Jeopardy! Tryout Update!

So in between Jeopardy tryouts, my bachelor party in New Orleans, moving into our first house, additional wedding planning, a visit from the soon-to-be in-laws, a 3 day criminal defense lawyer's conference, etcetera, it's been a long few weeks.

Trying out for Jeopardy was a great time. I have wanted to get on the show for about 18 or 19 years now, though it's been about 5 years or so since I regularly watch the show. I had participated in the online contestant search earlier this year and heard back from them two months ago letting me know that they wanted to put me through the motions in person. Flew into Dallas, found the hotel, camped out at a Starbucks, drank way too much juice and iced tea, went back to the hotel, went to the restroom 4 times, and signed in for my appointment.

I was very surprised about the people at the tryout. Like me, they seemed normal enough. Or maybe that means I am so far down the geekhole that I can't tell the difference. There were only a few that met my stereotype for the typical contestant; one guy actual did declare that he lived in his grandmother's basement. Considering that I had expected to come in and be the most socially adept person in the room, I was a little crestfallen at this point.

We took another 50 question test, that I felt pretty good about. The scuttlebutt is that 35 or more correct (70% +) will qualify you to be on the show. I think I was somewhere between 38-40, and my studying did actually pay off to the tune of 2 questions. They next have you come up in groups of three and play a simulated mini-round. The Internet revelations about how the buzzer timing works were extremely accurate and helpful (even though I wasn't technically on the Hollywood set). There is a delay between when the question ends and the light comes on and you can ring in slightly before the light comes on and not be locked out. Still, I am not a particularly fast buzzer operator, but I'd say I got about 6 out of 15, which makes me slightly above average. The capper is the interview, which I thought went OK. I had hoped they would ask me to do my Celebrity Jeopardy Sean Connery impression, but I'm pretty sure there's one douche bag per audition who thinks they do it spot on. I was that douche bag.

After all of that, there was nothing more than the vague statement that we may be called in the next 18 months to fly to LA to be on the show. Based on my highly unsophisticated calculations (30 people per session x 3 sessions per city x 8 cities = 720 applicants), if a whole season is about 180 regular episodes and there are at least 2 new contestants per episode, I figure I have about a 1 in 2 chance of getting a call. Let you know what happens.....

MIA No More (At least beginning next week....)

I apologize to my reader (Hi Mom!) for the sounds of silence the last couple of weeks. We bought our first house last week, and I am preparing for my audition on "Jeopardy!" tomorrow and my New Orleans bachelor party this weekend. I think the audition deserves a more in-depth treatment here, but I am reviewing some weak areas (Books of the Bible, Opera, English literature, Current World Leaders) and that is taking up most of my time.

To tide you over, here's some interesting stuff I have discovered in the past few days:

- Richard Wagner, whose work was heralded by Hitler, was quite the anti-Semite. In addition to being adopted golden boy of the Nazis, he published his own anti-Jewish screeds in the middle to late 1800s. Jackass.

- Deuteronomy 25:11-12 prohibits women for coming to the aid of their husbands by attacking the other man in the crotch ("[11] When men strive together one with another, and the wife of the one draweth near for to deliver her husband out of the hand of him that smiteth him, and putteth forth her hand, and taketh him by the secrets: [12] Then thou shalt cut off her hand, thine eye shall not pity her."). Something to keep in mind, ladies.

- Joshua, after destroying the walls of Jericho, took the Israelites born during the Exodus to a place in the desert and had them all circumcised. This is place is known by the name Gibeath Haaraloth, which means "hill of foreskins".

UPDATE: Smart Start's PR Team at Work

This week I received my first lesson in the "someone's actually reading this thing" department. I posted a few weeks back about how one of my clients had been having some problems with his Ignition Interlock Device mandated as a condition of probation. I had no luck getting anyone at the company locally or at the corporate number given to me by the local offices.

Surprise, surprise, Debra Coffey left a comment and wants me to call her (and the number is one of Smart Start's exchange, so it seems legit). I will post if anything comes of this conversation.

The squeaky wheel may just get the grease, folks.

Diorama Drama

Most of the clients that I have seen charged with criminal mischief fall into three categories: jilted lovers, road ragers, and graffitists. As it turns out, it may be time to reconsider my attempts to categorize people charged with criminal mischief.

