politely. You might lock ‘em up if you could…

This summer, incensed by a ruling in a child-custody case involving his granddaughter, 69-year-old Don Bandelman followed the judge into a public courthouse restroom and berated him as "a fool," court records show.

District Judge Jack Robison, Bandelman said, angrily told him to leave.

Then Robison did something more problematic, raising questions about whether he abused his power as a judge. Robison directed bailiffs to arrest Bandelman and then sentenced the man to 30 days in jail for contempt of court.

Chuck Lindell’s Austin American Statesman article continues:

Bandelman's jailing was unusual because a finding of direct contempt is generally reserved for acts that:

Take place during court proceedings, usually in the courtroom or jury room.

Are witnessed by the judge.

Disrupt court, impede the administration of justice or challenge the judge's authority.

“During court proceedings”… which is to say, not in the bathroom. The article makes reference to a US Supreme Court case from 84 years ago, and not being intimately familiar with it, I drug up Cooke v. U.S., 267 U.S. 517 (1925). After an adverse ruling in one case, but while he still had other cases pending, a lawyer wrote a letter to the judge expressing that while he had previously hoped that the judge could be fair, “My hopes in this respect have been rudely shattered.”

Later in the courtroom, the judge sentenced him to thirty days (sound familiar?) without formal notice of charges or any real opportunity to respond. The Supremes, led by former president Taft, overturned the sentence and remanded the case to be heard by a new judge, saying, among other things:

The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice, and in maintaining the authority and dignity of the court, is most important and indispensable.

But its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge.

The judge must banish the slightest personal impulse to reprisal, but he should not bend backward, and injure the authority of the court by too great leniency.

The point of the case seems to be that there’s some sort of due process difference between contemptuous acts witnessed by the judge in court versus out of court – which is a silly distinction at best, as far as I can make it out. However the last portion of the Court’s opinion addresses a valid point. Judges are human, they can get their feelings hurt like anyone else. Should we allow them this immense power, to jail citizens on the spot when they feel criticized?

And doesn’t a story like the one in today’s newspaper (judge pissed off at litigant for calling him a fool, imposes 30 days in jail) actually reduce respect for the judiciary, and for court proceedings in general? If you sow the seeds of disrespect, surely you will eventually reap contempt.

On Splogging

jamie@austindefense.com (Jamie Spencer) — Mon, 07 Sep 2009 23:49:14 -0600

[W]e abide by the principle which dictates that somebody will always position himself or herself to systematically harvest anything of value in this world for the sake of money, power and/or ego-fulfillment. We aim to be that somebody.

I read that quote tonight in Chapter One: Put Everything Out There of Say Everything: How Blogging Began, What It’s Becoming, And Why It Matters by Scott Rosenberg. It’s from the manifesto of suck.com, a site started in 1995 by Chapter One’s protagonist Justin Hall.

Hall was to his medium, the nascent internet of the late 80s and early 90s, what Barbara Mandrell was to hers: he was blogging when blogging wasn’t cool. In fact, his combo diary/link fest style of home paging in the first part of the last decade is credited in the book as the internet’s first blog.

And his Mad Magazine like manifesto is dripping with irony. But it also speaks a universal truth. Taking the easy way out is… well, the easy way out. It’s what most people will do. That’s why they call it the easy way. Attempting to profit off of someone else’s labor, whether physical or mental, has always been around, always will be.

Made me think of something Houston criminal lawyer Mark Bennett said recently:

I don’t know why, but I would have expected someone who, like Melina Benninghoff, reads this blog to have the good sense not to steal posts.

I doubt Bennett thought Benninghoff actually read his posts; after all he came up with the phrase “outsource your marketing, outsource your ethics” to describe the situation. Indeed, it turns out some jagoff was hired to help Ms. Benninghoff’s web presence, and the IP theft is explained. (I’m not saying it’s justified; but it’s not surprising either.)

Shortly after leaving my customary smartass/snarky comment to Mark’s post, I actually phoned Ms. Benninghoff’s office to ask why she wasn’t scraping my posts, but I ended up leaving a message on her assistant’s phone. (I blame Greenfield for my attempted prank; he recently reminded me how fun phone conversations can be.) Given all the blogging and twittering on the subject over the holiday weekend, I’m not holding my breath for a return phone call.

But splogs don’t really bother me. Sure, it’s theft when it happens. And the thief, duh, shouldn’t be thieving. But I don’t think lawyers who splog, or who pay others to splog for them, are getting a particularly good ROI for their efforts, whether someone calls them out on it or not.

