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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Tuesday, April 10, 2012

Libertarian Wisdom, from Sharon Keller, of All People

Normally I don't expect nuanced libertarian sensibility from Texas Court of Criminal Appeals Presiding Judge Sharon Keller, but she dissented from a denial to hear a habeas corpus petition challenging part of Texas's improper photography or visual recording statute. From reading the opinion, I bet I know how the brief was written, and, with the benefit of hindsight, I've got some advice for you about what to do if you're in applicant's counsel's position.
David L. Hudson, Jr. of the First Amendment Center at Vanderbilt University and the Newseum wrote about this dissent. He explained that Collins Nyabwa was arrested and convicted for taking photos up the skirts of women in a store. Nyabwa had applied for a pretrial writ of habeas corpus, arguing that the part of the statute he was charged under was contrary to the free speech guarantees of the First Amendment to the U.S. Constitution and article 1, section 8 of the Texas Constitution, and was overbroad and vague.
The trial court denied him; Texas's Fourteenth Court of Appeals in Houston denied him; and Texas's Court of Criminal Appeals denied him. Presiding Judge Keller, though, dissented from the denial with an opinion (Judge Laurence Meyers dissented from the denial without opinion) arguing that the law was sweepingly broad, that it could criminalize photographing or videotaping a fully-clothed person walking down a public street. If such is sexually gratifying to a person, well, those sexual thoughts may be protected by the constitutions.
When one writes a brief in a case like this, the first problem to keep the court from discounting the claim as the ordinary sophistry of the person accused of a crime. One has to write so as to close every escape hatch that could keep the court from having to consider the merits of the claim. It's very difficult. No elected official wants to be accused of having been soft on creepiness (For the record, I think Nyabwa's behavior was creepy.). Being able to deal with this kind of problem, is the bread and butter of criminal defense advocacy.
But good advocates do something extra in situations like this when needing a court to apply unpopular law, and that is to show the court that this case will likely get to a higher court, and when it does, that higher court will make the jurist or jurists look bad by overruling them. Cite to and explain how the higher court will rule. If in a trial court, make your motion look like an appellate brief. If in an intermediate appeals court, have sections of your brief look like an application to be heard in the higher appellate court. From the opinions, it looks to me like the briefs were strong on keeping from being poured out and getting considered, but not so much on showing that the higher court would absolutely be bound to rule in the applicant's favor even if the judge the applicant was in front of did not want to rule in the applicant's favor.

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