The director of the Texas Military Forces Museum here at Camp Mabry is alleged to have destroyed a diorama built by high school students in Arizona. A previous museum director commissioned the diorama from the school, but Jeff Hunt (who was dismissed from a previous job at the Nimitz Museum in Fredricksburg) decided that because the work was historically inaccurate. Former employees claim that Hunt lost his temper with the diorama and tore it down over a weekend during Fall 2007. But wait! If there was an explanation for any inaccuracies, it might be because the book that the students based the diorama on was flawed. The author of the book? Jeff Hunt.

Now the high schoolers want criminal charges filed against Hunt, alleging that the diorama was valued at over $23,000 (and took over 6,000 hours to build!). They have enlisted some heavy hitters, getting both Sen. John McCain and AZ Gov. Janet Napolitano to petition Rick Perry to file some charges. Presumably, the State would try to charge Mr. Hunt with criminal mischief (Texas Penal Code Sect. 28.03). That section reads:

(a) A person commits an offense if, without the effective consent of the owner:
(1) he intentionally or knowingly damages or destroys the tangible property of the owner;
(2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or
...
(b) Except as provided by Subsections (f) and (h), an offense under this section is:
...
(5) a felony of the third degree if the amount of the pecuniary loss is $20,000 or more but less than $100,000;

Ouch. 10 years in jail because he didn't like the diorama based on his own flawed book. Sounds like that bent Wookie could cost you, Jeff.

FLDS and the Fourth Amendment

Scott at Grits for Breakfast called criminal blawggers out for not taking a stronger stand either way on the recent events in Eldorado, Texas.

The reason I haven't posted on this, Scott, is that I'm really torn. The culture of the Mormon polygamists is so foreign to me. I've seen the 20/20 episodes, the Dateline exposes, all detailing the harrowing tales of how women are trapped at any early age, how they are physically assaulted, sexually abused, emotionally trapped, and generally imprisoned in these communities.

But, as I have slowly realized, the only response to this laundry list of terrible things that I may "know" or think about FLDS communities that really matters is: so what? The Fourth Amendment says that that the suspicion must be particularized to individuals in criminal cases, and in this case the State of Texas has nothing. The subject of the alleged call for distress has yet to be located, and there's very strong evidence that the call came from a woman in Colorado, not a 16 year old girl. Further, the man who was supposed to have sexually assaulted this girl was not even in Texas at the time she said he was, a fact that was imminently verifiable by Texas authorities (he has been in Colorado, dutifully reporting to his probation officer). Moreover, the detention of 400+ children and their forced separation from their mothers and fathers has uncovered no evidence of any sexual abuse.

It doesn't matter legally if the searches and seizures did uncover anything, because the validity of the warrant to search YFZ Ranch is based on what's referred to by lawyers as "the four corners of the warrant". Basically, it doesn't matter what the search uncovers to corroborate the suspicions of law enforcement or whatever other information was available to law enforcement; all that matters is was there probable cause to believe a crime had been or was being committed based on the information contained in information used to obtain the warrant from the magistrate.

As much as I might abhor the polygamist lifestyle, as much as I might have an unsubstantiated hunch that something's wrong there or that a crime has been committed, it don't mean jack. The true measure of a democracy is how the government treats politically and socially unpopular groups. Texas, we have failed in this regard.

UPDATE: DWI still not a "violent crime"

If you'll recall, I posted a few weeks back about MADD and Smart Start mischaracterizing DWI as a violent crime, a position which goes against the language used by every law enforcement agency and government organization in the USA. Well, the US Supreme Court released a decision today in which it held that a felony DWI did not constitute a violent crime (under the Armed Career Criminal Act). Just in case there was any question.

Texas Harrassment Law Struck Down

It doesn't happen very often in Texas, but the 2nd Court of Appeals in Fort Worth struck down Texas Penal Code Section 42.07 governing Harassment by electronic communication in deciding Karenev v. State. The defendant in that case had been convicted for sending several emails to his soon-to-be-ex-wife which the jury felt were in violation of Section 42.07(a)(7). 42.07 reads:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: ...
(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

The Fort Worth Court held that the statute was impermissible vague and offended the First Amendment, striking it down. This is because, as the Court of Criminal Appeals has told us, "vague laws offend the Federal Constitution by allowing arbitrary and discriminatory enforcement, by failing to provide fair warning, and by inhibiting the exercise of First Amendment freedoms." In other words, it's hard for a person to know what kind of conduct that a vague statute would prohibit (and ti gives law enforcement an unclear idea of what behavior they need to curtail), and therefore such a statute can not be enforced.