For one thing, as Mark’s original post on the subject points out, the blog looks like crap. Not all splogs are so amatuer, but apparently it takes more effort than most internet thieves can muster to master the art of plausible deniability.

And I’ve been a “victim” of them as a well. Several times over. One time I set a trap for the splogger. No one else may have noticed it, but frankly the end result amused rather than angered me. Another time being scraped got me mentioned on overlawyered.com.

Bottom line: no one, lawyer or otherwise, will benefit from splogging. Not that I mind other folks in the practical blawgosphere calling them out on it when they do.

One Minute Law School

jamie@austindefense.com (Jamie Spencer) — Fri, 28 Aug 2009 22:40:42 -0600

Via Houston’s Clear Thinkers, make sure to watch all the way to the end if you want your graduate degree…

Arsenic Julep, Motivated Reasoning, 8 Simple Rules, and Pornography

jamie@austindefense.com (Jamie Spencer) — Wed, 26 Aug 2009 22:35:21 -0600

Via an @arsenicjulep tweet of a Newsweek article, “Why We Believe Lies, Even When We Learn The Truth”:

Some people form and cling to false beliefs about health-care reform (or Obama's citizenship) despite overwhelming evidence thanks to a mental phenomenon called motivated reasoning, says sociologist Steven Hoffman, visiting assistant professor at the University at Buffalo.

"Rather than search rationally for information that either confirms or disconfirms a particular belief," he says, "people actually seek out information that confirms what they already believe."

"For the most part," says Hoffman, "people completely ignore contrary information" and are able to "develop elaborate rationalizations based on faulty information."

The article’s author, Sharon Begley, is responding to angry emails sent to her after she analyzed popular myths about Obamacare by analogizing her detractors’ delusions to those who fell for the Saddam – 9/11 link nonsense. The basic point, of course, is that folks interpret information in a way that already fits their world view.

Said another way, in the context of his series on simple rules for jury selection, by Houston defense lawyer Mark Bennett:

Jurors decide cases based on their guts, then look for intellectual reasons to support their emotional decisions. As a result of confirmation bias (h/t Dennis Elias of Litigation Strategies for the link), they might not see, might disregard, or might discount all facts that don’t support their (gut) preconceptions.

If you want a really hard job, try to win your case beginning with the presentation of evidence. It’s not always impossible, but it’s not nearly as easy as using the evidence to confirm what they already believe.

[That’s from #8, the shrink rule; see also, the Nike, blind date, Shrek, 90/10, Bar Room, and Improv One and Two rules in the not yet completed list.]

Finally a gratuitous side note – which allows me to complete the superfecta in my title – my sister, who writes the eponymously anagrammed (or is that anagrammically eponymous?) Arsenic Julep blog, recently commented on a Roger Ebert piece responding to angry moviegovers upset that he had panned Transformers 2.

The review itself garnered over 750 comments, and his article “I’m A Proud Brainiac” about the reaction to the original is over 1000 and counting. But Ebert took the time to respond personally to her comment.

So, exactly what topic did the ultimate movie buff (she still reacts in actual, not mock, horror every time I answer “Uh, not yet” to her “Have you seen Fill-In-The-Blank-Last-Years-Oscar-Nominee?” questions) and the world’s only Pulitzer Prize winning movie reviewer discuss in this online tête-à-tête? Here’s his part of the conversation:

Pornography makes the fatal error of rushing toward and dwelling upon the least visually interesting elements of sex: The rumpy-pumpy and the "money shot."

These are the exterior manifestations of events that have their importance in what takes place in the mind. If there were seduction and foreplay...but the actors don't even kiss.

I find it unutterably depressing that people who are flailing at each other's genitals don't even like each other enough to kiss.

I Just Might Be Mary Jo Kopechne

jamie@austindefense.com (Jamie Spencer) — Wed, 26 Aug 2009 22:32:36 -0600

Everyone knows that Ted Kennedy drove his car off a bridge in 1969, abandoning a female companion who drowned.

But few realize that on that very same July 18th an infant male was born in Houston, Texas, he had a few medical complications which bounced him back and forth from hospital to foster home for the first six months of life, until he was adopted by a nice young couple in College Station where he enjoyed a happy childhood.

He now practices law in Austin, Texas. To use one of my wife’s favorite phrases, “I’m just saying…”