Much like a prior stalking law stuck down in 2006, the statute used terms from which it was difficult to discern what constituted prohibited conduct. The law did a poor job of defining what exactly "annoy, alarm, abuse, torment, embarrass, or offend" meant and who decided whether or not such conduct. Even if the statute more clearly defined the context of those terms and applied a reasonable person standard, 42.07 "employs, in the disjunctive, a series of vague terms that are themselves susceptible to uncertainties of meaning."

It's this kind of sloppy drafting that leads to laws being overturned. I would hope that someone in the legislature, especially given that many of them hold law degrees, could have seen this one coming. Instead, the legislature went ahead and passed a law that used almost the exact same language as the old Stalking law!!!! Let's stop whining so much about "activist judges" and worry a little bit more about "lazy legislators", OK?

(As a side note, this kind of stereotyping that hurts us all; not everyone from Bulgaria is an email harasser or a Quidditch-playing wizard-in-training.)

Why I practice criminal law

From Orin at The Volokh Conspiracy: what at first glance is a humorous actual patent application for a "Method and instrument for proposing marriage to an individual." Sadly, this patent application is written by an actual patent attorney in the actual form, and thus goes on and on for about 5,500 words.


Allow me to suggest an amendment: [0044a] In the more likely event that Ellie comes to her senses and realizes she is signing up for a lifetime of this sort of tedium, she should instruct the limo driver to take her to the international terminal and freedom.

Lehmberg v. Montford, or Dirty Games in Local Politics

As if shadowing every other race this year, the runoff for the Democratic nominee for Travis County District Attorney (and actual DA) has gotten considerably hotter over the last week. The race features veteran Assistant DA Rosemary Lehmberg and Mindy Montford, also a ADA in Travis County. Recently, an anonymous blogger posted that a fairly unpopular fellow around these parts, former TC Sheriff and Craddick-enabler, Terry Keel, was supporting Montford (along with Karl Rove, too.). Lehmberg's campaign seized upon the post and ran with it, hammering Montford for being a wolf in sheep's clothing. Well, as it turns out, the anonymous blogger turned out to be Kelly Fero, also a paid political consultant for Ms. Lehmberg. Oops. While this screw up could cost Lehmberg the election, Terry Keel went a step further and filed a criminal complaint against Fero last week, alleging that Fero had violated Texas election laws, as well as threatening a libel suit. Is there something to either of these claims?


Texas Election Code, Section 255.004 (a) & (b)
Section 255.004, True Source of Communication, reads:

(a) A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person enters into a contract or other agreement to print, publish, or broadcast political advertising that purports to emanate from a source other than its true source.
(b) A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person knowingly represents in a campaign communication that the communication emanates from a source other than its true source.

The implication made by Keel and his lawyer is that there was some sort of deal between Fero and Lehmberg to publish this information anonymously on Austin Political Report. I would think that the biggest hurdle for Keel's complaint to work under subsection (a) is that he's got to show that Fero's claim on a website constituted "political advertising". But if you look at the definition of political advertising under 251.001, you'll find that the Texas legislature defines it as

a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:
(A) in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or
(B) appears:
(i) in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or
(ii) on an Internet website.

Wow. That means essentially that any statement subject to an agreement between a candidate and another that supports or opposes a candidate for political office is a political ad if it appears anywhere on the Internet. Wrote a blog entry? Political ad. Commented on a message board? Political ad. Left a comment to a news story on a website? Political ad. Needless to say, this seems like an exceedingly broad definition of "political ad" which offers greater First Amendment protection to a statement made on the radio or on TV than to anything that has anything to do with the Internet. You would even have a decent argument that an email (unless the State could show that it is a "similar form of written communication") has more protection than some pissant comment on some pissant website. I could go on TV and make a statement while misrepresenting my identity (or call into a radio station or write a letter to the editor that is subsequently published) and be in the clear, but all of a sudden I post on a lightly read blog and I'm a criminal? There might be some traction for a overly narrow attack via the First Amendment here. That is, the statute unfairly penalizes those who engage in this sort of conduct via the Internet and doesn't touch people who do the same thing (or the equivalent act) via TV, radio, or a newspaper.

Suppose, however, that the statute did survive First Amendment scrutiny, then Keel will struggle to prove that the "ad" "purports to emanate from a source other than its true source". Austin Political Report is posted anonymously and makes no representations about who is posting. If you don't state your name, then your not representing anything about your identity other than you're not willing to reveal it to the reader. If Fero had said represented his blog as being written by Keel himself or Rick Perry or Walter Cronkite, then there might be some traction under 255.004. He may have played a very misleading trick on his readers, but he didn't say he was someone he wasn't.

Lehmberg would also be immune from prosecution under subsection (a). She certainly can deny the requisite intent by virtue of her ignorance of the actual source. But assuming you (or a jury) disbelieved her, the campaign attributed the remark to Austin Political Report, not someone else. Technically then, she can argue that she may have failed to completely disclose her relationship to Fero/APR, but did not misrepresent the source of the report.

TEC 255.004, subsection (b) is a different story. A campaign communication is "a written or oral communication relating to a campaign for nomination or election to public office or office of a political party or to a campaign on a measure." This much broader net catches both Fero's publication of the statement and Lehmberg's use of it for her campaign. But it also catches any statement, spoken, written, or posted on the Internet, that has anything to do with any election. I would hope that a court could be persuaded that this is an overbroad restriction on political speech, but I'm not sure the State couldn't convince the court otherwise.

But the conduct required to constitute a violation under subsection (b) is pretty vague (at least in consideration of sources posted anonymously). Basically, any statement that says that a communication is from a source different from the one to whom it is attributed. As near as I can tell, Lehmberg cited APR for the Keel news. This was the source of the news. It just so happens that APR is also owned, operated, and written by Fero, a political consultant working for Lehmberg. "True" is not defined by the statute, so it's not clear if it would be satisfied by disclosure of one's "web handle" or a more "whole truth" or absolute/total disclosure. (Sorry if it seems like I'm parsing words here, but that's what we have to do, especially when it's not entirely clear what the legislature intended.) I guess given this nation's strong connection to anonymously (think Publius and the Federalist Papers) and the protections that courts have extended in similar circumstances (Paris-site's legal victory) I'd have to come down on the side of at least allowing this to satisfy the definition of true.


Texas Election Code, Section 255.005

A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person misrepresents the person's identity or, if acting or purporting to act as an agent, misrepresents the identity of the agent's principal, in political advertising or a campaign communication.

Misrepresentation is defined by my very dusty copy of the 3rd Edition of Black's Law as "[a]n untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead." Black's isn't the end-all be-all of what the Election Code takes as the definition of misrepresentation, but the term is not defined in that code, so it's at least a good starting point. Let's take each of these definitions in turn with regard to Fero:

- Untrue statement of fact: I'm not sure, as I suggested above, that writing anonymously is necessarily "untrue". If you are clearly writing without identifying yourself, you can at least argue that you are being truthful about your anonymity.
- An incorrect or false representation: The same logic applies here. I haven't said I'm John Smith, I just haven't said who I am.
- Apprehension of condition other and different from that which exists: This definition casts a wider net and arguably picks up the whole truth notion. Specifically, the fact that Fero is not disclosing the fact that he is a paid consultant for Montford's opponent.
- A statement made to deceive or mislead: Again, a wider net means more potential trouble for Fero. He would have no defense here that he didn't know the campaign was going to use this one; the loose definition of "campaign communication" picks up any statement made relating to a campaign.

There is a difference between not naming oneself and giving oneself a false name. But this charge would just come down to how "misrepresents" is defined under the Election Code. And a pre-existing relationship between Fero and Lehmberg makes this even more difficult to sort through.


Texas Civil Practice and Remedies Code, Section 73.001

A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Mr. Keel also hinted that he was considered a civil action for libel against Fero. Basically, a person has a cause of action if another writes a defamatory statement about the person. I think it would be pretty hard for Keel to show that his reputation in Travis County/Austin is somehow impeached or otherwise damaged by Fero's statement; Keel did a good enough job of that as a legislator and a vital cog in Tom Craddick's attempts to retain the Texas Speaker's position. (He's widely vilified here in Travis County, an opinion which has been expressed many times, just in case he doesn't like my assessment either.)

I am not a civil attorney, but I know enough about the law to confidently tell you that this claim is a bunch of horseshit. I'd rely on the lawyer retained by Mr. Fero, Buck Wood, who said it best: "What's in that blog is true ... If they will just file their libel suit, let's get after it. They are afraid of a libel suit." Ah yes, truth is an absolute defense to libel, so if Fero could show that Keel made such a statement, then it's game over. We haven't heard anything more about this supposed lawsuit, and like the whole incident, this is more about trying to make Lehmberg look as bad as possible than it is about Keel recovering any damages or seeking redress for any crimes allegedly committed against him.


Ultimately, this may prove to be a distinction without a difference. Lehmberg and Fero could very well prevail in all of the above legal arguments, but this arrangement still stinks. All the backpedaling and post hoc remedies in the world can't make the stench go away. I guess we'll see what effect this had Tuesday night....


UPDATE: As I was writing this long-winded post, I stumbled on TexasKaos' take on the same subject. I can't say I disagree much. The Legislature has gone after critics on the Web and created a much more privileged spot for people on traditional mass media (maybe because they hate some of the things written about them online???).

Lawyers and Web Ads

Jamie at Austin Criminal Defense Lawyer is decrying the online ad spending of the local criminal defense bar. According to his estimates, in the Austin market alone, criminal defense attorneys are spending about $1 million per year on Google's cost-per-click AdWords program. I'm not sure that the number is quite that high, but if it's an overestimate, it's not by much.

For the lawyers who are getting in and bidding upwards of $50 for the most popular keywords and phrases, I have to think that Jamie's right. This cost is being passed on to the clients. But lots of costs get passed on to clients: rent/mortgage payments, staff salaries, etc. In a market like Austin where the fight for clients is so competitive, you have to have some way to drive potential clients to call, email, or walk in the door. Referrals are great, especially from former clients, but it takes a long while for a practitioner (however great) to develop a critical mass of new clients based solely on reputation.

So we advertise. We run ads on TV, radio, newspapers. We send out direct mail flyers and post ads in restrooms. We print up key chains, lighters, matchbooks, pens, and all manner of things just to get our names out there. We might even buy terribly misleading 1-800 numbers. All these costs are passed on to our clients. I think people understand the need to advertise. But if clients are so upset about having these costs passed on to them by the big ad buyers, then they need to do a better job of researching their attorneys better and speaking to more than one or two lawyers about their cases. (I encourage every one of our potential clients to seek at least a second (and preferably a third) opinion about their case.)

Buying keyword ads on search engines is one of the smarter ways to target your clients. You can go for huge market share and try to get as many customers as possible, but you can also be smart about your placements, carefully track your costs, and (this is the best part about Internet ads) track what ads and keywords do well and generate actual clients. You struggle to do that with TV or Yellow Pages, but I can say confidently that our website redesign and ad campaign has paid for itself 3 times over in the few months since we relaunched. We haven't had to raise our prices to cover that. Ultimately, we want to be high in organic search results, too, but that takes time and knowledge to do it yourself or a huge commitment to an SEO company. More importantly, eye tracking studies have confirmed that the first place that most users tend to look (and click) are the top ad placements and the first three organic results. You should do both, at least where it makes financial sense.

Ultimately, it's up to our clients to say how much is too much. There are several lawyers here in town that charge several times more than we do, largely because they're collecting their trial fee in every case. If 98-99% of all criminal cases in Austin are settled without a trial (that's just a number I hear thrown around a lot), then why are potential clients paying for something they don't get (or don't want or shouldn't have, etc.)? If you're looking for a lawyer, these are the kind of questions you have to ask. Don't be pulled in by a sales pitch. Do your homework.

Sidestepping Proof

Lawrence Taylor at DUI Blog touched on an interesting way that state legislators have tried to get around proving that a person was actually driving while intoxicated. Most states require that the prosecutors engage in a process called retrograde extrapolation to prove that a breath, blood, or urine test taken some time after arrest (and obviously, after driving) has the requisite bearing on BAC while the person was driving. In California, Vehicle Code Section 23152(b) makes it a:

rebutable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

This forces the defendant to prove that a sample taken 3 hours before he was observed driving is inaccurate, essentially flip-flopping the presumption of innocence. How? Well, the body could still be absorbing alcohol into the blood from the stomach and the person who blows a 0.09 at 12am could easily have been a 0.05 when pulled over at 9pm.

Under Mata v. State (46 S.W.3d 902 (Tex. Crim. App. 2001)), the State must prove that the defendant was actually intoxicated while driving, not while submitting a breath test. But it's not as if MADD isn't trying to destroy the presumption of innocence through legislation. Look for this bill to get re-submitted in the 2009 Legislative Session by another legislator who doesn't grasp one of the most vital cornerstones of our criminal justice system.